Re Connock (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 03554

RICHARD ANTHONY CONNOCK (in his capacity as executor of the estate of Dr Richard Hugh Shephard Connock)	Plaintiff
v
BARBARA FAYE CONNOCK	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATES OF HEARING:	14 – 16, 21 June 2022; 6 – 7, 9 September 2022
DATE OF JUDGMENT:	24 July 2023
CASE MAY BE CITED AS:	Re Connock (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 420

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WILLS AND ESTATES – Proprietary estoppel – Estoppel by encouragement – Where plaintiff alleges deceased and defendant shared mutual expectation regarding disposition of assets upon their passing – Held no such expectation continued to exist between the parties – Proceeding dismissed – Flocas v Carlson [2015] VSC 221.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Gunson SC with Mr L Hogan	John Keating & Associates
For the Defendant	Mr M Tehan	Hall & Wilcox

TABLE OF CONTENTS

Introduction.................................................................................................................................. 1
The Asset Expectation................................................................................................................. 3
Issues for determination............................................................................................................. 5
Dr Richard Connock.................................................................................................................... 6
Witnesses....................................................................................................................................... 9
Basil Ristevski.............................................................................................................................. 10
Principal findings of fact.......................................................................................................... 12
The 2006 wills.............................................................................................................................. 12
2008 - 2011.................................................................................................................................... 13
2012 wills...................................................................................................................................... 14
Dr Connock......................................................................................................................... 14
Mrs Connock...................................................................................................................... 16

2012 Binding Death Benefit Nomination................................................................................. 17
2014 wills...................................................................................................................................... 17
Dr Connock......................................................................................................................... 17
Mrs Connock...................................................................................................................... 20

The Buckland conversation – January 2015............................................................................ 21
Death benefit nomination – July 2015...................................................................................... 27
Dr Connock’s death.................................................................................................................... 28
The December 2017 note............................................................................................................ 28
Preparation and execution of a new will for Mrs Connock: December 2017 – January 2018 31
Probate.......................................................................................................................................... 36
Mrs Connock’s April 2018 will.................................................................................................. 36
Mrs Connock’s 2019 will............................................................................................................ 36
Question 1: Was there, as a matter of fact, an Asset Expectation as alleged by Mr Connock?.................................................................................................................................................. 36
Mr Connock’s submissions........................................................................................................ 37
Consideration.............................................................................................................................. 43
Disposition.................................................................................................................................. 59

HIS HONOUR:

Introduction

Dr Richard Hugh Shephard Connock and Faye Connock married on 17 August 2002 when they were respectively 71 and 65 years of age. For each it was their third marriage. Although they met many years earlier in about 1960, their romantic relationship commenced in about 2000.

When they married, Dr Connock had three adult children from his first marriage of 31 years: Richard Anthony Connock (who I will refer to as Mr Connock), Patricia Connock and Linda Sutton (collectively, ‘the Connock children’). Faye Connock, who I will refer to as Mrs Connock, had five children from her first marriage.[1]
[1]Mary-Anne Gurr, Belinda Gurr, Susan Sweeting, Michael Gurr (who died in 2017) and Christopher Gurr.

Dr Connock had accumulated substantial assets before his marriage to Mrs Connock. He was the sole registered proprietor of a property in Edgerton Street, Hawthorn (the Hawthorn property), the sole registered proprietor of a property in Napier Street, South Melbourne (the South Melbourne property) and the sole member of the Shephard Superannuation Fund (the superannuation fund) which he established in about 1995. He also had various bank and investment accounts. Comparatively, Mrs Connock had accumulated only modest assets: she was the registered proprietor of a unit in Wyndham Street, Drysdale (the Drysdale unit) which she purchased in 1994, and held some investment and superannuation accounts.

After their relationship commenced, on about 4 July 2000 Dr Connock used his funds to purchase five acres of vacant land at Kooroui Court, Drysdale (Kooroui Court) and became the registered sole proprietor of it. Dr Connock and Mrs Connock built a house on the land, using Dr Connock’s funds. They lived there during the course of their marriage from about 2001.

On about 3 February 2009, Dr Connock transferred the estate in fee simple of Kooroui Court from his own name to the names of himself and Mrs Connock as joint proprietors.

Dr Connock died on 26 October 2017, aged 86, at which time Mrs Connock was 81 years of age. Upon Mr Connock’s death, Mrs Connock became (and remains), by survivorship, the sole registered proprietor of Kooroui Court where she continues to live.

During their marriage, Dr Connock and Mrs Connock both executed wills (on the same dates) in 2006, 2012 and 2014. After Dr Connock’s death, Mrs Connock executed two wills in 2018 and a further will in August 2019.

By his last will made on 23 December 2014, Dr Connock appointed Mrs Connock as executor of his estate, and his son Mr Connock as alternate executor (Dr Connock’s 2014 will). Mrs Connock formally renounced her right to probate of Dr Connock’s 2014 will on 19 February 2018 and, on 9 April 2018, Mr Connock obtained a grant of probate in respect of the will.

Dr Connock’s 2014 will makes the following provisions: [2]

(a) specific cash and other bequests to Mrs Connock;
(b)specific cash bequests to Mr Connock and Dr Connock’s daughters, Linda Sutton and Patricia Connock;
(c)a specific cash bequest to one of Mrs Connock’s daughters, Belinda Gurr; and
(d)the residual estate to be divided between Mr Connock, Linda Sutton and Patricia Connock.

[2]Further provisions of Dr Connock’s 2014 will are set out in [60] below.

As at 20 October 2021, Dr Connock’s estate had a value of $4,200,322.79, being comprised principally of cash in bank accounts and a managed investment account. It was common ground that, under Dr Connock’s 2014 will, Mrs Connock is entitled to approximately $603,000 of this amount, with the remaining amount of approximately $3,600,000 going in equal proportions to the Connock children.

The Asset Expectation

The controversy in this proceeding concerns an allegation made by Mr Connock, in his capacity as executor of Dr Connock’s estate that, on and from their marriage, Dr Connock and Mrs Connock allowed, encouraged, or created the expectation in one another that the assets that they each brought to their marriage would, upon their death, pass to their respective children immediately, or upon the death of the second of them, such assets first being available solely for the use, benefit and maintenance of the survivor of them during that person’s lifetime. This is referred to as the ‘Asset Expectation’ in the Statement of Claim filed by Mr Connock and I will adopt the same approach in these reasons for judgment.

In her Defence, Mrs Connock denied the existence of the Asset Expectation. Mrs Connock pleaded that, during her marriage with Dr Connock, they did not discuss the terms of their respective wills with each other, or their intentions as to their assets following their death, whether those assets were those which they brought to their marriage, or which they accumulated during the course of their marriage.

Mrs Connock’s evidence at trial was generally consistent with this plea.[3] Senior counsel for Mr Connock submitted that Mrs Connock had a propensity to lie and that I should treat her evidence with great caution and circumspection, such that I should not accept it unless it was adverse to her interests or independently corroborated.
[3]Mrs Connock did, however, give evidence that she discussed with Dr Connock giving the Connock children the proceeds of sale of the Hawthorn property because it was ‘going to them anyway’.

Mr Connock advances a claim of proprietary estoppel on the basis of the alleged Asset Expectation. In pleading an estoppel by encouragement,[4] Mr Connock alleges that, in reliance on and induced or encouraged by the Asset Expectation, Dr Connock:
[4]A pleading of estoppel by acquiescence was not pressed at trial.

(a) made wills that gave assets to Mrs Connock;

(b) did not revoke his 2014 will before his death; and

(c) transferred Kooroui Court from his sole ownership into joint proprietorship with Mrs Connock in 2009.

Mr Connock claims that, by gifting or indicating an intention to gift to her own children assets or proceeds of assets transferred to or otherwise given to her by Dr Connock, Mrs Connock has indicated an intention to resile, or has in fact resiled, from the Asset Expectation. As a result, in his capacity as executor of Dr Connock’s estate, Mr Connock alleges that Dr Connock has suffered detriment, namely:

(a) an inability to revoke or amend his 2014 will to devise all of his assets that form part of his estate, either upon a life interest to Mrs Connock, or to his children absolutely; and

(b) an inability to sever the joint proprietorship of, or to seek the re-transfer to himself as sole proprietor of, Kooroui Court.

Mr Connock alleges that, at least from when Dr Connock and Mrs Connock married, or by no later than Dr Connock’s death, Dr Connock and Mrs Connock shared a common intention that the survivor of them would hold property received from the first of them to die for the first deceased’s children and preserve that property, save insofar as it was applied for the benefit and use solely of the survivor during his or her lifetime. Dr Connock’s belief in this arrangement was said to have been encouraged by Mrs Connock; Mr Connock’s case was that such conduct could be found by inference. Given that common intention, Mr Connock alleges that it would be unconscionable for Mrs Connock to resile from the Asset Expectation, or to effect the transfer of any part of that property, or any proceeds thereof, to her children. He alleges that, since Dr Connock’s death, Mrs Connock’s interest in the said property has been held by her on a constructive trust for the benefit only of herself and Dr Connock’s children. Alternatively, that Mrs Connock’s interest in the property is held by her subject to floating fiduciary obligations in favour of Dr Connock’s children to only use the property for her own maintenance and benefit during the course of her life and to ensure that the property is otherwise preserved during her life and returned to Dr Connock’s children equally upon her death.

As I have explained, the case advanced by Mr Connock is one of estoppel by encouragement. Mr Connock relied on the formulation of the estoppel in Flocas v Carlson[5] as requiring:
[5][2015] VSC 221 at [248], adapting and referring to Harrison v Harrison [2011] VSC 459 (Kaye J).

(a) the establishment of a representation by Mrs Connock as to a proprietary interest in the relevant property;

(b) a reasonable reliance by Dr Connock on that representation;

(c) the intention or knowledge of Mrs Connock that such reliance was made;

(d) detriment suffered by Dr Connock as a result, should Mrs Connock be permitted to depart from the representation; and

(e) it to be unjust or unconscionable for Mrs Connock to depart from the representation.

In making her 2012 will, Mrs Connock was said to have departed from the Asset Expectation, in which will Dr Connock’s pre-marital assets did not revert to his children on her death. Nevertheless, Dr Connock relied on the encouragement of the Asset Expectation by Mrs Connock by subsequently making wills after 2006, and transferring the marital home into joint proprietorship, under his mistaken belief in the Asset Expectation. The detriment suffered by Dr Connock was said to be the deprivation of opportunity to ensure that his assets were dealt with in the manner in which he actually intended.

Issues for determination

It was agreed that the following six key questions arose for determination:

Question 1:Was there, as a matter of fact, an Asset Expectation as alleged by Mr Connock?

Question 2: If there was an Asset Expectation, to which assets did it apply?
Question 3: If there was an Asset Expectation, did Dr Connock act, or refrain from acting, in reliance on it?
Question 4:If Questions 1 and 3 are answered in the affirmative, is Mrs Connock estopped, by reason of estoppel by encouragement or estoppel by acquiescence, from denying the Asset Expectation?
Question 5:If questions 1, 3 and 4 are answered in the affirmative, are the assets the subject of the Asset Expectation impressed with a constructive trust and a restriction of their use during Mrs Connock’s lifetime?
Question 6:If questions 1, 3, 4 and 5 are answered in the affirmative, what relief should be granted?

Before considering these questions, it is necessary to form a better understanding of Dr Connock’s life and personality as revealed by the evidence. I will then introduce the key witnesses who gave evidence at trial and record my findings about their credit, after which I will set out my principal findings of fact.

Dr Richard Connock

Dr Connock had been married twice before commencing a relationship with Mrs Connock in about 2000: first to Valerie Connock from 1955 until her death in 1986, and then to Jan Taylor from about the late 1980s until they divorced in the late 1990s. Valerie Connock was the mother of the Connock children. Dr Connock remained in contact with each of his children until his death.

Dr Connock was a successful and highly respected specialist anaesthetist. It was in this professional setting that he first met Mrs Connock. She had worked as a nurse for about 10 years and then managed the ‘Victorian Anaesthetic Group’ for another 10 years.

Mrs Connock retired from work in the early 1990s, and Dr Connock retired in about 1996 at 65 years of age. Dr Connock remained very active and in generally good health until the last few years of his life. However, by the last year of his life in 2017, he had become frail and experienced some difficulties in movement; he was also suffering mild early stages of dementia.

The consistent impression from the evidence is that Dr Connock was a self-possessed man who adopted a cautious disposition to his personal affairs. He was very private about his financial affairs in particular. Mr Connock described his father as being ‘very controlling’ and ‘possessive’ about his finances and ‘not forthcoming about them’. This is consistent with Mrs Connock’s evidence. Basil Ristevski, the solicitor who prepared Dr Connock’s 2014 will and the earlier wills made by Dr Connock in 2006 and 2012, gave evidence that Dr Connock was ‘very pedantic, when he read something, he read everything’. He would take his time in reviewing a will and, if he had concerns, he would ask questions. Mr Ristevski stated that:

… in all his instructions, he was incredibly organised, detailed, he was focussed, he knew what he wanted to do, how he wanted the estate to be distributed, he was well prepared … just meticulous, of all the clients I've had he's probably the most meticulous, careful, or well prepared client I've had in regard to wills.

These qualities were also evident in Dr Connock’s fastidious record keeping. A notebook of Dr Connock’s was tendered into evidence which, in addition to recipes, contact details for tradespeople, real estate agents and ‘friends and neighbours’, also included extensive details about his financial affairs in the years from the late 1990s until his death in 2017 (Dr Connock’s notebook). For example, it included the purchase details and valuations of properties owned by Dr Connock, as well as renovation, building and maintenance costs associated with those properties. It also included details relating to capital gains tax, details of various bank accounts, insurance payments, car expenses, donations and the cost of subscription services. The catalogue of expenditure recorded in the notebook extended to minor household expenses such as dry cleaning and purchases from pharmacies and newsagencies.

Mrs Connock’s evidence was that, before he died, she did not see the contents of Dr Connock’s notebook, but that he had told her that, if she ever needed anything, such as ‘particulars pertaining to the property or anything else, it’s all written down in my green notebook’.

Dr Connock’s notebook as tendered into evidence was missing some pages.[6] The evidence as to its custody after Dr Connock’s death was that, soon after he died, Mrs Connock gave it to Mr Ristevski, who later returned it to her. Mrs Connock subsequently provided it to her solicitors. Neither Mr Ristevski nor Mrs Connock recalled whether they noticed any pages missing from Dr Connock’s notebook when it was in their possession.
[6]The notebook is a hardback day-to-a-page ‘Appointment Diary’ for the year 2001. It was missing a number of pages including four pages corresponding to the pages for the dates 15-18 January and four pages corresponding to the pages for the dates 14-17 July.

In the course of his life, Dr Connock provided substantial financial and other assistance to all his children. In the late 1980s or early 1990s, he provided a personal guarantee to Mr Connock and his partner, Kathleen Ford, who were then involved together in a legal practice which failed. The guarantee, which was called upon, was for an amount of $50,000. Dr Connock later incurred legal costs, potentially in the range of $60,000-$70,000, in defending the proceeding issued by the lender. In the early 2000s, Dr Connock also provided Mr Connock with a guarantee to support a small overdraft.

As I later record, Dr Connock sold the Hawthorn property in 2012. He paid about $190,000 from the proceeds of sale to Mr Connock, and about $400,000 to Patricia Connock to enable her to purchase a house. Mr Connock had also earlier lived at the Hawthorn property for about six months without paying rent.

Dr Connock’s notebook also contains the following entry in relation to Mr Connock (referred to by his nickname ‘Bug’):

In 1992, I signed a guarantee for overdraft limit of $15,000 for Bug … On 25.12.89 – signed mortgage guarantee for Bug’s loan of $50,000 from Shane Higgs …
Bug (since 1994) = $423, 454.

Although there is no evidence as to how the proceeds from the South Melbourne property were applied after it was sold in 2010, Mr Connock’s evidence was that it was ‘always to go to … Linda’ who has an intellectual disability. It appears that, at some point, Dr Connock assisted Linda and her husband to purchase a unit in Mitcham, in which they still reside.

Witnesses

Mr Richard Connock is a statutory office holder in the State of Tasmania, who has also practiced as a solicitor and a barrister.

Mr Connock’s partner of approximately 34 years, Ms Kathleen Ford, is a solicitor who has practised for more than thirty years. She has experience in wills and estates matters and now practises as a sole practitioner.[7]
[7]Mr Connock also relied on evidence given by his sister, Patricia Connock. The evidence given by Patricia Connock was, however, of limited relevance in determining the controversies before the Court.

No challenge was made to the credit of either Mr Connock or Ms Ford. They both impressed in their efforts to give accurate and detailed evidence to the best of their ability and recollection. Subject to a number of specific matters to which I will refer in due course, I have generally accepted their evidence.

For the reasons explained in further detail in the course of these reasons for judgment, where a conflict has emerged between the evidence of Mr Connock and/or Ms Ford on the one hand, and Mrs Connock on the other, I have generally preferred the evidence of Mr Connock and Ms Ford. In many instances, Mrs Connock was shown to have a limited recollection of events. She also had a tendency to give generalised evidence about her ‘impressions' of various matters, rather than direct evidence about what she saw, heard or perceived. These limitations in Mrs Connock’s evidence reflect the fact that at trial she was aged in her mid-eighties and called upon to give evidence about conversations and events said to have occurred over the last 15 or so years. In comparison, it was also apparent that Mr Connock and Ms Ford were assisted by their professional training and experience in giving detailed and careful evidence.

The above considerations mean that I have weighed and considered Mrs Connock’s evidence with particular care. Having done that, and having had the benefit of observing Mrs Connock give evidence, I am comfortably satisfied that Mrs Connock was a witness of truth. As I examine in further detail below, the submission that she had a ‘propensity to lie’ because of inconsistencies in her communications in late 2017 and early 2018 with Mr Ristevski on the one hand and Ms Ford and Mr Connock on the other, ignores the acute nature of her predicament at that time which was characterised by profound personal distress, confusion and a dependency on Ms Ford and Mr Connock. It also ignores Mrs Connock’s inclination by temperament, confirmed in her demeanour in answering questions in the witness box, to seek to ‘make everyone happy’. Furthermore, it was never directly put to Mrs Connock in cross examination that her evidence was false or untrue.

Basil Ristevski

Each of the wills made by Dr Connock and Mrs Connock in 2006, 2012 and 2014 were executed on the same date, and prepared by a solicitor, Basil Ristevski.

Mr Ristevski has practised as a solicitor for more than 40 years. He started his own practice, Ristevski Lawyers, in Drysdale in or around 1984, where he remains as a principal of the firm which predominantly engages in estate planning and conveyancing work.

The general approach adopted by Mr Ristevski in preparing wills for Dr Connock and Mrs Connock was as follows:

(a) Dr Connock and Mrs Connock would usually come together to the offices of Ristevski Lawyers to discuss their wills. Mr Ristevski would see them separately. He would take about 30 to 40 minutes to obtain instructions, which he would record by hand on instruction sheets. Mr Ristevski would then confirm the details of the instructions, following which he would take the instruction sheets to one of his junior solicitors and ask them to prepare a draft will. He would later review the draft will and, if it was in order, arrange for each client to come in and sign their will.

(b) When arranging for the execution of the wills, Dr Connock and Mrs Connock would attend the offices of Ristevski Lawyers together, and they would each be provided with their draft wills to be read while waiting in the foyer. After each had read their will, they would see Mr Ristevski separately. During that consultation, Mr Ristevski would discuss the contents of the will with them to confirm it accorded with their instructions and, if any changes were required, they would then be made. The will would then be executed.

(c) Mr Ristevski did not discuss the terms of Dr Connock’s wills with Mrs Connock, and vice versa.

It was submitted on behalf of Mr Connock that the Court should treat Mr Ristevski’s evidence with great caution. Mr Ristevski was said to be partisan in light of evidence he gave that he was trying to assist Mrs Connock in the conduct of her case. He did this by providing prior wills and notes of instructions and related matters to Mrs Connock’s solicitors in the proceeding, without obtaining the consent of the person whose privilege it was (Mr Connock in his capacity as executor of Dr Connock’s estate). It was submitted that Mr Ristevski went out of his way to assist Mrs Connock and, in doing so, breached his obligations towards Dr Connock’s estate, while at the same time actively seeking to not assist the estate in the conduct of the litigation by refusing to provide documents. More generally, it was submitted that Mr Ristevski was often evasive and non-responsive in his evidence.

I am satisfied that Mr Ristevski has closely aligned himself with and been an advocate for Mrs Connock in this litigation and in the circumstances immediately preceding its commencement. However, in recognising that Mr Ristevski has adopted a partisan position in the disputation which emerged between Mr Connock and Mrs Connock, I do not wish to imply that his evidence to the Court was anything other than truthful.

As will become apparent, these reservations about Mr Ristevski’s disposition in the proceeding are, however, of limited moment as they do not arise in any substantial way in relation to the central controversies to which his evidence relates: the making of wills by Dr Connock and Mrs Connock in 2006, 2012 and 2014. The making of these wills occurred before there was any inkling of the later controversies in relation to which Mr Ristevski may fairly be said to have had a partisan role. And, critically, his evidence about the making of the 2012 and 2014 wills was based upon reasonably detailed contemporaneous notes which he prepared in relation to the consultations which led to each of those wills being made.[8]
[8]Mr Ristevski’s notes relating to the instructions given by Dr Connock and Mrs Connock for their wills made in 2006 were not in evidence. His office’s practice at the time was to destroy such records after six or seven years.

Principal findings of fact
The 2006 wills

On 29 June 2006, Dr Connock and Mrs Connock each executed wills which had been prepared by Mr Ristevski.

As is presently relevant, by his will executed on 29 June 2006 (Dr Connock’s 2006 will), Dr Connock:

(a)appointed Mrs Connock as his executor and Mr Connock as his alternate executor;
(b)bequeathed the proceeds of the superannuation fund to Mrs Connock;
(c)bequeathed the proceeds of an ING flexible retirement pension fund to Mrs Connock;
(d)devised the Hawthorn property to Mr Connock and Patricia Connock as tenants in common in equal shares;
(e)devised the South Melbourne property to his daughter, Linda Sutton; and
(f)devised Kooroui Court and its contents to Mrs Connock.

Mrs Connock’s will executed on 29 June 2006 (Mrs Connock’s 2006 will) included a gift of the Drysdale unit to two of her grandsons as tenants in common, a gift of any motor vehicles she owned to her daughter, Belinda Grozdanovic,[9] and provided for her residuary estate to also pass to Belinda Grozdanovic.
[9]Who is referred to in Mrs Connock’s later wills as ‘Belinda Gurr’.

Significantly, Mrs Connock’s 2006 will included clause 3(c) which was said to embody the alleged Asset Expectation and which provided as follows:

In the event that my said husband predeceases me my property situate at and known as Kooroui Court, Drysdale 3222 in the said State and contents thereof together with any assets bequeathed to me by my late husband to my late husband’s children namely RICHARD ANTHONY CONNOCK, PATRICIA CONNOCK and LINDA SUTTON as shall survive me and provided always that they are not under any legal disability and if more than one as tenants in common in equal shares such share or shares to be held in trust under terms stipulated in schedule A where the said beneficiaries shall be the trustee thereof and the primary beneficiaries of such trust.

2008 - 2011

On about 23 August 2008, Dr Connock signed a handwritten note addressed ‘to whom it may concern’ which stated:

In addition to the components mentioned in my will, I would like my wife, B. Faye Connock, to have all my Westpac bank accounts, to have & to manage as she thinks fit.[10]

[10]The note was found by Mrs Connock when cleaning out Dr Connock’s study after he died.

Dr Connock transferred Kooroui Court from his own name into joint names with Mrs Connock on 3 February 2009. Dr Connock consulted with Mr Ristevski about this and Mr Ristevski effected the transfer. Mr Ristevski gave evidence that Dr Connock had made an appointment with him during which he said ‘I’d like to transfer my property to both my name and Faye’s name’. Mr Ristevski discussed with Dr Connock his options for effecting the transfer, either into a joint proprietorship or as tenants in common. Dr Connock was ‘adamant and specific that it be a joint proprietorship’.

In about March 2010, Dr Connock sold his property in South Melbourne and in November 2011 he sold the Hawthorn property.[11] As I have noted, from the proceeds of sale of the Hawthorn property, he paid about $190,000 to Mr Connock, and about $400,000 to Patricia Connock to enable her to purchase a house.
[11]With settlement of the Hawthorn property occurring in February 2012.

2012 wills

On 3 May 2012, Dr Connock and Mrs Connock attended Mr Ristevski’s office to provide instructions for the making of new wills. Consistent with his usual practice, Mr Ristevski consulted with them separately.

Dr Connock

In his consultation with Mr Ristevski, Dr Connock said that he wanted to make some changes to his will. He said that he still wanted a testamentary trust because it provided protection for all his children, especially Linda Sutton. He said that it would be good if a testamentary trust was also established for the benefit of Mr Connock because of his earlier financial problems with which he had assisted. Dr Connock told Mr Ristevski that he had provided substantial financial help to Mr Connock some years ago when he had financial problems.

Dr Connock told Mr Ristevski that he wanted to appoint Mrs Connock and Mr Connock as joint executors of his estate. He provided Mr Ristevski with the following instructions and explanations for the distribution of his estate:

(a) He wanted to make sure that Mrs Connock received the benefit of the superannuation fund. Mr Ristevski noted that Dr Connock had already made a binding death benefit nomination[12] and advised Dr Connock that it would be sufficient. However, Dr Connock was adamant that he wanted it to be included in his will. He wanted there to be no doubt that the superannuation fund would go to his wife; he wanted to make sure she was ‘looked after’. Dr Connock said that he felt that he had already provided a lot to his children over the years, ‘especially for Richard’.
[12]The evidence does not make clear the specific binding death benefit nomination to which Mr Ristevski referred. The only binding death benefit nomination forms executed by Dr Connock which were in evidence are those dated 5 June 2012 and 31 July 2015 referred to in [59] and [83] below.

(b) He wanted to leave Mrs Connock a specific bequest of all the term deposits he had with Westpac, NAB, ANZ and ING Bank (Aust). More generally, he wanted to leave all of his bank accounts with NAB, CBA, ANZ, Bendigo Bank and ING Bank (Aust) to Mrs Connock.

(c) He wanted to leave to leave a particular identified bank account with Westpac to the Connock children as tenants in common.

(d) He wanted to leave $50,000.00 to his stepdaughter, Belinda Gurr.

(e) He wanted to leave any motor vehicles to Mrs Connock.

(f) The residue of his estate was to be divided into three equal parts and into three separate testamentary trusts, with each of his children to be the trustee of their own trust, except for Linda Sutton, in relation to whom Mr Connock would be the trustee.

After Mr Ristevski confirmed these instructions, Dr Connock re-stated that his main priority was to ’make sure his wife Faye was looked after’. He said that he had ‘looked after his kids in the past’ and ‘given them a lot of money’.

In his consultation with Mr Ristevski, Dr Connock did not make any mention or suggestion that, upon Mrs Connock’s death, the assets he identified that he wished to gift to her were to go back to the Connock children.

On 30 May 2012, Dr Connock executed a will prepared by Mr Ristevski which, consistent with the above instructions, made the following provisions (Dr Connock’s 2012 will):

(a) appointed Mrs Connock and Mr Connock as executors;
(b) bequeathed to Mrs Connock:
… the assets of the Shephard Superannuation Fund, all of my term deposits held with Westpac Bank, National Australia Bank, ANZ Bank and ING Bank (Australia); and all of my bank accounts held with the National Australia Bank, Commonwealth Bank, ANZ Bank, Bendigo Bank and ING Bank (Australia);

(c)bequeathed to Mr Connock, Patricia Connock and Linda Sutton as tenants in common the sum contained in two identified accounts held with Westpac;
(d)made a gift of $50,000 to his stepdaughter, Belinda Gurr;
(e)gifted his motor vehicle to Mrs Connock; and
(f)provided for the residuary estate to be divided between Mr Connock, Linda Sutton and Patricia Connock in equal shares.

Mrs Connock

In her consultation with Mr Ristevski on 3 May 2012, Mrs Connock provided the following instructions for a new will:

(a) she said that she wished to make specific bequests of $10,000 each to two of her identified grandsons;

(b) she wanted to give a life interest in the Drysdale unit to Dr Connock. Mrs Connock said that, if she died and Dr Connock found Kooroui Court too large to manage, she wanted him to be able to use the Drysdale unit instead;

(c) she wanted to give her daughter Belinda Gurr any cars or motor vehicles; and

(d) she wanted her residuary estate to be divided between her daughter Belinda Gurr and two identified grandsons.

In her meeting with Mr Ristevski, Mrs Connock did not say anything about assets which Dr Connock might leave to her if he pre-deceased her, nor anything about assets which Dr Connock had brought to their marriage.

On 30 May 2012, Mrs Connock executed a will prepared by Mr Ristevski which, consistent with the above instructions, included the following provisions (Mrs Connock’s 2012 will):

(a) gifts of $10,000 to two of her grandsons;
(b) the provision of a life interest in the Drysdale unit to Dr Connock;
(c)the gift of any motor vehicle she may have owned to her daughter Belinda Gurr; and
(d)the provision of a residuary estate to her daughter Belinda Gurr.

2012 Binding Death Benefit Nomination

On 5 June 2012, Dr Connock attended Mr Ristevski’s office and asked him to arrange to witness him executing a binding death benefit nomination form which he had prepared. Dr Connock executed a binding death benefit nomination form that day which identified Mrs Connock as his nominated beneficiary for the whole of the benefit provided for by the superannuation fund (the 2012 BDBN). In the event that Mrs Connock predeceased him, he nominated his stepdaughter Belinda Gurr as the recipient of 70% of the benefit, with 30% of the benefit to go to his daughter Linda Sutton.

2014 wills

On 15 December 2014, Dr Connock and Mrs Connock attended Mr Ristevski’s office to give instructions for the making of new wills. Consistent with his usual practice and what occurred on previous occasions, Mr Ristevski consulted with them separately.

Dr Connock

Dr Connock told Mr Ristevski that he wanted to update his will. He said that he wanted to appoint Mrs Connock as the executrix of his estate because he felt she was capable of handling the estate herself and that she could contact Mr Connock if she needed assistance. He wanted to appoint Mr Connock as a substitute executor in the event that Mrs Connock was unable or unwilling to act.

Dr Connock told Mr Ristevski that it was important to him to make sure that Mrs Connock was provided for and looked after, and that he wanted to confirm and clarify that that would occur under his will. He said that over the years he had looked after his children, that they were adequately provided for, and that what he was leaving them in his residuary estate was quite substantial. He said that he thought that his children should ‘stand up on their own two feet’.

Dr Connock gave Mr Ristevski the following instructions:

(a) He wanted the superannuation fund to go to Mrs Connock. Mr Ristevski advised Dr Connock that, to effect this, it was important that Dr Connock execute a binding death nomination because the superannuation fund was not an asset of the estate and that it could not be left under his will. Despite this advice, Dr Connock was adamant that that there be something included in the will to make sure that the superannuation fund would go to Mrs Connock. Mr Ristevski said he would draft something to confirm this.

(b) He wanted to leave Mrs Connock the following: all term deposits that he held with Westpac, NAB, ANZ and ING Bank (Australia); all other bank accounts with NAB, ANZ, Bendigo Bank and ING Bank (Australia); and an identified bank account with Westpac.

(c) He wanted to leave his three children with a specific identified Westpac bank account.

(d) He wanted to make a specific bequest of $10,000 to his stepdaughter Belinda Gurr.

(e) He wanted to make a specific bequest to Mrs Connock of any motor vehicle he owned.

(f) He wanted to leave the residue of his estate in testamentary trusts in three equal parts as between each of the Connock children.

In his meeting with Mr Ristevski, Dr Connock did not say that he wanted to impose any conditions on Mrs Connock’s treatment of assets which he wished to leave her under the will. Neither was there any mention by Dr Connock of ‘Connock money or assets going back to Connock children’ after her death.

Dr Connock attended Mr Ristevski’s office on 23 December 2014 to execute a will which Mr Ristevski had prepared. Dr Connock read the will and Mr Ristevski confirmed its contents with him. Mr Ristevski commented that it was essentially the same as Dr Connock’s 2012 will, except that Mrs Connock would also receive a specific Westpac bank account in addition to the identified term deposits. Dr Connock said he was happy with this. Mr Ristevski also noted that, under the will, his stepdaughter would receive $10,000 instead of $50,000. Dr Connock agreed to that change.

Dr Connock asked Mr Ristevski about the superannuation fund and Kooroui Court and said that he wanted to make sure that Mrs Connock would end up with the assets gifted to her under the will, including the superannuation fund. Mr Ristevski said again that the superannuation fund was ‘outside’ the will, but that it had been included in the will to make ‘extra sure’ that it would go to Mrs Connock and to no one else. Mr Ristevski also confirmed that, because Kooroui Court was in their joint names, it would automatically go to Mrs Connock by operation of law. Dr Connock said he was happy with this because he wanted to make it easier for Mrs Connock and to make sure that she got their home and the superannuation fund. Mr Ristevski assured Dr Connock that that would be the case. Dr Connock said that his children had been well and truly looked after and that what he left them in the will was plenty. Dr Connock confirmed he was happy with the will and then executed it.

Consistent with his instructions, Dr Connock’s 2014 will, being his final will which he executed on 23 December 2014, included the following provisions:

(a)the appointment of Mrs Connock as sole executor, and Mr Connock as alternate executor;

(b) clause 3 which contained the following bequests:
(i)To my said wife BARBARA FAYE CONNOCK the assets of the Shephard Superannuation Fund, all proceeds from my term deposits held with Westpac Bank, National Australia Bank, ANZ Bank and ING Bank (Australia), all proceeds of my bank accounts held with the National Australia Bank, ANZ Bank, Bendigo Bank, ING Bank (Australia) and all proceeds of my bank account with Westpac Bank with BSB Number 033 275 account number 258 191 if she survives me;
(ii)To my children namely RICHARD ANTHONY CONNOCK, PATRICIA CONNOCK and LINDA SUTTON the total sum of my Westpac Bank accounts, namely account with BSB Number. 033 009 account number 270 323 and account with BSB number 033 226 account number 363 606, as survive me and if more than one as tenants in common and section 45 of the Wills Act as amended shall not apply;
(iii)To my stepdaughter BELINDA FAYE GURR the sum of ten thousand dollars ($10,000) if she survives me;
(iv)To my said wife BARBARA FAYE CONNOCK any motor vehicle I may own at the time of my death for her own use absolutely if she survives me.

(c)the division of his residuary estate between Mr Connock, Patricia Connock and Linda Sutton in equal shares.

There is no evidence that Dr Connock was suffering from physical or mental illness when he made his 2014 will.

Mrs Connock

In her consultation with Mr Ristevski on 15 December 2014, Mrs Connock provided the following instructions for a new will:

(a) That there were to be specific bequests of $10,000 to two identified grandsons and any car to her daughter Belinda Gurr;

(b) That Dr Connock was to have a life interest in the Drysdale unit as provided for under Mrs Connock’s 2012 will; Mrs Connock said that she would like to leave that property to him in the event that he wanted to ‘downsize’ from Kooroui Court;

(c) The residue was to be divided equally as between her daughters Susan Sweeting and Belinda Gurr, her niece Victoria Smith and her stepdaughter Patricia Connock.

During her consultation with Mr Ristevski, Mrs Connock did not say anything about assets she might be left by Dr Connock if he pre-deceased her.

On 23 December 2014, Mrs Connock executed a will prepared by Mr Ristevski which, consistent with the above instructions, included the following provisions (Mrs Connock’s 2014 will):

(a)       gifts of $10,000 each to two of her grandsons;
(b)      a life interest in the Drysdale unit to Dr Connock;
(c)       a gift of her motor vehicle to her daughter Belinda Gurr; and
(d)the division of her residuary estate in four equal shares between her daughter Susan Sweeting, her daughter Belinda Gurr, her niece Victoria Smith and her stepdaughter Patricia Connock.

The Buckland conversation – January 2015

Between about 9 and 12 January 2015, Dr Connock and Mrs Connock stayed with Mr Connock and Ms Ford at their home in Buckland in Tasmania. One of the two express matters[13] relied upon by Mr Connock in his pleading of the Asset Expectation are statements he alleges Dr Connock made to him about his will in the presence of Mrs Connock during their visit to Buckland (the Buckland conversation). He pleads that Dr Connock stated to him, in Mrs Connock’s presence, words to the effect that:
[13]The other being the December 2017 note referred to in [86] – [92] below.

(a) he and Mrs Connock had recently made new wills;

(b) he ‘wanted to get things right’;

(c) Mr Connock was the sole executor for both wills;

(d) on his death, Mrs Connock was to receive:

(i) Kooroui Court;

(ii) the amount of Dr Connock’s superannuation benefit from the superannuation fund; and

(iii) cash and amounts with certain bank accounts formerly in the name of Dr Connock,

but on her death the Connock children would receive equally such of the above property as Mrs Connock held on her death; and

(e) the Connock children would receive the residue of his estate, equally.

Mr Connock also alleges that, in the course of this conversation, Mrs Connock indicated her assent or acquiescence by nodding and smiling towards Mr Connock.

Mr Connock’s evidence at trial was consistent with the above pleading. His evidence in chief was that on one of the days during Dr Connock and Mrs Connock’s visit to Buckland:

… the three of us were in the kitchen, Kathleen wasn't there, I don't know where she was, probably in the garden, and dad said he wanted to talk to me about something confidentially and he told me that he and Faye had recently made new wills and he wanted to put things right, and [Faye] had made a comment, not because he's just turning 85, and he told me about what arrangements they he had made with those wills.
What did he tell you what those arrangements were? ‑ ‑ ‑ Well, he said that his estate consisted of two managed funds and cash in bank, and the Kooroui Court property. And what he was doing would be leaving one of those managed funds to us, his three children, together with some of the bank accounts and that would give us each an amount of $900,000. He said he was leaving the other managed fund to Faye and the house to Faye and the remaining bank accounts to Faye, but only for her life and that on her death those were revert to the three of us.
Did he tell you anything about who the executor? ‑ ‑ ‑ That's right, he told me that I was the executor for both of those estates which I was a bit chuffed about actually. I was pleased that they [had] the trust in me to do that and I think I actually shook his hand.
During this conversation do you recall where in the kitchen you were? ‑ ‑ ‑ I was at the kitchen bench, which was say on this side of the kitchen and there is a table in the middle and then there is a dresser on the other side. Dad was seated on the dresser side of the table in the kitchen across from me. He was seated and Faye was standing behind him.
Was she doing anything while she was standing? ‑ ‑ ‑ While dad was talking she was nodding at me and smiling and indicating that she was agreeing with what dad was saying, she herself didn’t say anything.
Are you able to describe how physically close? ‑ ‑ ‑ They were close, her hand was on his shoulder.

Mr Connock’s evidence was that he relayed this conversation to Ms Ford almost immediately after it occurred when he next saw her. This was corroborated by Ms Ford who gave evidence that Mr Connock:

…told me that he'd had a discussion with [Dr Connock] and Faye that afternoon, um, that he was most chuffed about this, that his father had told him he was his executor, Richard was really taken with his father having done that, he said he was also Faye's executor. He said that his father told him that he was leaving bequests to his children, and that would work out to be about $900,000 each, which I think is what he did, and that he was leaving his superannuation fund and an invest ‑ a superannuation fund and the house and some moneys to Faye but they're all coming to the three Connock children on Faye's death.

In her evidence in chief, Mrs Connock could not recall being party to any conversation during the visit to Buckland in which Dr Connock discussed his will with Mr Connock. She specifically did not recall any conversation in which Dr Connock said anything to the effect that certain assets would be left to her, but that upon her death, she would give them to the Connock children. If such a conversation had occurred, she would have ‘queried’ her husband. As to the proposition that she smiled and nodded in a conversation between Mr Connock and Dr Connock, she said that these were mannerisms which she often expressed, and that she would be very happy to see them enjoying themselves.

In cross-examination, Mrs Connock was asked about evidence she gave in a proceeding in this Court in which she had sought Mr Connock’s removal as executor of Dr Connock’s estate (the removal proceeding).[14] Mrs Connock confirmed that she gave true evidence in that proceeding that, during the visit to Buckland in January 2015, there was a conversation about the wills she and Dr Connock had recently made, during which Dr Connock indicated that Mr Connock was to be the executor of his will. In light of this evidence, she conceded in cross-examination in this proceeding that there must have been a discussion about her and Dr Connock's wills during their visit to Buckland.
[14]On 8 November 2019, Mrs Connock commenced a proceeding in this Court under the Administration and Probate Act 1958 seeking orders for Mr Connock to be removed as executor of Dr Connock’s estate, on the basis that there was a conflict of interest between his duties as executor and his personal financial interests as both a plaintiff in this proceeding and as a beneficiary of the estate. Mrs Connock was unsuccessful in her application. The Court found that, although there was a conflict of interest between Mr Connock’s duties as executor and his personal interests in the outcome of this proceeding, the circumstances of the case did not warrant the Court exercising its discretion to remove him as executor: Re Connock [2021] VSC 64.

Although counsel for Mrs Connock accepted that the evidence supported a finding that, during the visit to Buckland, there was a conversation between Mr Connock and Dr Connock in which Dr Connock referred to his will and said that he, Mr Connock, would be the executor of the will, it was submitted that Mr Connock’s account of the conversation should be rejected for four reasons.

(a) First, Mr Connock’s evidence was that Dr Connock said, inter alia, that ‘he and [Mrs Connock] had recently made new wills and he wanted to put things right’. It was submitted that the reference to ‘put things right’ was odd. It was suggestive of a new arrangement, rather than of any long-standing arrangement. It was unclear why there would there be a need to put anything right, in circumstances where Dr Connock’s 2014 will and 2012 will were broadly similar.

(b) Secondly, it was unusual that Dr Connock – on Mr Connock’s account – would be so significantly mistaken about the effect of his 2014 will. He was a careful and intelligent man capable of understanding the terms of his 2014 will.

(c) Thirdly, Mr Connock’s account of the conversation should be doubted in light of the following matters. Mr Connock’s evidence was that during the conversation, Mrs Connock said words to the effect ‘not just because he’s turning 85’. Dr Connock’s birthday was on 22 January; the conversation therefore occurred shortly beforehand. However, Dr Connock’s death certificate recorded that he was born in 1931, and so in 2015 he was only 83, about to turn 84. Mrs Connock was not cross-examined as to her knowledge of Dr Connock’s birthday, and it was not suggested that she was mistaken.

(d) Fourthly, two later documents which refer to the Buckland conversation are inconsistent with it occurring as Mr Connock alleges.

(i) The December 2017 note written by Mr Connock[15] (and on which Mr Connock places substantial reliance in his case) includes the following sentences (emphasis added by counsel for Mrs Connock):
[15]See [89] below.

Faye also confirmed that she had thought that RA was trustee of RHS Estate, and executor, as that had been RHS’ wish, as expressed during the discussion between RHS, Faye and RAC at Buckland in January 2015, and that Linda’s interests had been taken care of. Neither happened.

It was said to be significant that the reference in this note to the Buckland conversation was made only in conjunction with a comment about who would be the executor of Dr Connock's will. There is nothing in the note suggesting that the idea of ‘Connock money going to Connock children’ was part of the conversation.

(ii) Reliance was also placed on an email which Ms Ford sent to Mr Ristevski on 22 December 2017 about the executors of Dr Connock’s estate which included a reference to the alleged Buckland conversation. In the email, Ms Ford mistakenly referred to Patricia Connock being part of the conversation and that during the conversation Dr Connock said that ‘his son Richard was an executor of his will along with Faye’. Because Ms Ford was not present for the Buckland conversation, her account of it in her email to Mr Ristevski could only have been based on what Mr Connock had told her. The email suggests that, in the Buckland conversation, Dr Connock said that Mr Connock and Mrs Connock would each be executors of his Will. This was inconsistent with Mr Connock’s evidence that he understood his father to be saying that he would be the primary executor; this inconsistency was said to render Mr Connock’s account of the conversation less reliable.

I am unpersuaded by these criticisms of Mr Connock’s evidence. The complaint based on the expression ‘put things right’ attributed to Dr Connock by Mr Connock is essentially based on speculation as to what might have been in Dr Connock’s mind and the aptness of his expression. The complaint that Mr Connock invented Mrs Connock’s use of the expression ‘not just because he’s turning 85’ to lend authenticity to his story falls away in light of Mr Connock’s evidence, which I accept, that he was uncertain about his father’s precise birth date, apparently because of conflicting things Dr Connock had said in the course of his life about his age and date of birth.

The claim that Mr Connock’s evidence about the Buckland conversation is inconsistent with a note made by him in December 2017[16] is based on an artificial and inaccurate characterisation of that note. In substance, the note records certain things that Mrs Connock said to Mr Connock. Once that is acknowledged, it is not particularly surprising that it does not refer to statements made by Dr Connock in the Buckland conversation in relation to whether ‘the Connock money would go back to the Connock children’. It would be an error to treat the December 2017 note as a comprehensive record of all relevant statements against which the veracity of Mr Connock’s account of the Buckland conversation is to be tested. Similarly, the fact that Ms Ford’s email to Mr Ristevski dated 22 December 2017 contained inaccuracies about the Buckland conversation does not necessarily render Mr Connock’s account of the conversation less reliable; those inaccuracies can more readily and obviously be attributed to Ms Ford’s flawed assimilation of information in what was a busy and demanding time in relation to Dr Connock’s estate so soon after his death.
[16]Referred to as ‘the December 2017 note’ considered in [86] – [92] below.

At first glance, there is force in the complaint that it was unusual that Dr Connock, on Mr Connock’s account, would be so significantly mistaken about the effect of his 2014 will by, in substance stating that, upon Mrs Connock’s death, ‘Connock money would go to Connock children’ as pleaded in [72(d)] above. I agree that it is surprising that Dr Connock would make such a statement because it is inconsistent with the terms of the will he had just recently made, particularly in light of the fact that he was a careful and intelligent man who was capable of understanding his will. However, the relative significance of this peculiarity diminishes when it is remembered, as is common ground between the parties, that Dr Connock also wrongly stated that Mr Connock was to be the executor of his will. Why he said this is a mystery. But the fact that Dr Connock made this claim, contrary to the terms of the will he had just recently made, tends to diminish any significance which might otherwise attach to him making another claim – that ‘Connock money would go to Connock children’ after Mrs Connock’s death – which was also inconsistent with the terms of his will. For whatever reason – perhaps forgetfulness or a desire to please Mr Connock – Dr Connock made statements about his testamentary intentions in the Buckland conversation which were not reflected in the terms of his 2014 will.

For the above reasons, I consider the criticisms of Mr Connock’s evidence to be weak. Mr Connock’s evidence about the Buckland conversation was detailed, credible and persuasive. He was unmoved from his evidence in cross-examination and his evidence was corroborated by Ms Ford. In comparison, the course of Mrs Connock’s evidence on this topic demonstrated the limitations of her memory about events which occurred some years ago.

I accordingly find that the substance of the Buckland conversation was as described by Mr Connock in his evidence set out in [73] above.

Death benefit nomination – July 2015

On 31 July 2015, Dr Connock attended Mr Ristevski’s office with a binding death benefit nomination of beneficiary form which Dr Connock had prepared. Dr Connock signed the form that day before Mr Ristevski and Mr Ristevski’s son (who worked in his practice) (the 2015 BDBN). The 2015 BDBN identified Mrs Connock as his nominated beneficiary for all of the benefit under the superannuation fund and, in the event that Mrs Connock predeceased him, identified his daughter Linda Sutton as the beneficiary entitled to 70% of the benefit of the superannuation fund, and his stepdaughter Susan Sweeting as being entitled to 30% of the benefit.

Dr Connock’s death

Dr Connock died on 26 October 2017.

On about 1 November 2017, Mrs Connock contacted Mr Ristevski to tell him of Dr Connock’s death and to ask about what was involved in dealing with his estate. Mr Ristevski told Mrs Connock she was the executor of Dr Connock’s estate and briefly mentioned some key provisions of his will. Soon after, Mr Ristevski spoke to Mr Connock to express his condolences and to obtain Mr Connock’s email address to provide him with a copy of the 2014 will, which he then did.

The December 2017 note

The second express basis asserted by Mr Connock for the Asset Expectation are statements said to have been made by Mrs Connock after Dr Connock’s death in November and December 2017 to the effect that ‘the Connock assets were always to go back to the Connock children’.

The principal matter relied upon are statements said to have been made by Mrs Connock to Mr Connock during a visit by Mr Connock to Kooroui Court to assist Mrs Connock with cleaning up and attending to Dr Connock’s belongings between about 10 and 12 December 2017.

According to Mr Connock, at the end of the day on 12 December 2017, after having spent the day going though Dr Connock’s study, he and Mrs Connock were talking in the kitchen about Dr Connock’s estate, including about how the provision made by Dr Connock’s will was not as they expected it to be. It was in this context that, according to Mr Connock, Mrs Connock coined the phrase ‘Connock money’, saying that ‘Connock money was always to go back to the Connock children'. Mrs Connock also told Mr Connock that she was not happy with the contents of her 2014 will and gave him a copy of it. Mr Connock was surprised by its contents as it did not reflect what was discussed in the Buckland conversation. His evidence was that they then spoke about how the situation might be rectified, including by engaging a solicitor for advice. To that end, Mr Connock thought that it would be useful to prepare a note of their conversation. Mr Connock’s evidence was that Mrs Connock agreed and he then wrote a note by hand. As he did so, his evidence was that Mrs Connock was ‘up around and looking over my shoulder and watching what I was writing and we were discussing the contents as I was writing’. Mrs Connock was ‘reading as I was writing it and I was reading out some of the wording and checking it with her as I was going if that was accurate and she was confirming it was’. As soon as Mr Connock finished writing the note, both he and Mrs Connock signed it.

The text of the note written by Mr Connock, which is difficult to read, was as follows (the December 2017 note):

Richard A and Faye discussed Richard H S’s estate while RA helping Faye to clean out RHS’s study. Faye confirmed, as she had done previously, that it had always been intended that “the Connock money would go back to the Connocks” on her death - meaning the super account currently in the name of Faye and RHS and the proceeds of any sale of 17 Kooroui Ct would be divided between the three Connock Children: Linda, Richard and Patricia. This is what she thought her and RHS’s wills would ensure.
Faye also confirmed that she had thought that RA was trustee of RHS estate, and executor, as that had been RHS’ wish, as expressed during the discussion between RHS, Faye and RAC at Buckland in January 2015 and that Linda’s interests had been taken care of. Neither happened.
Faye confirmed that RA is her executor now that RHS has died, and that having reviewed her current will, is unhappy & wishes to change it. It does not reflect her wishes or intent, which are to give effect to what RHS had intended in relation to the Connock money and to alter some of the bequests her will currently contains.
That will gives RHS a life interest in her Wyndham Street property and the residual estate is divided four ways - between two of Faye’s children her niece and Patricia. This is in no way what was intended.

Mrs Connock agreed that Mr Connock wrote the December 2017 note in the kitchen at Kooroui Court and that she signed it. However, her evidence was that she did not read it before doing so. According to her, Mr Connock said, 'Well look, this is the conversation, that's what happened. I've signed it, now you sign it'. She then signed it because ‘if he said sign it, I would’. She also disputed Mr Connock’s evidence that she was standing beside him when he wrote the note; she stated that she was going back and forth from where he was writing the note to the kitchen, clearing things away after dinner.

Mrs Connock had no recollection of the conversation with Mr Connock which is recorded in the December 2017 note. She had no idea about how the phrase ‘Connock money’ came into use, and did not recall saying to Mr Connock that it had always been intended that ‘Connock money would go back to Connocks on her death’.

Subject to my later findings about the circumstances in which the December 2017 note was created,[17] I generally accept Mr Connock’s evidence about his conversation with Mrs Connock on or about 12 December 2017, including that Mrs Connock said to him words to the effect that, after her death, ‘Connock money was always to go back to the Connocks’. Mrs Connock agreed that she and Mr Connock discussed Dr Connock’s estate after a day spent clearing out his study at Kooroui Court. However, although she remembered Mr Connock writing the December 2017 note and then signing it, she had no independent recollection of their conversation; her evidence about it was wholly dependent on her reading of the December 2017 note. In comparison, Mr Connock gave detailed and credible evidence about their conversation. Mr Connock’s evidence is also consistent with Ms Ford’s evidence, which I accept, that on 17 December 2017, only five days after her conversation at Kooroui Court with Mr Connock, Mrs Connock told Ms Ford in a telephone conversation that she wanted a clause in her new will to the effect that, ‘what she called the ‘Connock money’ came back to the Connock children on her death’.
[17]See [162]-[167] below.

Preparation and execution of a new will for Mrs Connock: December 2017 – January 2018

While Mr Connock was staying with Mrs Connock at Kooroui Court in December 2017, she provided him with a copy of her then-current will, being the will she made in 2014. She told Mr Connock that she wanted a new will drawn as soon as possible and asked whether Ms Ford could do it. Ms Ford and Mrs Connock had previously spoken about Mrs Connock preparing a new will after Dr Connock’s death.

Upon his return to Tasmania, Mr Connock provided Ms Ford with Mrs Connock’s 2014 will and the December 2017 note. In the following days, Ms Ford had several conversations with Mrs Connock and, on about 17 December 2017, she prepared a new will for Mrs Connock which she mailed to Mrs Connock the following day, together with instructions for its execution. The document which Ms Ford provided to Mrs Connock was not, however, in a state to be executed as a will because it contained various annotations (the annotated draft 2017 will). As is presently relevant, it included the following clauses and (italicised) annotations written by Ms Ford:[18]
[18]Bold, capitalising and italics in the original.

I, BARBARA FAYE CONNOCK of 17 Kooroui Court, Drysdale 3222 in the State of Victoria, Retired, HEREBY REVOKE all former Wills and Testaments made by me AND DECLARE this to be my last Will and Testament:
1.I APPOINT my daughter BELINDA FAYE GURR and my stepson RICHARD ANTHONY CONNOCK to be the Executors and Trustees of this my Will and I DECLARE that in the subsequent clauses of this my Will the expression my Trustee shall mean and include my Trustee or Trustees and Executor or Executors for the time being whether original additional or substituted.

This is the standard clause appointing the executors. It means that Belinda and Richard will together manage your estate and both will make all necessary decisions.
2. I GIVE DEVISE AND BEQUEATH:
(a) to my grandson JOSHUA GROZDANOVIC the sum of TEN THOUSAND DOLLARS ($10,000.00) absolutely;
(b) to my grandson NICHOLAS GROZDANOVIC the sum of TEN THOUSAND DOLLARS ($10,000.00) absolutely;
(c)to my friend LISA PATRICK the sum of TWENTY THOUSAND DOLLARS ($20,000.00) absolutely; and
(d)to my daughter BELINDA FAYE GURR any motor vehicle I may own at the time of my death absolutely.

This clause has changed from the Will Basil drew in that the bequest to Lisa has been added. We don't have anything but a Post Office address for her at present. When she returns and takes up permanent residence somewhere, it would be good if you let Belinda and Richard know that address.
3. IN ACCORDANCE WITH THE WISHES OF MY LATE HUSBAND RICHARD HUGH SHEPHARD CONNOCK, I GIVE DEVISE AND BEQUEATH such assets and monies as form part of my estate at the time of my death which were transferred to me or left to me by my late husband including but not limited to 17 Kooroui Court Drysdale 3222 in the said State, the Shephard Superannuation Fund and Term deposit accounts to such of my stepchildren LINDA SUTTON, RICHARD ANTHONY CONNOCK and PATRICIA CONNOCK as shall survive me, in equal shares.

This clause is, as we discussed, a holding clause only. After the family meets with Richard Boaden[19] I would anticipate it may need to be changed to both protect the bequest and to ensure that it is enforceable against your estate just in case Mary-Anne and Christopher make a claim against it. As matters stand, there would be nothing to prevent them making a TFM claim against the assets Richard transferred to you. I confirm there is nothing in this clause to prevent you presently using the money and assets as and however you choose but it does mean that in the event of the worst possible thing occurring in the short term, Richard's wishes would be carried out. I've included a reference to Richard's wish in the clause, as if the worst comes to the worst, that may assist to fend off a TFM claim against that part of the estate. Further, as we discussed, Richard would have wanted his money to go to his own children, and not either Trevor, me, or whoever is Patricia's beneficiary. That is why I have included the reference to the monies going to such of his children as survive you.
[19]It would appear that in late 2017 – early 2018 it was proposed that members of the Connock family would seek advice from a barrister, Richard Boaden. It would appear that no such advice was later obtained.
4.SUBJECT to clauses 2 and 3 of this my Will, I GIVE DEVISE AND BEQUEATH my entire estate both real and personal howsoever and wheresoever situate to my Trustee to sell call in and convert the same into money with power in their discretion to postpone such sale, calling in and conversion for such time as they may think fit and after payment of my just debts, testamentary and administrative expenses and any Probate or other duties payable on the whole of my said estate including any notional estate deemed for duty purposes to form part of my estate to hold the [sic] UPON TRUST to be divided as follows:
(a) as to one half to my daughter SUSAN FAYE SWEETING and
(b) as to one half to my daughter BELINDA FAYE GURR.

This clause represents a considerable change to that in the Will drawn by Basil. Firstly Victoria and Pat are excluded. You have done that in relation to Victoria because you understand that your sister has given her money, and insofar as Pat is concerned, she was included in the first will solely because you wanted to acquiesce to Richard's wish and it was not your wish to leave your own estate to her.
Another significant difference between this will and your first will is that Basil for reasons I do not understand excluded the operation of the section in the Wills Act which provides for any share left to Susan and Belinda to be taken by their children in the event that either did not survive you. In this will, should one of them not survive you, her children will take in equal shares the share their mother would have taken had she outlived you. This is the usual provision in a will and you have told me this is what you want.
5.I DECLARE that I have pre-paid my funeral expenses with William Sheahan Funerals of Drysdale in the said State and it is my wish that William Sheahan or his successor should manage my funeral arrangements.

As the decision as to burial arrangements is made by the Trustee, I have included this clause to make sure they know exactly what you want.
6.I DECLARE that I have made no provision in this my Will for my daughter MARY-ANNE GURR or my son CHRISTOPHER GURR for the reasons set out in a Testamentary Statement made by me and contained in a sealed envelope attached to this my Will and I FURTHER DECLARE AND DIRECT that that the envelope remains sealed and my Testamentary Statement remain confidential save in circumstances where my Trustee deems it necessary to produce my Testamentary Statement in response to a claim made against my estate.

We discussed this clause. TFM (testators family maintenance) claims will be open to Mary-Anne and Christopher. I take your point that one would, in the circumstances, trust they ·would not make a claim, as they are aware of the reasons they are excluded. However, in my practice I have had to deal with a number of TFM claims, and they are becoming more common every day. One way to address them is for the will maker to set out clearly what each has done that has caused their exclusion. That is called disentitling conduct, and a Judge is entitled to take such conduct into account when addressing a TFM claim. I strongly recommend that you take the time to set out in full your reasons for excluding each of them. Be as fulsome and specific as you can. I know their behaviour has caused you pain and you should also make that clear in your statement. As we discussed, I've worded the clause so that it would only be in circumstances where claims were in fact made, that your statement would be read by anyone, including your executors, as I've expressed your wish that they remain confidential. While the trustee is not bound to honour your wish, I know you have confidence that Belinda and Richard would do so.
7. I DIRECT AND DECLARE that my Trustee in addition to exercising any other lawful powers may:
(a) convert my estate into money by public auction, public tender or private contract and at such time and in such manner and at such price and on such terms and conditions as my Trustee shall think fit with full power nevertheless to postpone the conversion of the whole or part of my estate for such time as my Trustee shall think fit without being responsible or answerable for any loss occasioned by or resulting from any such postponement; and
(b) retain my estate or any part of it in the same state of investment as at the date of my death for such time as my Trustee may think fit;
(c) invest any monies forming part of my estate in any of the following:
(i)investments authorised by law for the investment of Trust funds in the Commonwealth of Australia or any State thereof;
(ii)land of any tenure or any rights or interest in upon or in relation to land in the Commonwealth of Australia whether income earning or not and including the purchase of a residence to be held UPON TRUST for sale for use by any person nominated by my Trustee who is likely to receive a benefit pursuant to the terms of this my Will;

(iii) deposits at interest or otherwise with any Bank;
(iv)raise the whole or any part of the income or capital or both of the vested or presumptive share of any infant person likely to receive a benefit pursuant to the terms of this my Will and pay or apply the same for his or her maintenance, education, advancement and benefit notwithstanding that the whole of such share may be raised and used before such infant or person shall attain their majority without being responsible for loss and upon such terms as my Trustee may think fit.

These are standard powers for an executor. Although it would be a simple matter to distribute your estate, there may be complications if any of it is to go to children. Hence the need for these clauses. I'm happy to explain any of them. Just give me a call.

Mrs Connock received and read the annotated draft 2017 will. On 22 December 2017, she telephoned Ms Ford and left her a message, thanking her for preparing the will, which she said she understood; she said it was ‘perfect’. She said that she understood and was pleased with the explanations which Ms Ford had provided. Mrs Connock also identified particular changes in the amounts of the bequests she wished to make to her two grandchildren and her friend, Lisa Patrick; with those changes the document accurately set out what she wanted to occur with her estate at that time.

Mrs Connock also spoke with Mr Connock on either 22 or 23 December 2017 and told him that she was very pleased with the will which Ms Ford had prepared and that it was exactly what she wanted.

Having spoken with Mrs Connock, Ms Ford finalised the will by incorporating the changes Mrs Connock had sought concerning the bequests to her grandchildren and Lisa Patrick. She then mailed it to Mrs Connock by post.

After she received the will, Mrs Connock executed it on 10 January 2018. On about 11 January 2018, she sent Ms Ford a handwritten note in which she said that she had signed the will. She thanked Ms Ford ‘for [her] care and expert advice’, writing ‘you are so kind’.

It was then discovered that Mrs Connock had incorrectly executed the will. Ms Ford printed a new copy of the will and gave it to Mr Connock for him to take with him when he visited Mrs Connock at Kooroui Court for the Australia Day long weekend.

Mrs Connock consulted Mr Ristevski on 18 January 2018. She told him that Ms Ford and Mr Connock had told her that, although it wasn’t her fault, they felt betrayed by what they received under Dr Connock’s estate and that it wasn’t fair that Mrs Connock received the bulk of the estate and they only received a few $100,000 each.

Mr Connock gave Mrs Connock the new copy of the will prepared by Ms Ford when he visited Kooroui Court for the Australia Day long weekend. On 26 January 2018, while Mr Connock remained at Kooroui Court, Mrs Connock took the will for execution before two independent witnesses who lived in the local area. According to Mrs Connock, the witnesses were reluctant to witness Mrs Connock execute the will because they thought she was being ‘hasty’ in getting another will made so soon after Dr Connock’s death. Mrs Connock nevertheless proceeded to (correctly) execute the will before the witnesses (the January 2018 will) which included clauses in relevantly the same terms of clauses 1-4 of the annotated draft 2017 will set out in [92] above.[20]
[20]In her January 2018 will, Mrs Connock increased the bequests in clause 2, gifting her grandsons $20,000 each and gifting Lisa Patrick $50,000.

Probate

On 19 February 2018, Mrs Connock formally renounced probate in relation to Dr Connock’s 2014 will and on 9 April 2018 Mr Connock obtained a grant of probate in respect of the will.

Mrs Connock’s April 2018 will

Sometime in February or March 2018, Mrs Connock attended Mr Ristevski’s office in an upset state and told him that she had signed a will prepared by Ms Ford without consulting him. She had ‘gone over’ the January 2018 will and ‘had another think about it’.

On 3 April 2018, Mrs Connock executed a new will (Mrs Connock’s April 2018 will) in which she divided her estate in two equal parts between her daughters Belinda Gurr and Susan Sweeting.

Mrs Connock’s 2019 will

On 30 August 2019, Mrs Connock executed a further will in which she made specific gifts to her ‘adopted daughter’ Lisa Patrick and her daughter Susan Sweeting, divided Kooroui Court equally five ways between Susan Sweeting, Belinda Gurr, Mary-Anne Gurr, Christopher Gurr and Lisa Patrick, and divided the residue equally four ways between Susan Sweeting, Belinda Gurr, Mary-Anne Gurr and Christopher Gurr.

Question 1: Was there, as a matter of fact, an Asset Expectation as alleged by Mr Connock?

The Asset Expectation as alleged by Mr Connock is that, on and from their marriage, Dr Connock and Mrs Connock allowed, encouraged, or created the expectation in one another that the assets that they each brought to their marriage would, upon their death, pass to their respective children immediately, or upon the death of the second of them, such assets first being available solely for the use, benefit and maintenance of the survivor of them during that person’s lifetime.

Mr Connock’s submissions

In closing submissions, senior counsel for Mr Connock acknowledged that, because of the absence of direct evidence of the Asset Expectation, a finding as to its existence depended on a process of inferential fact finding.

It was submitted that I should reject Mrs Connock’s evidence that she and Dr Connock never discussed their wills or testamentary intentions. This evidence was said to defy logic and human experience, particularly in circumstances where for both parties it was their third marriage, occurring later in life, and in circumstances where there was a significant disparity in the assets each brought to the relationship.

Emphasis was placed on the terms of clause 3(c) of Mrs Connock’s 2006 will as it reflected the terms of the pleaded Asset Expectation. Particular attention was directed to the opening words of the clause — ‘in the event that my said husband predeceases me my property situate at and known as [Kooroui Court]’. Importantly, when she made the will, Mrs Connock did not have any proprietary interest in Kooroui Court. It was, however, devised to her by Dr Connock’s 2006 will executed the same day. In these circumstances, it was submitted that the only logical explanation for the inclusion of the above opening words in clause 3(c) of Mrs Connock’s 2006 will was that, when she made that will, Mrs Connock knew that, if Dr Connock died first, she was to receive Kooroui Court. The only logical inference was that Mrs Connock was aware of the contents of his will, or that he conveyed to her that he was going to gift her Kooroui Court under his will.

By clause 3(c) of her 2006 will, Mrs Connock gifted to the Connock children, not only Kooroui Court, but ‘any assets bequeathed to me by my late husband’. This was submitted to be an unusual and carefully drawn clause which was entirely consistent with an agreement having been reached between Dr Connock and Mrs Connock as to the disposition of assets, in circumstances where the gifts made to Mrs Connock by Dr Connock pursuant to his 2006 will make clear his intention to make proper provision for his wife after his death.

There are then the terms of Dr Connock’s 2012 will and the instructions Dr Connock gave to Mr Ristevski for its preparation. Mr Connock’s instructions (the evidence of which is drawn from Mr Ristevski’s contemporaneous file notes) are revealing in both what Dr Connock did, and did not, address. Significantly, for the purposes of determining whether the Asset Expectation continued to apply, Dr Connock told Mr Ristevski that he wanted to make changes to his will. It is in that context that Dr Connock reiterated to Mr Ristevski that he had ‘looked after his kids in the past’ by giving them ‘a lot of money’, and that now his main priority was to ’make sure his wife Faye was looked after’. The overriding importance of this to Dr Connock was exemplified by his insistence that his new will make clear that the superannuation fund would go to Mrs Connock, despite Mr Ristevski’s advice that it was unnecessary to deal with that matter in the will.

Dr Connock also gave instructions to Mr Ristevski, later reflected in the terms of his 2012 will, for Mrs Connock to receive various banks accounts which were not gifted to Mrs Connock under Dr Connock’s 2006 will.[23] Further, inconsistently with the Asset Expectation, Dr Connock also included a gift of $50,000 to his stepdaughter, Belinda Gurr, and no such gift was contained in Dr Connock’s 2006 will.
[23]See [52(b)] and [55(b)] above.

In the context of Dr Connock’s manifest concern and preoccupation with ensuring that Mrs Connock was provided for, it is also of particular significance that, in his instructions to Mr Ristevski, Dr Connock did not make any mention or suggestion that, upon Mrs Connock’s death, the assets he wished to gift to her were to go to the Connock children. Consistent with the absence of any such instructions, Dr Connock’s 2012 will makes no mention of ‘Connock money returning to Connock children’, and the assets left to Mrs Connock by its terms were not imposed with any trust in favour of the Connock children.

In my view, these facts relating to the making of Dr Connock’s 2012 will are fundamentally inconsistent with the simultaneous existence of the Asset Expectation in Dr Connock’s mind. That conclusion is also supported by the provision made by the 2012 BDBN which Dr Connock executed about a week after he signed the 2012 will. Although the superannuation fund was not part of Dr Connock’s estate and therefore the terms of the 2012 BDBN are not in and of themselves fatal to the existence of an Asset Expectation, the fact Dr Connock nominated one of Mrs Connock’s daughters to receive 70% of his superannuation benefit in the event he was predeceased by Mrs Connock, belies any general intention on his behalf that ‘Connock money was to go to Connock children’. The same analysis applies, albeit to a lesser degree, in relation to the 2015 BDBN in which Dr Connock nominated another of Mrs Connock’s daughters to receive 30% of his superannuation benefit if Mrs Connock pre-deceased him.

The striking feature of Mrs Connock’s 2012 will made on the same date as Dr Connock’s 2012 will is the absence of clause 3(c) of Mrs Connock’s 2006 will which embodied the Asset Expectation. However, contrary to Mr Connock’s submission that the removal of this clause involved the unilateral departure or resiling by Mrs Connock from an expectation then held by Dr Connock, the better explanation given the matters referred to in [139]-[147] is that the removal of this clause reflected the dissolution of the expectation or understanding which previously subsisted between them.

In her instructions to Mr Ristevski, Mrs Connock did not say anything about assets which Dr Connock might leave to her if he pre-deceased her, nor anything about assets which Dr Connock had brought to their marriage. From Mrs Connock’s perspective, what had changed since she made her 2006 will was that she had become a joint proprietor of Kooroui Court. I accept her evidence as to why clause cl 3(c) was removed from her 2012 will:

Because … for this will I didn't feel there was a need, because … Richard had made the property into joint tenancy, and I felt … that I could manage - I could decide myself what I would do with the property. I felt that if it was mine, well I would dispose of it as I saw fit, and … that's what I did.

The soundness or otherwise of the assumptions of legal principle expressed in this evidence is not to the point. Rather, I accept this evidence as genuinely reflecting Mrs Connock’s state of mind when she made her 2012 will. By that time, she and Dr Connock had been married for significantly longer than when Mrs Connock made her 2006 will and the ownership of a key asset had changed.

As I have already noted, Mrs Connock’s 2012 will gave Dr Connock a life interest in the Drysdale unit and provided for the property to then pass to Mrs Connock’s children. However, I do not consider that the inclusion of this provision was a manifestation of the Asset Expectation. Rather, I accept Mrs Connock’s evidence that the inclusion of this provision was discussed by Dr Connock and Mrs Connock as a sensible and pragmatic way to plan for their future: to deal with the scenario whereby Mrs Connock predeceased Dr Connock and, given his advanced years, Dr Connock not having the capacity or willingness to maintain a property the size of Kooroui Court, in which case, it would be desirable for Dr Connock to have the option of residing in the Drysdale unit.

A more general point may be made about the fact that Mrs Connock’s 2012 will, prepared by Mr Ristevski, included the grant of a life interest in the Drysdale unit to Dr Connock. The same legal device could have simply and readily been used by Mr Ristevski in preparing Dr Connock’s 2012 and 2014 wills to give effect to the Asset Expectation if indeed Dr Connock, as an exacting and pedantic client, had held any such assumption or understanding at those times. As was submitted on behalf of Mrs Connock, the fact that this straightforward step was taken in respect of Mrs Connock’s 2012 will, but not Dr Connock’s wills, prepared by the same solicitor, tells against the existence of an Asset Expectation.

Dr Connock’s 2014 will largely replicated the provision made by his 2012 will. As with his 2012 will, in his instructions for the 2014 will, Dr Connock again emphasised to Mr Ristevski the importance of Mrs Connock being provided for, while also stating that his children had been adequately provided for and would, in any event, benefit substantially under his will. On any reasonable view, these observations about the provision he had made for the Connock children are consistent with the facts.[24]
[24]See [10] and [28]-[31] above.

When Dr Connock gave instructions to Mr Ristevski which led to the making of his 2014 will, he was again adamant that his will make clear his intention that the superannuation fund would go to Mrs Connock, even though it was legally unnecessary for it to deal with that matter. Mr Ristevski reassured Dr Connock that this would occur and that, because Kooroui Court was in their joint names, it would automatically go to Mrs Connock upon his death. Dr Connock was satisfied with the will which Mr Ristevski then prepared because he wanted to make it easier for Mrs Connock and to ensure that she got Kooroui Court and the superannuation fund. Dr Connock considered that his children had been well and truly looked after and that what he left them in the will was ‘plenty’.

Significantly, as with Dr Connock’s 2012 will, his 2014 will makes no mention of ‘Connock money returning to Connock children’ and, insofar as it left assets to Mrs Connock, they were not imposed with any trust in favour of the Connock children.

When she consulted with Mr Ristevski about the making of her 2014 will, Mrs Connock did not say anything about assets she might be left by Dr Connock if he pre-deceased her. Mrs Connock’s 2014 will again gave Dr Connock a life interest in the Drysdale unit and, following his death or remarriage, left the unit on the same trusts as her residuary estate. Again, Mrs Connock’s 2014 will made no provision for ‘Connock money to return to Connock children’. However, it did leave a one-quarter share of her residuary estate to Patricia Connock. Although I accept Ms Ford’s evidence that Mrs Connock included this gift in her 2014 will at the request of Dr Connock, it is difficult to reconcile it with the existence of an Asset Expectation. If there was such a shared assumption and understanding pursuant to which Patricia Connock would receive one-third of the assets which Dr Connock had left to Mrs Connock (including Kooroui Court), it is unclear why Mrs Connock would have left her a further one-quarter bequest of her residuary estate. To the contrary, the evidence that Mrs Connock included this particular gift in her 2014 will at Dr Connock’s behest, as distinct from more general provisions providing for ‘Connock money to return to Connock children’, suggests that at the time of the making of Mrs Connock’s 2014 will, there was no such assumption or expectation.

Mr Connock’s submissions did not convincingly grapple with the import of the above aspects of Dr Connock’s conduct and the terms of his and Mrs Connock’s 2012 and 2014 wills as being fundamentally inconsistent with the existence of the Asset Expectation. The attempt to explain the fact that Dr Connock made wills which did not contain the Asset Expectation and gave instructions to Mr Ristevski which did not refer to it on the basis that it was an expectation which continued through the period from the making of the 2006 wills is merely assertive and presupposes the existence of the very fact in issue. The same flawed reasoning was advanced in asserting that Mr Ristevski’s notes of his consultations with Dr Connock should be read as being subject to the assumed existence of the Asset Expectation and that the gifts made to Mrs Connock in his 2012 and 2014 wills must be understood as being made under, or subject to, the Asset Expectation.

Given the above difficulties, Mr Connock placed great emphasis on the Buckland conversation and Mrs Connock’s conduct after Dr Connock’s death, including the December 2017 note and the making of her January 2018 will which were said to amount to admissions by her as to the existence of the Asset Expectation.

The most significant of these matters is the Buckland conversation in relation to which I have accepted Mr Connock’s evidence. This evidence is of particular importance as it is the only specific occasion when Dr Connock made statements to anyone which were consistent with the Asset Expectation. I have therefore given the matter careful consideration, both in isolation and together with Mrs Connock’s conduct after Dr Connock’s death considered further below.

Ultimately, in determining whether there existed an Asset Expectations as alleged, I place more weight on Dr Connock’s actions, including the terms of the formal wills which he made, than his words. As I have explained, there were a number of features of Dr Connock’s conduct in respect of his testamentary intentions in the period between 2008 and 2014 which belie the continuance of the Asset Expectation between himself and Mrs Connock. I am affirmed in giving emphasis to Dr Connock’s actions over time, rather than his words on a single occasion, as experience suggests that the former is often a more reliable gauge of a person’s true concerns. This is particularly so in the present case given the discordance between what Dr Connock said in the Buckland conversation and his actions, only a few weeks earlier, in making the 2014 will. As I have explained in [80] above, the striking feature of the Buckland conversation in which Dr Connock purportedly told his son about the arrangements he and Mrs Connock had recently made with their new wills, is how his description was not reflected in the terms of those wills.

Even allowing for Dr Connock’s private nature, it is also significant that, aside from the Buckland conversation, there is no evidence that he ever spoke to anyone about the Asset Expectation, or even alluded to it. Tellingly, there is no reference to it in any of Mr Ristevski’s contemporaneous notes of his various consultations with Dr Connock. Mr Ristevski’s evidence, which I accept, was that Dr Connock never mentioned the idea of ‘Connock money going back to Connock children’. The significance of this is heightened when it is recalled that Dr Connock was a pedantic and meticulous man who took steps to ensure that his will remained up-to-date and accurately expressed his testamentary wishes. Moreover, he did so in circumstances where it is apparent that each will that he made embodied the results of his considered assessment of the claims upon his estate by Mrs Connock, his children and Mrs Connock’s children. Given those matters, the fact that he never mentioned anything to the effect of the Asset Expectation to Mr Ristevski is a powerful indication that he did not have any such expectation at least by the time he made his 2012 will.

This conclusion is also generally supported by the fact that there is nothing in Dr Connock’s notebook, in which he kept detailed and careful records of his financial dealings, which refers to, or is even consistent with, the existence of an Asset Expectation. As was submitted on behalf of Mrs Connock, given that the notebook appeared to have been a carefully maintained document containing all manner of detail, it might be expected that an arrangement as significant as the alleged Asset Expectation would have been recorded there, or alluded to, in some way. While I agree with this submission, its weight is limited by the fact that some pages from the notebook were missing. The evidence does not permit me to form any view as to whether or not the missing pages likely contained entries relating to the possible existence of the Asset Expectation, nor how those pages came to be removed from the notebook. However, I reject the argument advanced on behalf of Mr Connock that it is unsurprising that the notebook does not record anything about Dr Connock’s assets returning to the Connock children because that is a matter which concerned past financial matters. As I have noted, Dr Connock’s notebook contained details about his financial affairs dating back to the late 1990s, including the period from when his relationship with Mrs Connock commenced.

The other significant matters upon which Mr Connock placed significant emphasis in inviting the Court to find the existence of the Asset Expectation – the December 2017 note and Mrs Connock’s January 2018 will (and the circumstances which resulted in it being made) – concern events which occurred after Dr Connock’s death. Although I have taken them into account as matters which support Mr Connock’s case, in determining whether there existed an Asset Expectation I have given them less weight than the matters to which I have already referred for a number of reasons.

As acknowledged by senior counsel for Mr Connock, to succeed in his case, it is necessary for him to establish that Dr Connock knew of and was aware of the Asset Expectation. Facts from the period before Dr Connock’s death are therefore inherently more likely to bear upon that essential issue than factual matters which emerged thereafter. This is particularly so in relation to the reliance placed on the December 2017 note and Mrs Connock’s January 2018 will. Both are relied upon as admissions by Mrs Connock as to her understanding of Dr Connock’s intentions and wishes; they are not directly probative of Dr Connock’s intentions and wishes.

Further, the December 2017 note and the Mrs Connock’s January 2018 will were produced in the direct aftermath of Dr Connock’s death and the surprise felt by both Mr Connock and Mrs Connock about the contents of his 2014 will. At a general level, care must be taken in weighing these documents to allow for the possibility that, rather than providing an accurate insight into the state of mind of Mrs Connock and Dr Connock at times before Dr Connock’s death, their contents may have been shaped or influenced by the then acute feelings and preoccupations of those involved in their creation.

Mrs Connock’s actions in signing the December 2017 note and making the January 2018 will must also be viewed in context, aided by an appreciation of her personality and likely approach to such matters, as revealed by the evidence and with the benefit of having carefully observed her in the witness box. Being mindful of those matters, it would be unsound to assume that she acted in a considered and informed way in signing these documents.

When she signed the December 2017 note and made the January 2018 will, Mrs Connock was in a highly vulnerable and emotional state. She was 81 years of age and her husband of some 15 years had only recently died, bringing to an end a year of turmoil and loss in which Dr Connock had earlier been diagnosed with dementia, her children’s father had died, one of her sons had died and one of her daughters was diagnosed with a life-threatening disease and had been very ill. In her own words, December 2017 was a stressful time for her; she was ‘not in a very good state of mind’.

I accept Mrs Connock’s evidence that she did not read the December 2017 note before she signed it and that it was prepared by Mr Connock while she was clearing things away after dinner. The note is difficult to read and was prepared after Mr Connock and Mrs Connock had spent a hot and tiring day sorting through Dr Connock's effects some six weeks after Dr Connock’s death. Importantly, the note was not prepared by someone unknown to Mrs Connock, but by her stepson, someone she loved and trusted, a lawyer, who she thought had her best interests at heart. However imprudent it may be, it is entirely plausible that a person in Mrs Connock’s position would not read a summary note before signing it.

Substantially the same considerations arise in relation to the making of Mrs Connock’s January 2018 will and the circumstances leading to it. Mrs Connock remained in a vulnerable and emotional situation, and the relationship of love and trust which she had with Mr Connock extended to Ms Ford who also had the authority of being a solicitor.

Mrs Connock’s dependency on Ms Ford and Mr Connock for support and guidance in the months after Dr Connock died, and the absence of any professional distance in their dealings which lead to the making of Mrs Connock’s January 2018 will, is exemplified by the fact that Mrs Connock did not obtain any independent legal advice in relation to the will. The extent of Mrs Connock’s reliance and dependency on Mr Connock and Ms Ford is encapsulated in her evidence about Ms Ford’s invitation for Mrs Connock to contact her if she had any queries in relation to the annotated draft 2017 will. Mrs Connock’s evidence about this was that, ‘I wouldn't have made any queries, because I trusted them to do whatever they saw fit for me’.

As I have already mentioned, Mrs Connock’s reliance on Mr Connock and Ms Ford was also accentuated because, not only were they trusted members of the family with whom she was close, they were both solicitors and, by contrast, Mrs Connock had a lack of familiarity with and understanding of legal documents and concepts. Mrs Connock gave evidence to this effect and it was borne out by my observation of her answers in cross-examination to questions relating to the provisions of the various wills which were in evidence. Her answers revealed confusion and a lack of sophistication about legal matters. Even when clauses were drawn to her attention, it was apparent that, having read them, Mrs Connock was not always capable of understanding them.

An important illustration of this was when Mrs Connock was cross-examined about the prefatory words in clause 3 of the January 2018 will, ‘in accordance with my late husband’s wishes’. Her immediate response when asked whether this reflected Dr Connock’s view was: ‘[Dr Connock] did not say that at all. He didn’t say that to me or as far as I know, to anyone. He left it to me to deal with as I wish’. Given that Mrs Connock read the January 2018 will and signed it, and that I consider her to be a witness of truth, there are two explanations which present themselves. Either Mrs Connock did not understand these words, or she disregarded them and signed the will in any event. Both explanations are credible because they are consistent with Mrs Connock being someone of limited capability and experience in dealing with legal documents who, in time of great personal stress, deferred to and relied upon Mr Connock and Ms Ford and who ‘trusted them to do whatever they saw fit for [her]’.

These explanations are also consistent with Mrs Connock being someone whose actions, in the circumstances of late 2017 and early 2018, were influenced by a desire to ‘keep the peace’ and to try to make everyone happy – particularly Mr Connock and Ms Ford upon whom she felt particularly reliant. A ‘desire to please’ was generally evident in Mrs Connock’s disposition when giving evidence, and in some of her answers to questions. It was also apparent to Mr Connock – albeit in April 2018 – when Mrs Connock expressed to him that she wanted ‘everybody to be happy’ by giving the Connock children all the money. This tendency is also apparent in Mrs Connock’s strongly expressed gratitude towards Ms Ford and Mr Connock leading up to the preparation of the January 2018 will.[25]
[25]See [95], [96] and [98] above.

A conclusion that, rather than being seen as a carefully considered product of her testamentary wishes, Mrs Connock’s January 2018 will is better viewed as a manifestation of the acute level of distress which she felt in the aftermath of Dr Connock’s death, as well as her dependency on and desire to please Mr Connock and Ms Ford, is also supported by the fact that it was revoked within three months with the making of Mrs Connock’s April 2018 will. That will was made after she consulted with Mr Ristevski within one or two months after she made her January 2018 will, at which time she attended Mr Ristevski’s office in an upset state and told him that she had ‘gone over’ the January 2018 will and ‘had another think about it’.

All of the above matters constitute the critical context which, in determining whether there was an Asset Expectation as alleged, lead me to place less weight on the December 2017 note, Mrs Connock’s statement that after her death, ‘Connock money was always to go back to the Connocks’, as well as her conduct in executing the January 2018 will. For the reasons I have explained, I consider Dr Connock’s conduct in the years after 2008, together with the terms of his and Mrs Connock’s wills made in 2012 and 2014, to be of decisive significance in demonstrating that the Asset Expectation which existed in 2006 ceased to exist at least by May 2012 when they made their 2012 wills.

In considering whether there existed the Asset Expectation as alleged, I also derive little assistance from the evidence given by Patricia Connock that Mrs Connock said to her, prior to Dr Connock’s death and in his presence, ‘You’ll get it all in the end anyway’. Although I accept that Mrs Connock made a statement to this effect, it is plain from Patricia Connock’s evidence that her comment was specifically directed at particular objects of sentimental value to Patricia Connock which were on display at Kooroui Court.

In his statement of claim, Mr Connock also relied upon the following four matters to support an inference that the Asset Expectation existed:

(a) that Mrs Connock and Dr Connock were married in 2002 when they both had adult children from previous relationships, existing assets, and were aged 65 and 71 respectively;

(b) during the course of the marriage, assets brought to the marriage were retained in the respective names of Dr Connock and Mrs Connock;

(c) during the course of the marriage, proceeds from the sale of property owned by Dr Connock as at the date of the marriage were applied to his children or into assets held in his own name; and

(d) the terms of Mrs Connock’s 2014 will under which she granted a life interest in the Drysdale unit to Dr Connock.

I have already dealt with the last of these matters in discussing the terms of Mrs Connock’s 2012 and 2014 wills. As to the remaining matters, the import of which was not developed in the closing submissions provided on behalf of Mr Connock, for the reasons advanced on behalf of Mrs Connock, I do not consider that, individually or collectively, they provide a proper basis to infer the continued existence of the Asset Expectation, or for that expectation to be implied.[26]
[26]The Asset Expectation was alleged to be implied by reason of the above four matters and ‘the necessity of an own benefit and maintenance restriction upon application of assets by the survivor of Dr Connock and Faye Connock, to restrict dissipation of those assets and better assure their availability to the deceased’s children’.

For the foregoing reasons, Question 1 is answered as follows:

The Asset Expectation as alleged was in existence when Dr Connock and Mrs Connock made their wills in June 2006, but had ceased to exist at least by May 2012 when Dr Connock and Mrs Connock made their 2012 wills.

It is accordingly unnecessary to answer the remaining questions.

Disposition

The proceeding is dismissed. I will hear the parties on costs.

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24 July 2023