Re Demediuk

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2015 12772

BARBARA DEMEDIUK	Plaintiff
v
PETER MARK DEMEDIUK, SANDRA WILLIS and NICHOLAS IVAN DEMEDIUK	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2016
DATE OF JUDGMENT:	29 September 2016
CASE MAY BE CITED AS:	Re Demediuk
MEDIUM NEUTRAL CITATION:	[2016] VSC 587

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PROBATE — Alleged testamentary undue influence by plaintiff — Hall v Hall (1868) LR 1 P&D 481 —Bailey v Bailey (1924) 34 CLR 558 — Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136 —Nicholson v Knaggs [2009] VSC 64 — Schrader v Schrader [2013] EWHC 466 (Ch)

PRACTICE AND PROCEDURE — Where plaintiff seeks summary judgment — Whether defendants have no real prospect of success — Whether discretion should be exercised to allow matter to proceed to trial — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Civil Procedure Act, ss 62, 63(1), 64 — Supreme Court (General Civil Procedure) Rules 2015, r 23.02(2)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Aitken Partners
For the Defendants	Mr A J Verspaandonk	Arnold Bloch Leibler

HER HONOUR:

Introduction

Peter Demediuk (‘the deceased’) died on 15 February 2013, aged 93. His wife, Taisa Demediuk, (‘Taisa’) pre-deceased him on 31 October 2011. The deceased was the sole beneficiary under Taisa’s will.

The deceased was survived by his four adult children: Barbara Demediuk (‘the plaintiff’ or ‘Barbara’) and Peter Mark Demediuk, Sandra Willis and Nicholas Ivan Demediuk (‘the defendants’ or ‘Peter’, ‘Sandra’, ‘Nicholas’).

After Taisa’s death in October 2011, the deceased made a will dated 10 February 2012 (‘the February will’), which was his penultimate will. The February will appoints all four of his children as executors and trustees of his estate and the deceased leaves his interests in his properties, stocks and shares to his four children allocated in accordance with a schedule contained in the will.

The deceased’s last will was dated 27 June 2012 (‘the June will’). It is a four page document consisting of two original pages numbered ‘1 of 3’ and ‘2 of 3’ and two further photocopied pages both numbered ‘3 of 3’. The June will appoints all four of his children as executors and trustees of his estate and the deceased also leaves his interests in his properties, stocks and shares to his four children in accordance with a schedule in the will, but not the same allocation as in his February will.

On 31 July 2015, the defendants filed a caveat requiring notice be given to them in respect of any application made in connection with the June will or the estate of the deceased.

On 26 August 2015, the plaintiff filed an application for grant of probate of the June will, with leave being reserved to the defendants as the other executors appointed in the June will to come in at any time and prove the same. In support of the application, the plaintiff filed three affidavits: one sworn by her on 24 August 2015, an affidavit sworn by Mafutaga Tomuli on 21 August 2015, being an affidavit of the attesting witness of the June will and a carer of the deceased and an affidavit sworn by Kate Rogers on 9 September 2015, being the other attesting witness of the June will and a neighbour of the deceased.

The inventory of assets and liabilities filed with the application set out the assets and liabilities of the deceased, comprising interests in real estate in Victoria and a property in New South Wales and personal estate comprising shares and an interest in Taisa’s estate. The inventory valued the deceased’s net estate at $13,625,588 using the municipal capital improved values for the properties.

On 30 September 2015, the defendants filed grounds of objections to the grant of probate. Ground 1 of the objections is no longer pursued by the defendants, the objection being that the June will was not properly executed and attested by two witnesses. Ground 2 relates to the fact that the June will is an unbound or stapled three page document, the first two pages being originals and the third page being a photocopy. The defendants allege that because of the absence of the original third page, it should be presumed that the deceased intended the whole of the June will be revoked. Ground 3 asserts that on the basis of ground 2 the deceased died intestate and his estate ought be administered in accordance with the intestacy provisions of the Administration and Probate Act 1958.

Grounds 4, 5 and 6 object to the grant being made on the ground that the June will was procured by the undue influence of the plaintiff. The defendants’ particulars of the plaintiff’s undue influence are wide ranging and prolix and are best set out as filed:

Paragraph 4:
(a)The Deceased was married to Taisa Demediuk (‘Taisa’) and they had four children, the Plaintiff and the Caveators;
(b)For many years prior to Taisa’s death on 31 October 2011, the testamentary intentions of the Deceased and Taisa were well known and settled within the family in regard to the various properties that they owned, either together, singly or in conjunction with their children;
(c)Thus, prior to 31 October 2011, the real estate within the family was to be distributed as follows, pursuant to the terms of Taisa’s Will of 30 March 2002.

She left the whole of her estate to the Deceased but in the event that he predeceased her, she left her real estate as follows:
(i)her right, title and interest in 22 Dawson Avenue, Brighton, was left to the Plaintiff with the wish that the Caveatrix Sandra Willis, transfer her one-quarter interest in that property to the Plaintiff so that the Plaintiff ended up with 100% ownership thereof;
(ii)her right, title and interest in 1 Opawa Street, Brighton was left equally between the Caveators Nicholas and Peter Mark Demediuk so that they each owned 25% thereof;
(iii)her right, title and interest in 1 Alton Street, Brighton was to be held on trust and the income applied to benefit and educate her grandchildren;
(iv)her right, title and interest in 60 Dunblane Road, Noble Park was left equally between the Caveators Nicholas and Peter Mark Demediuk so that they each owned 50% thereof;
(v)her right, title and interest in 25 Cloyne Street, Highett was left to the Caveatrix Sandra Willis;
(vi)her right, title and interest in 25 High Road, Camberwell was left to the Caveator Peter Mark Demediuk;
(vii)her right, title and interest in 151 Ferntree Gully Road, Mount Waverley was left equally between the Plaintiff and the Caveators Nicholas and Peter Mark Demediuk so that they each owned one-third thereof;
(vii)her right, title and interest in 7 Adrienne Crescent, Mount Waverley was left to the Plaintiff and the Caveators Nicholas and Peter Mark Demediuk so that they each owned one-third thereof;
(ix)her right, title and interest in 1 Lusk Drive, Vermont was left to the Plaintiff and the Caveators Nicholas and Peter Mark Demediuk so that they each owned one-third thereof;
(x)her right, title and interest in 69 Sherwood Avenue, Chelsea was left to the Caveator Nicholas Demediuk;
(xi)her right, title and interest in 145 Hargrave Street, Paddington, NSW and 9 Battery Street, Clovelly, NSW was left to the Caveatrix Sandra Willis;
(xii)her right, title and interest in Units 1 and 4, 29 Waratah Avenue, Tullamarine, were to be sold and the proceeds applied to discharge mortgages on any other properties such that all properties passing to her children were free and clear on encumbrances.

(d)The Deceased made a Will on 9 July 2010 in which he left the whole of his estate to Taisa but, in the event that she predeceased him, he left his right, title and interest in the real estate referred to in sub-paragraph (c) above in the same way as Taisa, save that:
(i)1 Alton Avenue, Brighton was left to the Caveator Nicholas Demediuk, instead of the income from such property being applied to benefit and educate the Deceased and Taisa’s grandchildren;
(ii)151 Ferntree Gully Road, Mount Waverley was left to the Caveators Nicholas and Peter Mark Demediuk in equal shares, instead of to the Plaintiff and the Caveators Nicholas and Peter Mark Demediuk equal shares;
(iii)7 Adrienne Crescent, Mount Waverley, to the Plaintiff, instead of to the Plaintiff and the Caveators Nicholas and Peter Mark Demediuk equal shares;
(iv)1 Lusk Drive, Vermont, was to be sold to cover any debts, instead of to the Plaintiff and the Caveators Nicholas and Peter Mark Demediuk equal shares;
(v)the deceased did not refer to Units 1 and 4, 29 Waratah Avenue, Tullamarine.

(e)The Deceased made a further Will on 24 November 2010 in which he left the whole of his estate to Taisa but, in the event that she predeceased him, he left his right, title and interest in the real estate referred to in sub-paragraph (d) above in the same way as his Will dated 9 July 2010, save that, in regard to the property at 69 Sherwood Avenue, Chelsea, his right, title and interest therein was now left equally between the Caveators Nicholas and Peter Mark Demediuk;

(f) Taisa died on 31 October 2011.
(g)The Deceased made a further Will on 10 February 2012 (‘February Will’) after Taisa died, in which he left his right, title and interest in the real estate referred to in sub-paragraphs (d) and (e) in same way as set out in (d) and (e) above, save that:
(i)1 Lusk Drive, Vermont was now left to the Caveator Peter Mark Demediuk, instead of directing that it be sold to pay debts;
(ii)Unit 1, 29 Waratah Avenue, Tullamarine was left to the Plaintiff, whereas it had not been referred to in the Deceased’s previous Wills;
(iii)Unit 4, 29 Waratah Avenue, Tullamarine was left to the Caveator Nicholas Demediuk, whereas it had not been referred to in the Deceased’s previous Wills.

(h)After Taisa died, the Plaintiff commenced to demand of the Deceased, in an unrelenting, persistent and forceful way, that he should change his Will and make the Caveatrix Sandra Willis transfer her right, title and interest in 22 Dawson Avenue, Brighton and 36 Erskine Street, North Melbourne to the Plaintiff as, in the Plaintiff’s view Sandra Willis had been treated more favourably by the Deceased then the Plaintiff.
(i)At the time, the Deceased was about 92 years of age. He suffered from heart and lung disease and from acute pulmonary oedema. He had limited mobility.
(j)The Plaintiff’s requests of the Deceased became very angry and emotionally exploitive of the Deceased. For instance, on Boxing Day 2011 the Deceased told the Caveatrix Sandra Willis that the Plaintiff was making his life hell and he screamed at Sandra Willis to transfer the properties to the Plaintiff. In early 2012 the Plaintiff, in a telephone call to the Deceased, screamed at him that if he did not sort out the property transfers with the Caveatrix Sandra Willis, the Plaintiff would never speak to the Deceased again.
(k)Subsequent to the making of the Will of 10 February 2012, the Deceased and the Caveatrix Sandra Willis, in about May 2012, agreed that if she (Sandra Willis) would transfer her right, title and interest in 22 Dawson Avenue, Brighton and 36 Erskine Street, North Melbourne to the Plaintiff, he would continue to leave to Sandra Willis in his Will the property at 25 Cloyne Street, Highett.
(l)Pursuant to the foregoing, the Caveatrix Sandra Willis duly transferred to the Plaintiff her right, title and interest in 22 Dawson Avenue, Brighton and 36 Erskine Street, North Melbourne for no consideration.
(m)The Deceased was upset about the Plaintiff’s incessant demands on him in respect to the property transfers referred to above and he reached the agreement referred to above with the Caveatrix Sandra Willis in order to try and make his children happy;
(n)The Deceased, and Taisa, had been open with various family members about making their Wills and the testamentary intentions. The Deceased did not tell any family members, save for the Plaintiff, that he made the June Will, which differed from his previous Wills in the following respects:
(i)1 Opawa Street, Brighton was now left to the Plaintiff instead of equally between the Caveators Nicholas and Peter Demediuk;
(ii)25 Cloyne Street, Highett was now left to the Plaintiff instead of to the Caveatrix Sandra Willis, in apparent breach of the agreement the Deceased and Sandra Willis had reached as is referred to in sub-paragraph (k) above;
(iii)1 Lusk Drive, Vermont was now left to the Plaintiff instead of to the Caveator Peter Demediuk;
(iv)Unit 1, 29 Waratah Avenue, Tullamarine was now left to the Caveator Peter Demediuk instead of to the Plaintiff.

(o)Inconsistently with the terms of the June Will:
(i)In about August or September 2012 the Deceased sent the title to 25 Cloyne Street, Highett to Sandra Willis; and
(ii)In December 2012 the Deceased told the Caveator Sandra Willis that he had left 1 Alton Avenue, Brighton and an interest in 1 Opawa Street, Brighton to the Caveator Nicholas Demediuk and he was concerned that he had not left Nicholas Demediuk enough.

(p)The first the Caveators knew of the June Will was after the Deceased died. At a family meeting on 17 February 2013, where all the Deceased’s children and Lucy Demediuk, the Deceased’s granddaughter were present, the Deceased’s Will was discussed. The Plaintiff did not say that she had the June Will, or a copy of it. During the course of that day Lucy Demediuk and Nicholas Demediuk retrieved the Deceased’s folder in which he kept his current and previous Wills from a fling cabinet in the Deceased’s study.
(q)It was only on 20 February 2013, in response to Nicholas Demediuk stating in an email that he had the Deceased’s February Will, did the Plaintiff state that she had a copy of a more recent Will that the Deceased had given to her. She subsequently circulated an electronic copy of the June Will to the Caveators.

Paragraph 5
The June Will does not reflect the Deceased’s long standing testamentary intentions, was made in unknown circumstances and the Plaintiff is the only person who knew about it within the family. The June Will was the product of an incessant and unrelenting campaign by the Plaintiff to force the Deceased to change his Will in order to improve her own financial position at the expense of her siblings, the Caveators. The only conclusion, on the balance of probabilities, is that the Plaintiff exerted undue influence over the Deceased to force him to change the February Will so that the Plaintiff was considerably financially advantaged, to the detriment of her siblings, the Caveators, by the terms of the June Will.
Paragraph 6
By reason of the facts and matters referred to in paragraphs 4 and 5, the Deceased did not know and approve the contents of the June Will.

On 10 November 2015, orders by consent were made joining the defendants to the proceeding, for discovery on oath of testamentary scripts of the deceased and documents relating to the preparation of the June 2012 will. Orders were also made for the filing of affidavits by the defendants and by the plaintiff in reply.

The defendants filed affidavits by Peter, Nicholas, Sandra, Therese Maria Demediuk, who is Peter’s wife, Lucy Ellen Demediuk, who is a daughter of Peter and Therese, and Volodymir Vsevolod Galashchuk, who is the deceased’s nephew by marriage and a good friend.

Plaintiff’s application for summary dismissal

On 24 March 2016, before any affidavits in reply by the plaintiff were to be filed, the plaintiff filed an application seeking summary dismissal of grounds 4, 5 and 6 of the defendants’ grounds of objections, pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (‘CP Act’), alternatively, r 23.03(2) of the Supreme Court (General Civil Procedure) Rules 2015, alternatively, the inherent jurisdiction of the Court on the ground that those grounds have no real prospect of success.

Section 62 of the CP Act provides that a defendant may apply for summary judgment in a proceeding on the ground that a plaintiff’s claim has ‘no real prospect of success’. In the context of a challenge to an application for a grant of probate, the plaintiffs are effectively in the position of a defendant in responding to the grounds of objection filed by the defendants. Section 63(1) allows a court to give summary judgment if satisfied that a claim has ‘no real prospect of success’ on the application of a party or of its own motion.
In Mandie v Memart Nominees Pty Ltd, the Court of Appeal explained that ‘no real prospect of success’ may apply to claims that are ‘fanciful’[1], ‘futile’[2] or ‘unarguable’.[3] In effect, these descriptions are synonymous.^[4]
[1]Lysaght (2013) 42 VR 27, 39 [29].
[2]Utility Services Corporation Ltd v SPI Electricity Pty Ltd (2012) 35 VR 628, 641 [48] (Dixon AJA).
[3]Ibid 629 [1] (Bongiorno JA), 630 [8] (Beach AJA).
[4]Mandiev Memart Nominees Pty Ltd [2016] VSCA 4 (5 February 2016) [47] (‘Mandie’).
The decision in Mandie v Memart Nominees Pty Ltd followed the decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd where the Court of Appeal explained the phrase ‘no real prospect of success’. As explained by Warren CJ and Nettle JA (as his Honour then was) in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:
… the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[5]
[5]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29] (‘Lysaght’).
The effect of the CP Act was referred to in Mandie v Memart Nominees Pty Ltd as follows:
The CP Act has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings, including by reforming the law relating to summary judgment. More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations. One consequence is that amendments that might have been permitted previously may no longer be allowed. As such, the older authorities that preceded the CP Act which set out when a pleading amendment will be allowed must be approached with caution.
The power conferred on the court by s 63(1) of the CP Act to dispose of claims before a trial facilitates one of the stated purposes of the Act. Subject to limited exceptions, if a claim or defence has no real prospect of success, then summary judgment may be given. It must follow that a proposed pleading amendment raising a claim or defence of that type should not be permitted. To grant leave in that circumstance would be futile as the claim or defence would be susceptible to a summary judgment application. This principle facilitates the administration of justice, as it enables courts to prevent claims or defences being pleaded where they will inevitably fail and thus avoid the cost and inconvenience that would otherwise arise if those claims or defences were permitted to be made only to be the subject of summary judgment subsequently.[6]

[6] Mandie [2016] VSCA 4 (5 February 2016), [42]–[43] (citations omitted).

Where a court is satisfied that despite there being no real prospect of success of a defendant’s claims in terms of the test under s 63 of the CP Act, the proper course may be not to dispose of the proceeding summarily but to exercise the discretion allowed under s 64 of the CP Act and require a full trial of the claims.

A court will more readily hold that the summary judgment provisions of the CP Act will be satisfied when the resolution of a dispute depends on a question of law, rather than on a question of fact.[7] Where the prospects of success at trial involve a consideration of the evidentiary foundation of the claim, as opposed to the adequacy of a pleading, it is desirable that there should be a full trial of the claims.[8]
[7]Mutton v Baker & anor [2014] VSCA 43 (19 March 2016).
[8]Manderson M&F Consulting v Incitec Pivot Ltd (2011) 35 VR 98.

Defendants’ evidence

For the purpose of the plaintiff’s application for summary dismissal, the evidence of the defendants is to be taken at its highest, with the Court assuming that each of the factual matters asserted by the defendants will be established at trial.

It is common ground that during his lifetime the deceased and Taisa built up a large portfolio of real estate. Properties were purchased in his name, in Taisa’s name, and in the names of his children. Of particular relevance to this proceeding are the following properties:

(a) 1 Opawa Street, Brighton (‘Opawa Street’);

(b) 22 Dawson Avenue, Brighton (‘Dawson Avenue’);

(c) 25 Cloyne Street, Highett (‘Cloyne Street’);

(d) Units 1-2, 1 Lusk Drive, Vermont (‘Lusk Drive’); and

(e) Unit 1, 29 Warratah Avenue, Tullamarine.

It was apparently understood in the family that regardless of whose name a property might be registered, the income derived from the property would flow to the deceased to fund his ongoing business activities, including paying down mortgages and purchasing further properties.

The deceased’s previous testamentary intentions

The defendants produced the deceased’s five wills being his wills dated 5 July 1956, 9 July 2010, 24 November 2010, the February will and the June will.

The 1956 will is a document from Norman Bros Pty Ltd with a handwritten disposition of the assets to Taisa, Nicholas and Peter.

The 9 July 2010, 24 November 2010, the February will and the June will are all computer generated wills consisting of three pages, although page 3 of the June will is copied twice. The wills have the same font and template using similar headings. The word ‘bequeth’ is used in the first two wills and the June will whereas the word ‘bequeath’ is used in the February will. The two 2010 wills express the deceased’s funeral directions ‘to be cremated/buried and my remains placed next to my husband’, with the reference to ‘my husband’ being incorrect. In the February will and the June will, the ‘Land/Real Estate Schedule’ incorrectly includes ‘all stocks and shares’ whereas the two 2010 wills correctly refer to real estate only. It was common ground that the deceased did not use lawyers for his wills and his view was that he knew how to fix/amend his will and he could write directives on them, as is evident on his 24 November 2010 will.

Although the deceased’s last four wills are computer generated, follow the same format and use the same font, it was common ground that the deceased did not use a computer, was not computer literate, and would have required assistance to create the June will and copy it after it was signed.[9]
[9]Affidavit of Peter Mark Demediuk sworn 4 March 2016 (‘Peter’s Affidavit’) [49]; Affidavit of Lucy Ellen Demeduik affirmed 9 March 2016 (‘Lucy’s Affidavit’) [11].

The first three wills were witnessed by the same two witnesses and the June will was witnessed by two witnesses, but not the same witnesses as the other three wills.

The defendants rely on Taisa’s will dated 30 March 2002, the provisions of which can be seen in the defendants’ particulars set out at [9], and the deceased’s five wills to demonstrate his long held testamentary intentions as to his properties, submitting that the June will broke the pattern of the deceased’s previous wills, particularly in respect of Cloyne Street and Opawa Street. In reality, it would appear that they rely on the four previous wills as the home made 1956 will left the deceased’s estate to Taisa, Nicholas and Peter only.

Each of the defendants deposed to the deceased’s settled intentions regarding the testamentary disposition of the family property portfolio,[10] the effect of their evidence summarised as follows:
[10] See generally, Lucy’s Affidavit [15], Affidavit of Volodymir Vsevolod Galashchuk sworn 14 March 2016 (‘Volodymir’s Affidavit’), [6]–[7], [9], [10], Affidavit of Sandra Willis affirmed 16 March 2016 (‘Sandra’s Affidavit’) [36], Peter’s Affidavit [10].

(a) Opawa Street - Sandra deposed that in 2001 or 2002 the deceased told her ‘he wanted to develop Opawa Street into four units so that each of my siblings and I could have a unit.’[11] At that stage the deceased held a 50 per cent share of that property. Peter deposed to similar effect that several years before 2005, the deceased informed him that his 50 per cent share would, on his death, go to Peter and Nicholas in equal shares.[12] This position was reflected in the February will. In the June will, however, the deceased’s 50 per cent interest was left to the plaintiff.
[11]Sandra’s Affidavit [42].
[12]Peter’s Affidavit [10(e)].

(b) Dawson Avenue - Peter deposed that during discussion with his parents in the 1970s, this property was ‘destined for Sandy and Barbara’.[13] This alleged destiny was not entirely reflected in Taisa’s will dated 30 March 2002 as in the event that the deceased predeceased her, Taisa left her interest in Dawson Avenue to the plaintiff and also expressed the wish that Sandra transfer her one quarter share in the property to the plaintiff so that the plaintiff ended up owning the property entirely. This wish was also expressed by the deceased in his four wills.
[13]Ibid [10(d)].

(c) Cloyne Street - Sandra deposed that in approximately 2002 the deceased referred to this property as ‘yours’ [Sandra’s].[14] She also deposed that her mother indicated she was happy that Sandra would have this property as they ‘went through a lot there’.[15] Sandra had apparently recovered from a serious illness at Cloyne Street in her childhood. Peter deposed that in the 1970’s he had conversations with his parents to the same effect.[16] Volodymir also deposed that the deceased told him ‘on many occasions’ that this property would go to Sandra.[17] In 2010 the deceased also allegedly told Sandra, when worried about her financial position, ‘everything will be ok because you have…Cloyne Street’.[18] Nicholas deposed that in late 2012 the deceased told him that he wanted to give Cloyne Street to Sandra, and,
[14]Ibid [11].
[15]Ibid [42].
[16]Ibid [10(c)].
[17]Ibid [8(a)].
[18]Sandra’s Affidavit [60].

… was surprised that he had mentioned it although his intention to give her Cloyne Street did not surprise me as I had always believed that Cloyne Street was going to Sandra. I had seen this in one of his wills. He had also previously said to me on at least one occasion that he was going to do this.[19]
[19]Affidavit of Nicholas Ivan Demediuk affirmed 10 March 2016 (‘Nicholas’ Affidavit’) [25].

Therese deposed that through general conversations over the years with the deceased and his wife, she understood that Cloyne Street was intended for Sandra.[20] While this was reflected in the February will, in the June will this property was left to the plaintiff. Peter deposed to his surprise at this as follows:
[20]Affidavit of Therese Maria Demediuk affirmed 4 March 2026 (‘Therese’s Affidavit’) [18].

For Dad to genuinely and freely make such a decision seemed to me to be both implausible and impossible given…[his] longstanding wish to give Cloyne Street to Sandy and my understanding of their strong feelings and reasons for that decision.[21]
[21]Peter’s Affidavit [45(a)].

(d) Lusk Drive - Peter and Therese deposed that this property had been intended for Peter.[22] Lucy recalls having a conversation with the deceased in which he told her he wanted her and her sister, Sophie, to have Lusk Drive as thanks for their care of Taisa in her final days.[23] However, it was determined that it may be best for it to be left to their father, Peter.[24] In the February will this property was left to Peter, but in the June will this property was left to the plaintiff. In the two wills made November 2010, however, the deceased expressly directed that Lusk Drive ‘be sold to cover any debt’.

(e) Unit 1, 29 Warratah Avenue, Tullamarine - in the February will, this property was left to the plaintiff, however, in the June will it was left to Peter. In the two wills made November 2010, there is no reference to this property.

General chronology of the evidence

[22]Ibid[45(c)].

[23]Lucy’s Affidavit [24].

[24]Peter’s Affidavit [27].

In October 1993, the deceased and Taisa purchased a property in Hargrave Street, Paddington, New South Wales, (‘Hargrave Street’) for Sandra’s use.[25] In September 2001, the deceased and Taisa purchased a property in Battery Street, Clovelly, New South Wales (‘Battery Street’) for Sandra and her family’s use.
[25]Sandra’s Affidavit [27].

Nicholas deposed that in about 2001 he became aware that his parents did not have wills so he drafted wills for them that left their properties to the four children in equal shares. Taisa signed a will which is dated 4 January 2002. The deceased was not happy with his draft as he wanted to divide up particular properties between the four children rather than have them sold. Nicholas deposed that the deceased told him he would get Sandra, who is a lawyer, to draft wills for him and Taisa and, in March 2002, his parents signed the wills, although he had been unable to find a copy of his father’s will

In February or March 2002 Sandra deposed that she assisted the deceased and Taisa prepare their wills by typing out the precedent will the deceased had given her, and including the wishes for disposition of their properties that they provided to her in a list.[26] Sandra deposed that the deceased called her some months later and told her that Taisa and he had signed the wills. Sandra deposed that she had no involvement in the preparation of any of the deceased’s subsequent wills.[27]
[26]Sandra’s Affidavit [44].
[27]Ibid [45].

Sandra deposed that in 2007 she received a phone call from her mother in which her mother told her that she and the deceased had an argument with Barbara. Sandra alleges that her mother said:

Barbara had been complaining to Dad that he hadn’t given her enough property and that she should have my half of Fitzgibbon Street, the Sydney properties or at least a half share in them and also shares in other properties belonging to Mum and Dad (Mum did not identify which these were). Mum said that Barbara accused Mum and Dad of favouritism when it came to me. Mum said that this had made Dad angry and he had told Barbara that he and Mum had already given her a lot of property and financial assistance, that she was never satisfied and always wanted more and words to the effect that it was his and Mum’s choice as to what they did with their money and they would decide what was fair, not her.

As a result of this telephone call, Sandra asked her parents when they were next in Sydney if they would enter into call option documents to protect Hargrave Street and Battery Street for her children. Taisa agreed to do so but the deceased thought that the plaintiff would never go against their wishes and there was no need for the options over the properties. Sandra told her parents that families often fought over wills and there was no guarantee that the plaintiff would not try and get those properties and this made her father more angry with her. When Sandra told him that the plaintiff’s husband might try and get the properties, that seemed to placate him and he agreed to enter into the call options for Sandra to buy the properties for $1. Sandra engaged solicitors to prepare the documents and, in September 2007, Taisa, the deceased, and Sandra entered into a call option agreement that effectively granted Sandra an option to purchase the Battery Street and Hargrave Street properties for the nominal consideration (‘the call option agreement’).[28]
[28]Sandra’s Affidavit, Exhibit SWD-1.

Around 2006–2007, Sandra and her husband located a property for the purpose of ‘kick starting’ her husband’s career. In 2007, they located a property in Coogee with re-development potential and Taisa and the deceased gave them $1.1 million to purchase and develop the property and, as her parents borrowed most of this money, Sandra deposed that they paid interest to her parents, initially at around $7,500 per month but then at $5,000 or $4,000 per month. Subsequently, the deceased asked Sandra to sign a loan agreement apparently for taxation purposes. On 20 August 2007 a formal loan agreement for $1.1 million was entered into between Sandra, her husband, and the deceased (‘the loan agreement’),[29] although the loan was a gift. Subsequently the repayment of interest arrangement appears to have altered, and until Taisa passed away, the deceased transferred to Sandra an amount of $4,000 per month which he said was for Sandra’s children’s school fees.[30]
[29]Sandra’s Affidavit [53]–[54], Exhibit SWD-1.
[30]Ibid [55]–[57].

In 2009, Sandra and her husband moved into the Coogee property on completion of the building works and Battery Street was rented. They sold the Coogee property in May 2011 and moved back into Battery Street and spent $150,000 on renovations.

In 2010, the deceased made two wills – the first dated 9 July 2010 and the second dated 24 November 2010.

In May 2011, Sandra wanted to exercise the call option regarding Battery Street as she wanted to sub-divide it, in part, to reduce land tax liabilities and to assist with expenses associated with caring for Taisa as she understood that the plaintiff, Peter and Nicholas were paying those expenses.[31] Although Sandra sent a letter to her sister-in-law, Felicity, about this so that it could be explained to her father, it appears this did not occur.
[31]Ibid [64].

Peter deposed that in roughly mid-2011, he had a conversation with the plaintiff in which she said ‘she believed Dad had been overly generous to Sandy and Nick. She referred to the properties Dad had given Sandy in Sydney and said that Sandy was also receiving regular payments from Dad to support what she said was Sandy’s “extravagant lifestyle”.’ Peter said that the plaintiff was ‘angry’ and ‘agitated’ and also said that “Nick’s got lots off [the deceased] too”’.[32]
[32]Peter’s Affidavit [15].

Several months before Taisa died in October 2011, Sandra said the plaintiff told her that their aunt ‘had been told by Mum that Dad had had some affairs at some point. Barbara said to me words to the effect that she hated and despised Dad and would never forgive him for what he did to Mum’.[33]
[33]Ibid [65].

On 12 October 2011, the plaintiff emailed Sandra stating, amongst other things:

Hi dooda, I am following up on Parkville. Dad also wants you to transfer your name on the titles of Dawson Avenue and also 36 Erskine Street North Melbourne to me. To proceed with this I need the original titles.[34]

[34]Sandra’s Affidavit, Exhibit SWD-1.

In that email, the plaintiff also asked Sandra for her authority to discharge a mortgage and to collect the relevant titles.

On 19 October 2011, Sandra responded, saying, relevantly:

No problem will organise all that. Dad mentioned that, as he had bought Battery and Hargrave for me, he would like me to transfer my interest in Dawson avenue to you when Battery and Hargrave have been transferred to me – he didn’t mention transferring Erskine at the time but obviously no problem if that is what he wishes me to do.
Good idea to get it all done at once so I will arrange the call option docs for Battery St…[35]

[35]Ibid.

In her affidavit, Sandra states that she was ‘surprised’ by the request regarding Erskine Street, but knew that the deceased had wanted her to transfer her share in Dawson Avenue to the plaintiff ‘upon Battery Street and Hargrave Street’ being transferred to Sandra.[36]
[36]Ibid [67].

After Taisa’s death on 31 October 2011, Lucy observed that the plaintiff’s relationship with the deceased appeared as follows:

(a) ‘After Nan passed away, Barbara’s visits to Grandpa seemed always to turn into discussions about the property transfers and financial matters’;[37]

(b) ‘I observed little warmth by Barbara toward Grandpa during those visits’;[38] and

(c) ‘[the plaintiff] arranged carers for him, but she did not take him to any appointments or provide personal care’.[39]

[37]Lucy’s Affidavit [43].

[38]Ibid.

[39]Ibid.

Volodymir deposed that around a month after Taisa died:

[the deceased] told me that someone found a ‘mistake’ in [his] will. Peter had always told me that Dawson Avenue would go to Barbara, but, somehow Sandra’s name had mistakenly appeared in the will for that house. He seemed very worried and down, and he was almost crying.[40]

[40]Volodymir’s Affidavit [13].

Peter deposed that the plaintiff spoke to him about the deceased’s will several times after Taisa died in 2011 and 2012. Peter deposed that in late 2011 or early 2012 a similar conversation as referred to in [35] above occurred with the plaintiff following ‘friction between Sandra and the plaintiff about property transfers’.[41]
[41]Ibid [21].

On one occasion in late 2011, the plaintiff initiated a discussion about the deceased’s will and said that it ‘wasn’t done properly’ and ‘it has to get sorted’.[42] She conveyed to Peter that she wanted the deceased to see a lawyer about his will. Peter understood this as a concern that the deceased had a legally valid will.[43]
[42]Ibid [20].
[43]Ibid.

At some stage in late 2011 or early 2012, Volodymir was told by the deceased that the plaintiff ‘wasn’t happy with the will’ and ‘wanted a bigger share’. He was also told by the deceased that ‘Sandra wasn’t happy either’, and both daughters were calling the deceased frequently.[44]
[44]Volodymir’s Affidavit [14].

On 1 December 2011 the plaintiff emailed Sandra as follows:

Hi Sandy sorry to hassle you – I want to pick up the titles…before xmas because I had to get valuations for Dawson and parkville and north melb and they will expire after 3 months and it was a huge job for me to get them organised and also they cost thousands.
So can you please email authority to discharge the mortgage and for me to collect the titles…[45]

[45]Ibid.

On 5 and 16 December 2011 Sandra emailed the plaintiff. The effect of these emails was that Sandra had received legal advice that she should not transfer the Dawson Avenue and Erskine Street properties until Battery Street and Hargrave Street had been transferred to her. She repeated the advice received that:

…a practical and fair way to deal with this matter would be for me to transfer Erskine to you at the same time as Battery is transferred to me…and that instead of transferring Dawson now, I enter into an agreement with you whereby I undertake to transfer my interest in Dawson to you upon the transfer of Hargrave unencumbered and uncontested to me.[46]

[46]Ibid.

On 16 December 2011 Sandra wrote to the deceased conveying the same advice and suggestion.[47]
[47]Ibid.

On the same day, Sandra’s solicitors wrote to the deceased and his solicitors advising that Sandra formally exercised the call option regarding Battery Street. As events transpired, the option was not in fact exercised.[48]
[48]Sandra’s Affidavit [74], Exhibit SWD-1.

Sandra deposed to two conversations she subsequently had with the deceased. The first occurred on or around 17 December 2011. The deceased allegedly said words to the following effect:

I did not ask Barbara to tell you that you must transfer Erskine and Dawson to her. She contacted you and asked you herself without me knowing. She is yelling at me and putting a lot of pressure on me to leave more of mamma and my properties to her in my will and she is also saying that I have to make you transfer properties that are in your name to her now because Mum and I have not been fair to her and we have given you and the boys a lot more than we have given her. I do not want to change the ownership of any properties and I don’t want to change our wills as mamma and I put a lot of thought into working out what we thought was fair. I am not happy to change mamma’s wishes, she would not be happy with me if I did.[49]

[49]Ibid [77].

When Sandra criticised the plaintiff’s behaviour and offered to tell her to leave the deceased alone, the deceased responded:

Don’t do that, Barbara can’t help it baby, she is very stressed and always unhappy, there are so many problems at home and at work. Nicky is dying and Tom needs a hip replacement and may never be able to walk again and she may lose her job and she need to find rooms.[50]

[50]Ibid.

Several days later, Sandra had another conversation during which the deceased’s ‘demeanour was very different’.[51] The conversation was to the following effect:

He said “You must transfer Dawson and Erskine to Barbara now.” I asked him “Why are you suddenly changing yours and Mum’s wishes, why is it so urgent, I don’t understand?” He said “Barbara has been yelling at me and is pressuring me to make these transfers because she says Mum and I have favoured you. Maybe she is right and I haven’t left her enough. She has so many problems at home and work and will probably lose her job.” I said “I don’t think Barbara’s situation is as dire as she made it out to be and she is manipulating you.” He was angry and said words to the effect of “How dare you say that, she is my daughter” and “My daughter would never do that.”[52]

[51]Ibid [78].

[52]Ibid.

At Christmas 2011, when Sandra asked the deceased why he wanted her to complete the transfers ‘when they are so different from yours and Mum’s longstanding wishes’[53] the deceased became angry, and said words to the following effect:

How dare you question me, do not defy me, do what you’re told and you have no right to impose conditions. If you don’t transfer Dawson and Erskine to Barbara I will cut you out of my will and that means you won’t have Cloyne Street. I cannot take Barbara’s yelling and screaming any more. If this continues I will give everything to the Ukrainian church.” I told Dad “I don’t think it’s right that Barbara is pressuring you to change Mum’s wishes.” He was angry with me and told me I had no right to tell him what to do. Dad had never spoken to me in that way before.[54]

[53]Ibid [80].

[54]Ibid.

On 2 January 2012, Lucy wrote a letter to Sandra that the deceased dictated to her as follows:

Regarding the property transfer of 36 Erskine St and Dawson Avenue; you are not at liberty to be imposing conditions on the transfer and nor is your solicitor.

I will ask Barabara to prepare these two transfers and after you receive them, you must sign them immediately and with no conditions.

I am highly disappointed with your actions.[55]

[55]Lucy’s Affidavit, Exhibit LED-2.

In early January 2012, the deceased called Sandra, and was ‘screaming’ at her. He said words to the following effect:

How dare you defy me. You must transfer the properties to Barbara or I will not leave you Cloyne Street. Barbara is putting so much pressure on me that I cannot stand it. She is making my life hell. If this continues I will leave everything to the Ukrainian church and you will all get nothing.[56]

[56]Sandra’s Affidavit [81].

Conversations to a similar effect took place in mid to late January 2012, and again in late January when Sandra visited the deceased. During the latter conversation Sandra deposed that the deceased said:

(a) ‘I beg of you to transfer these properties to her as soon as possible so that I have some peace. She is yelling at me constantly and driving me crazy’;

(b) ‘the value of Cloyne Street is higher than the total value of your interests in Dawson and Erskine … Barbara has told me she has had the properties valued and that Dawson is worth $1,000,000 and Erskine Street worth about $500,000’;

(c) ‘if it makes you more comfortable to make the transfers I will give you the certificate of title for Cloyne Street now’.[57]

[57]Sandra’s Affidavit [85].

To this final statement, Sandra responded ‘that is not necessary Dad I know that you will leave Cloyne Street to me as promised.’[58]
[58]Ibid.

Lucy also gave evidence about the transfer dispute, asserting that almost every conversation she witnessed between the plaintiff and the deceased at this time was ‘about the transfers’, with the conversations initiated by the plaintiff, and deposed as follows:

(a) ‘He [the deceased] said that Barbara was pushing him about the transfers’;[59]
[59]Lucy’s Affidavit [36].

(b) ‘Barbara told Grandpa on more than one occasion that he had to make sure the transfers occurred’;[60]

(c) Barbara ‘held them [emails apparently from Sandra’s lawyers regarding the transfers] up in front of Grandpa and shook them in front of his face. She said words to the effect “you need to sort this out”, and, “you have to make her do the transfers”.’[61]

(d) ‘[the plaintiff] told Grandpa words to the effect that Sandra was “greedy” and he needed to manage her. She raised her voice and spoke to him in a raised voice for several minutes’.[62]

[60]Ibid [35].

[61]Ibid [37].

[62]Ibid [40].

Lucy deposed that the deceased told her the property transfers were not his idea, but were the plaintiff’s idea. She says that he said that he ‘usually hated the idea of paying extra taxes and fees and that he intended the transfer of Dawson Avenue to occur with settlement of his and Nan’s wills.’[63] Nonetheless, Lucy deposed that the deceased became angry with Sandra when he thought she would not complete the transfers. The deceased dictated letters ‘to the effect that if Sandra did not transfer the properties to the plaintiff then Sandra wouldn’t inherit any properties under Grandpa’s will.’[64] However, when speaking to Lucy about the effect of Sandra not complying with this demand, the deceased ‘only referred to Sandra losing out on Cloyne Street’.[65]
[63]Lucy’s Affidavit [21].
[64]Ibid [26].
[65]Ibid.

Nicholas deposed to similar effect, recalling conversations he had with the deceased about the problems he was experiencing with the plaintiff and Sandra. Namely, he deposed that the deceased said ‘he wanted Sandra to transfer her interest in the [Dawson Avenue and Erskine Street] properties to [the plaintiff] so that he could “get Barbara off my back”’.[66] He said the deceased told him that ‘[the plaintiff] was upset and upsetting him and putting him under a lot of pressure. He said that [the plaintiff] was putting him under a lot of pressure more than once.’[67] He asserted that the deceased’s ‘anxiety over [the plaintiff] and Sandra’ continued for roughly the first half of 2012. During this period, Nicholas also deposed that the deceased told him ‘he was concerned that [the plaintiff] was in need of money’ and asked him to assist the plaintiff purchase medical rooms because she was ‘so poor’.[68] Nicholas believed that the plaintiff could in fact afford medical rooms.[69] He notes that he was ‘aware that [the plaintiff] had expensive architects renovating her already multi-million dollar home in Kew. I didn’t accept that she had any financial problems’.[70]
[66]Nicholas’ Affidavit [17] (emphasis in original).
[67]Ibid.
[68]Ibid [18].
[69]Ibid.
[70]Ibid [20].

Again in early 2012, the deceased allegedly told Therese that he wanted to leave the Lusk Drive units to Lucy and Sophie as thanks for their care of Taisa, but that Lucy had not accepted this offer. He then said that he would leave Lusk Drive to Peter.[71] Peter deposed to conversations with the deceased to similar effect.[72]
[71]Therese’s Affidavit [7].
[72]Peter’s Affidavit [19], [25].

Lucy deposed that in January 2012 the deceased told her that the plaintiff wanted him to see a lawyer.[73] The deceased told her he ‘would not spend money on a lawyer and he knew how to fix/amend his will and he could write directives on there’ and said words to the effect ‘your Grandpa is a clever old fellow, you know’. The deceased explained the changes he wanted to make to his will to Lucy as follows:[74]

(a) he wanted to add a passage to his will ‘to ensure that Sandra did complete the transfer to Barbara’;[75] and

(b) ‘update his will to take account of the fact that Lusk Drive no longer had to be sold to cover debts and also to deal with the Tullamarine properties he had inherited from Nana’.[76]

[73]Lucy’s Affidavit [28].

[74]Lucy’s Affidavit [28].

[75]See Lucy’s Affidavit, Exhibit LED-3.

[76]Lucy’s Affidavit [28].

Lucy deposed that after telling ‘[the plaintiff] that the deceased did not want to see a lawyer, [the plaintiff] said words to the effect that he absolutely had to go and that she would speak to him.’[77]
[77]Ibid [30].

The plaintiff arranged for the deceased to see a lawyer and asked Lucy to make the appointment for the deceased with a lawyer and she initially agreed to do so. On 19 January 2012, the deceased told Lucy ‘he did not want to see the lawyer’ and he wanted to speak first with his granddaughter, Amy, who is a lawyer. Lucy deposed that the deceased told her he had been visited twice by the plaintiff, who ‘wanted things to happen soon in regards to the transfer.’[78] Lucy asserts that the deceased ‘was worried as [the plaintiff] was getting angry as not much was happening.’[79]
[78]Ibid.
[79]Ibid.

Lucy told the plaintiff that the deceased did not want to go to a lawyer and he wanted advice from Lucy’s sister, Amy. The plaintiff said that he had to see a solicitor and she would speak again to the deceased. When Lucy visited the deceased on that same day, the deceased dictated to Lucy a list of issues to raise with the lawyer.[80] In particular, the following issue was dictated by the deceased to Lucy:

Amendment to the will of Peter Demediuk to ensure the transfer of 36 Erskine Street, North Melbourne and 22 Dawson Avenue, Brighton from Sandra Demediuk to Barbara Demediuk.
…
Regarding this matter please include a suspension of the will of Peter Demediuk for 3 months from now to facilitate the transfer of 22 Dawson Avenue, Brighton and 36 Erskine St, North Melbourne to Barbara in its entirety. So that, Sandra Demediuk must transfer her share of both properties to Barbara Demediuk within 3 months. If both transfers don’t take place within 3 months, Sandra Demediuk will lose claim to all properties designated to her in the will and receive nothing.[81]

[80]Lucy’s Affidavit [31].

[81]Ibid Exhibit LED-3.

The deceased attended the appointment with a lawyer on 20 January 2012. It was not a success, and it appears that the firm were not given instructions to prepare a new will for the deceased.[82]
[82]Ibid [33]-[34].

In February 2012 the deceased made his February will. Lucy deposed that the deceased told her in March or early April 2012 that it was ‘largely the same as all of his previous wills’ except that Lusk Drive was to be left to Peter, and the Tullamarine units were to be left to the plaintiff and Nicholas.[83] Lucy deposed that she did not know who typed the deceased’s wills.[84]
[83]Ibid [46].
[84]Ibid [47].

Peter deposed that in early February 2012 he visited the deceased and he said:

[The deceased] had tears in his eyes and said words to the effect of “Poor Barbara. I’m worried about Barbara.” Dad said that Barbara had told him that her job was in peril, her career had not gone as well as it should, she was losing influence and status at the hospital, and that there were cuts in her hours and that she was having problems with access to professional rooms. This concern with Barbara’s career was followed with words to the effect that “there’s problems with Tom’s [Barbara’s husband] and Nick’s [her son’s] health, she needs money”.[85]

[85]Peter’s Affidavit [28] (emphasis in original).

Apparently the deceased ‘brightened up a bit when he told me that he would have Nick help [the plaintiff] out and he should find her some rooms.’[86] Therese deposed to a similar conversation with the deceased in the first half of 2012 in which he expressed his concern about the plaintiff’s job, her husband’s health, and her son’s need for an expensive overseas operation.[87] Therese also deposed that the deceased ‘was upset that Sandra had not signed the paperwork for the property transfers’.[88]
[86]Ibid.
[87]Therese’s Affidavit [8].
[88]Ibid.

Peter was apparently unconvinced of the plaintiff’s financial difficulties. He deposed that around March 2012 when he learned of the deceased’s concerns about the plaintiff’s circumstances, he ‘made a point of asking [the plaintiff] how things were going for her and her family.’[89] She apparently responded by saying things were okay, and turned the conversation to her planned holiday at various overseas ski resorts, and her home renovations.[90] Peter considered that ‘[i]f such dire problems had existed, I would have expected [the plaintiff] to discuss them with me, given we had what I believed to be a strong and trusting relationship.’[91]
[89]Peter’s Affidavit [31].
[90]Ibid.
[91]Ibid.

At roughly the same time of year, [the plaintiff] called Lucy wanting to speak to the deceased. After passing the phone to the deceased, Lucy deposed that she could:

hear Barbara screaming…I have heard Barbara talk to Grandpa may times when she needed to make herself heard because of his deafness. This was different. She appeared to be screaming in anger. I heard her say words to the effect that she would never speak to Grandpa again if he didn’t sort the property transfers out with Sandra…After the phone call Grandpa was shaking…He had tears in his eyes.[92]

[92]Lucy’s Affidavit [44].

Again at around this time, Lucy deposed that on two occasions the deceased ‘put his head in his hands and said it was all too much. He told me he was desperate for Sandra to sign the transfers so that [the plaintiff] would leave him be’[93] and that ‘he was very keen to get it done for [the plaintiff] because she was so distressed. Grandpa told me words to the effect that [the plaintiff] had been yelling at him.’[94]
[93]Ibid [45].
[94]Ibid [41].

From this stage until the property transfers were signed in May 2012, Lucy deposed that the deceased ‘was very stressed.’[95] She further deposed that:

On two occasions he put his head in his hands and said it was too much. He told me he was desperate for Sandra to sign the transfers so that Barbara would leave him be. He would often start to cry when he spoke to me about the property transfers. Grandpa would say to me that he wanted to leave all his money to the Ukrainian Church and it was all getting too much.[96]

[95]Ibid [45].

[96]Ibid.

On 23 March 2012 the deceased transferred the title to the Battery Street property to Sandra, pursuant to the call option agreement.

On 10 May 2012 the deceased made out a cheque to the plaintiff for $37,999.75.[97]
[97]Peter’s Affidavit [33], Exhibit PD-1.

On 10 May 2012 Sandra and the plaintiff agreed on the paperwork necessary to complete the transfers.

On 29 June 2012 the transfers were registered for Sandra’s 25 per cent interest in Dawson Avenue to the plaintiff and Sandra’s 50 per cent interest in Erskine Street to the plaintiff.[98] As a result of these transfers, the plaintiff held a 50 per cent interest in Dawson Avenue and a 100 per cent interest in Erskine Street.
[98]Sandra’s Affidavit, Exhibit SWD-1.

Sandra deposed that once these transfers were complete, her relationship with the deceased became calmer. She also deposed that she agreed to the transfers because she did not want the deceased to be upset, not only because the deceased had ‘made it very clear’ she would get Cloyne Street if she did the transfers.[99]
[99]Sandra’s Affidavit [86].

Sandra deposed to visiting the deceased at the end of May 2012 and he told her ‘that [the plaintiff] still wasn’t happy and she was pressuring him to transfer more properties to her and that he feared she’d never be happy’.[100] During the visit, the deceased also told Sandra that he had updated his will because Taisa had died.[101] During that same visit, Sandra deposed that the plaintiff said to her ‘why would I thank you [for the transfers], you’re getting Cloyne Street as part of the deal’.[102]
[100]Ibid [91].
[101]Ibid.
[102]Sandra’s Affidavit [92].

On 26 June 2012, the deceased fell in the driveway of his home. The following day, 27 June 2012, the June will was executed. The deceased’s signature on the will was witnessed by a neighbour of the deceased, Kate Rogers, and the deceased’s carer, Mafutaga Tomuli.

Ms Rogers deposed that one day in June 2012, the deceased knocked on her door and told Ms Rogers that he had a document. He was accompanied by his carer. Mr Rogers directed them to her dining room table. The deceased handed the document that he wanted her to witness which she recognised as a will. The deceased indicated to Ms Rogers that he wanted her to witness it. The deceased signed the will in the presence of Ms Rogers and his carer.

Ms Tomuli deposed that on one occasion in 2012, the deceased told her that he wanted some documents typed up. He looked up the addresses for two nearby secretarial services and Ms Tomuli drove him to both services that day but no one answered at either place. Ms Tomuli knew that the deceased sometimes had Lucy help with his paper work and pay some bills. She asked the deceased why he did not just get one of his grandchildren to type the document for him. The deceased told her not to worry and that he would do it. By the time Ms Tomuli left for the day, the deceased had not arranged for the document to be typed.

On another day, later in 2012, the deceased told Ms Tomuli that he wanted to go for a walk. They went to Ms Roger’s house where he spoke to her. He sat at the kitchen table and took his wallet from the basket of his walker and removed some papers. He asked Ms Tomuli to sign the document. He told Ms Tomuli that ‘it is just my will – just sign – don’t worry about it’. Ms Tomuli signed her name and, as requested by the deceased, wrote her initials at the bottom of the other pages. The other woman in the room gave her a note with her name and number on is and Ms Tomuli subsequently passed on those details to Nicholas’ wife, Felicity. Ms Tomuli said that the deceased put the wallet with the papers into his basket and they returned to his home where they remained when she left her shift. She deposed that it was the deceased’s habit to leave documents in the basket of his walker and the wallet remained in the basket for some time after that day. Some time later, she noticed the wallet on the deceased’s dining table where he kept many of his papers but she cannot recall the last occasion that she saw the wallet on the table.

Nicholas visited the deceased on the same day the June will was executed. He deposed that if the deceased had mentioned the will signed that day, or to be signed that day, he ‘would have remembered it.’[103]
[103]Nicholas’ Affidavit [24].

The plaintiff deposed that she came into possession of the 2012 June will during one of her visits to her father’s home several months prior to his admission to hospital on 15 December 2012. She recalled that he said words to the effect that he had made a new will and he wanted her to have it. She assumed that it was a copy that he gave her as if he had expressly told her that it was an original she would have suggested that he put it in safe custody somewhere. She felt awkward about taking it but he was insistent that she do so. She assumed that the original would be kept by her father on his table in his work area where he kept many of his current business and personal documents. It consisted of A4 size paper that was folded in half. She placed it into her bag without unfolding it, reading it or counting its pages. She left it in her bag for at least several days when she subsequently removed it and placed it in a plastic sleeve and stored it with personal papers of her own. She did not open it or read the will until after her father’s death on 15 February 2013.[104]
[104]Affidavit of Barbara Demediuk sworn 24 August 2015 [6(a) – (d)].

On 2 August 2012, the deceased executed a deed of loan forgiveness of the loan agreement.[105] Sandra brought the deed to the deceased on 2 August 2012. Sandra arranged for the deceased to attend on lawyers to ensure that he understood and agreed to it before signing it as she wanted to ensure there were no problems in the future for her with the deed of forgiveness and she explained that it was necessary for him to see a lawyer for the deed to be binding. The deceased was apparently given independent legal advice regarding the deed prior to executing it. However, the deceased apparently became ‘indignant’ at Sandra’s suggestion that ‘anyone would challenge the money that he had given to’ her. Sandra deposed that the deceased’s ‘attitude was that it was his money to do with what he wanted and that none of his children would ever go against his decisions and/or question his judgment.’[106]
[105]Sandra’s Affidavit, Exhibit SWD-1.
[106]Sandra’s Affidavit [96]-[97].

Lucy deposed to a conversation with the deceased in August or September 2012, in which the deceased told her he intended to mail the certificate of title for the Cloyne Street property to Sandra.[107] He allegedly said he wanted to send Sandra ‘her title’. Lucy is not aware of who posted the title.[108]
[107]Lucy’s Affidavit [54].
[108]Ibid.

Sandra received the title in September 2012. She deposes that a note in the deceased’s handwriting accompanied the title, as follows:

I recall that it called me “Baby” and it referred to “your” Cloyne Street. I recall that there was a veiled warning about Barbara wanting something and that the certificate of title should be kept safe…I don’t have much of a filing system and kept very few emails and letters from family. I did not retain the note.[109]

[109]Sandra’s Affidavit [101].

Lucy deposed that in late 2012 the deceased had concerns about the plaintiff’s financial position, and told her that for this reason a cheque for $98,000 had been given to the plaintiff to reimburse her for tax paid on rental income from properties.[110] The deceased allegedly reiterated his concern about the plaintiff’s ability to secure medical rooms and her family’s health.[111]
[110]Lucy’s Affidavit [56]; Peter’s Affidavit [29], [35], Exhibit PD-1.
[111]Ibid.

Nicholas deposed that in late 2012 the deceased told him that ‘he wanted to give Cloyne Street to Sandra’.[112] Nicholas says he was surprised the deceased mentioned it, despite his belief that Cloyne Street was always going to Sandra.
[112]Nicholas’ Affidavit [25].

In December 2012 the deceased developed complications arising from hip surgery and was hospitalised. Peter deposed that in January 2013 the deceased ‘appeared to be still worrying about [the plaintiff’s] personal and professional circumstances as well as Sandy and the kids.’[113] However, the deceased ‘said that Nick would be head of the family and would look after the girls [Barbara and Sandra].’[114]
[113]Peter’s Affidavit [37].
[114]Ibid.

In the last months of the deceased’s life, Volodymir deposed that he asked the deceased if the problem between his daughters was solved. The deceased responded ‘no’.[115] Shortly before he died, the deceased allegedly said ‘[i]t would have been better if I was poor, so that my children would stick together. Money makes problems’.[116]
[115]Volodymir’s Affidavit [21].
[116]Ibid [22].

The deceased died on 15 February 2013.[117]
[117]Therese’s Affidavit [9].

On 17 February 2013, Therese, Peter, Lucy, Barbara, Nicholas and Felicity met at the deceased’s house to discuss funeral arrangements. There is some dispute as to what occurred and was said at that meeting.

The plaintiff deposed that Felicity said that she had seen the will on the deceased’s table but they could not locate it. The plaintiff mentioned that she had a copy of it and Therese mentioned that she thought someone had the original from February, and words to the effect that ‘a copy might not be valid’.[118] Therese denies saying any of this or that anyone else said words to such effect in her presence.[119] Therese also deposed that she has no recollection of Felicity saying that she had seen the will, nor that Felicity and Nicholas then looked for the will. Lucy also denies that these statements or actions occurred.[120]
[118]Barbara’s Affidavit [6(g)].
[119]Therese’s Affidavit [16].
[120]Lucy’s Affidavit [58].

Peter does not recall the plaintiff’s version of the events of 17 February. Rather, he deposed that ‘I do not believe that those things happened because I was there all the time (so far as I can recall) and I would have seen it.’ He deposed that the plaintiff did not, in his presence, ‘bring up’ the issue of the deceased’s will or say anything about ‘holding a copy of Dad’s will’.[121]
[121]Peter’s Affidavit [40].

Nicholas did not recall the plaintiff saying that she had a copy of the will on that day.[122] He deposed that he and Lucy had looked in the deceased’s office for his will and had found what was either an original or copy of the deceased’s will dated February 2012.[123]
[122]Nicholas’ Affidavit [32].
[123]Ibid [29].

The next day, on 18 February 2013, the plaintiff emailed Nicholas and Peter, stating relevantly:

Also it might be good that noone puts out any rubbish for collection at Alton ave till the will turns up in case its gone in the recycling or something like that…
As I mentioned yesterday dad gave me a copy but I assume the original one is likely to turn up in due course.[124]

[124]Ibid Exhibit NID-4.

On 20 February 2013 Nicholas emailed his siblings and said that he wanted Tony Balfe at Purcell Balfe and Webb to handle the legal work for the deceased’s estate. In a subsequent email exchange, Nicholas said that he had a copy of the deceased’s will from February 2012. The plaintiff responded saying, ‘I have a copy of a more recent one which dad gave me - I will scan it tomorrow and forward it’.[125]
[125]Ibid Exhibit NID-5.

On 21 February 2013, the plaintiff emailed a scanned copy of the 2012 June will to the defendants.[126] The plaintiff deposed that she then did a thorough search of the deceased’s house for the full original will, but could not find it.[127]
[126]Ibid Exhibit NID-6.
[127]Barbara’s Affidavit [6(j)].

Peter deposed that the deceased was ‘a meticulous record keeper.’ Although the February will was found ‘where it was expected to be in a marked Wills file’ there was ‘no sign of any original or copy of the June will’.[128] Lucy deposed that the deceased had told her that he stored his will in a purple plastic pocket within a green hanging file, within a steel filing cabinet in his study.[129]
[128]Peter’s Affidavit [48].
[129]Lucy’s Affidavit [19].

Nicholas, Lucy, Sandra and Peter all deposed that they had never seen nor heard of the June will before.[130]

Plaintiff’s submissions

[130]Nicholas’ Affidavit [34].

The plaintiff submits that the defendants have no real prospect of success ‘of making out the allegation of undue influence’ for the following reasons:

(a) the evidence adduced by the defendants of discussions between the plaintiff and the deceased do not relate to the deceased’s will, related to inter vivos property transfers, and were not relevantly contemporaneous with the making of the June will;

(b) there is no evidence that the deceased complained or expressed regret about the June will, or said anything capable of demonstrating the June will was the result of undue influence upon him;

(c) the defendants have adduced no evidence about the drafting of the June will, nor any evidence connecting the plaintiff with the decision to make, or the drafting of, the June will; and

(d) the evidence of the attesting witnesses as to the circumstances in which the June will was executed is inconsistent with the assertion that the June will was only executed by the deceased as a result of the undue influence of the plaintiff.

The plaintiff further submitted that, put at its highest, the defendant’s case as to undue influence was a circumstantial one, requiring an inference to be drawn that the June will was procured by undue influence from the following matters:

(a) there was ‘some type of “family agreement”’ between the deceased, Taisa, and their children about how the various properties were to be divided upon their deaths;

(b) the June will was inconsistent with this alleged agreement; and

(c) the plaintiff encouraged the deceased to insist that Sandra transfer part interests in certain properties to the plaintiff.

The plaintiff submits this evidence is generally weak and could be open to criticism. The plaintiff submits that, at best, the evidence indicates the deceased’s testamentary intentions ‘from time to time’[131] and argues that this was no bar to the deceased changing these intentions, which had occurred with his previous wills executed by him throughout his lifetime.
[131]Plaintiff’s Outline of Submissions, 6 May 2016, [11].

The plaintiff also submits that the deceased ‘was a strong willed man who eschewed the use of lawyers generally throughout his life.’[132] As with his previous wills, the June will was drafted without the assistance of a lawyer. In addition, there is no evidence that the plaintiff was involved in drafting the June will, or previous wills of a similar template.

Defendants’ submissions

[132]Ibid [13].

The defendants submit that the evidence suggests that the plaintiff:

(a) was aggrieved by the deceased’s treatment of her;

(b) resented certain of her siblings; and

(c) ‘took steps to have her vulnerable father change his will as part of a broader strategy to secure her financial interests, which included putting him under pressure in various exchanges between them.’[133]

[133]Defendant’s Outline of Argument, 5 May 2016, [15].

The defendants submit that the affidavits filed constitute evidence that may, at trial, establish the following factual matters:

(a)the deceased (and also his late wife) had longstanding intentions to leave their children properties in specie, rather than just liquidating and dividing their estates between their children;
(b) the deceased (and also his late wife) had longstanding and settled intentions about which particular properties would pass to which children;
(c) the deceased had intended for years that Opawa Street be redeveloped into four units, one for each child;
(d) every available recent Will of the deceased (save for the June Will) and the last Will of his late wife ultimately left the deceased’s share of Opawa Street between Peter and Nick so that all siblings had an equal share;
(e) the Cloyne Street property had been intended by the deceased and his late wife to pass to Sandra for years;
(f) every available recent Will of the deceased (save for the June Will) and the last Will of his late wife left Cloyne Street to Sandra;
(g) the intention to pass Cloyne Street to Sandra was expressed again as recently as early 2012 in the context of encouraging Sandra to acquiesce in the property transfers that the plaintiff wanted;

(h) the deceased was aware that Sandra had lost her job in March 2012;
(i) in his Will dated 10 February 2012 (“February Will”) the deceased left the Lusk Drive property (which had in his previous two Wills been earmarked for payment of debts) to Peter in gratitude for the care Peter’s daughters took of his late wife during her last illness;
(j) the deceased was 92 years old, had some months before lost his wife of over 60 years, had multiple serious health conditions including terminal heart failure and chronic obstructive lung disease, required a carer, had been hospitalised several times, was profoundly deaf and became exhausted easily and had limited mobility;
(k) the deceased was under the impression that the plaintiff was having financial difficulties, that her employment was at risk and that her husband and one of her children were very ill;
(l) the plaintiff considered she had not been treated fairly by her parents;
(m) the plaintiff considered that her siblings, Sandra and Nick had been preferred;
(n) the plaintiff expressed anger and resentment against her father as a result of his marital unfaithfulness;
(o) the plaintiff took steps to secure her own financial interests by pressing for immediate transfers of Erskine Street and Dawson Avenue from Sandra, pretending that they were the deceased’s requests when they had not been;
(p) the plaintiff initiated discussions with the deceased regarding the transfers of those properties on several occasions;
(q) the plaintiff was angry when she was told by Sandra that she would not immediately transfer the properties;
(r) the plaintiff demanded that the deceased make Sandra transfer her interests in the properties and sometimes yelled at him, screamed at him and subjected him to pressure in doing so; the plaintiff’s actions caused the deceased much distress over the first half of 2012;
(s) the plaintiff wanted the deceased’s Will to be changed. The deceased understood that the plaintiff wanted his Will to be changed. The plaintiff arranged for the deceased to meet with a lawyer with a view to the preparation of a new Will although the deceased considered it unnecessary. The deceased was not interested in seeing or paying a lawyer and he didn’t want to go;
(t) the plaintiff arranged to be reimbursed for income tax she had paid on rental income from properties the deceased had placed in her name by insisting on accompanying the deceased to see his accountant, writing out the cheque from the deceased’s chequebook to herself despite it being a longstanding arrangement that the children had not claimed such reimbursement before;
(u) the plaintiff was actively and purposely involved in altering arrangements to secure her own financial interests;
(v) the June Will was made at a time when Sandra had completed the transfers of the properties to the plaintiff and the deceased’s relationship with Sandra was warm;
(w) the June Will was made without the benefit of a lawyer who could provide professional supervision and also independent evidence of the deceased’s willingness to make it;
(x) it remains a mystery how the June Will was prepared and who copied it, once signed. The deceased did not use a computer;
(y) the June Will devises Cloyne Street, Opawa Street and Lusk Drive to the plaintiff, without any explanation being given for these changes and without any change in circumstances;
(z) the June Will significantly benefitted the plaintiff (by approximately $2,505,000) over the February Will;
(aa) no one but the plaintiff and the deceased were aware of the June Will until after the deceased’s death;
(bb) although the plaintiff knew about the June Will (the deceased having given a copy of it to her), she told none of her siblings about it until after the deceased passed away and the original could not be located;
(cc) the plaintiff also claims to have been disinterested in the contents of the June Will, which is inconsistent with her actions described above, particularly her statements that the deceased’s will needed to be changed and her efforts to engage a lawyer for her father to change his will;
(dd) the deceased sent Sandra the title to Cloyne Street several months after the June Will was made;
(ee) the deceased asked Peter when he was going to formulate a proposal for the development of Lusk Drive, several months after the June Will was made;
(ff) the deceased told Sandra that he had left a share of Opawa Street to Nick and on the same occasion referred to Sandra receiving Cloyne Street, several months after the June Will was made; and
(gg) it can be inferred that the deceased retained the copies of pages 1 of 3 and 2 of 3 and the original signed page of the June Will in the deceased’s secure and well organised custody and that as it cannot now be located, the likelihood is that the deceased destroyed that document.

The defendants relied on the English decision of Schrader v Schrader and referred to certain observations made in that case regarding the role of circumstantial evidence where testamentary undue influence is alleged:

It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurably stronger, on normal principles.[134]

[134][2013] EWHC 466 (Ch), [96] (Mann J) (‘Schrader’).

In Schrader, Mann J concluded that undue influence had been established, and could be inferred by a number of factual circumstances specific to that case.[135] His Honour considered that the facts ‘require the inference that [the claimant] was instrumental in sowing in his mother’s mind the desirability of his having the house, and in doing so he took advantage of her vulnerability. It is not possible to determine any more than that the precise form of pressure, or its occasion or occasions, but it is not necessary to do so.’[136]
[135]Ibid [97].
[136]Ibid [98].

The defendants submitted that Schrader ‘has similarities with this proceeding, although, arguably, there is more evidence of pressure on the deceased in this case.’[137] The similarities alleged by the defendants are that there were departures from ‘long standing’ testamentary intentions, as well as ‘evidence to suggest that, the deceased sought to repudiate its [the June will’s] effect’.[138]
[137]Defendants’ Outline of Argument, 5 May 2016, [16].
[138]Ibid [15].

Applicable principles

The parties were in general agreement as to the principles relevant to testamentary undue influence and the required onus of proof.

To establish testamentary undue influence, there must be ‘coercion’ or an ‘overbearing of the will.’[139] Although described by such succinct phrases, the application of these concepts to a particular case is notoriously difficult. Matters which, taken alone, will not constitute undue influence are set out in Hall v Hall, where Sir J P Wilde instructed the jury as to the dichotomy between ‘convincing the judgment’ on the one hand, and ‘overpowering the volition’ on the other:

Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like — these are all legitimate, and may be fairly pressed upon a testator.
…
Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from the distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion, or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. [140]

[139]Wingrove v Wingrove (1886) LR 1 P&D; Bailey v Bailey (1924) 34 CLR 558; Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136 (15 June 2007); Nicholson v Knaggs [2009] VSC 64 (27 February 2009); Brown v Guss [2014] VSC 251 (2 June 2014).

[140](1868) LR 1 P&D 481, 482–3.

His Lordship concluded:

In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.[141]

[141]Ibid 483.

Nonetheless, the distinction between persuasion and coercion will often be subtle and it will almost invariably be difficult to draw a distinct line between them. In Boyse v Rossborough, Lord Cranworth observed that most cases will be more nuanced than outright theft or blatant deception:

In the interpretation of these words, some latitude must be allowed. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and make him execute as his will an instrument which, if he had been free from such influence, he would not have executed.[142]

[142]Boyse v Rossborough (1857) 6 HL Cas 2, 48-49 (‘Schrader’).

Testamentary undue influence may be established by circumstantial evidence. By no means is this to suggest that the evidential onus on the defendants is lessened. The difficulties attending circumstantial cases were helpfully summarised by Powell J in Winter v Crichton:

…where what is relied upon is a purely circumstantial case, such as is illustrated by the particulars in this case, the duty of the defendant goes further than merely establishing the circumstances from which it is sought to have the inference drawn. Thus, in Wingrove v Wingrove (at 83) Sir James Hannen P concluded his charge to the jury with the following:
There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

So, too, in Boyse v Rossborough:
… The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence; that the instrument, though apparently the expression of his genuine will, might in truth have been executed only in compliance with the threats or commands of his wife, or that he had been led to execute it by unfounded prejudices artfully instilled into or cherished in his mind by his wife against those who would otherwise have been the probable objects of his bounty. But in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.[143]

[143](1991) 23 NSWLR 116, 121 (citations omitted).

The onus of proof of testamentary undue influence rests upon the person alleging it, and the standard of proof is on the balance of probabilities.[144] Given the circumstantial nature of evidence relied on in testamentary undue influence cases, in particular reliance on conversations, a court must feel ‘an actual persuasion of its occurrence or its existence’.[145] Given the seriousness of an allegation that a will had been procured by coercion or fraud, the principles expressed in Briginshaw v Briginshaw are applicable.[146] These principles, also contained in s 140 of the Evidence Act 2008, require that the gravity of the allegation of testamentary undue influence, the significance of property passing under a will, and the inability of the testator to give evidence, should be taken into account in considering the evidence.
[144]McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA).
[145]Neale v Bank of Western Australia (NSWSC) 315, [198] (Hammerschlag J).
[146](1938) 60 CLR 336, 362. See also Helton v Allen (1940) 63 CLR 691, 712; Reifek v McElroy (1965) CLR 517, 521; Watson v Foxman (1995) NSWLR 315, 319.

Consideration

The defendants referred to certain similarities with Schrader and the role of circumstantial evidence where testamentary undue influence is alleged. These similarities are to some extent relevant, but Schrader throws little light on the issues to be determined in this application for summary dismissal.

As has been observed many times and again at the hearing of this application, relying simply on a sliver or two of another case creates difficulties. Although factual similarities between cases may be informative and useful to a court, the onus lies on those seeking to prove undue influence to establish it on the particular facts of a case, and not simply by analogy.

Beyond the general observations made by the defendants, the similarities between this proceeding and Schrader are minimal, let alone that this case ‘arguably’ exhibits more evidence of pressure as submitted by the defendants. There are many distinguishing features between this proceeding and Schrader as follows:

(a) in Schrader the testamentary change had the effect of completely disinheriting one sibling whereas this does not occur in this proceeding;

(b) in Schrader the testatrix was highly dependent on the claimant, and ‘would have been very worried about his moving and ceasing to look after her.’[147] In this proceeding, the deceased was not reliant on the plaintiff. The evidence of several of the deponents suggests the plaintiff had minimal involvement in his care and he received significant assistance from his carer, his granddaughter Lucy, and his sons;
[147]Schrader [2013] EWHC 466 (Ch), [97(ii)].

(c) in Schrader Mann J considered a powerful factor was the forceful personality of the claimant.[148] In this proceeding, whilst it certainly does not appear that the plaintiff was a shrinking violet in her dealings with the deceased, the deceased also seems to have been a strong willed, forceful and decisive character, well aware of and willing to implement his own intentions, including testamentary intentions;
[148]Ibid [97(vi)].

(d) in Schrader Mann J found that the claimant was involved in the making of the disputed will.[149] In this proceeding, there is no evidence of how the June will was made, only evidence of its execution by the deceased; and

(e) in Schrader the claimant did not disclose the existence of the disputed will until six months after the testatrix’s death.[150] In this proceeding, the plaintiff referred to the June will on the day of the family meeting and shortly thereafter sent a scanned copy of the document in her possession to the defendants.

Evidence contrary to a common family understanding

[149]Ibid [97(viii)].

[150]Ibid [97(ix)].

There is evidence against a commonly understood family arrangement. For example, in 2001, Nicholas prepared draft wills for his mother and father, in which their respective interests were distributed evenly amongst their children.[151] Although the deceased was not happy with the draft will and did not sign it, Taisa did.[152] This suggests that, at least to some extent, the commonly understood arrangement did not at that stage extend to Nicholas and Taisa.
[151]Nicholas’ Affidavit [6].
[152]Ibid.

In February or March 2002, Sandra prepared wills for her mother and father. Although Sandra deposed that the deceased told her they had both signed the wills, apparently the deceased did not or at least a copy of the will has not been found. This suggests that, at least to some extent, the commonly understood arrangement did not at that stage extend to the deceased. His will at that stage was his will made in 1956 and his next signed will was dated 9 July 2010.

There is also some suggestion that the plaintiff may not have been aware that Cloyne Street was destined for Sandra as Sandra deposed that in December 2011 ‘I didn’t mention Cloyne Street [with the plaintiff] because I didn’t want to draw [her] attention to it as I wasn’t sure she knew that Cloyne Street was intended to go to me.’[153]
[153]Sandra’s Affidavit [75].

The evidence in fact suggests that the deceased had intentions as to which of his children would receive particular properties on his death. However, he was willing to, and on occasion did, vary this by the creation of a new will or by inter vivos transfers.

The deceased’s testamentary dispositions between 5 July 1956 until 9 July 2010 were not in accordance with a commonly understood family arrangement as alleged by the defendants. After that, there was a pattern of dispositions of properties but they were not immutable. The deceased’s four wills demonstrate that certain dispositions changed over that time. For example, the deceased’s will made on 24 November 2010 altered his disposition of a property in Sherwood Avenue, Chelsea, from his July 2010 will; his February will altered his disposition of the Lusk Drive property from his July 2010 will and, in this latter will, he included the disposition of his two units in Waratah Avenue, Tullamarine for the first time. His February will and his June wills both included ‘all stocks and shares’ in the ‘Land/Real Estate Schedule’ with the words ‘to be sold to cover debts. If any remain, they should be dispersed equally amongst the four children’. This disposition was not included in the two 2010 wills which provided for Lusk Drive to be sold to pay debts.

The deceased made a number of wills over his lifetime. Nicholas deposed that whenever the deceased wanted to make changes to his will, he would simply write the changes directly onto the earlier will.[154] Although Nicholas told the deceased this was not a valid way to vary the will, the deceased believed it was ‘ok doing it this way’.[155] Lucy’s evidence was to the same effect with the deceased telling her that he knew how ‘to fix/amend his will and he could write directives on there’. This is evident in the 24 November 2010 will which alters the disposition of the Sherwood Avenue Chelsea property and this is done by the deceased in his handwriting.
[154]Nicholas’ Affidavit [14].
[155]Ibid.

There is also an indication that he was prepared, should Sandra not complete the transfers, to exclude her from his will. Whether he would have in fact done so is another matter, but the evidence is that he was prepared to raise the possibility with solicitors.

Whilst the defendants sought to portray the deceased as a vulnerable person, the evidence, in particular, the contemporaneous documentary evidence, is to the contrary showing that the deceased was strong willed, forceful and decisive and that he expected his family to follow his directions and comply with his wishes.

The transfers of Sandra’s interests in Dawson Avenue and Erskine Street to the plaintiff

The documentary evidence suggests the deceased wanted the transfers of Dawson Avenue and Erskine Street to occur, and was becoming increasingly frustrated with, what he appeared to perceive as, some sort of delay in its occurrence.

Sandra’s contentions that the deceased did not want her to complete the transfers is contradicted by the documentary evidence of the letter to Sandra of 2 January 2012;[156] the deceased’s notes regarding changes to his will he intended to discuss with lawyers; and the letter the deceased subsequently received from the lawyers he consulted that indicates that he clearly raised this issue with them.[157]
[156]Lucy’s Affidavit; Exhibit LED-2.
[157]Ibid Exhibit LED-5.

Although the inter vivos transfers may have been the plaintiff’s idea, there is no suggestion that the deceased did not want the transfers to occur. The evidence does not suggest that the deceased only effected the transfers because the plaintiff wanted them. On the contrary, there is evidence to suggest that the deceased became angry when the transfers were not being effected. The distress the deceased appears to have felt regarding the transfers appears to be based on Sandra’s resistance to the transfers and the acrimonious relationship between his two daughters that, on the evidence, ceased once the transfers were completed.

Although there are numerous statements allegedly made by the deceased as to the ‘pressure’ being applied by the plaintiff, the documentary evidence of the deceased’s intentions regarding the transfers is a more reliable representation of his views.

Alleged repudiation of the June will by Sandra receiving the certificate of title for Cloyne Street in the post after the June will was made

Counsel for the defendants submitted that the sending of the certificate of title to Cloyne Street to Sandra after the June will was made suggested the deceased was countermanding the effect of the June will. This inference cannot be drawn for the following reasons:

(a) There is no evidence of who mailed the title, although I accept that the deceased, as deposed by Lucy, had intended to mail the title to Sandra;

(b) The deceased had previously been perfectly willing to make changes to his will either by his own hand or preparing a new will entirely. To then attempt to ‘countermand’ the June will by this circuitous and ambiguous action seems implausible; and

(c) The note alleged to have been received by Sandra accompanying the title has not been kept by her notwithstanding that she is a lawyer by profession. Historically, Sandra ensured that all transactions were properly documented, for example, the loan forgiveness deed and the call option agreement. She also secured or attempted to secure her interests, for example, the advice she received from her solicitors regarding the risks associated with transferring the Dawson Avenue and Erskine Street properties, specifically because she did not trust the plaintiff. She has also clearly communicated to the deceased that she did not trust Barbara;

(d) Sandra deposes that she kept very few emails and letters from family yet she has exhibited other communications from the deceased that, arguably, are more innocuous than the alleged note; and

(e) The evidence suggests that at this time the deceased dictated his correspondence, by necessity, and generally to Lucy, however, there is no evidence from any of the deponents about the note being written by any of them.

The June will

Counsel for the defendants submitted that it could be inferred, by the absence of the original, final, page of the will ‘that the deceased retained the original page … and because he had good document custody and because it can’t now be found it could be inferred that it was destroyed by him.’ This submission, although made, does not seem relevant to this application but will be relevant to ground 2 of the defendants’ objections.

Counsel for the plaintiff submitted that ‘the fact the deceased seemed to use the same method in making this will [the June will] as he had on three prior occasions … using someone assisting him on a word processor and clearly using what was a previous precedent … is a fact which weighs against [the June] will having been the product of any undue influence by [the plaintiff].’ This submission should be rejected as there is no evidence as to the creation of the June will or what happened to the original signature page of it.

The plaintiff’s alleged failure to disclose the June will until three days after the death of the deceased

The family members, apart from Sandra, met at the deceased’s home two days after the death of the deceased. Whilst the defendants’ evidence was that they did not recall the plaintiff saying anything about the June will at that meeting, the plaintiff’s email exhibited to Sandra’s affidavit sent to family members the next day directly counters that allegation in the defendants’ particulars that the plaintiff did not disclose the existence of the June will until three days after the meeting. The plaintiff’s email the day after the family meeting refers to the discussion that day about the existence of the June will and, within two days, she sent a scanned copy of the June will that was in her possession.

The differences in value between the plaintiff and the defendants under February will and the June will

The defendants’ submissions that the differences between the June will when compared to the February will were so extraordinary or at such variance with the deceased’s prior intentions that it should be inferred, when considering the evidence as a whole, that undue influence was at play.

The defendants relied on tables headed ‘property interests according to will terms and existing interests’ to demonstrate the differences between the allocation of the deceased’s interests in his properties in the February will and the June will. The defendants’ tables setting out the allocation of the deceased’s properties under the February will and the June will with the totals of the allocations as follows:

Defendants’ tables according to wills and existing interests

February will

Plaintiff Sandra Peter Nicholas

$5,460,000 $6,380,000 $5,441,250 $4,511,250

June will

Plaintiff Sandra Peter Nicholas

$7,965,000 $5,380,000 $4,461,250 $3,986,250

The defendants concluded that the June will significantly benefits the plaintiff by approximately $2,505,000 over the February will. When comparing the different benefits between the plaintiff and Sandra only, under the February will, the plaintiff receives $920,000 less than Sandra and, under the June will, the plaintiff receives $2,580,000 more than Sandra.

At the hearing, certain anomalies were apparent in the defendants’ tables. The parties were required to file amended tables, annexed to these reasons as Annexure A. The values for the properties in the tables were taken from market appraisals obtained by the defendants. The plaintiff does not admit or dispute these market appraisals at this stage of the proceeding.

The amended tables include the values of the properties as set out in the defendants’ tables, and amends those values to accord with the deceased’s interests in his properties under the February will and the June will and amends the totals of the allocations as follows:

Amended tables

February will

Plaintiff Sandra Peter Nicholas

$3,385,000 $5,730,000 $5,593,750 $4,663,750

June will

Plaintiff Sandra Peter Nicholas

$5,765,000 $4,855,000 $4,613,750 $4,138,750

The amended tables show that the June will does benefit the plaintiff by approximately $2,380,000 over the February will. When comparing the different benefits between the plaintiff and Sandra only, under the February will, the plaintiff receives $2,345,000 less than Sandra and, under the June will, the plaintiff receives $910,000 more than Sandra.

As can be readily seen from the amended calculations, the financial differences for the plaintiff between the February will and the June will were significantly overstated by the defendants.[158] The variance of the amounts between the plaintiff and Sandra is not so significant that it can be concluded, taking all of the evidence into account, that testamentary undue influence by the plaintiff was ‘at play’.
[158]See item (z) at paragraph [111] above.

Conclusions

Considering the entirety of the defendants’ evidence at its highest for the purposes of this application, I am satisfied that it establishes:

(a) there was some type of family agreement between the deceased, Taisa, and their children about how the various properties were to be divided upon the deaths of Taisa and the deceased, however, this changed from time to time;

(b) that the deceased did alter the disposition of his properties in his various wills;

(c) the June will is inconsistent with parts of what the defendants contend is the common family understanding;

(d) the plaintiff encouraged the deceased to insist that Sandra transfer part of her interests in certain properties to the plaintiff;

(e) the deceased was concerned and worried about the plaintiff’s financial circumstances and her family circumstances; and

(f) the deceased’s persona cannot be described as vulnerable, rather his personality was strong willed and forceful and he expected his children to follow his wishes.

In determining whether the plaintiff has unduly influenced the deceased as alleged by the defendants, the evidence of the defendants, if accepted, indicates that the plaintiff was willing to exert pressure on the deceased with claims regarding her financial position, her family’s health, the security of her job as well as claims regarding her less favourable treatment by the deceased compared with her other siblings, whether or not either of these claims were, in fact, true.

The principles of testamentary undue influence provide that pressure, persuasion, and appeals to affection are permissible. The defendants’ evidence does not establish that the plaintiff made demands of the deceased in an ‘unrelenting, persistent and forceful’ way to change his will or that the June will was the product of an ‘incessant and unrelenting campaign’ by the plaintiff to force him to change his will, nor does it establish that the plaintiff’s actions went beyond the permissible or that she exerted impermissible ‘coercion’, nor can any impermissible ‘coercion’ be inferred from any of the surrounding circumstances that has been detailed at length by the defendants.

In my view, the defendants’ evidence taken at its highest, does not establish to the requisite standard that the June will was procured by any undue influence on the part of the plaintiff.

Accordingly, I am satisfied that the defendants’ challenge to the June will on the grounds of testamentary undue influence on the part of the plaintiff has no real prospects of success.

Should the Court exercise it discretion under s 64 of the CP Act?

Despite being satisfied that the defendant’s challenge to the June will on the grounds of testamentary undue influence on the part of the plaintiff has no real prospects of success, I consider that the claim should not be disposed of summarily because it is not in the interests of justice to do so and the dispute is of such a nature that only a full hearing on the merits is appropriate.

The prospects of success at trial involve a consideration of the evidentiary foundation of the claim with the benefit of reply affidavits from the plaintiff and cross examination of all witnesses. In the course of its judgment in Manderson M&F Consulting v Incitec Pivot Ltd[159] the Court stated::

… the underlying rationale for s 63 of the Act, make it clear that an inquiry as to whether a case has ‘no real prospects of success’ involves considerations extending beyond an analysis of the sufficiency of the statement of claim to plead a cause of action. The new power under s 63 is not one to be exercised by reference only to the sufficiency of the pleading. For as Croft J said in JBS Southern Aust v Westcity Group Holdings, ‘even if the Court had doubts as to the prospect of success of a defendant’s claims...in terms of the s 63 test, the proper course would be to exercise the discretion under s 64 and to require a full trial of the claims’.[160]

[159](2011) 35 VR 98.

[160]Ibid [32].

An allegation of testamentary undue influence is a serious allegation and should not be made lightly. The defendants have filed their affidavits in support of their claim for testamentary undue influence pursuant to the consent orders. As a result of the plaintiff’s decision to seek summary dismissal of the testamentary undue influence claim, the defendants’ evidence has not been the subject of reply affidavits.

It is evident from the content of the defendants’ affidavits that there are substantial and extensive objections to their content. If the defendants’ affidavits contain the true nature of the evidentiary basis of their claim of testamentary undue influence which, for the purposes of the summary judgment application, is uncontested by the plaintiff, then the defendants proceed at their own risk.

If the defendants intend to proceed further with their claim, then for the purposes of the proper management of it, I will order that the defendants file amended grounds of particulars of their claim so as to identify their claim clearly, rather than the current prolix particulars that have been filed by them. I will also order that the parties attempt to reach agreement on the objectionable statements in the defendants’ affidavits. If agreement cannot be reached, the proceeding will be listed for the purpose of the Court making the necessary rulings on any unresolved objections to the affidavits.

Orders

Despite there being no real prospect of success of grounds 4, 5 and 6 of the defendant’s grounds of objections, I order that the grounds should not be dismissed summarily because it is not in the interests of justice to do so and the dispute is of such a nature that only a full hearing on the merits is appropriate.

I will further order as follows:

(a) on or before 14 October 2016, the defendants file amended grounds of particulars of their claim of testamentary undue influence so as to identify their claim clearly;

(b) on or before 18 November 2016, the parties are to attempt to reach agreement on the objectionable statements in the defendants’ affidavits, failing which the proceeding will be re-listed for determining any unresolved objections to the defendants’ affidavits.

(c) on 2 December 2016, the proceeding will be listed for further directions in respect of the defendants’ testamentary undue influence claim and the remaining grounds numbered 2 and 3 in the particulars of objection.

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Annexure A

Property interests[i]
according to February will

Property	Pre-CGT	Barbara	Sandra	Peter	Nick
22 Dawson Avenue Brighton [$3.1 million]	Y	~~3,100,000~~[ii] 1,550,000
1 Opawa Street Brighton [$2.1 million]	~~525,000~~[iii]~~~~	~~525,000~~[iv]~~~~	525,000	525,000
1 Alton Avenue Brighton [$2.7 million]	2,700,000
25 Cloyne Street Highett [$1million]	Y	~~1,000,000~~[v] 875,000
25 High Road Camberwell [$3.175 million]	Y	3,175,000
1-3, 151 Ferntree Gully Road Mt Waverley [$1,417,500][vi]	Y	~~236,250~~[vii] 708,750	~~236,250~~[viii] 708,750
7 Adrienne Crescent Mt Waverley [$1.59M]	Y	1,590,000
1 Lusk Drive Vermont [$700,000]	Y	700,000
69 Sherwood Avenue Chelsea [$970,000]	Y	485,000	485,000
145 Hargrave Street Paddington NSW [$2 million]	2,000,000
9 Battery Street Clovelly NSW [$2.855 million]	2,855,000
Unit 1/29 Warratah Avenue Tullamarine [$245,000]	245,000
Unit 4/29 Warratah Avenue Tullamarine [$245,000]	245,000
Total	~~5,460,000~~[ix] 3,385,000	~~6,380,000~~[x] 5,730,000	~~5,441,250~~[xi] 5,593,750	~~4,511,250~~[xii] 4,663,750

Property interests
according to June will

Property	Pre-CGT	Barbara	Sandra	Peter	Nick
22 Dawson Avenue Brighton [$3.1 million]	Y	~~3,100,000~~[xiii] 1,550,000
1 Opawa Street Brighton [$2.1 million ]	~~1,575,000~~[xiv] 1,050,000	~~525,000~~[xv]
1 Alton Avenue Brighton [$2.7 million]	2,700,000
25 Cloyne Street Highett [$1 million]	Y	~~1,000,000~~[xvi] 875,000
25 High Road Camberwell [$3.175 million]	Y	3,175,000
1-3, 151 Ferntree Gully Road Mt Waverley [$1,417,500][xvii]	Y	~~236,250~~[xviii] 708,750	~~236,250~~[xix] 708,750
7 Adrienne Crescent Mt Waverley [$1.59 million	Y	1,590,000
1 Lusk Drive Vermont [$700,000]	Y	700,000
69 Sherwood Avenue Chelsea [$970,000]	Y	485,000	485,000
145 Hargrave Street Paddington NSW [$2 million]	2,000,000
9 Battery Street Clovelly NSW [$2.855 million]	2,855,000
Unit 1/29 Warratah Avenue Tullamarine [$245,000]	245,000
Unit 4/29 Warratah Avenue Tullamarine [$245,000]	245,000
Total	~~7,965,000~~[xx] 5,765,000	~~5,830,000~~[xxi] 4,855,000	~~4,461,250~~[xxii] 4,613,750	~~3,986,250~~[xxiii] 4,138,750

[i]Based on market appraisals obtained by Peter, which are neither admitted nor disputed at this stage of the proceeding by the plaintiff.

[ii]Half share interest devised under the will. The plaintiff already owned a quarter share registered on 21 February 2002 and obtained a further quarter share from Sandra registered on 29 June 2012.

[iii]The deceased owned a half share of this property, with the other half share already owned as to one quarter by the plaintiff and one quarter by Sandra, with their interests registered in their names by transfers on 12 June 2002. Pursuant to the February will, the deceased gave his half share in this property to Peter and Nick, with them taking one quarter each.

[iv] See footnote 3.

[v]Peter’s market appraisal from Buxton Real Estate estimated the market value of this property between $850,000 and $900,000 and a midpoint value of $875,000 has been used, instead of $1 million used by Peter.

[vi]151 Ferntree Gully Road comprises 3 units, not 1 unit as referenced above. The addresses of the units are 1/151 Ferntree Gully Road, 2/151 Ferntree Gully Road and 3/151 Ferntree Gully Road. Each unit is believed to have the same value, so the total value of the three units is 3 x $472,500 = $1,417,500. The units were left half to Peter and half to Nick (ie. ½ x $1,417,500 = $708,750 to each of Peter and Nicholas).

[vii] See comment in footnote 9.

[viii] See comment in footnote 9.

[ix] The revised total of what the plaintiff takes under the February Will is $3,385,000

[x] The revised total of what Sandra takes under the February Will is $5,730,000.

[xi] The revised total of what Peter takes under the February Will is $5,593,750.

[xii] The revised total of what Nicholas takes under the February Will is $4,663,750.

[xiii] See comments in footnote 3 above.

[xiv]The deceased owned only a half share interest in this property, with the plaintiff and Sandra each owing a quarter share. Under the June will, the deceased devised his half share of this property to the plaintiff.

[xv]Sandra received no share in this property under either the February will or the June will, but she did already owned a quarter share registered on 12 June 2002.

[xvi] See the comment in footnote 8 above.

[xvii] See the comment in footnote 9 above.

[xviii] See the comment in footnote 9 above.

[xix] See the comment in footnote 9 above.

[xx] The revised total of what Barbara takes under the June Will is $5,765,000.

[xxi]The revised total of what Sandra takes under the June Will is $4,855,000. (which includes Battery St, Clovelly, New South Wales, although that property had (between February 2012 and June 2012) already been transferred to Sandra.

[xxii] The revised total of what Peter takes under the June Will is $4,613,750.

[xxiii] The revised total of what Nick takes under the June Will is $4,138,750.

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[2016] VSC 587

29 September 2016