Re Estate Rofe

[2021] NSWSC 257

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Estate Rofe [2021] NSWSC 257

Hearing dates:

25-27 August; 1-3, 8-10, 15-17, 22-24, 29 September; 20 October; 4, 25 November 2020 and written submissions

Decision date:

12 April 2021

Jurisdiction:

Equity - Probate List

Before:

Lindsay J

Decision:

Subject to allowing the parties an opportunity to make submissions about the identity of the person or persons to whom a grant of representation is to be made, the form of orders to be made in disposition of the proceedings and costs, the will of the deceased dated 17 December 2014 is to be admitted to probate.

Catchwords:

SUCCESSION – Contested Probate – Testamentary capacity – Cognitive impairment resulting from vascular dementia not necessarily inconsistent with a finding of capacity

SUCCESSION – Contested Probate – Knowledge and approval – Suspicious circumstances – Testator suffering from dementia assisted in will preparation by interested persons – Need for close scrutiny of all circumstances

SUCCESSION – Contested Probate – Undue influence – Will of testator of doubtful testamentary capacity overborne by incessant demands of interested person – Intervention of solicitor did not break nexus between coercion and execution of impugned codicil 

Legislation Cited:

Administration and Probate Act 1958 Vic

Bankruptcy Act 1966 Cth

Civil Procedure Act 2005 NSW

Evidence Act 1995 NSW

Guardianship Act 1987 NSW

Succession Act 2006 NSW

Wills Act 1837 Eng

Cases Cited:

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bates v Messner (1967) 67 SR (NSW) 187

Blendell v Byrne [2019] NSWSC 583

Bridgewater v Leahy (1998) 194 CLR 457

Carr v Homersham (2018) 97 NSWLR 328

Dickman v Holley [2013] NSWSC 18

Drivas v Jakopovic (2019) 100 NSWLR 505

Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786

Gerovich v Gerovich [2021] WASC 77

Gill v Woodall [2011] Ch 380

Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562

Hall v Hall (1868) LR 1 P & D 481

Hoff v Atherton [2004] EWCA Civ 155; [2005] WTLR 99; [2005] WTLR 99

In the Goods of William Loveday [1900] P 154

King v Hudson [2009] NSWSC 1013

Mekhail v Hana [2019] NSWCA 197

Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280

Nock v Austin (1918) 25 CLR 519

Perpetual Trustee Co. Ltd v Baker [1999] NSWCA 244

Perpetual Trustee Co. Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377

Petrovski v Nasev [2011] NSWSC 1275

Re Estate of Paul Francis Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698

Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107

Re Griffith; Easter v Griffith (1995) 217 CLR 284

Romascu v Manolache [2011] NSWSC 1362

Stojic v Stojic [2018] NSWCA 28

Timbury v Coffee (1941) 66 CLR 277

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136

Veall v Veall (2015) 46 VR 123

Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116

Wingrove v Wingrove (1885) 11 PD 81

Yazbek v Yazbek (No. 2) [2012] NSWSC 783

Texts Cited:

EV Williams, A Treatise on the Law of Executors and Administrators – Volume 1 (1832 & 1841 editions)

Godolphin, The Orphan’s Legacy, a testamentary abridgment, in Three parts. I. Of last wills and testaments.  II.  Of executors and administrators.  III Of legacies and devises (first edition, 1673; fourth edition, 1701)

MS Willmott and CP Birtles, “Testamentary Dispositions – Wills and Codicils” (2016) 43 Australian Bar Review 62

Category:

Principal judgment

Parties:

Plaintiff: Ralph Nicklin Illek
First Defendant: Brendan Hull
Second Defendant: Philip Rofe
Third Defendant: Gregg Hele
Fourth Defendant: James Rofe
Fifth Defendant: Anne Stone
Sixth Defendant: Susan Erkinnen
Seventh Defendant: David Stone
Eighth Defendant: Scott Taylor
Ninth Defendant: Nobert Lipton
Tenth Defendant: Jonathan Rofe
Eleventh Defendant: Nicholas Llewellyn
Twelfth Defendant: Elaine Clark by her Tutor Elizabeth Foster
Thirteenth Defendant: Paul Leroy as Trustee in the Bankrupt Estate of Katherine Jackson

Representation:

Counsel:
Plaintiff: RD Wilson SC and S Chapple
First Defendant: Submitting Appearance
Second Defendant: L Ellison SC and MJ Heath
Third to Eighth Defendants: TJ Morahan
Ninth Defendant: Submitting Appearance
Tenth Defendant: TJ Morahan
Eleventh Defendant: N Confos
Twelfth Defendant: Submitting Appearance
Thirteenth Defendant: Submitting Appearance

Solicitors:
Plaintiff: L Rundle & Co.
First Defendant: Submitting Appearance
Second Defendant: McLaughlin & Riordan
Third to Eighth Defendants: MH Peoples & Co.
Ninth Defendant: Submitting Appearance
Tenth Defendant: MH Peoples & Co.
Eleventh Defendant: Bray Jackson & Co.
Twelfth Defendant: Submitting Appearance
Thirteenth Defendant: Submitting Appearance

File Number(s):

2017/00330043

Judgment

INDEX

INTRODUCTION

THE DECEASED’S PERSONAL RELATIONSHIPS

THE DECEASED’S TESTAMENTARY INSTRUMENTS

THE STRUCTURE OF THE DECEASED’S TESTAMENTARY INSTRUMENTS

THE NATURE AND VALUE OF THE DECEASED’S ESTATE

A FACTUALLY COMPLEX CASE

GENERAL LEGAL PRINCIPLES TO BE APPLIED

The Framework for Decision-Making

Testamentary Capacity

Knowledge and Approval

Undue Influence

Fraud

MILESTONES IN THE DECEASED’S DEMENTIA-RELATED DECLINE, 2010-2015

PERSONS INVOLVED IN MANAGEMENT OF THE DECEASED’S AFFAIRS

Introduction

Enduring Attorneys and Guardians

Financial Management and Guardianship Orders

The Deceased’s Admission to Care Institutions

MEDICAL AND RELATED REPORTS

Introduction

Associate Professor Tully Rosenfeld

Medical opinions as to testamentary capacity

Dr Reid’s Report

Dr Oldtree Clark

Dr Chalkley

MR HELE’S CONTEMPORANEOUS EMAILS ABOUT THE DECEASED’S CONDITION, CONDUCT AND CARE

GENERAL LAY OBSERVATIONS OF THE DECEASED

Introduction

Lawyer Observations

Observations of the deceased’s accountant and former secretarial staff

A neighbour’s observations

Lay attesting witnesses

Observations of Rofe Family witnesses

FIVE PERSONS WHO ACTIVELY ASSISTED THE DECEASED’S WILL-MAKING ACTIVITIES, 2012-2014

A NARRATIVE SUMMARY LEADING TO THE DECEASED’S WILL DATED 17 DECEMBER 2014

THE VALIDITY OF THE LAST WILL, DATED 17 DECEMBER 2014

Introduction

The terms of the will dated 17 December 2014

Testamentary Capacity

Knowledge and Approval

Undue Influence

Fraud

Validity of the Deceased’s Will dated 17 December 2014

ALTERNATIVE FINDINGS

CONCLUSION

ADDENDUM (21 April 2021)

INTRODUCTION

IDENTIFICATION OF THE DECEASED’S LEGAL PERSONAL REPRESENTATIVE(S)

COSTS ORDERS

THE RESERVED QUESTION AS TO MR LLEWELLYN’S INDEBTEDNESS, IF ANY

THE COURT’S ORDERS

INTRODUCTION

1. Before the Court are competing applications for a grant of probate, or letters of administration, in relation to the deceased estate of a wealthy man who, in his prime, was a prominent NSW barrister, an active participant in local government as a mayor of Woollahra and a Conservative political activist.

2. David Fulton Rofe (“the deceased”) died on 21 July 2017, aged 85 years, leaving:

1. an estate with an estimated value of approximately $27 million;

2. twelve known testamentary instruments (comprising 10 wills and two codicils) ranging in date from 23 January 1995 to 17 December 2014; and

3. deep controversy as to his testamentary capacity, and his knowledge and approval of the several instruments signed by him, in the years following medical assessments (in or about and following late 2009) to the effect that he was suffering from cognitive impairment, recognised as a form of dementia associated with vascular disease, aggravated by a lifetime of heavy alcohol intake.

3. The deceased was admitted to practice as a barrister on 10 February 1956. He “took silk” (appointed as a Queen’s Counsel) on 4 December 1974. Against his will, but prudently, he retired from the Bar following surrender by his then Guardian (a long time friend and fellow barrister, Brendan Hull, the first defendant) of his practising certificate as a barrister on 5 December 2012. He was led to an acceptance of the need for his retirement by another long time friend and fellow barrister, Dennis Wheelahan QC. On 17 May 2014 he signed a letter addressed to the NSW Bar Association recording his intention to retire from the Bar and withdrawing his then current application for restoration of his practising certificate.

THE DECEASED’S PERSONAL RELATIONSHIPS

4. The deceased never married or had children.

5. Without children of his own, he enjoyed the children of friends (especially the children of Mr Hull) and those of his siblings. His enjoyment of his nieces and nephews was enhanced by pride in his family name and the family’s patrician connections.

6. In the language of today, applied retrospectively to the facts of his life, the deceased appears to have enjoyed a same sex relationship with Mr Gregg Hele (the third defendant) between 1980-2000 or thereabouts, a relationship between domestic partners which in the language of the time was generally spoken of, discreetly, as a “close friendship”. They remained close friends after 2000 despite the fact that, for 10 years or so after 2000, Mr Hele had another relationship.

7. The informality of the relationship between Mr Hele and the deceased is, perhaps, illustrated by a denial by Mr Hull (a close friend of the deceased) that Mr Hele had ever been the deceased’s “partner” and a contrasting assertion of that character of the relationship by Ms Ruth Coleman, a long time secretary of the deceased. In October 2010 the man himself told Dr Margaret (Peggy) Bain, a Clinical Neuropsychologist at St Vincent’s Hospital, that he lived alone but had a 72 year old girlfriend; that may well have been true (referring to Elaine Clarke, the woman who performed the functions of “Lady Mayoress” when he was mayor of Woollahra); but it conveyed an impression not quite in keeping with his domestic relationships. The deceased presented different images to different people. He was capable of deflecting an unwanted examination of his affairs by a casual remark, or something more forceful, as an occasion required.

8. The depth of the ongoing friendship between Mr Hele and the deceased became apparent when, on or about 11 July 2014, Mr Hele moved from Melbourne to Sydney to live with the deceased in his Woollahra home as a “full time carer” and “companion”. Mr Hele (who, by that time, had recently completed training as a nurse) calmed the deceased’s anxieties and encouraged him to embrace a healthier lifestyle, including a reduction in his consumption of alcohol. Mr Hele remained with him until the deceased’s death.

9. In a critical period of his life (between 2002-2014 or thereabouts) the deceased was vulnerable to exploitation at the instigation of a younger gay man (Mr Nick Llewellyn, the 11^th defendant), originally a Queenslander, trained as a solicitor, commonly viewed by others close to the deceased as an exploitative, disruptive personality, who, it is said, simultaneously entertained him; played on his susceptibility to flattery; and disturbed his calm by dramatic threats of suicide, or, possibly, threats to expose him publicly (to “out” him) as a homosexual, if not given financial incentives and testamentary preferment. Mr Llewellyn is said to have been given to throwing infantile tantrums if he did not get his own way with the deceased, which he evidently often did.

10. Mr Llewellyn admits to a pattern of bad behaviour (which he explains as a product of a bipolar condition); but he denies any suggestion that he ever threatened the deceased in any way. In any event, he says, everyone knew he was sick and often erratic. The main thing, he says, is that the deceased loved him, as he loved the deceased.

11. Mr Llewellyn and the deceased appear to have enjoyed a familial love-hate relationship, though such a characterisation is too simplistic. Mr Llewellyn appears to have regarded an exploitative relationship between an older man and a younger one in the gay community in which he and the deceased lived as entirely normal. He told a friend of the deceased, Ms Katherine Jackson, that he knew what buttons to press to get what he wanted from the deceased, and he confirmed as much in his cross-examination.

12. According to Mr Llewellyn’s evidence (not contradicted), the relationship between himself and the deceased was at the outset one of intimacy, which (although there was an ongoing relationship) ended before, to the knowledge of the deceased, Mr Llewellyn was diagnosed as HIV positive (in or about 2004) and (in or about 2008) bipolar.

13. Mr Llewellyn’s medical condition may help to explain the deceased’s forbearance in dealing with the younger man and his concern to make some testamentary provision for him, knowing both the younger man’s ill-health and his poor employment record and prospects. Nevertheless, close friends of the deceased wondered whether Mr Llewellyn had something over him. It was an unusual relationship.

14. The deceased may have loved Mr Llewellyn in a fashion, but Mr Llewellyn was a source of great anxiety to him, in his dementia years, in at least two respects. First, Mr Llewellyn represented an extravagant financial drain on the resources of a man who (although wealthy) was notoriously penny pinching. Secondly, Mr Llewellyn’s bad behaviour (including threats), magnified by his unpredictability, engendered in the deceased a fear of what he might do next. Privately, the deceased complained to Ms Jackson that he was being “blackmailed” by Mr Llewellyn (an expression not necessarily to be taken literally) but, publicly and with Mr Llewellyn’s encouragement, he spoke of Mr Llewellyn (but, perhaps, not exclusively Mr Llewellyn) as “the son [he] never had”. He was prone to express approval of a close friend or relative in those terms. Ms Jackson was sometimes referred to as “the daughter I never had”.

15. Despite tensions between Mr Llewellyn and the deceased (with each from time to time provoking the other), they appear for the most part to have had a cordial, if combative, anxious and controversial relationship. That relationship (which coexisted for many years with Mr Llewellyn’s relationship with another man, Curtis) occupied the period between the year 2002 or thereabouts (when they met) and 1 August 2014 or thereabouts (when Ms Coleman, exercising her guardianship powers over the deceased, limited his access to Mr Llewellyn), not excluding the possibility that the deceased retained a residual affection for Mr Llewellyn after that time. Mr Llewellyn resisted his exclusion from the deceased’s company. Nevertheless, he says that his last contact with the deceased was in or about February 2015, when he moved to the Gold Coast, Queensland, with financial assistance from the deceased’s protected estate.

16. A turning point in the deceased’s life, and a change in emphasis in his testamentary intentions, appears to have occurred when Mr Llewellyn’s access to the deceased (and, with it, his ability to influence decision making of the deceased) was restricted in and after August 2014. Mr Llewellyn’s constant demands for money and testamentary preferment (and disputation fomented by him with persons entrusted with protective management of the deceased’s affairs, his person and his property) greatly distressed the deceased.

17. Restriction of Mr Lewellyn’s access to the deceased was accompanied by the creation of a more stable domestic environment for the deceased in which his financial affairs were managed by his accountant (Mr Robert Horder) as a financial manager appointed by the NSW Civil and Administrative Tribunal (NCAT); his long time secretary Ms Coleman was encouraged by NCAT to exercise her access power under the Tribunal’s guardianship order in her favour, to protect the deceased from stressful situations; Mr Hele took charge of the deceased’s medicine, diet and daily routine as a means of improving his health; Ms Kathy Jackson provided him with additional care, company and administrative assistance; and, to an extent, he re-engaged with his nieces and nephews and their children.

18. Steps taken to shield the deceased from Mr Llewellyn allowed the deceased an opportunity to reengage with his family and space to reassess his relationship with Mr Llewellyn. Underlying the current proceedings are questions about whether the influence Mr Llewellyn formerly exercised with the deceased was coercive in nature and whether, in moving away from Mr Llewellyn, the deceased was better able to know, and did know and approve, what he was doing.

19. As the deceased descended into the fog of dementia, in the last seven years or so of his life, he fought against his inevitable decline. A feature of his struggle was that, at times, he lashed out or harshly treated long standing friends (principally, Mr Hull as a financial manager and guardian, Mr Lawler as an enduring attorney and alternate guardian and Ms Coleman as a guardian) who tried, with mixed success, to help him adjust to his new reality as a person in need of protective assistance in management of his affairs.

20. A number of the deceased’s friends (including, but not only, Mr Hull, Ms Coleman, Mr Lawler and Ms Jackson) regarded Mr Llewellyn as a self-seeking, insatiably greedy and evil influence on the deceased. In correspondence between them, Mr Llewellyn was sometimes referred to by Mr Hele as “the Leech”, a derogatory allusion to a blood-sucking, parasitic, predatory worm. In giving their evidence, several witnesses did not shrink from harsh criticism of him or equally harsh descriptive labels.

21. Even the plaintiff, Mr Illek (Mr Llewellyn’s accountant – he says, at the deceased’s request - and a man sympathetically inclined towards him) was reported by NCAT (in Reasons for Decision dated 28 August 2014 in support of orders made on 19 August 2014) to have described Mr Llewellyn, candidly, as “a parasite”.

22. Against evidence critical of Mr Llewellyn must be taken into account evidence of the deceased’s defence of him, and Mr Llewellyn’s equally harsh description of others. Over several years Mr Llewellyn left a trail of vituperative emails in which few people in the deceased’s circle were spared abuse. During his cross-examination, he spontaneously, venomously characterised Mr Philip Rofe (the second defendant, a nephew of the deceased) as “an enemy”, Mr Hele as “a little rat”, Mr Lawler as “a disgrace” and Ms Jackson as “a criminal”. For the most part, he gave his evidence in an emotionally controlled manner, but he remained a determined adversary of interests perceived by him to be in competition with his own.

23. I do not exclude the possibility that the contrarian controversialist in the deceased sometimes took perverse pleasure in harsh exchanges between his friends and associates but, for most people, they are likely to confirm that, in inter-personal relationships, it is possible to have too much colour.

24. In these proceedings the high emotions engaged by people close to the deceased, and the base motives attributed by some to others, cannot but be noticed. However, the task of the Court is to focus on clinical questions about testamentary capacity, testamentary intention and ancillary questions necessarily encountered upon an exercise of probate jurisdiction. It cannot allow itself to be deflected by competing, adversarial perceptions of moral imperatives.

25. The unrelenting progress of the vascular disease underlying the deceased’s dementia lent an inevitability to his mental decline; but his progressive disengagement from the world was (between July and December 2014) moderated by a dramatic reduction of his alcohol intake, regular adjustment of his medications and an improvement in his lifestyle under the care of Mr Hele. In terms of mental acuity, he continued up to and including mid-2015 to have intermittent good times and bad. Lack of sleep at night, or tiredness during the day, adversely affected his cognition, resulting in periods of confusion and anxiety, possibly coupled with aggression, characterised by Mr Hele and others as “sundowning”. Always a creature of habit, he was better able to deal with what was familiar to him than something unfamiliar.

4. An assessment of the nature and quality of the deceased’s personal relationships is complicated by the complexity of his personality. His personality was in full agreement with his chosen profession as a common law advocate, armed with an ability to display a range of personae. Throughout his life, until fully captured by dementia in about mid-2015, he was an inveterate social animal. By all reports, he loved to be the centre of attention, and to indulge his contrarian tendencies in banter which, aided by a cruel tongue, could savage friend and foe alike. He was not beyond bullying; but he had a gentle side, given to irony, and his sense of humour was mischievous. When relaxed, he was humorous. When roused, he was fierce. That he drank too much and too often was not assisted by his love of wining and dining in the patrician lifestyle he enjoyed. His routine domestic life depended upon paid staff and the good grace of friends. Dependency on social connections in the domestic sphere was not entirely a dementia-induced innovation. The nature and extent of his dependency changed, but not the fact of dependency.

5. A constant feature of his dependence on others was a notorious inability, or disinclination, to use computers or to type. He routinely turned to others to assist him with typing.

6. Implicit in an understanding of this is a need to appreciate that a typed document (including an email) purporting to have been prepared by the deceased may have been prepared by him with the assistance of somebody else or simply by somebody else in his name.

7. Something of his personality can be discerned in taped recordings of conversations to which he was a party. In one tape (recorded on 13 December 2013) he is heard speaking with solicitors from the firm Arnold Bloch Leibler and Ms Jackson: in the first section of the recording, in a conversation with a senior male solicitor (Mr Ross Paterson), he is business-like; in the second section of the recording, in casual conversation with a female solicitor (Ms Susanna Ford) and Ms Jackson, he is comparatively submissive. In other tapes (recorded in June 2014) he is heard remonstrating fiercely with Mr Lawler (then his enduring attorney) about his relationship with Mr Llewellyn and Mr Lawler’s purchase of a property at Wombarra in his name.

8. In handwritten notes prepared for the benefit of the deceased’s geriatrician Dr Chalkley in February 2015, Mr Hele wrote freely of the deceased’s personality, his personal problems and his preoccupation with his legal career, a casualty of dementia:

“David is a very special and unique person, devoted his life to law and unfortunately nothing else, no hobbies, no great love of natural scenery, beaches, bush, etc. Only law.

David also had many many problems before dementia such as alcoholism, severe depression. For decades, low self esteem, not out/ashamed of sexuality, huge verbally aggressive moods, and ‘lots’ of tantrums if he didn’t get his way with staff, friends etc…. This has also transferred into his dementia x 10.

I have worked with many dementia patents but David is up there with the top 1% with disruptive behaviour. No full time nursing agency has worked (all failed) and all of his many friends/families agree I’m the best choice to look after David since we’ve been the closest of mates/ex-lovers. I’m with David 24/7 with now help during the day. …

All hospitals find him extremely disruptive/annoying/aggressive both pre and post dementia. We have nearly run out of hospitals now….

He hates Bondi, Maroubra, going thru Sydney, hates driving across Sydney Harbour Bridge, Parramatta Road, M5 etc. Pls note, this was also a pre-dementia condition, too.

Other dislikes before dementia (strong dislikes) [:] public holidays, special events etc, city to surf fun run, no interest in gardens, art, movies, public holidays, TV, beach, nature, animals, Xmas, children, etc, etc, etc, just law….”

31. This character reference may reflect Mr Hele’s perspective as a non-lawyer and his geniality as much as the deceased’s human frailty; but the deceased himself feared retirement because he had no interests outside work as a barrister, and similar assessments of his personality, with less colour, can be found in the evidence of other witnesses. A barrister friend of long-standing (Mr Anthony Tudehope) said of him that, prior to any health concerns the deceased may have had after about 2009, he was “a very confident, expressive, authoritative character who was quite often abusive and unkind, while on the other hand a regularly entertaining character and good company… famously ‘tight’ with his money”.

32. All the testamentary instruments executed by the deceased in a critically important 2014 (but for the first codicil dated 10 July 2014) were prepared by or on behalf of the deceased without the benefit of specific legal advice, although with such benefit as could be had from a draft will prepared by solicitors (Arnold Bloch Leibler) on his instructions in December 2013. His refusal, or failure, to confine his will-making activities to working with a solicitor retained for that purpose appears, at least in part, to be the product of an unwillingness to spend money and the hubris of a senior legal practitioner confident of his own abilities. He had a template from Arnold Bloch Leibler and was content to adapt it in wills subsequently executed.

33. The deceased’s relationships with Mr Hele and Mr Llewellyn appear to have engaged different parts of his personality. Both men are eccentric. In presentation, Mr Hele is lighter and more open than Mr Llewellyn, whose intensity may, at least in part, be a product of his health concerns. In its later years at least, the relationship between Mr Hele and the deceased appears to have been quieter, governed by Mr Hele’s personality and his role as the deceased’s companion and carer. The relationship between Mr Llewellyn and the deceased appears to have been characterised by constancy of tension associated with Mr Llewellyn’s demands for material assistance and testamentary preference from the deceased. As the deceased’s health declined between 2010-2015, he appears increasingly to have struggled to cope with Mr Llewellyn’s behaviour.

34. In his decline, the deceased developed a close personal relationship with an unlikely outsider. In May 2012 the broadcaster Mr Alan Jones introduced Ms Jackson to him. She was, at that time, as she remains, a controversial public figure. Ms Jackson’s partner at the time, who regarded the deceased as his mentor at the Bar (Mr Michael Lawler), says that Mr Jones conveyed to her an offer of the deceased to act for her as counsel. She was a trade union official (with the Health Services Union) who had had a falling out with the Union. She had initially been lionised as a “whistle blower” of union corruption, but she was later subjected to adverse personal criticism. Her battles with the Health Services Union led, in time, to a civil judgment against her for the payment of compensation to the Union, self-declared bankruptcy (operative between 18 May 2016 and 17 May 2019 or thereabouts) when she was unable to satisfy that judgment and, recently, criminal convictions in Victoria for dishonesty as an officer of the Union. Nevertheless, when, or soon after, she and the deceased met they appear to have shared a common sense of isolation, and a common need for companionship. She became a trusted companion of the deceased, assisting him in the care of his person and in management of his affairs generally, particularly before the time when Mr Hele came to his aid in July 2014.

35. In one sense or another, she and Mr Hele were both involved (to the exclusion of Mr Llewellyn) in the preparation of the deceased’s last will, dated 17 December 2014. She acted as the deceased’s administrative aid. Mr Hele drove her, the deceased and a carer of the deceased to an appointment with Dr Thomas Oldtree Clark before whom, and the deceased’s carer, the deceased executed the will. Later that evening the deceased spoke of the terms of his will with Mr Hele.

36. The pattern of the deceased’s will making between November 2011 and December 2014 or thereabouts is consistent with a perception on his part of a need for estate planning, if not simply the onset of dementia. That perception was accompanied by a realisation that some people in his social circle (most ostentatiously, Mr Llewellyn) had hopes or expectations of testamentary benefit. Not everybody was indifferent to his wealth. In fact, although formally disclaimed by everybody except Mr Llewellyn, self interest was unusually on display in these proceedings.

37. Several claimants on the deceased’s bounty tended to coalesce in what appear at times to have been factions comprising:

1. Mr Llewellyn, supported by Mr Nick Illek, for some years an adviser to the deceased;

2. Mr Hele and Ms Jackson (commonly identified with her partner, Mr Lawler), supported by nieces and nephews of the deceased; and

3. Mr Philip Rofe, a lone nephew.

38. It would be an invitation to error to attribute unalloyed greed, or unbridled pursuit of self interest, to everybody who stood to benefit from the deceased’s estate (his friendships were real); but it would be equally erroneous not to acknowledge a general consciousness amongst his family, friends and acquaintances (shared, if not encouraged, by the deceased himself) that there would be winners and losers in distribution of his wealth consequent upon an openly evolutionary development of his testamentary intentions, the subject of ongoing debates in some quarters between December 2012 and December 2014 or thereabouts.

39. A feature of the current proceedings is debate not only about whether, in his weakened mental state, the deceased was able “to remember, reflect and reason” about his testamentary arrangements, but also whether he was given sufficient space from the clamour of competing claims on him to do so.

40. The number of testamentary instruments executed by the deceased over a four year period, and the fact that some of those instruments were patently executed in circumstances so controversial that nobody propounds them in these proceedings, excite a general suspicion about their validity.

41. To an unusual degree the deceased allowed those around him to have a voice in his estate planning deliberations, or at least suffered their interventions. One is put in mind of the adoption by Cockburn CJ, in Banks v Goodfellow (1870) LR 5 QB 549 at 564, of a worldly-wise observation by the American jurist James Kent:

“As was truly said by Chancellor Kent, in Van Alst v Hunter (5 Johnson N.Y.Ch.Rep. at p. 159), ‘It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities’. For these reasons the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property. …”

42. The deceased’s frequent talk of wills after his dementia diagnosis in 2009/2010 appears to have kept an interest in him alive within his circle of family, friends and acquaintances, although he was long before 2010 in the habit of speaking about his testamentary intentions.

43. The possibility that the deceased may have lacked, or might in the future be said to have lacked, testamentary capacity appears to have been within the contemplation of at least some of those who assisted his will-making exercises after his diagnosis of dementia in 2009/2010. With one exception, nobody, it seems, ever considered the possibility that an application could be made to the Court (under the Succession Act 2006 NSW, sections 18-19) for a court-authorised “statutory” will. The evidence of Mr Philip Beazley, a solicitor, is that he mentioned the option of a statutory will application to the deceased at a casual social engagement with the deceased and Ms Jackson some time between May-December 2014. Had such an application been made, the Court might have brought order out of the chaos of competing claims against the deceased’s estate at a time when he was available for a transparently independent medical assessment and, within the limits of his capacity, personal consultation about his relationships and intentions.

44. That a will (with or without a codicil) of the deceased should be admitted to probate is uncontroversial. He made two or three wills before dementia arrived at his door, and their validity is challenged only on the basis of the revocation clauses found in subsequent, contested instruments.

45. However, there is no easy answer to the question of which of the deceased’s testamentary instruments should be admitted to probate as a valid expression of his final testamentary intentions. The Court’s task may require that each of the instruments executed by the deceased be assessed for its validity, commencing with the last instrument and proceeding back in time until such time as the last valid one is identified. In the context of the present proceedings, that task requires, at least, a contextual analysis of several instruments, not limited to the last in time.

46. From about the time he was diagnosed with dementia, the deceased was preoccupied with the making and refinement of wills. A common feature of the evidence of Mr Llewellyn, Mr Lawler and Ms Jackson is that they each portrayed the deceased as incessantly engaged (until 17 December 2014) in the process of drafting and redrafting wills, calling upon them, as persons close to him, to assist him in typing draft instruments.

47. Another common feature of the evidence about the deceased’s will-making is that (apart from an engagement with Arnold Bloch Leibler in or about December 2013 and fleeting, formal contact with Mr Beazley’s firm in December 2014 at the insistence of Dr Oldtree-Clark) the deceased disdained professional assistance. Whether that reflects the hubris of a senior lawyer or the machinations of prospective beneficiaries, or is a fact of no material consequence, is one of the questions encountered on a critical review of the evidence.

THE DECEASED’S TESTAMENTARY INSTRUMENTS

48. The testamentary instruments in play in these proceedings comprise the following:

1. a will dated 23 January 1995;

2. a will dated 28 March 2006;

3. a will dated 18 February 2010;

4. a will dated 17 November 2011;

5. a will dated 10 August 2012;

6. a will dated 5 March 2013;

7. a will dated 14 August 2013;

8. a will dated 11 February 2014;

9. a will dated 8 March 2014;

10. two codicils to the will dated 8 March 2014, the first dated 10 July 2014 and the second dated 8 October 2014;

11. a will dated 17 December 2014.

49. In this mix of testamentary instruments must be noticed a draft will prepared by the solicitors Arnold Bloch Leibler, on the deceased’s instructions, in December 2013. It was never executed. A will in different terms was executed on 11 February 2014 without reference to Arnold Bloch Leibler. Nevertheless, their draft provided a template for what became the wills respectively dated 8 March 2014 and 17 December 2014. The evidence before the Court includes a recording of the meeting on 13 December 2013 between the deceased, Susanna Ford (a senior associate of Arnold Bloch Leibler) and Ms Jackson, with Mr Patterson (a Melbourne-based partner of Arnold Bloch Leibler) on the phone, when the deceased gave instructions for what became the draft will prepared by Arnold Bloch Leibler.

50. Although the deceased’s testamentary instruments varied in content, no person named as a beneficiary by him was without a bona fide claim on his bounty as a member of family, a friend or an associate. No party to these proceedings contends otherwise.

51. There is no challenge to the validity of the wills respectively dated 23 January 1995, 28 March 2006 and 18 February 2010 “as made”. Any invalidity attaching to them arises only if a revocation clause in a subsequent testamentary instrument has operative effect.

52. Nobody in these proceedings propounds the Will dated 23 January 1995, the Will dated 10 August 2012, the Will dated 5 March 2013 or the Second Codicil dated 8 October 2014.

53. The absence of any support for the will dated 23 January 1995 can be readily explained by the absence of any challenge to the validity of the wills respectively made on 28 March 2006 and 18 February 2010, each of which (if admitted to probate) would have revoked the earlier will.

54. Leaving aside a few variations in gifts, the main difference between the will dated 10 August 2012 and the one (dated 17 November 2011) that precedes it appears to have been in identification of an executor. The earlier will names Norbert Lipton (the 9^th defendant) and Mr Illek as executors, the later will omits the name of Mr Illek as an executor. Mr Lipton has filed a submitting appearance. Mr Illek propounds the earlier will.

55. The will dated 10 August 2012 was made a few days before (on 13 August 2012) the deceased attended St Vincent’s Hospital to have a pacemaker fitted, and a few months before (on 3 December 2012) the Guardianship Tribunal, at a time when the deceased was plainly unable, by reason of illness, to manage his own affairs, appointed Mr Hull as his financial manager and guardian.

56. The will dated 5 March 2013 was made at a time when (between 4-8 March 2013) the deceased was a patient at the Prince of Wales Hospital, Randwick, for treatment arising from an infected pacemaker, which was removed.

57. The second codicil (dated 8 October 2014) was prepared, and executed, at the deceased’s recently purchased property at Wombarra. Mr Lawler says that he prepared it, under protest, at the insistence of the deceased. It contains clerical errors which suggest that, if the deceased had testamentary capacity at the time he executed the document, he did not know or approve its contents. The clearest example of this can be found in clause 1, which reads as follows:

“I do now [sic] recollect or understand why I made by First Codicil of 28 June 2014 [sic] and I consider that it was a mistake. I revoke my First Codicil dated 28 June 2014 [sic] and any other testamentary acts done by me since executing my Will of 8 March 2014 to the intent that my Will of 8 March 2014 is restored subject only to the following variations effected by this Codicil.”

58. There is no evidence that the deceased executed any form of testamentary instrument on 28 June 2014. The “First Codicil of 28 June 2014” is evidently a reference to the Codicil executed on 10 July 2014.

59. Mr Philip Rofe propounds, in the alternative, the Wills dated 28 March 2006 and 18 February 2010. He contends that all testamentary instruments executed after 2010 are invalid because the deceased lacked both testamentary capacity and knowledge and approval of the contents of those instruments. He contends, further, that all those instruments (other than those dated 8 October 2014 and 17 December 2014) were procured by an exercise of undue influence on the part of Mr Llewellyn. Although his pleading is ambivalent, at the outset of the final hearing he disclaimed any reliance upon an allegation of undue influence in equity (as to which, see Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]), confining himself to an allegation of probate undue influence, which is to say “coercion”. The instruments excepted from his allegation of undue influence (coercion) were executed after Mr Llewellyn was, on 1 August 2014, excluded from the deceased’s regular company.

60. Several of the disputed wills named Mr Illek as an executor. He propounds, in the alternative: (a) the Will dated 8 March 2014 together with the First Codicil dated 10 July 2014; (b) the Will dated 11 February 2014; and (c) the Will dated 14 August 2013. He contends that the deceased lost testamentary capacity shortly after execution of the First Codicil. He also contends that the Will dated 17 December 2014 is invalid for a want of testamentary capacity and a lack of knowledge and approval, pointing to “suspicious circumstances” attending its preparation and execution.

58. The will dated 17 December 2014 (propounded by the third to eighth and tenth defendants, a group of Rofe family members and Mr Hele) contains a tell-tale clerical error in a clause listing the powers of the executors and trustees appointed by the will. It refers, in terms, to “the Administration and Probate Act 1958 (Vic)”, although it was prepared for execution, and administration, in NSW. This error reflects the terms of the draft will prepared for the deceased by Mr Patterson of Arnold Bloch Leibler (a Victorian) in December 2013. A copy of that draft was sent by Ms Ford of that firm, by email, to Mr Lawler (together with a letter addressed to the deceased) on 19 December 2013 and, at his direct request, to the deceased on 10 February 2014.

59. During the course of argument, opponents of admission to probate of the will dated 17 December 2014 made much of this clerical error (submitting that the deceased’s failure to correct the error is indicative of a want of knowledge and approval of the contents of the will), comparing the form of the will to the form of the will dated 8 March 2014, said to be a template for the 17 December 2014 will. In the comparable clause of the 8 March 2014 will the reference to the Victorian legislation is qualified: “the Administration and Probate Act 1958 (Vic) (as if it applied in NSW)”.

60. The form of the reference to the Victorian legislation in the 8 March 2014 will and the form of the clerical error in the 17 December 2014 will invite an inference that when the 8 March 2014 will and the 17 December 2014 will were respectively typed, the template was on each occasion the Arnold Bloch Leibler draft. Even if regard was had to the terms of the 8 March 2014 will in the preparation of the 17 December 2014 will, for typing purposes the template for the 17 December 2014 will was an electronic copy of the Arnold Bloch Leibler draft.

61. The will dated 11 February 2014 (executed the day after Arnold Bloch Leibler sent a second copy of their draft to the deceased) does not follow the Arnold Bloch Leibler draft as faithfully as either the 8 March 2014 will or the 17 December 2014 will. It was typed by Mr Llewellyn and, in form, more closely follows the will dated 14 August 2013 which, after some hesitation, Mr Llewellyn accepts he may also have typed.

62. The force of any submission that the clerical error in the will dated 17 December 2014 is indicative of a want of knowledge and approval on the part of the deceased is to some extent diminished by the fact that the error was not picked up by either Mr Patterson or Ms Ford at Arnold Bloch Leibler at the time they prepared their draft.

63. The testamentary instruments propounded by Mr Illek favour the interests of Mr Llewellyn, at least insofar as Mr Illek does not propound the will dated 17 December 2014. I draw no inference adverse to either man from this, although (for the purpose of noticing nuances in the parties’ competing cases) I notice that Mr Illek advances his case as an independent professional man notwithstanding that there exists a bond between Mr Llewellyn and himself. Mr Illek has been Mr Llewellyn’s accountant for several years. A letter dated 16 October 2012 written by Mr Llewellyn to perceived representatives of the deceased (at a time when the deceased himself was incapacitated), conveying an offer to “cut off all ties” with the deceased in return for a financial settlement, was copied by Mr Llewellyn to Mr Illek, expressly identified as “my Accountant”.

64. Mr Llewellyn, having been joined in the proceedings at his own risk as to costs, elected throughout most of the proceedings to remain non-committal as to which of the deceased’s testamentary instruments he supported as the deceased’s “last valid will”. He propounded no will or codicil himself. When pressed in final submissions, his counsel expressed concerns about the validity of the Will dated 17 December 2014, and supported Mr Illek’s claim for admission to probate of the Will dated 8 March 2014 and the First Codicil, dated 10 July 2014. That stance accords with Mr Llewellyn’s self-interest. The December will diminished his entitlements vis a vis the March and July instruments.

65. Together with Mr Hele, a group of the deceased’s nieces and nephews (the fourth to eighth defendants and the 10^th defendant) propound the Will dated 17 December 2014.

66. No party submits that the deceased’s execution of the will dated 17 December 2014 was procured by an exercise of undue influence or fraud. Such a case was expressly disclaimed by counsel for Mr Illek, Mr Philip Rofe and Mr Llewellyn in refining their respective attacks on the credit of Ms Jackson, who was personally involved in the preparation of the will (they say, for the dishonest purpose of encouraging the deceased to confer a testamentary benefit upon her).

67. Ms Jackson’s trustee in bankruptcy (the 13^th defendant) submitted to the orders of the Court in these proceedings, but her creditors would benefit from admission of that will to probate compared with alternative outcomes. As asserted by her trustee in bankruptcy, any entitlement she may have to a share of the deceased’s estate vests in the trustee pending payment of her debts: Bankruptcy Act 1966 (Cth), sections 127(1) and 153.

68. The Wills dated 8 March 2014 and 17 December 2014 share the distinction of having been executed in the presence of a forensic psychiatrist (Dr Thomas Oldtree Clark), the reliability of whose evidence has been called into question in these proceedings, at least as regards the Will dated 17 December 2014. At the time he gave evidence he was no longer a young man; and his evidence of events on 17 December 2014 (largely unsupported by contemporaneous documentation) lacked the cogency expected of an expert charged with expression of an opinion as to testamentary capacity. His evidence of what occurred on 17 December 2014 might be taken as rising no higher than that of a lay witness. Nevertheless, on reflection, I accept his evidence as essentially, and reliably, correct.

69. The present whereabouts of the originals of some of the wills brought to the Court’s attention are unknown. Of potential importance is the missing original of the will dated 8 March 2014. There is a faint suggestion that it may have been destroyed by the deceased; but, even if this is found to have been so, its confirmation by the first codicil to the will (dated 10 July 2014), if valid, may have revived it. The original of the codicil is in the custody of the Court.

70. The original of the will dated 17 December 2014 (which is propounded in competition with the will dated 8 March 2014) is held in the Court’s custody.

71. The deceased’s flurry of testamentary instruments came to an end with the Will dated 17 December 2014 even though he lived for another two and a half years. Ms Jackson’s evidence is that that was because, having made the 17 December 2014 Will, he was at peace with his testamentary arrangements. Another explanation, supported by evidence of Mr Lawler, is that there was a sharp decline in the deceased’s cognitive function after his return from a trip with Mr Hele to the Philippines in or about early 2015. By 13 January 2015 (upon which date NCAT reviewed a guardianship order affecting the deceased) the deceased required 24 hours daily care. There is, however, disinterested evidence of rational conversations with the deceased well into 2015. It may be that, with Mr Llewellyn denied close, regular contact with him after 1 August 2014, and with others not inclined to engage in further agitation, inertia set in all round.

72. There is no ready answer as to why a man apparently predisposed to regular discussion of his testamentary intentions over a lengthy period seems suddenly to have stopped engaging in such discussion and in the drafting or execution of further testamentary instruments. An available inference is that this change in the deceased’s pattern of will-making was the product of a combination of circumstances including, particularly, the exclusion of Mr Llewellyn from the deceased’s regular company; the ancillary embrace of the deceased by competing interests; and a sharp decline in the deceased’s mental health. Whether (and, if so, how) the deceased’s sudden change of pattern reflects upon what preceded the change is a question for critical inquiry upon an assessment of the will dated 17 December 2014, if not earlier testamentary instruments.

THE STRUCTURE OF THE DECEASED’S TESTAMENTARY INSTRUMENTS

76. The deceased’s wills generally conformed to a pattern which varied but slightly:

1. One, two, or three natural persons were appointed as executors and trustees. Mr Illek made his first appearance as an executor in the will dated 18 February 2010 and was named as an executor in each subsequent testamentary instrument (other than the will dated 10 August 2012) up to and including the codicil dated 10 July 2014. In the Codicil dated 8 October 2014 and the will dated 17 December 2014 the named executors were Jonathan Rofe (the 10^th defendant), Katherine Jackson and Robert Horder.

2. Several pecuniary legacies were made to family, friends and associates, including Mr Hele in each will and (in and after the will dated 28 March 2006) Mr Llewellyn.

3. Until the will dated 10 August 2012, pecuniary legacies were made to several established charities. In the will dated 5 March 2013 (in the wake of a Guardianship Tribunal hearing on 3 December 2012), the will dated 14 August 2013 (in the wake of proceedings in NCAT on 29-30 May and 21 June 2013) and the draft will prepared by Arnold Bloch Leibler in December 2013, the deceased proposed to establish a charitable foundation of his own. In subsequent testamentary instruments (commencing with the will dated 11 February 2014) no gifts were made to charity. In their conference on 13 December 2013 Mr Patterson had counselled the deceased against establishing a charitable foundation without a commitment of resources greater than the deceased had envisaged.

4. Special provision was made for Mr Hele and (in and after the will dated 28 March 2006) Mr Llewellyn, such provision (in the case of Mr Hele, up to and including the will dated 14 August 2013 and, in the case of Mr Llewellyn, up to and including the codicil dated 8 October 2014) including a forgiveness of debts respectively owed by them to the deceased.

5. Specific gifts were made by the deceased of particular chattels (from and including the will dated 28 March 2006). Consistently, a portrait of the deceased’s maternal grandmother, a silver tea dispenser and a Sid Long painting were given to family. In the will dated 5 March 2013 and in all subsequent wills the deceased gave a portrait of himself to Mr Llewellyn.

6. The deceased’s residuary estate was divided between 9 – 12 natural persons (often 10), comprising mostly his nieces and nephews but including Mr Hele and Mr Llewellyn. Although the number of shares allocated to particular beneficiaries varied between testamentary instruments, Mr Hele was given at least one (and generally more than one) share in each of the deceased’s wills, as was Mr Llewellyn from his first appearance in the will dated 28 March 2006. In the will dated 17 December 2014 Mr Hele was given a 2/10^th share of the residuary estate, and Mr Llewellyn’s share of residue was reduced to a 1/10^th share of residue. Ms Jackson acquired a 1/10^th share in the will dated 8 March 2014, lost it in the codicil dated 10 July 2014, recovered it in the codicil dated 8 October 2014, and retained it in the will dated 17 December 2014.

77. Given the size of Mr Llewellyn’s debt in the records of the deceased (quantified by Mr Horder on 2 March 2017, as financial manager of the deceased, at $1,200,744.07), the omission from the deceased’s will dated 17 December 2014 of a forgiveness of Mr Llewellyn’s debts could (if those debts are enforced) have a large economic impact on Mr Llewellyn. The enforceability of any debts allegedly owed by Mr Llewellyn to the deceased’s estate is a question for determination on another day; but the existence of such a question may be illustrated by reference to a written acknowledgement signed by Mr Llewellyn on 3 July 2013 that he then owed the deceased $1,230,000. If he is indebted to the deceased’s estate, he nevertheless continues to have the benefit of a gift of real estate from the deceased, a legacy of $100,000 and a 1/10^th share of residue. In the will dated 5 March 2013 the deceased gave him his (the deceased’s) home unit in Woollahra. That gift was not repeated but, in each of subsequent testamentary instruments commencing with the will dated 11 February 2014, the deceased gave him a home unit in Surfer’s Paradise (title to which the deceased acquired in or about August 2014) to which he moved in February 2015. Mr Llewellyn evidently sought to secure that property (estimated by Mr Horder in November 2017 to have a value of $1.35 million) for himself by having the deceased execute on or about 25 July 2014 a long term lease at a nominal rent.

78. In March – April 2017 or thereabouts, Messrs Horder and Llewellyn fell into litigation (with proceedings in both this Court’s Protective List and in NCAT) about the validity of the lease and more general issues about entitlements claimed by Mr Llewellyn from the deceased’s protected estate. On 5 June 2017 the Tribunal proceedings were stayed by an order made in the Protective List proceedings (Case No. 2017/00092975). Following the death of the deceased on 21 July 2019, the Protective List proceedings were on 28 August 2017 stayed pending, in effect, the current Probate proceedings.

79. In each of the deceased’s codicil dated 8 October 2014 and his will dated 17 December 2014, the deceased gave Mr Hele the property in Wombarra which (to the deceased’s passing chagrin) Mr Lawler, acting as the deceased’s attorney, purchased at auction on 28 June 2014. Mr Hele’s evidence was that it was at his suggestion that the property was sold in 2016 by Mr Horder, the deceased’s then financial manager; Mr Hele explained that, by 2016, the property was, for the deceased, an unnecessary economic burden given his then lifestyle. In the deceased’s wills dated 5 March 2013, 14 August 2013 and 17 December 2014 Mr Hele was given a motor vehicle.

80. In the deceased’s will dated 28 March 2006 Brendan Hull received a pecuniary legacy and a 1/20^th share of residue together with a pecuniary legacy, and his wife Anne received a pecuniary legacy. In each subsequent will up to and including the will dated 10 August 2012 they each received a pecuniary legacy. Thereafter (reflecting the estrangement between Mr Hull and the deceased following Mr Hull’s surrender of the deceased’s practising certificate), they received nothing. Nevertheless, in each of the deceased’s wills except the will dated 23 January 1995, their children received a pecuniary legacy.

81. Mr Lawler received a pecuniary legacy in each of the deceased’s wills dated 5 March 2013 and 14 August 2013; respectively, $50,000 and $60,000. He believes that, he having expressly disclaimed any interest in being named a beneficiary of the deceased, Mr Llewellyn engineered his inclusion as a beneficiary in these wills in order to spite him. The fact of that belief may say more about the relationship between Messrs Lawler and Llewellyn than it does about the deceased, though the wills dated 5 March 2013 and 14 August 2013 may also have been executed at times when the deceased was stressed by disputation about protective management of his affairs.

82. Ms Jackson made her first appearance as a beneficiary of the deceased in his will dated 5 March 2013. She was named as a pecuniary legatee in that and in each subsequent testamentary instrument of the deceased, in amounts that varied between $50,000 and $100,000. In each of the will dated 8 March 2014, the codicil dated 8 October 2014 and the will dated 17 December 2014 she received a 1/10^th share of residue.

83. In each testamentary instrument (except the will dated 23 January 1995) Ms Coleman was named as a pecuniary legatee, in amounts that varied between $5,000 and $60,000.

84. In each of the deceased’s testamentary instruments Elaine Clarke was named as a beneficiary but, whereas she was named as a major beneficiary in the deceased’s wills up to and including the will dated 18 February 2010, the provision made for her thereafter took the form of a comparatively modest discretionary annuity.

85. The deceased’s nephew James Rofe (the fourth defendant) was named as a beneficiary in each of the deceased’s wills. In all but the will dated 8 March 2014, and the codicils respectively dated 10 July 2014 and 8 October 2014, he was named as a residuary beneficiary. He lost that status in the three identified instruments because when he remarried he did not invite the deceased to his wedding and the deceased took umbrage, thinking he had been snubbed. The two men are said to have been reconciled when the deceased was assured that the wedding, as a second marriage for both James and his wife, was conducted as a private ceremony with few attendees. James received a pecuniary legacy and a 1/10^th share of residue in the will dated 17 December 2014.

86. Philip Rofe (the second defendant) received a 1/20^th share of residue in each of the wills dated 28 March 2006 and 18 February 2010. In each of those wills and the wills dated 17 November 2011 and 10 August 2012 he received a right to purchase the deceased’s Sid Long painting. Apart from that he received nothing. His participation in the deceased’s estate was a beneficiary came to an end in (and after) the will dated 5 March 2013, following the deceased’s execution (on 4 October 2012) and revocation (on 7-8 November 2012) of instruments appointing him as an enduring attorney and guardian.

87. There were other “winners” and “losers” in the shifting sands of the deceased’s testamentary arrangements. However the main ones are here mentioned.

88. A major change in the deceased’s testamentary arrangements appears to have occurred following the exclusion of Mr Llewellyn from the deceased’s regular company on 1 August 2014 by Ms Coleman acting as the deceased’s guardian. After that time, the provision made for him was changed in character, principally by omission of a forgiveness of debts, and Mr Illek (his accountant) was displaced as an executor. On the face of the deceased’s wills, he remained a major beneficiary to the last. In substance, if indebted to the deceased’s estate, the provision made for him was much diminished. That much is common ground in these proceedings. By agreement between the parties, the question whether Mr Llewellyn is (subject to any testamentary provision made for him) indebted to the deceased’s estate, and the question of the quantum of any such liability, have been deferred for further consideration pending the admission of one or more of the deceased’s testamentary instruments to probate.

89. Kathy Jackson’s prospective entitlements waxed and waned throughout 2014. In each of the instruments respectively dated 11 February 2014, 8 March 2014, 10 October 2014 and 17 December 2014 she was named as a co-executor. In the will dated 11 February 2014 she was given a legacy of $60,000. In the will dated 8 March 2014 she was given a legacy of $100,000 together with a 1/10^th share of residue. In the codicil dated 10 July 2014 the provision made for her was reduced to a bare $50,000. In each of the codicil dated 8 October 2014 and the will dated 17 December 2014 she was restored to a legacy of $100,000 and a 1/10^th share of residue.

90. Other changes to the deceased’s testamentary arrangements appear largely to have been comparatively modest adjustments.

THE NATURE AND VALUE OF THE DECEASED’S ESTATE

91. An inventory of property of the deceased, prepared in aid of these proceedings, demonstrates the nature and complexity of the deceased’s estate. At the time of his death, he owned:

1. his residence at Woollahra and three other parcels of land located in the eastern suburbs of Sydney (with an estimated value of $7.6 million).

658. Mr Illek might be said to have stepped outside his self-proclaimed role of a non-partisan "trustee" in his over-zealous opposition to the validity of the will dated 17 December 2014, his promotion of the first codicil (dated 10 July 2014) and his support for Mr Llewellyn vis-a-vis Mr Hele, Ms Jackson and the members of the Rofe family with whom they might be thought to have been aligned.

659. Mr Philip Rofe might be criticised for his blanket, undiscriminating allegations of testamentary incapacity, a want of knowledge and approval and undue influence in circumstances in which, to ground any interest in the deceased's estate, he had to persuade the Court to attribute invalidity to more than a few testamentary instruments and to discount medical evidence supporting findings of capacity.

660. The members of the Rofe family aligned with Mr Hele and Ms Jackson might be criticised because the joinder of so many of them as active parties in the proceedings was unnecessary for the purpose simply of propounding the Will dated 17 December 2014.

661. Mr Llewellyn might be criticised for his active participation in the proceedings for the principal purpose, he submits, of protecting his reputation from unwarranted criticism, only belatedly acknowledging a personal interest in opposition to the Will dated 17 December 2014 as compared with earlier testamentary instruments which afforded him a forgiveness of debts.

662. Despite reservations arising from a critical assessment of each party's forensic conduct, in my opinion the justice of the case requires that all costs be paid out of the estate of the deceased, recognising five categories of parties.

663. In the first category, Mr Illek and those who successively propounded the Will dated 17 December 2014 should have their costs assessed on the indemnity basis.

664. In the case of Mr Illek, that is because, at the invitation of the Court, his lawyers played a central administrative role in assembling court books, and attending to logistics and the like, necessary for the orderly conduct of complex proceedings and, despite my criticism of him as perhaps overreaching his role and aligning himself too closely with Mr Llewellyn, he did serve as a contradictor, drawing attention to matters of controversy which might otherwise have been overlooked.

665. In the case of those who successfully propounded the deceased's Will dated 17 December 2014, they should have indemnity costs because they have been found to have upheld the testamentary intentions of the deceased, and their joinder of several interested persons in that endeavour did not materially affect the scope of the evidence adduced or the conduct of the proceedings.

666. In the second category, Mr Philip Rofe and Mr Llewellyn should have their costs out of the estate assessed on the ordinary basis. They have not been vindicated in their contentions about the deceased's final testamentary intentions but, on balance, neither can they be said to have acted unreasonably in their conduct of the proceedings.

667. Although it availed him of no personal advantage, Mr Philip Rofe was instrumental in establishing the invalidity of the first codicil, a significant feature of the case in understanding the course of the deceased's will-making activities in the critical year, 2014. An understanding of what happened in 2014 required an understanding of what happened earlier, a contextual imperative.

668. Having been effectively excluded from the deceased's regular company in the second half of 2014, and having been the subject of sharp criticism by all parties to the proceedings save possibly Mr Illek, Mr Llewellyn was justified in exploring doubts about the validity of the Will dated 17 December 2014, and his lawyers' conduct of the proceedings was reasonably adapted to a determination of the real questions in dispute in the proceedings.

669. The third category of costs orders relates, with one exception, to those parties who filed a submitting appearance in the proceedings. Nobert Lipton (the ninth defendant, an executor named in earlier wills of the deceased), Elaine Clark (the 12th defendant, a beneficiary of the deceased) and Paul Leroy as trustee of the bankrupt estate of Ms Jackson (the third defendant) should receive recognition for such costs as they may have incurred in arranging their submitting appearance.

670. The one exception, a stand alone fourth category, is Mr Hull, (the first defendant) who, by filing a submitting appearance shortly before the final hearing of the proceedings, stepped back from the presentation of the case formerly advanced by him in common with Mr Philip Rofe, confining his role to that of a witness. In my opinion, his costs should be treated in substantially the same way as those of Mr Philip Rofe, allowing him the benefit of an order for assessment of his costs on the ordinary basis, not merely on the basis of a submitting appearance.

671. In the fifth category, a confirmatory costs order should be made in favour of Mr Horder in his capacity as interim administrator of the deceased's estate. In addition to his appearance in the proceedings as a witness, Mr Horder appeared before the Court by counsel (Mr CP Birtles) on 16 September 2020 to assist the Court in dealing with a question of legal professional privilege vis-à-vis documents produced on subpoena by Arnold Bloch Leibler. The costs of that appearance comprise an expense incurred by Mr Horder in administration of the deceased's estate. He is entitled to be indemnified for them from the deceased's estate. This should be confirmed by an express order against a risk of unwarranted controversy.

672. I do not accept Mr Llewellyn's submission that the burden of his costs should be borne (by means of a Bullock Order or a Sanderson Order) by Mr Philip Rofe. This, I apprehend, is another example of Mr Llewellyn's partisan opposition to a perceived enemy, rather than an objective assessment of the case. Mr Llewellyn lacks insight into his role in disrupting the affairs of the deceased and affecting the course of the deceased's will-making activities in the critical year culminating in execution of the Will dated 17 December 2014. Mr Rofe's participation in the proceedings facilitated a finding that the deceased's first codicil was invalid. Had the Will dated 17 December 2014 not been admitted to probate, the invalidity of the first codicil would have opened the way for admission of the Will dated 8 March 2014 to probate, unqualified by subsequent events.

THE RESERVED QUESTION AS TO MR LLEWELLYN’S INDEBTEDNESS, IF ANY

676. The question whether Mr Llewellyn has any (and, if so, what) liability to the estate of the deceased in debt was expressly reserved by agreement of all parties during the course of the final hearing of these proceedings.

677. It is not necessary at this stage, and it may never be necessary, for the Court to make a determination of this question. In the short term, it is a question for consideration by the deceased's duly appointed legal personal representatives. They, in the proper discharge of their executorial duties, may well consult with the deceased's beneficiaries in deciding how best to proceed with administration of the deceased's estate.

678. Accordingly, the appropriate course at the present time is to adjourn the proceedings so far as they relate to the reserved question, and to list them (together with related proceedings in which Mr Horder, as the deceased's financial manager, once pursued claims against Mr Llewellyn) for directions, or dispositive orders, as the nature of the case might require.

THE COURT’S ORDERS

679. Having allowed the parties an opportunity to be heard as to the form of the orders to be made, and costs, I make the following orders to give effect to the reasons for judgment published as Estate Rofe [2021] NSWSC 257:

1. ORDER that the Will dated 17 December 2014 ("the Will") of David Fulton Rofe ("the deceased"), who died on 21 July 2017, be admitted to probate in solemn form.

2. NOTE that Jonathan Rofe, Katherine Jackson and Robert Horder, the exectors and trustees named in the Will ("the Executors"), inform the Court, by TJ Morahan of counsel, that they consent to a grant of probate of the Will in their favour and that they are ready, willing and able to perform the duties of the office of a legal personal representative of the deceased according to law.

3. ORDER that probate of the Will be granted to the Executors.

4. ORDER that the proceedings be referred to the Probate Registrar to complete the grant in accordance with the Probate Rules.

5. ORDER, subject to further order, that the appointment of Robert Horder as interim administrator of the estate of the deceased on 20 November 2017 (in the proceedings numbered 2017/00302064) continue in force until such time as the grant of probate in favour of the Executors issues to them.

6. ORDER that the costs of the plaintiff and the third, fourth, fifth, sixth, seventh, eighth and 10th defendants be paid out of the estate of the deceased on the indemnity basis.

7. ORDER that the costs of the first, second and 11th defendants be paid out of the estate of the deceased on the ordinary basis.

8. ORDER that the costs of the ninth, 12th and 13th defendants be paid out of the estate of the deceased on the basis of a submitting appearance.

9. ORDER that the costs of Robert Horder incurred in these proceedings as administrator of the estate of the deceased be paid out of the estate on the indemnity basis.

10. RESERVE for further consideration, in these or other proceedings, the question whether the 11th defendant has any (and, if so, what) liability to the estate of the deceased in debt.

11. ORDER that the proceedings be listed before Lindsay J on 30 July 2021 at 9.00am for such, if any, orders or directions as may be necessary or convenient for disposition of that question.

12. RESERVE to all interested persons liberty to apply for further or consequential orders in the working out of these orders.

13. ORDER that these orders be entered forthwith.

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Amendments

20 April 2021 -

20 April 2021 - Paragraph 61 - in the first sentence after the words "17 December 2014" the following is inserted: "(propounded by the third to eighth and tenth defendants, a group of Rofe family members and Mr Hele)".

Paragraph 134 - in the first sentence the words "The facts" are deleted and in its place the word "Decisions" is inserted.

21 April 2021 - Addendum, 21 April 2021

Decision last updated: 21 April 2021