Re Klapsas; Klapsas v Muscat

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2007 07156

IN THE MATTER OF THE WILL AND ESTATE OF HELEN KLAPSAS, DECEASED BETWEEN
PETER KLAPSAS	Applicant
v
CHRISTINA MUSCAT (THE EXECUTOR OF THE ESTATE OF HELEN KLAPSAS, DECEASED)	Plaintiff

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JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2022
DATE OF JUDGMENT:	8 December 2022
CASE MAY BE CITED AS:	Re Klapsas; Klapsas v Muscat
MEDIUM NEUTRAL CITATION:	[2022] VSC 755

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WILLS & ESTATES – Application to revoke probate – Deceased had made will in 1981 distributing most of estate to only son – Deceased made will in 2002 revoking earlier will and distributing estate to only daughter – Whether suspicious circumstances as to deceased’s knowledge and approval of 2002 Will – Deceased had limited ability to read English – 1981 Will contained attestation clause regarding inability to read English but 2002 Will did not – No evidence from solicitor about circumstances in which 2002 Will was made – Dispute as to whether both daughter and son were present during execution of 2002 Will – Son had financial issues that explained change of beneficiary – Suspicious circumstances not established – Application to revoked probate dismissed.

Nock & Austin (1918) 25 CLR 519; Veall v Veall (2015) 46 VR 123; Tobin v Ezekiel (2012) 83 NSWLR 757, applied; Hawes v Burgess [2013] EWCA Civ 74, discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms P Carey	Patrick Smith Lawyers
For the Plaintiff	Ms C Sparke KC	Dellios West & Co

HER HONOUR:

Introduction

Helen Klapsas died on 7 November 2006. She was survived by two children: Peter Klapsas, who is the applicant in this matter; and Christina Muscat (at the time known as Christina Gagatsis), who is the plaintiff in this matter.[1]
[1]Without any disrespect to the parties, first names will be used because several of the relevant persons share a common surname.

Helen left a will dated 6 March 2002 (the ‘2002 Will’). The 2002 Will was drafted by the firm of Rush & Failla Solicitors (the ‘solicitors’). It appointed Christina as the sole executor and trustee of the estate and left the entire residual estate to her. The estate was principally comprised of a property in Reservoir.

Helen had made a previous will at the same time as her late husband, Aoanis Klapsas (also known as John), dated 4 August 1981 (the ‘1981 Will’). The 1981 Will appointed Aoanis as the executor and trustee of the estate; if he predeceased Helen, Peter was appointed as the alternative executor and trustee. The 1981 Will distributed the estate as follows:

(a) the entire residual estate to Aoanis;

(b) if Aoanis predeceased Helen, the entire residual estate to Peter; and

(c) a $500 gift to Christina (at the time known as Christina Catipovski).

Aoanis died on 25 February 2002 and his funeral was held on 28 February 2002.

The 1981 Will was formally revoked by the 2002 Will.

A grant of probate of the 2002 Will was made by the Supreme Court on 18 June 2007 naming Christina as the executor of the estate. On 24 July 2007 Christina was registered on title as the proprietor of the Reservoir property in her capacity as Helen’s legal and personal representative. On 17 October 2019 title to the Reservoir property was transferred into Christina’s name as the sole proprietor in her own right.

Peter had lived in the Reservoir property with his mother prior to her death. After her death he continued to live at the property, and he continues to live there at the time of the hearing of this matter. In 2016, however, Christina took steps to evict him from the property, leading to a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) and a later proceeding in the County Court. To date those steps have been unsuccessful.

Peter now seeks revocation of the 2002 Will on the ground of lack of knowledge and approval on the part of Helen. He also seeks leave to apply for a grant of probate of the 1981 Will.

For the reasons that follow, I have concluded that there are no circumstances that arouse a suspicion that Helen did not know and approve of the 2002 Will. The application to revoke the grant of probate of the 2002 Will should be dismissed.

Relevant legal principles

There was no dispute between the parties as to the legal principles relevant to an application to revoke a will on the basis that the testator did not know and approve of the contents of the will. The principles were set out by Isaacs J in Nock v Austin,[2] and have been frequently applied and discussed since.[3] Relevantly summarised, they are as follows:
[2](1918) 25 CLR 519, 528; [1918] HCA 73 (‘Nock’).
[3]See, eg, Veall v Veall (2015) 46 VR 123, 184 [193]–[194] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60 (‘Veall’); Vukotic v Vukotic [2013] VSC 718, [132] (McMillan J); Tobin v Ezekiel (2012) 83 NSWLR 757, 770–1 [44], 771 [46]–[47], 773 [51] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285 (‘Tobin’); Re Hayes [2022] VSC 178, [15] (McMillan J); Re Cassar [2022] VSC 126, [12] (Moore J).

(a) If there has been due execution of a will and the testator had testamentary capacity, a presumption of knowledge and approval of the contents of the will exists.[4]
[4]Nock (1918) 25 CLR 519, 528 (Isaacs J); [1918] HCA 73; Veall (2015) 46 VR 123, 174 [169] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

(b) However, if the applicant can establish suspicious circumstances suggesting that the testator lacked knowledge and approval of the contents of the will, the presumption does not arise. The onus is then on the propounder of the will to remove such suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.[5]
[5]Nock (1918) 25 CLR 519, 528 (Isaacs J); [1918] HCA 73; Veall (2015) 46 VR 123, 174–5 [169] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

(c) The onus of establishing suspicious circumstances lies on the applicant: a mere assertion by a contradictor that the testator lacked knowledge and approval will not displace the presumption raised by the due execution of a will. ‘The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator’.[6]

(d) The presumption of knowledge and approval may be displaced by ‘any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator’.[7] If the Court is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.[8]

(e) But the principle goes no further than requiring vigilance in seeing that the case is fully proved. It does not require any particular species of proof to satisfy the applicant’s onus.[9] Furthermore, as explained in Tobin,[10] references to ‘vigilance’ and ‘careful scrutiny’, and to the court being ‘affirmatively satisfied’ as to knowledge and approval, do not require anything more than the satisfaction of the conventional civil standard of proof. The cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and the source and nature of any suspicion. These statements also recognise that deciding whether a document reflects a testator’s testamentary intentions is a serious matter, such that a decision about whether the civil standard of proof is satisfied should be approached in accordance with s 140(2) of the Evidence Act2008 and Briginshaw v Briginshaw.[11]

[6]Veall (2015) 46 VR 123, 175 [171] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60 (citation omitted).

[7]Tobin (2012) 83 NSWLR 757, 771 [46] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285.

[8]Nock (1918) 25 CLR 519, 528 (Isaacs J); [1918] HCA 73; Veall (2015) 46 VR 123, 175 [171] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

[9]Nock (1918) 25 CLR 519, 528 (Isaacs J); [1918] HCA 73; Veall (2015) 46 VR 123, 178 [180] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

[10](2012) 83 NSWLR 757, 772 [48] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285.

[11](1938) 60 CLR 336, 361–2 (Dixon J); [1938] HCA 34.

The degree of suspicion will vary with the circumstances of the case. In some cases, it may be slight and easily dispelled. In other cases it may be ‘so grave that it can hardly be removed’. Thus, as Santamaria JA observed in Veall:

What evidence will be sufficient to allay the Court’s suspicion will necessarily depend on the circumstances supporting the suspicion; the proof required to allay ‘suspicious circumstances’ will depend upon what it was about the circumstances that made them suspicious.[12]

[12](2015) 46 VR 123, 175 [172] (Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

Santamaria JA also referred with approval to the following passage from Williams, Mortimer and Sunnucks — Executors, Administrators and Probate:

A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills.[13]

[13]Veall (2015) 46 VR 123, 177 [175] (Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60, quoting John Martyn and Nicholas Caddick (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20^th ed, 2013) 207 [13–30].

The best evidence of the deceased’s knowledge and approval of a will is evidence of the testator’s instructions or evidence that the will was read by the testator.[14] It has been said that in some cases it might be impossible to establish a will without such evidence; however those are not the only satisfactory forms of evidence.[15] For example, it may be that there is evidence that the will was read or explained to the testator.[16] However, proof that the will was read by, read to or explained to the testator before its execution may not always be sufficient.
[14]Tobin (2012) 83 NSWLR 757, 771–2 [47] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285, quoted in Veall (2015) 46 VR 123, 178 [179] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.
[15]Barry v Butlin [1838] 2 Moo PC 480, 484 (Parke B for the Court); (1838) 12 ER 1089.
[16]See, eg, Nicholson v Knaggs [2009] VSC 64, [610]–[612] (Vickery J); Tobin (2012) 83 NSWLR 757, 776–7 [67] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285. In Tobin the will ‘was read out aloud, then apparently read by [the testator] and its effect was explained’.

Ordinarily, evidence of what occurs after the death of the testator is not relevant to raising a suspicion. That is because the inquiry relating to knowledge and approval concerns the circumstances surrounding the execution of the will. ‘A circumstance must, to be accounted “suspicious”, be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death’.[17] Evidence of matters occurring after the deceased’s death is not readily capable of throwing light on the question of the testator’s knowledge and approval of a will executed during the testator’s lifetime. However, there may be circumstances in which later events are relevant, such as where there is a delay in producing the will; that delay will not create a suspicion, but may support contemporaneous evidence raising a suspicion.[18]
[17]Tobin (2012) 83 NSWLR 757, 771 [46] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285.
[18]Re O’Callaghan [2019] VSC 16, [26] (McMillan J).

One circumstance that will generally establish suspicious circumstances is when a party writes or prepares a will under which he or she takes a benefit.[19] It has been said that in such a case ‘particular vigilance’ is required.[20] But the principle is not confined to such a case. So, for example, in the English case of Hawes v Burgess,[21] suspicious circumstances were found to exist where:
[19]Nock (1918) 25 CLR 519, 528 (Isaacs J); [1918] HCA 73. In that case, the plaintiffs were the solicitors who had prepared the will and who also stood to benefit under the will. The plaintiffs were able to establish that the testator knew and approved of the will and the High Court thus upheld the trial judge’s grant of probate to the plaintiffs.
[20]Tobin (2012) 83 NSWLR 757, 771 [47] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285, quoted in Veall (2015) 46 VR 123, 178 [179] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.
[21][2013] EWCA Civ 74 (‘Hawes’). Hawes was referred to with approval in Veall (2015) 46 VR 123, 181–3 [191] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

(a) a daughter who was one of the principal beneficiaries had made the arrangements for the testator to make a new will;

(b) the daughter had remained in the room while instructions were given and had answered questions from the solicitor, including giving erroneous information;

(c) the new will disinherited the testator’s son, despite the facts that they had a very close relationship and that the testator renovated and lived in a bungalow at the son’s home for the two years prior to her death; and

(d) the testator did not tell her son that he had been excluded from the new will, whereas she did tell him about an inter vivos gift to her other children.[22]

[22]Hawes [2013] EWCA Civ 74, [23]–[24], [26], [32], [34], [62]–[63] (Mummery LJ, Patten LJ agreeing at [67], Sir Scott Baker agreeing at [70]).

In that case, in relation to the role of one of deceased’s daughters, Julia, in the making of the will, the UK Court of Appeal said as follows:

The involvement of Julia not only in making the arrangements to see the solicitor but also in relation to instructions for the contents of the will, including misinformation emanating from her, is another circumstance on which the judge was entitled to be satisfied affirmatively that the Deceased knew and approved the contents of the 2007 Will. Julia made contact with [the solicitors] in December 2006, made the appointment, took the Deceased to the firm’s offices and remained in the room with the Deceased throughout the discussions that took place with Mr Webster when he took instructions and when the will was executed. That all happened without the knowledge of Libby and Peter [the deceased’s other children] at a time when there was a rift between Peter and Julia. Julia was found to be the ‘controlling force’ … behind the instructions given for the drafting of the 2007 Will, and, in particular, was the source of inaccurate information supplied to Mr Webster about sums paid or to be paid by the Deceased to Peter in his lifetime and about where the Deceased would be living. Further, the Deceased had not had an opportunity to check and approve the contents of the draft will before she went to Mr Webster’s office to execute it.
Those particular factors, in addition to the judge's findings on the deteriorating state of the Deceased's physical health, her mental state and her diminishing capacity, were, in my judgment, sufficient to support the judge’s overall conclusion on the Deceased’s want of knowledge and approval of the contents of the 2007 Will.[23]

[23][2013] EWCA Civ 74, [63]–[64] (Mummery LJ, Patten LJ agreeing at [67], Sir Scott Baker agreeing at [70]).

Circumstances relevant to the question whether the testator knew and approved of the will may include ‘the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice’.[24]
[24]Tobin (2012) 83 NSWLR 757, 771 [47] (Meagher JA, Basten JA agreeing at 761 [1], Campbell JA agreeing at 764 [19]); [2012] NSWCA 285, quoted in Veall (2015) 46 VR 123, 178 [179] (Santamaria JA, Beach and Kyrou JJA agreeing at 195 [232]–[233]); [2015] VSCA 60.

Some undisputed matters

As will emerge, Peter and Christina gave two very different accounts of many of the key matters in issue in the present case. Ms Valerie Lazarou, Helen’s sister, also gave evidence that differed in some respects from both Peter and Christina. However, it is convenient to commence with some facts that were not in dispute between the parties.

A copy of Helen’s 2002 Will was in evidence, as was a copy of Helen’s 1981 Will and of Aoanis’s will, also made in 1981. There was no dispute about the authenticity of these documents. Nor was there any dispute that the 2002 Will was executed by Helen and that she was of sound mind at the time she executed that will. There was no dispute that Helen’s estate consisted principally of the Reservoir property.

Aoanis died on 25 February 2002. His funeral was held on 28 February 2002. Helen executed the 2002 Will on 6 March 2002.

As previously mentioned, under the terms of the two 1981 Wills, Peter was appointed as executor and trustee and the entire estate was left to him, save for a $500 bequest to Christina. Under the 2002 Will, Christina was appointed as executor and the entire estate was left to her.

Following Helen’s death in 2006, probate of the 2002 Will was granted on 18 June 2007. Title to the Reservoir property was transferred to Christina as the personal legal representative of Helen on 24 July 2007. The property was transferred to Christina as sole proprietor on 17 October 2019.

Also following Helen’s death, Peter continued to live at the property. He paid the council and water rates until 2015, when he stopped paying for these items. (Peter and Christina differed as to why Peter had paid the rates, and why he stopped paying the rates.)

The parties agreed that there were various disputes with the local Council concerning the state of the property, and that these disputes resulted in at least one fine in 2015, which was imposed on Christina, as the legal titleholder.[25]
[25]This was a planning infringement notice for ‘use of the property as a store or car park without planning permission’.

In 2016 Christina commenced steps to have Peter removed from the property by sending him a notice to vacate the property. In March 2020 Christina commenced a proceeding in VCAT seeking possession of the property under s 322(2) of the Residential Tenancies Act1997. That application was dismissed because VCAT found that there was no tenancy agreement between Peter and Christina and VCAT thus lacked jurisdiction to grant the relief sought. Christina then instituted a proceeding in the County Court seeking an order for possession of the Reservoir property; that proceeding has been stayed pending the outcome of this proceeding.

The evidence

I now turn in more detail to the evidence given by the witnesses. The evidence on which Peter relied in this matter consisted of two affidavits sworn by him;[26] and an affidavit sworn by Valerie,[27] together with oral evidence by each witness.
[26]An affidavit sworn on 14 September 2021 and an affidavit sworn on 19 November 2021. An affidavit sworn on 15 November 2021 was also filed, but it was in substance identical to the affidavit sworn on 19 November 2021 and was not read.
[27]Sworn on 19 November 2021.

The evidence on which Christina relied consisted of an affidavit[28] and her oral evidence, together with some documents tendered in the course of the trial.
[28]Sworn on 3 November 2021.

There were various objections to all of the affidavits. Many of the objections were, sensibly, resolved by agreement between the parties. However, some were not. With the parties’ agreement, I ruled on some of those objections in the course of the trial, and left others to be resolved in the course of writing my judgment. In relation to certain objections based on what were said to be unfounded opinions, I granted leave to the parties to adduce evidence of the foundation for the opinions.[29] In light of that leave, and the evidence that was then led, I dismiss those objections. In relation to the remaining objections, my findings are set out in the appendix.
[29]See the objection to paragraph 7 of the 19 November 2021 affidavit of Peter Klapsas; the objections to paragraph 5 of the affidavit of Valerie Lazarou; and the objections to paragraphs 14 and 15 of the affidavit of Christina Muscat.

When did Peter and Christina reside with and care for their parents?

Peter’s evidence was that, from a date that is not presently relevant up until late 1999, he had been residing in Queensland and working with Hoyts cinemas. In late 1999 or early 2000 he gave up that job and left Queensland in order to care for his parents. He moved into their house in Reservoir. He said that Christina was unable to fill this role because she was married with children. (It appears from the material before me that Peter was not married, and has no children). Peter said that his father was unwell when he returned to live with his parents and that Aoanis needed help with activities such as going to the toilet, shaving himself and going to the hospital. His father was approximately 80 and had suffered a stroke. Peter said in his affidavit that both his parents required some care, but his father required the most care. However, in cross-examination he accepted that, prior to her death, his mother had been fit and well and had looked after herself.

Peter denied that Christina had been involved in caring for their parents. He also denied an allegation by Christina that he was out a lot and spent consecutive days away from home. He said this:

It would have been impossible for me to be away from the home for these periods as I was the only care giver for my parents. I was needed to take them shopping, to the hospital and to doctors’ appointments. I was with my parents for most, if not all, of everyday during the period of 1999 to 2006, therefore, I am qualified to state what Christina's relationship with them at that time consisted of. I did go out on occasion at night, after my parents were asleep. On some of these occasions, it was to pick up casual hours of work as a security guard.

He said that Christina visited their parents once a fortnight.

In contrast, Christina’s evidence was that she had lived with her parents from December 1999 to May 2001. She said that she remembered the month she moved out because she had bought a property in January or February, with a 30 or 60 day settlement, and had moved in on 24 May, which was her husband’s birthday. She did not give evidence about whether her children had lived at her parents’ house with her. Her evidence was that Peter had not returned to live in the Reservoir property with their parents in late 1999 or early 2000. Rather, he had moved in around 12 to 15 months before Aoanis died (which would have been around late 2000). She said that she and Peter lived there together for a period, roughly from around December 2000 to May 2001, during which Peter slept in a bedroom and she slept in the lounge room. Christina’s evidence was that during that time Peter was not providing assistance to his parents.

Christina said in her affidavit that after she moved out of her parents’ house she visited once a fortnight; in her oral evidence she said that she visited them once a month, or once every second month, but that she spoke to her mother on the phone every day. She said that her mother never mentioned that Peter was helping her and Aoanis, or providing them with care. She said that from 2001 to 2006 she had assisted her parents with their needs, such as ‘taking them to … medical appointments, filling out all their paperwork and doing their grocery pick-ups’. Her evidence was that her mother was capable of looking after herself.

Valerie’s evidence concerning when Peter moved in with his parents was that she was not sure of the year, but thought it was probably earlier than mid-2001. Valerie also gave evidence that Helen was able to look after herself both before and after John died, and that she had looked after Aoanis before he died. Her evidence was that Helen ‘would have been fine on her own’.

The circumstances in which the 2002 Will was made

As noted above, Aoanis died on 25 February 2002 and his funeral was held on 28 February 2002. In his oral evidence Peter said that his mother was distraught after Aoanis’ death, and that he had seen her crying, however he had not mentioned that in his affidavit. He said that his mother made the 2002 Will some six days after the funeral. That occurred at the solicitors’ office.

In his affidavit Peter said that he and Christina had accompanied Helen to the solicitors’ office. In his oral evidence he said that he had driven his mother to the solicitors’ office and that Christina had met them there. In his oral evidence he also said that Helen had been upset and crying in the car on the way to the solicitors’ office. That had not been mentioned in either of his affidavits.

In his first affidavit Peter said that Christina had remained in the room during the meeting with the solicitor, but that he had not done so. He said that he had been working 12-hour night shifts as a taxi driver and so he ‘remained in [his] car and slept while the meeting took place’. He said that his presence was not required at the meeting because his mother had told him that the only purpose of the meeting was to ‘install Christina as the executor, but definitely not as beneficiary’. In his second affidavit, Peter said that he was ‘under the impression that the meeting was only for the change of the executor’ from him to Christina, and he ‘therefore assumed that [he] was not needed’. He said that although he was present at the solicitors’ office with Helen he ‘left the office for the majority of the meeting’. In his oral evidence he said that he had taken his mother into the reception of the solicitors’ premises, but had then left his mother there and returned to his car; he had not gone into a separate office or meeting room with his mother, his sister and the solicitor. Peter’s evidence was that he could not say anything about what had happened during the meeting between his mother and the solicitor, because he was not present after the initial introductions took place in the reception area. He said that he was unaware ‘for many years’ what had taken place during the meeting.

In her affidavit Christina said that she and Peter had accompanied Helen to the solicitor’s office on 6 March 2022. She said that her recollection was that Peter was present in the solicitor’s office for the whole of the meeting, and that he did not say much.

Christina’s oral evidence on this issue differed from her affidavit in some relatively minor respects. She said in her oral evidence that she did not recall how Helen had arrived at the office. She also said that the meeting at the solicitor’s office was not the first time that Helen had said anything about changing her will; she said that Helen had said something to her earlier about ‘what her [Helen’s] intentions were and how she was going to draw up the will’. Christina said she thought that was in a phone call, and that her mother had said she was going to leave ‘the entire property’ to Christina, ‘because of Peter’s circumstances’, that is ‘because he’s … financially unreliable’. That aspect of her evidence had not been included in her affidavit. Christina also said that it was her mother’s idea to go to the solicitor’s office.

In relation to the manner in which the meeting at the solicitor’s office unfolded, Christina said she was ‘very vague’ about many aspects of it. She said that she, the solicitor, her mother and Peter went into an office and the door was closed. She said that Peter was in the meeting ‘the whole time’. She said Helen wanted her and Peter ‘to be aware of what was in [the will] and how it was being drawn up.’

Christina’s evidence was that the solicitor was not in the room for the whole time. Her evidence was that the solicitor said:

I’ll leave you with the papers. I’ll come back in a few minutes. Let you three go over everything. Explain it to your mother. Explain it to your mother.

She said that the solicitor was referring to the ‘will papers’, and that she did not know where they had come from — she recalled some papers being on a desk. She said that the will was ‘already written up’:

[S]o she wasn’t, like, going to the lawyer to say what she wanted in a will, like, ‘This is what I want,’ and ‘Can you draft it?’ It wasn’t a draft; it was a final copy.

Christina said that she did not know when Helen had told the solicitor what she wanted in the will, and that she, Christina, was not present when Helen gave instructions to the solicitor.

Christina’s evidence was that, during the conversation at the solicitor’s office, her mother said:

I’m doing this. This is the best way to do it, and I hope, you know, you all understand and I don’t want any trouble.

But, Christina said, Helen said the final words partly in Macedonian: ‘ne sakam trouble’.

Her evidence then included the following exchange:

So, going back a step. You said a moment ago that what your mother said was, ‘This is the best way to do it’?---Yes.
What was it that was the ‘best way to do it’ in terms of her will?---Because we had spoken about it earlier and I knew what was going to be in the will, and then we’re reading it to her. Well, going over it, and that’s while we’re all there. That’s - I knew - I’m gonna say - well, yeah. Because she - we’d spoken about it before.
All right, so you’d spoken about it before?---M’mm.
That’s the conversation you talked about a moment ago - - -?---Yes.
- - - where she told you what she wanted. But just on this day, just in terms of what was in the will, when she said to you, ‘This is the right thing,’ or ‘This is the’ - I’m sorry - ‘This is the - - -?---‘Best way of - - -’
‘- - - best way to do it’ - - -?---Yeah, ‘to do it.’
I’m sorry; thank you. What was it - did she say what it was that was ‘the best way to do it’, in terms of the will?---I’m not sure. I’m not sure if she repeated it. I can’t answer that, yeah.
Repeated what?---I’m not sure if she said, ‘This is the best way to do it,’ and she recited what was in the - like, said what was in the will. I can’t remember if she said anything.
…
‘I don't want trouble.’ Did she say what trouble there might be? What was she doing that might make trouble? Did she say?---Oh, probably because she was leaving everything to me, and, um - well, I would – I’m thinking – I’m understanding – she’s explained to me why she’s doing the will like that. I don’t know if she had a conversation with Peter. But, um - yeah, so I knew what my part was in - my part was. So then, she’s saying, ‘I don't want any trouble.’ You know, is there any problems? But there - there wasn’t any - no one said anything.
What do you mean, ‘no one said anything’?---No one said, ‘Oh, I object,’ or, ‘I disagree,’ or, ‘I’ - like, there was no objections, while we were there.
So you say that Peter was present. Did he say anything?---I can’t remember, but he - he didn’t say anything to object, or - I can’t remember if there was anything that he said.
…
Did your mother tell you, at any stage, why it was that she used that phrase, ‘I don't want trouble’? Did she tell you what sort of trouble she - - -?---No.
- - - might have expected?---No, no.
Now, how long did this whole interview take - this whole session take?---I don’t feel it was long. Maybe half an hour.

Later in her evidence Christina explained how the signing of the will took place:

What happened?---I’m not exactly sure about the steps, but then once everything was – we were all ready and then the lawyer came back in, I don’t know if we called him or - - -?
All right, the lawyer came back in?---But the lawyer returned to the room.
Yes. And was there a – did something take place, that ended up with your mother signing the will?---Yes, yes.
How did that happen?---Oh, the witness was called in to witness the signature.
Did the lawyer say anything to your mother about what was in the will?---I can’t remember.
All right. So, it’s uncontroversial that the will was then witnessed and signed?---Correct.

At the conclusion of Christina’s cross-examination, I asked her some questions about her evidence concerning reading and going over the 2002 Will, as follows:

HER HONOUR: I just have a couple of questions about something you said yesterday, Mrs Muscat. When you were being asked questions by [your counsel], and she was asking you about the meeting in the solicitor’s office, and you explained that your mother had said, ‘this is the best way to do it’?---Yes.
And you were asked, ‘What was it that was the best way to do it, in terms of her will’, and this is what you’ve answered - and then I’m going to read what you answered, and then I want to ask you a couple of questions about this passage. So, what you said in answer to that was, ‘Because we’d spoken about it earlier, and I knew what was going to be in the will, and then we’re reading it to her - well, going over it, and that’s why we’re all there’.
Now, I wanted to understand a little bit more about what you’d said to the Court there. So, you said, ‘we’re reading it to her’, and then you said, ‘well, going over it’. Can you explain what you were talking about there?---Like, um, the papers were there and we were – I’ve read it to her, and I said, it’s how you wanted it like it’s got Christina and why – and she – why – we discussed why she was putting it into my name. She said it was the best thing to do.
And, so when you say, ‘reading it to her’. Did you read it line by line?---No, I don’t I – I’m not - I can’t remember any of that, but I’m sure I looked at the will because she told me her – what outcome she wanted.
And you looked at the will?---Yeah, and I looked at the will and I said, yes, it’s – I probably read the whole lot. I’m not sure about everything that happened, and I said yeah, it’s how – what you’ve said, what we discussed.
And you also said, ‘that’s while we’re all there’?---Yes.
Now, when you say, ‘we’re all there’, did you mean, you, Peter, your mother and the solicitor?---There was a point at time where the solicitor left the room and said I’ll let you go over it.
And so it’s in that time when the solicitor’s not there?---The solicitor’s not there, and then the three of us were there, and, um, we were just going over it, and I said, ‘yeah it’s how you want it’. And then mum was saying things like, you know, ‘this is how I want it’, and she was saying to me - because we’d discussed it beforehand. And, I don’t know if I said it yesterday, my husband and I discussed it beforehand, and he knows the whole situation, and Peter was there.
And she was saying, ‘this is just the best way for everybody’, and ‘I don’t want any trouble’.
So, you told her what was in the document?---I’m not sure if Peter – I’m not sure if Peter actually read it. There are some things I can’t remember or if I was just reading it to her. But, what we had discussed - - -
I’m not so much concerned about what you’d discussed, it's just to understand - - -?---I’m not sure if Peter actually picked up the will and read it and looked at it, and said, ‘yeah, yeah, it’s right’. I can't remember every single detail.
But do you remember that you did that?---Yes, yes, yes.
But you’re not sure if Peter did that?---Because I would’ve – that’s how I am, I would’ve looked at it, because she expressed what she – we’d discussed what she wanted, and she said – told me that this is how I’m going to do it because – I know I’m repeating myself. And I said, ‘yep’, because I looked at it, and because it’s legal stuff, I probably would have read the whole thing, yes.
And had anyone explained to you the contents of the will? Had the solicitor explained anything about the will to you? ---I can’t remember if he went over it, while we were in there, I can’t remember – they’re the sort of things I can’t remember.

In re-examination Christina said that her reference to discussing the will ‘beforehand’ was to discussing it sometime between Aoanis’ funeral and the day of the signing.

Christina’s evidence about the circumstances in which the will was discussed and signed is the only evidence on that issue, because Peter’s evidence was that he was not present; and neither party called evidence from the solicitors.

Valerie’s evidence

There was no suggestion that Valerie could give any evidence about the circumstances in which the 2002 Will was executed. However, she gave evidence about what she had understood Helen’s wishes to be concerning the Reservoir property. In her affidavit Valerie said that Helen had intended that Peter was to receive the property after her death, and that Christina, as executor, was to hold the property on trust for Peter. In her oral evidence she said that she thought this was the ‘right thing’ to do. Her oral evidence about Helen’s wishes included the following exchange:

And because of that [Peter not being good with money], it’d be fair to say that she didn’t actually want Peter to have the Reservoir property for himself?---Ah, she wanted him – it to be for Peter. But Christina to oversee it.
And this is one of the wishes that she expressed to you, is it?---Yes. Many times.
Yes. But she didn’t want Peter to actually have the property in ownership for himself?---Ah, she did. If things got a bit dicey with Christina and Peter, the property was to go to Peter. Put it, you know, transfer over to Peter.
Okay. So, if things got a bit dicey between Christina and Peter?---Yeah. Yeah.
So, again, this is one of the wishes that she’s expressed to you?---Yes. Yes.
If things turn out differently than they are today, then this is what I want?---Yeah. Yeah. Yeah. Yes.
…
Was it that Peter was to receive the property if things didn’t go well, or at the end of some - end of Christina’s lifetime, or - - -?---If the - if things - - -
- - - immediately?--- - - - didn’t go well between Peter and Christina.
So it - not - it wasn’t the case that he was supposed to get the property straight away?---No, not straight away, but he wasn’t to be left out in the street.

Valerie also gave some evidence about her understanding as to why the Reservoir property was to be left entirely to Peter, and not to Christina, namely that Christina had already been provided for during Helen’s life, by the provision of financial assistance for Christina to buy three properties. Christina disputed this account. She said that she had purchased two properties without assistance from Helen, and that in relation to a third property Helen had ‘held onto’ some of a redundancy payout that Christina had received, in case Christina’s husband ‘wasn’t reliable enough’, and to ‘see how the marriage goes’. Helen then provided that money back to Christina, who told her husband that it was a loan from Helen, which they would have to pay back.

Valerie also said that Helen had assisted Christina by providing her with accommodation, which was consistent with Christina’s account of having lived with her parents for a period of time. Valerie said that Peter ‘was given no such assistance during Helen’s life’. However, that was inconsistent with both Peter’s and Christina’s evidence that Peter had lived with his parents for an extended period from at least May 2001 to Helen’s death in 2006. Later in the affidavit she said that Peter had resided with his parents ‘in their later years’. I infer that her earlier statement was intended to refer to direct financial assistance, not the provision of accommodation. Valerie’s statement that Peter was given no financial assistance during Helen’s life was inconsistent with Christina’s evidence that her parents had given her money to deposit into Peter’s bank account.

Valerie was asked various questions in cross-examination about Macedonian traditions and law in relation to the disposition of property within families. No objection was taken to this line of questioning, but ultimately neither party made very much of this aspect of the evidence in their final submissions. I have given Valerie’s answers to these questions no weight, as they were no more than a form of lay opinion evidence. I do not consider that Valerie’s evidence about these matters provides any basis for me to determine whether Helen knew and approved of the 2002 Will.

Finally, Valerie’s evidence was that Christina was aware of Helen’s testamentary intentions because Valerie had witnessed conversations between Helen and Christina in which Helen was ‘emphatically clear that she always wished for the Reservoir property to eventually be transferred to Peter’.

The following exchange occurred during cross-examination:

Now, is it the case that you – it’s your wish, as well as Helen’s wish, that Peter stay at the property, that he’d have a place to live. Is that fair?---It’s not my wish. I am just a voice for my sister.
Yes?---Yeah, so.
But you - - -?---Because – because that was my sister’s wish, I have pushed for that.
And it’s in fact your wish as well, for Peter to have somewhere to live?---Well, definitely.
And it’s what John would want?---Yes.
And it’s what you think is the right thing?---Well, those were my sister’s wishes.

Peter and financial matters

Peter gave evidence that from around 2001, and continuing into 2002, he was subject to court proceedings that posed potential financial risks to him. He did not explain what those court proceedings were about, but said that they were ‘for $3 million’. He said that both his mother and Christina were aware of those proceedings. He said that he could ‘easily have lost the house if it wasn’t kept in trust’ for him. He also accepted that he was ‘not very good with money’, that when he tried to invest in things, they would go wrong, and that his mother knew that. However, he could not recall his parents ever helping him out by having Christina deposit money into his bank account.

Valerie also gave evidence that Helen believed that Peter was not very proficient with finances and had told Valerie and Christina that over the years ‘quite a few times’. But Valerie did not know the details of that, and was not aware of the litigation involving Peter. Valerie’s evidence in her affidavit was that Helen’s belief that Peter was not very proficient with finances was the reason that Helen wanted the Reservoir property held on trust for Peter.

Helen’s English language skills

In relation to Helen’s English language skills, Peter’s evidence in his first affidavit was as follows:

Throughout her life and up to the time of her death, my mother could not read or write the English language. Our conversations would often take place in the Macedonian language. I would speak to her in English and she would respond in Macedonian. Her understanding of spoken English was moderate and basic. She was able to conduct daily activities such as shopping and banking but was unable to read or write in English.

In his second affidavit he said this:

[M]y mother was able to speak some English, perhaps broken English, but at best she was only able to read basic one syllable words in English and always had to ask me to read anything remotely complicated to her. Our father’s English skills were far better. … Our mother was the type to stay at home, cook and clean, tending to her large vegetable garden and her two dozen chickens. This kept her occupied at home. She would visit her sisters and speak in Macedonian. For these reasons, her English never really improved, except to say that she was able to engage in rudimentary shopping and banking transactions.

In his oral evidence Peter said that his mother could speak only very basic English; that if spoken to in English she would usually reply in Macedonian; that she would try to speak basic English to people who did not speak Macedonian; that she watched English-language television; and that for complex medical or legal matters, she would require an interpreter to explain what was being said or written. He accepted that she spoke sufficient English to explain to a doctor what problem she had, but said that if there was a prescription he would have to assist by reading it to her. He did not accept that Helen had sufficient English to say to a solicitor words to the effect of ‘I want to leave everything to my son, Peter’ or ‘I want to leave everything to my daughter, Christina’. He said she would need an interpreter for a conversation of that kind.

Christina’s evidence concerning Helen’s English language skills was somewhat different from Peter’s, although there were also some commonalities. In her affidavit Christina said this:

I do not agree with the description [Peter] gives of our mother’s language abilities…Between the years of 1981 and 2002, my mothers [sic] English language capabilities improved a considerable amount. Based on what I observed of her and her activities I say that my mother comprehended and spoke English at an intermediate capacity, and she often did her own banking, shopping, organising appointments and attended to the medication scripts. All these tasks that were carried out competently by her, which required her to have a moderate English speaking and comprehension abilities. My mother was very independent and intelligent and communicated with my husband and three children in English. Whenever my mother looked after my three children (one of whom, my daughter is deaf), she had no issues speaking to and understanding them. My mother never requested for a Macedonian speaking solicitor or interpreter as she was comfortable liaising in English at an intermediate level.

In Christina’s oral evidence she said that Helen spoke to Christina’s husband and children in English; that ‘she knew basic — she knew most of the words’; and that she could ‘communicate to a degree, but as long as it’s simple’. Christina said that Helen spoke English with her doctor, but that sometimes she (Christina) would need to explain to Helen some things the doctor said. But she said that on some occasions Helen went to the doctor on her own, and that she was fine, and then when she came home Christina would go over her medications with her. Christina said that Helen was fine going to the bank, but there were ‘Macedonian people at the tellers’. In relation to reading English, Christina said that Helen could not read ‘a whole story, but probably she’d pick up a word or two’.

Valerie’s evidence concerning Helen’s English language skills was as follows:

Helen immigrated to Australia directly from Macedonia at the age of 25. She had no formal education in Macedonia. She was unable to write fluently in Greek or Macedonian. She could barely sign her name in English and could not read or write in English at all. She could speak and understand enough English to shop, bank and other basic daily activities.

Valerie also gave evidence that Helen would not have used the word ‘trust’ and that Helen would not have encountered the idea of one person holding property for another.

Valerie’s evidence was that after Helen’s death Christina had said to her, ‘I don’t have four children, I’ve got three. My mother has left me Peter to look after as well.’ Christina agreed that she had said that to Valerie. I understood this to mean that Christina understood that her mother wished for her to look after Peter, as if he was her fourth child.

The conversation at the Reservoir property in 2006

In his first affidavit Peter gave evidence that in November 2006, shortly after Helen’s death, he and Christina ‘had a face-to-face conversation’ at the Reservoir property, in the presence of Valerie. He said that ‘Christina stated that the Reservoir Property had been left to me and she agreed that she was to hold it in trust for me. At this meeting, I was entirely unaware that the Reservoir Property had been left to Christina.’ His evidence was that he was unaware that the property was not being held in trust for him until he attended the VCAT hearing in July 2020 and was shown a copy of the 2002 Will by Christina’s barrister.

In his oral evidence, Peter accepted that in 2006 he did not fully understand the concept of what it was to ‘hold property in trust’, and that at that time he thought that the property had been left to him, consistently with what his parents had explained was to happen. He said his mother had confirmed that by giving him a copy of the 1981 Will. Peter said that the bequests made in Helen’s 1981 Will were identical to many comments that had been made to him by his parents during their lifetimes. They both told him that the Reservoir property was going to be left to him when they died. He said that those statements were made in the presence of Valerie, Christina and him.

Christina’s account of the conversation at the Reservoir property in 2006 was quite different. In her affidavit she denied that she had told Peter the property was left to him or that she was holding it on trust for him. She said that she had said words to the effect of ‘I don’t have a need for the property, you can stay’, that they had not discussed how long he would stay in the property, and that they had agreed that ‘instead of paying rent he will pay the council rates, all bills and look after the daily maintenance of the property’.

Valerie also gave evidence about this conversation. In her affidavit she said this:

I witnessed this conversation between Christina and Peter. The conversation did not involve an agreement between Christina and Peter that Peter would pay the council rates and bills as well as maintain the Reservoir Property. The conversation that took place involved Christina acknowledging her mother’s wishes that the Reservoir Property was to be transferred to Peter and promised that she would do so. However, Christina took the liberty of transferring the property into her own name.

Both Peter and Christina described the conversation in 2006 at the Reservoir property as civil in tone, and said that the conversation was not an argument and that they were getting along well at that stage.

In contrast, Valerie described it in her oral evidence as ‘a huge argument’, a ‘shouting match’, and ‘an argument not a conversation’. That was different from the more neutral description she gave in her affidavit. It was also somewhat different from the evidence Valerie had given in the VCAT hearing, where she had not described an argument, and had said that in the November 2006 conversation Christina and Peter had discussed transferring the property to Peter ‘as soon as possible’.

The context in which Valerie gave her description of the November 2006 conversation as a ‘huge argument’ was as follows. As noted above, Valerie had earlier given evidence that Helen’s wish was for the property to be transferred to Peter ‘down the track’ if ‘things didn’t work out’ between Peter and Christina. She explained this difference by saying that things had ‘started not to work out’ from November 2006, based on her observation of the ‘huge argument’. She said as follows:

‘down the track’ was as soon as the arguments started. And it was on - in November 2006, there was a blown-up argument in the lounge room of my sister’s house.

That is, Valerie’s description of the ‘huge argument’ appeared to be a way to explain what was otherwise an inconsistency in her evidence about when the Reservoir property was to be transferred to Peter.

The grant of probate

In relation to the grant of probate, Peter said that:

[B]etween mid-2007 and 2019 I would frequently ask Christina for updates about my mother’s Probate and would seek notification from her as to when the Reservoir Property would be transferred into my name. On every occasion, she would state that the property was not ready to be transferred into my name.

He said that he was unaware that probate had been granted in June 2007, and unaware that title to the Reservoir property had been transferred to Christina, first as executor and later to her personally as the beneficiary under the 2002 Will.

In response to Peter’s evidence that, from 2007–2019, he would frequently ask Christina when the Reservoir property would be transferred to him and for updates about the probate of Helen’s will, Christina stated that she never discussed either of these with Peter. She also gave evidence of a meeting in 2013 between herself, her husband, Peter and a council officer regarding the need to clean up the Reservoir property, in which Peter ‘did not say anything about having a right to live in the house, or the house being on trust for him or anything that he thought our mother had left him the house.’

What occurred after probate had been granted

In relation to what occurred after probate had been granted, as already noted there is no dispute that Peter continued to reside in the property after Helen died, and that Christina, as the legal title holder, permitted him to do so. He paid the rates until some time in 2015. The dispute between Peter and Christina largely concerned the basis on which he resided there, namely whether it was because he was entitled to do so as the beneficiary under the will, or whether it was by reason of Christina’s largesse.

Peter said that he paid the rates because he was ‘under the impression’ that he was the owner. His evidence was that in 2015 Christina ‘strongly suggested’ that he could stop paying the rates because, as executor of the estate, it was her responsibility to pay the rates. He said that he assumed that, after that, the estate was paying the rates, and that this made sense to him because he believed that the property was still in the name of the estate. He said that he and Christina had discussed the probate of the will, the house being held in trust for him and the fact that it would one day pass to him on multiple occasions over the years.

Peter gave evidence that in the period between 2009 and 2012 he was seriously ill, having developed a disease that left him unable to use his limbs. He did not say what this disease was. He said that during that time he was unable to work or take care of the Reservoir property. As a consequence, the property became overgrown. He said that although he received numerous letters from the Council directing him to cut the grass and clear rubbish from the property, he was unable to do so because he was seriously ill. He said that Christina was aware of his illness and had visited him in hospital. He also said that Christina had refused to help him clean up the property.

Christina denied that she asked Peter to stop paying the bills and that she had said they would be paid out of the estate.

As to the state of the Reservoir property, Christina’s evidence was that in the period following the grant of probate, Peter did not look after the daily maintenance of the property, which resulted in her being issued with council notices and fines. She said that from 2009–2012, she and Peter were in communication and that she saw him from time-to-time to ‘follow up on property clean inspections’ and when she dropped off bills. As to Peter’s evidence that Christina refused to help clean up the property, she stated that occasionally she and her husband offered to help Peter clean up the property, but that he refused their help. He did not ever tell her he needed help.

Regarding Peter’s illness, Christina said that she was not aware of any serious illnesses or injuries which rendered him incapable of using his limbs. She was aware that he had ended up in hospital, and had visited him there, but said that she was told by the doctor that Peter had had a panic attack, not a heart attack or a stroke. Her evidence was that Peter did not ever tell her that he needed help cleaning up the property because of an illness, and she noted that in the years 2009–2012, there were occasions when Peter complied with council notices by cleaning up the property.

Christina explained the delay of twelve years between the grant of probate and the transfer of the property into her name by stating that she viewed engaging solicitors as a formality that was of no urgency. Furthermore, she was dealing with a medical condition that she had been diagnosed with in approximately in 2018.

The parties’ submissions

In his opening, Peter submitted that there were six matters that constituted ‘suspicious circumstances; in his written closing submissions he grouped these into five ‘main categories’:

(a) Christina was the sole beneficiary under the 2002 Will and was present in the room when Helen executed it;

(b) Helen’s limited English language abilities;

(c) the exclusion of Peter from benefit under the 2002 Will, despite being Helen’s child and having cared for her, and despite her having told him and others that the property was to be left to him;

(d) Christina’s conduct after Helen’s death; and

(e) the proximity in time between Helen’s widowhood and the making of the 2002 Will.

He accepted that none of these points alone would be sufficient to arouse the Court’s suspicion, but submitted that taken together they were sufficient.

In contrast, Christina submitted that these matters did not give rise to any suspicion concerning Helen’s knowledge and approval of the 2002 Will. She relied upon the presumption of due execution.

The meeting at the solicitor’s office

In relation to the meeting at the solicitor’s office, Peter submitted that I should find that he was not present at that meeting; thus only Christina, the beneficiary under the will, was present.

Peter also submitted that I should not draw an inference that instructions for the 2002 Will were given at an earlier time because there was no evidence as to any earlier contact between Helen and the solicitor. He submitted that the drawing of such an inference would rely on Christina’s evidence about what occurred in the solicitor’s office. However, he submitted that her evidence as to what happened there should be given little if any weight, for the following reasons:

(a) First, he submitted that his evidence on this issue should be preferred because ‘if he was present he would have known that he was excluded from benefit and it is implausible that he would have raised no protest or objection’.

(b) Secondly, he submitted that:

a solicitor who drafts a will has an obligation to ensure that the written document reflects the testator’s intentions. It is improbable that a competent solicitor would absent himself from the room and ask the family member who was the sole beneficiary to explain the 2002 Will to the testator. Or, on the plaintiff’s evidence, by that sole beneficiary and the person who was to be excluded from benefit. The suggestion that the solicitor did so is not supported by any of the other evidence.

(c) Thirdly, he submitted that Christina’s case was put on the basis that the estate was left to her to use for her own benefit. However, he submitted that her evidence about what occurred in the solicitor’s office was not consistent with that case:

If it had been suggested that some kind of secret trust was intended, the plaintiff’s evidence as to the meeting at the solicitor’s office would make sense. If all three persons involved had been in agreement that the estate should be left to the daughter with a secret understanding that in reality it was to be held in trust for the son, their conduct at the office would be explicable. If an intention to set up a trust had been confided to the solicitor, there were legally effective options to achieve the outcome, by setting up a discretionary family trust or including a testamentary trust in the 2002 Will or providing a life interest. A likely explanation based on the evidence is that Helen did not take her solicitor into her confidence about her intentions. It does not follow that the 2002 Will was consistent with her intentions. In other circumstances, for example if arrangements had been made so that she was alone with the solicitor and preferably with an interpreter present, there would have been an opportunity for her to explain her intentions so that a will that reflected them could be drafted.

Peter also submitted that, even if I were to accept Christina’s evidence that the 2002 Will was already on the desk when they entered the office, I should not infer that instructions for the will had been given prior to the visit. That was because the will was a short and simple one, there was no evidence of any earlier contact between Helen and the solicitor, and the evidence concerning the length of the meeting is ‘doubtful’.

In contrast, Christina submitted the meeting at the solicitor’s office was not such as to excite suspicion. Although she was present at that meeting, she submitted that there was no evidence that she had made the appointment with the solicitor or been present when Helen gave instructions for the will. Her evidence was that it was her mother’s idea to go to the solicitor; and Peter’s evidence was that he had driven Helen there. Christina’s evidence was that she assumed instructions were to be given on that day, but when they went into the office, the will was already there. She further submitted that the presence of a beneficiary at the execution of a will is not, itself, cause of suspicion. She distinguished this case from the circumstances in Hawes, upon which Peter relied, where the beneficiary had been present when instructions were given and had provided false information to the solicitor.

In so far as Christina played a role in explaining the 2002 Will to Helen, Christina submitted as follows:

The ‘gold standard’ is for a solicitor to read out a will to the testator. Here there is no evidence of such. The absence of reading does not raise ‘suspicion’ but means that there is an absence of independent evidence of the will being read. The only evidence of the will being read, is from Christina, where she says that she ‘went over it’. It is not said that she read it line by line, but that they discussed it. That evidence ought to be accepted as providing a basis for Mrs Klapsas to have understood the document, as to do otherwise would require the court to both (a) infer that the solicitor got the instructions wrong and drafted a document not in accordance with Mrs Klapsas’s instructions; and (b) that Christina incorrectly read it to her mother, when such a thing was not put to her.[30]
[30]Transcript reference omitted.

Helen’s English language abilities

In relation to Helen’s proficiency in English, Peter submitted that the evidence suggested that she could:

(a) understand English to a degree that allowed her to shop, attend medical appointments, and engage with non-Macedonian speaking relatives and neighbours;

(b) speak English to a modest degree; and

(c) not read more than a word or two in English, beyond being able to recognise her children’s names.

He submitted that this, together with the fact that Christina admits that she was present in the room and read and explained the 2002 Will to Helen, and told Helen that the 2002 Will was consistent with Helen’s intentions, were sufficient circumstances to raise the suspicions of the Court.

On this issue, Christina submitted as follows:

1.No evidence is capable of now being given as to how instructions were given, but we know that Mrs Klapsas was capable of getting the bus and of dealing with bank employees, and to some extent doctors, indicating a level of dealing independently with English-speaking society.
2.Her English [was] such that in 1981 she understood sufficiently written English to sign a will explained to her in English, as per the attestation clause of the 1981 Will.

3. She watched television in English.
4. She spoke with English-speaking family members
5. She was capable of understanding a spoken English sentence such as ‘what do you want to do with your house’ and to say ‘everything to Peter’ or ‘everything to Christina’.

6.        She was capable of reading the names Peter and Christina in English
7.        Christina said ‘we went over it with her’.
8.        The gift contained in the [2002 Will] is simple.

The exclusion of Peter from benefit under the will

Peter submitted that an unusual absence of provision for a person for whom provision would usually be expected is one of the circumstances that will alert the Court to a need for close scrutiny of all the relevant circumstances. He submitted that it was unlikely that Helen had excluded him from any benefit under the 2002 Will, in circumstances where he was one of only two children of the deceased, he had been living at the property for at least a year at the time the will was made, he had been caring for Aoanis and Helen, and under the 1981 Will he was to receive the whole estate. Peter also relied on statements that Helen had made, to him and to Valerie, to the effect that the property was to be left to him, which he said post-dated the 2002 Will.

Peter also submitted that it was unlikely that Helen would have made a will excluding him entirely, but not told him of that for the four years during which he lived with her after the 2002 Will had been made.

In contrast, Christina submitted that there was a dispute as to the extent to which Peter was a carer for his parents, and said that Peter’s own evidence of providing care was limited. Most of his evidence on this issue concerned care he provided to his father after his father became ill; he accepted that Helen was able to look after herself and continued to do so until her death. She submitted that there was no reason that Helen would have considered Peter to be her carer once Aoanis had died.

In so far as Peter relied upon statements Helen was said to have made concerning her wishes, which were contrary to the contents of the 2002 Will, Christina submitted as follows:

Peter’s evidence does not anywhere state what his mother’s statements were about the actual contents of the will. Neither does Valerie’s. The assertion made in opening that Mrs Klapsas told Peter and others that the property was left to him, has not borne fruit. Nowhere does anyone say, in relation to the 2002 Will, ‘Helen told me that her will leaves the property to Peter’ or ‘Helen said her will leaves it on trust for Peter’, or ‘Helen said the will requires Christina to look after Peter’.

She submitted that Peter’s evidence, at its highest, was that his parents had made statements concerning the Reservoir property while his father was still alive. In so far as the change to her will was concerned, Peter’s evidence was that he thought that Helen wanted to change the executor of her will; but he did not give evidence of what she actually said in that regard. She also submitted that such a change would have made no sense, given that the accepted purpose of the change was to protect the property from being lost to Peter’s creditors. She also submitted that Helen would not have understood the word ‘executor’, or made a statement using that word.

In so far as Valerie’s evidence concerning Helen’s statements was concerned, Christina submitted as follows:

Valerie’s evidence, at best, it is said that Mrs Klapsas expressed ‘wishes’. That word is used by Valerie repeatedly. She wholeheartedly agreed that Mrs Klapsas wanted Christina to ‘do the right thing’ by Peter, to ‘carry out wishes’, and agreed that it could be said that they were her ‘hopes’.
The form of the expressed wishes is not clear. That has issues for credibility, but for present purposes, in her oral evidence she said that Christina was to ‘oversee’ or Christina was to transfer the property to Peter ‘if things got dicey between Christina and Peter’. That really demonstrates the hopeful, but unformed, nature of any statements made by Helen to Valerie.[31]
[31]Citations omitted.

Christina’s conduct after Helen’s death

Peter accepted that conduct after the death of a testator cannot be a suspicious circumstance in itself, but submitted that it could lend support to evidence that contemporaneous circumstances were suspicious.[32] He submitted that Christina had not revealed to Peter the true position about the 2002 Will and the grant of probate until immediately before the transfer of the property into her sole name in October 2019.
[32]Referring to Re O’Callaghan [2019] VSC 16, [26] (McMillan J).

He also submitted that Christina

was frustrated by her brother’s failure to maintain the Property and thought that he would squander it. She was burdened by the need to deal with the consequences of his occupation of the property, which on her evidence included unpaid bills, council clean up notices, fines and penalties. She admitted that she and her husband discussed the option of demolishing the house and building units on the site.

In contrast, Christina submitted that her conduct after the 2002 Will was made was not relevant to whether Helen had knowledge and approval of the will. Christina further submitted that she did not receive a copy of the 2002 Will when it was made, and that Peter did not ask for a copy of it. She submitted that her conduct was entirely consistent with the terms of the 2002 Will itself, and her evidence was that she did not say she was holding the property on trust for Peter (or anything similar), or that she would transfer it to him. Christina submitted that she did not refuse to provide Peter with a copy of the will, because she was not asked to do so. She observed that Peter did not give evidence that he ever asked for a copy of the 2002 Will. He said he trusted his sister.

She also submitted that the November 2006 conversation was of no real relevance to the issue of Helen’s knowledge and approval of the will. On Peter’s and Valerie’s account, Christina said that she was holding the property on trust for Peter. But if that was said to be some sort of admission that she understood she held the property on trust, she submitted that:

(a) there was no foundation for any trust being established by Helen — no one gave evidence that they heard Helen say ‘Christina is to hold the property in trust for Peter’ and such a statement was unlikely; and

(b) if Christina were to have made a statement of this kind (which she denied), ‘it is meaningless without some actual legal foundation for such a claim. It appears to be hauling the argument up by its own bootstraps. What she says does not make it so. It would be in the same category as the wishes expressed elsewhere.’

In any event, Christina submitted that her account of the November 2006 conversation should be preferred to that of Peter and Valerie. She submitted that there were inconsistencies in Valerie’s evidence, and that it was unlikely that anyone used the words ‘held in trust’ in light of the level of education and understanding of Peter and Christina. Further, Peter’s evidence was that in 2006 he believed that the property was to go to him, in accordance with the 1981 Will. If that was so, it was unclear why anyone would be talking about the property being held on trust. Nor could this be explained by a reference to the ‘executorial role’, because his evidence was that he knew nothing about trusts and executors.

Proximity between widowhood and the making of the 2002 Will

Peter submitted that the 2002 Will was made nine days after the death of Aoanis, in which time Helen was grieving and was very distressed, although she showed little sign of her grief in public.

In contrast, Christina submitted that Peter had not sought to make any connection between this factor and the making of the 2002 Will. It was not said, for example, that as a result of Helen’s grief, Christina had some ‘sway’ over her, nor that her grief prevented her from understanding what was going on. Christina also disputed the extent of her mother’s grief, saying that Helen was ‘getting on with things’.

Concluding submissions concerning suspicious circumstances

Peter made the following further submissions in relation to suspicious circumstances:

[T]he plaintiff invited the Court to treat with caution statements made by a person now deceased about their wishes. The applicant submits in response that a central issue for the Court is the testamentary intentions of the deceased and that in the context of this case there is no utility in making a distinction between the words ‘wishes’ and ‘intentions’ because there is no practical difference between a wish and an intention in these circumstances.

He submitted that for a testator to know and approve of her will, she needs to be aware of its practical consequences by way of legal effect. In the present case, he submitted, ‘[t]he evidence about the period during and after the 2002 Will was made supports the inference that Helen was not aware of or did not understand the potential practical consequences of its legal effect’.

Credibility of the witnesses

It is necessary, in order to resolve the factual disputes between the parties, to make some findings about the credibility of the witnesses.

The parties’ submissions on credibility

Christina submitted that Peter’s evidence needed to be treated with caution. She relied upon his evidence concerning the circumstances in which Christina sought to remove him from the Reservoir property. She said that his evidence on this issue ‘verged on the absurd’, pointing to the following matters:

(a) that Christina asked him to stop paying the rates in 2015 without any explanation;

(b) that he denied ever receiving an email from her enclosing a request for an interview but nonetheless attended the interview;

(c) that he did not receive relevant mail because someone was stealing his mail; and

(d) that he did not receive documents served on him by a process server despite the process server swearing an affidavit as to this event.

Christina also submitted that Peter had a tendency to overstate or to misstate matters, giving as examples his evidence concerning the care he provided to his parents and his evidence that, although Christina was receiving notices and fines concerning the state of the property, she refused to help him clean it up.

Peter submitted that both parties met with serious challenges to their credibility. He accepted that he had denied receiving a notice to vacate, and could give no explanation for the affidavit of the process server. But he also submitted that Christina gave implausible answers to some questions, such as whether the applicant was present for the whole of the meeting in the solicitor’s office. He submitted that where their evidence is directly contradictory, his evidence ‘is generally more consistent internally and within the surrounding context (including, where relevant, Valerie’s evidence) and should be preferred.’

He also submitted that Valerie’s credibility was clearly demonstrated during the hearing:

She gave her answers in a straightforward manner, made concessions where appropriate and did not significantly depart from the evidence given in her affidavit. She occasionally gave answers that appeared to be more a matter of being agreeable than giving a considered response. To the significant questions however she gave attentive and consistent answers. …
She also said that she was giving evidence not in her own interests but as a voice for her sister. Noticeably, given that she was called by the applicant and has given evidence that strongly supports his position, not only in this case but also in the previous VCAT case, she denied having contact with him in the years between 2006 and 2015 (except once at a family event), saying, ‘Peter and I have never been close.’ She was an impartial witness whose answers were not guided by a preference for either party. Where conflict arises between the evidence of Ms Lazarou and the plaintiff, Ms Lazarou’s evidence should be preferred.

In contrast, Christina submitted that Valerie’s evidence had to be treated with some caution, and that Christina’s evidence ought to be preferred over Valerie’s. She submitted that Valerie’s recollections were variable as between her different accounts, and that she had unconvincingly sought to explain those differences by describing the November 2006 conversation as a huge argument, yet that was not supported by either Peter’s or Christina’s account.

Consideration of credibility

I note at the outset that both Christina and Peter had an interest in the matters about which they gave evidence. In contrast, Valerie had nothing to gain as a result of her testimony. Further, and understandably in light of the time that has passed since the key events, all the witnesses had difficulties with their recall of details from the events that occurred in 2002, being the crucial time when the 2002 Will was made.

I also note that there was no contemporaneous documentation that could be used to determine whose account of events in 2002 was to be believed. The three witnesses gave somewhat divergent accounts, and I have necessarily formed my views about the relevant facts based on my impression of the witnesses in the witness box.

I consider that Peter was a relatively unsophisticated witness. He had, much earlier in his life, suffered a head injury as a result of a motorcycle accident and had limited formal education. He had been in and out of employment. Christina, in contrast, appeared somewhat more sophisticated. She had been married several times and gave evidence that she had taken steps to protect her assets from her husband in case their relationship ran into difficulty.[33] She had also been in regular employment. However, both Peter and Christina had difficulty understanding many of the questions that were put to them.
[33]Namely, her evidence about the circumstances in which Helen came to advance money to Christina for the purchase of a property.

I formed the view that Peter was a witness who was prepared both to overstate and to misstate matters at numerous points in his evidence. In relation to his overstatement of matters, his description of the care he provided to his parents in his affidavit — that he cared for them ‘full time’ and that it was ‘impossible’ for him to be away from home for any length of time because he was their ‘only caregiver’, and that he was with his parents ‘for most if not all of everyday’ from 1999 to 2006 — was not consistent with his oral evidence, in which he accepted that that Helen cooked, cleaned and looked after Aoanis in his illness, and that she was able to look after herself. His oral evidence was of much more limited care and support than was conveyed in his affidavit.

Peter also overstated, or misstated, the position in relation to whether Christina had refused to assist in cleaning up the property. Initially he said that he had asked her for assistance and she ‘basically said she was too busy’. He later said she had ‘refused’ to help, but then moderated this to say that she had not refused, ‘she just didn’t do anything’. I accept Christina’s submission that Peter’s evidence on this issue was implausible, given the consequences for her of not maintaining the state of the property, and I do not accept it. Peter’s evidence about the reason that he had not maintained or cleaned up the property — namely, an illness that rendered him incapable of using his limbs — was also implausible, and this illness was never identified or explained in any detail.

Peter’s willingness to misstate matters was also demonstrated by the evidence he gave concerning whether he had received a notice to vacate that Christina attempted to serve on him in 2016. That notice was first sent by registered mail to his address; the registered mail was returned marked ‘not collected’. Peter’s evidence was that someone had been stealing mail from his mail box. He claimed to have evidence of a witness to such theft, but no evidence of that kind was adduced in this proceeding. Following the notice being returned, a process server swore an affidavit that he had personally served the notice to vacate on a person who identified himself as Peter Klapsas. That affidavit was not sworn for the purpose of this proceeding, but was tendered in evidence before me without objection. When this evidence was put to Peter, he denied that a process server had ever served a notice to vacate on him. I do not accept Peter’s evidence on this issue. There is no reason to think that the process server would have prepared a false affidavit of service. Peter’s explanation for what he said was his failure ever to receive a notice to vacate was implausible, and I do not accept it. Nor do I consider that his evidence can be explained as a lapse in memory. He did not say that he did not remember such an incident; he unequivocally denied that it had occurred, and said that the process server ‘probably misunderstood what he [the process server] was trying to say’.

I accept that whether or not Peter was served with a notice to vacate in 2015 is not of direct relevance to the question in this case as to whether Helen knew and approved of the 2002 Will. I also accept that it does not follow that, because Peter was untruthful about this matter, he was untruthful about other matters, including the events directly relevant to the making of the 2002 Will. Nonetheless, I consider that Peter’s evidence as a whole falls to be assessed in light of his demonstrated willingness to overstate and misstate matters to his advantage.

In relation to Christina, she quite often said that she could not remember things that had happened in 2002, in particular at the solicitor’s office, rather than providing an account that entirely served her interests. Indeed, some of her evidence was to the disadvantage of her case, and was thus plainly honest. For example, when she was asked about Helen’s ability to undertake ordinary activities that would require English, such as banking, she explained that Helen used to go to a bank with Macedonian tellers, even though Christina’s case was that Helen’s English had improved significantly over the years between 1981 and 2002. Relatedly, she also accepted that Helen could not read ‘a whole story’ and could only have read ‘a word or two’. Again, this evidence did not advance her case about Helen’s proficiency in English.

However, I also accept that Christina’s memory was somewhat selective, in that some of the details that she did not recall concerned matters that may have favoured Peter’s account, whereas the matters she did recall largely favoured her account. She accepted as much in cross-examination. I also consider that on occasion she overstated matters. Thus, for example, she gave evidence that Peter was ‘never home’ and provided no care for Helen and Aoanis while he lived with them. Yet she was simply not present for much of the relevant time period, and in my opinion she was not in a position to know whether this evidence was true or not.

Ultimately, having seen and heard the witnesses give evidence, I am unable to be confident that I can generally rely on Peter’s evidence. I do not consider him to have been a witness of truth. In contrast, I consider Christina generally to be a witness of truth, albeit with significant gaps in her recall of critical events. Her memory lapses were explicable by the effluxion of time, and she did not seek to fill those gaps in her memory by giving self-serving evidence. Her occasional exaggeration did not cause me to consider that she was otherwise untruthful. In light of these conclusions, where there is a conflict between the evidence of Peter and the evidence of Christina, I will generally prefer Christina’s evidence.

Turning to Valerie, I accept that she was an independent witness, in that she did not consider herself to be giving evidence in support of either Peter or Christina. Rather, she regarded herself as ‘an advocate for the truth and for the wishes of [her] late sister Helen’. I regard her as a generally honest witness who did her best to tell the truth as she understood it. However, I consider that, in her role as advocate for what she honestly believed Helen to have wanted, her memory was in some respects coloured. I also consider that she was willing to construct a narrative of events that supported her understanding of what Helen wanted. That was most apparent in her changed account of the November 2006 conversation. I do not accept Valerie’s evidence that Peter and Christina had a ‘huge argument’ in November 2006, because neither of them remember their conversation in that way, and because Valerie had not described the conversation in that way in her affidavit. Valerie gave this evidence in a context where it explained what otherwise appeared to be a discrepancy in her evidence. Thus I do not accept unequivocally everything that Valerie said in her evidence, even though I accept she believed the truth of what she said in her evidence.

Factual findings

In relation to the key issues relevant to whether Helen knew and approved of the 2002 Will, I make the following findings:

(a) The 1981 Will left the entirety of Helen’s estate to Peter, if Aoanis predeceased her (which he did). Helen knew and approved of the contents the 1981 Will. At that time, the solicitors who prepared her will considered that it was necessary to include in the 1981 Will an attestation clause which stated that Helen was unable to read the English language and that the 1981 Will was read to her in English, after which she stated that she approved it. There was no such clause in the 2002 Will.

(b) I accept Peter’s evidence that in or around 2001 and 2002 he was subject to litigation that put him at risk financially for some millions of dollars, such that if the Reservoir property were to be left to him, he might have lost it. I also accept his evidence that Helen knew of that litigation. And I accept his evidence that he was ‘not very good with money’. I shall refer to these matters as ‘Peter’s financial issues’. Further, I accept the evidence of all three witnesses that Helen thought that Peter was not very proficient with finances.

(c) Helen’s proficiency in reading English was very limited in 1981. I accept that by 2002 her proficiency in spoken English had improved and she could conduct herself in the world with basic English that allowed her to shop, to go to the doctor and to go to the bank, although Christina’s evidence was that Helen went to a Macedonian-speaking teller at the bank. She could speak in basic English to her relatives and others who did not speak Macedonian. That conclusion is supported by the evidence of each of the three witnesses. But there was no evidence to suggest that Helen’s ability to read English had improved in any significant way between 1981 and 2002 (although it might have improved to some extent).

(d) I consider that Helen would not have been able to read and understand the 2002 Will (and no witness suggested that she could have done so). However, I accept that she could have given instructions in English[34] to her solicitor as to the provision she wished to make in the 2002 Will. I note that she had already made one will, in 1981, and there was no suggestion that she had lacked sufficient proficiency in English to have given instructions in relation to that will.
[34]There was no evidence to suggest that the solicitor spoke or understood Macedonian; Christina’s evidence was that he spoke English at the meeting.

(e) Consistently with Valerie’s evidence, I do not consider that in 2002 Helen would have understood the concept of a trust in a legal sense. However, I consider that she would have been capable of understanding that Peter’s financial issues meant that it was better that he did not own the property after she had died.

(f) I infer that Helen also had a good relationship with Christina. I accept that Christina lived with Helen and Aoanis for a period from around December 1999 to May 2001, because this evidence gained some support from Valerie’s evidence that Helen had assisted Christina with ‘lodging and accommodation’. In relation to whether Helen provided financial assistance to Christina for the purchase of Christina’s properties, I note that both Christina and Valerie agreed that Helen had provided money for at least one property; but Christina said that the money so provided was in fact her own money, which Helen had been keeping for her in case of marital issues. I accept Christina’s evidence in this regard, because I consider that she is more likely to know the details of the financial arrangements between her and her mother. Valerie, while aware of the provision of funds, may simply have been unaware of the details of how those funds came to be in Helen’s hands, and the basis on which they were provided to Christina.

(g) I infer that Helen had a good relationship with Peter, and there was no evidence that Peter and Helen had any falling out of any kind. Peter lived with Helen (and Aoanis while he was still alive) from at least early 2001 to 2006. It is not necessary for me to determine precisely when Peter moved into the Reservoir property. For several months in 2001 he and Christina both resided at the property. I accept that between 2001 and 2006 Peter provided some care and assistance for both his parents, including taking them to medical appointments and assisting with their shopping. I do not accept Christina’s evidence that Peter did not provide any care and assistance to Helen (and Aoanis), or that he was ‘always out’. Although she and Peter resided together with their parents for several months in 2001, Christina was not present for the bulk of the time that Peter lived with Helen (and Aoanis). On her own evidence, she visited them once a month, although she spoke on the phone with her mother more often.

(h) I accept Christina’s evidence that her parents had provided financial assistance to Peter by giving her money to deposit into his account. Peter did not deny that that had occurred, although he said he did not remember it occurring. Valerie said that this had not occurred, but I do not think that she was in a position to know whether it had or not. The provision of some financial assistance by Helen and Aoanis to Peter is consistent with the relationships described by the witnesses between Peter and his parents, and consistent with Peter’s financial issues.

(i) I find that Peter was present at the whole of the meeting at the solicitor’s office on the day that Helen executed the 2002 Will. On this issue there was a direct conflict between Peter’s evidence and Christina’s evidence. Given my conclusions on credibility, I prefer Christina’s evidence on this issue. Further, I do not think it is plausible that Peter, having taken Helen to the meeting, would then have left the meeting to sleep in his car. He knew that the meeting concerned her will and, although his evidence was that he simply thought that she was going to appoint a new executor, I still consider that it is more likely that he would have remained with his mother and sister in the meeting. The fact that Christina did not recall Peter objecting to the terms of the 2002 Will does not alter my conclusion on this issue. That is because, on Peter’s own case, Helen was changing her will to protect the Reservoir property from Peter’s creditors. One way to do that was to leave her estate to Christina; and if that was the method selected, then there would have been no reason for Peter to object. It is also possible that in fact Peter did object, and that Christina did not recall that detail. An objection would be consistent with Helen’s remark that she did not want any trouble.

(j) I infer from the evidence that Helen had provided instructions to her solicitor at some time prior to the date on which she attended at the solicitor’s office. That is because Christina’s uncontradicted evidence was that the will was already drawn up and on the table when they entered the office. Further, Christina said that the meeting lasted no more than half an hour; and Peter said that it was ‘possibly’ something like 15 or 20 minutes, certainly not ‘hours and hours’. I consider that it is unlikely that in the space of a relatively short meeting, the solicitor would have taken instructions, prepared the will, left Helen to discuss it with Christina and Peter, and then returned to witness the will being executed.

(k) There is no evidence concerning the manner in which Helen gave instructions to her solicitor (eg whether they were given by telephone or in person; and whether they were given with or without an interpreter). Nor is there any evidence to suggest that Christina was present at, or involved in, Helen’s giving of instructions to the solicitor.

(l) I accept Christina’s evidence that it was her mother’s idea to make a new will and to go to the solicitor’s office. Peter did not contradict this, and he was the one who drove her to the solicitor’s office.

(m) I accept Christina’s evidence that after she, Helen and Peter had gone into the solicitor’s office the solicitor left them there to discuss the 2002 Will. There is no basis for me to think that Christina was not telling the truth about this matter; this evidence does not advance her case, which would be far stronger if she had said that the solicitor had remained in the room and explained the will to Helen. Although Peter’s evidence was that he had gone to his car to sleep, when he was asked directly about being left to discuss the 2002 Will he accepted that it could have happened, but said that he did not recall it.

(n) Based on Christina’s evidence, I find that she read the 2002 Will to herself, then explained it to Helen. This is supported by her evidence that they ‘went over it’ and she told her mother that the will achieved what Helen wished it to achieve. I find that she did not read the will ‘line by line’ to Helen. I also accept Christina’s evidence that, after the 2002 Will was explained to Helen, Helen said that that was the way she wanted it. I also note that it was not put to Christina that she had not been able to understand the terms of the 2002 Will when she read it, or that she had explained it inaccurately to Helen. I also accept Christina’s evidence that Helen said words to the effect of ‘this is how I want it’ and ‘ne sakam trouble’ (that is, ‘I don’t want any trouble’).

(o) I infer that the solicitor also explained the will to Helen. Although there is no direct evidence of this, I have found that Helen attended at her solicitor’s office to execute a will that had previously been drawn up by the solicitor based on Helen’s instructions. I also infer that the solicitor would have been aware of Helen’s difficulties with English, and would have known that the 2002 Will would need to be explained to her. Christina’s evidence was that, although the solicitor left the family alone to discuss the will, the solicitor came back into the room, and that she could not recall what he said when he returned. Peter submitted that a solicitor who drafts a will has an obligation to ensure that the written document reflects the testator’s intentions. I accept that submission. Peter further submitted that it is improbable that a competent solicitor would absent himself from the room and ask the sole beneficiary of the will to explain it to the testator. That submission carries with it the implication that Helen’s solicitor would have explained the 2002 Will to her himself, rather than leaving family members, without legal training, to explain it to her. I accept that that is so. However, it does not follow that the solicitor would not absent himself from the room from some period of time in order for the family to discuss the will together privately, particularly given its contents.[35]
[35]I note for completeness that I do not accept Peter’s submission, recorded above, that Christina’s account of the meeting at the solicitor’s office was inconsistent with her case that the estate was left to her as beneficiary, and that her account would ‘make sense’ if Helen had intended some kind of ‘secret trust’.

(p) In so far as Helen’s statements about her testamentary intentions were concerned, I find that while Aoanis was alive both she and Aoanis had said to Peter and to Valerie that Peter was to inherit the property. Statements to that effect are consistent with the terms of the 1981 Will. However, I do not accept that statements to that effect were made after Helen had executed the 2002 Will. It is clear that Helen’s intention in 2002 had changed, so as to cause her to make a new will; and on Peter’s case, that change was directed to ensuring that he did not take legal title to the property. In so far as Valerie’s evidence is concerned, it was lacking in precise dates. Although I accept that Valerie recalled various statements by Helen concerning her wishes, I do not accept that Helen had expressed a wish that Christina was to hold the Reservoir property ‘in trust’ for Peter because, as I found earlier, I do not consider that Helen would have understood the legal concept of a trust, or used that language.

(q) I infer from the evidence that Helen resolved to change her will in 2002 so as to ensure that the Reservoir property was not lost by reason of Peter’s financial issues. In that regard, I note that Aoanis’ death meant that, if Helen were to die, then pursuant to the 1981 Will the property would pass to Peter and would thus be at risk. That provides an explanation both for the substantive change to the disposition of her estate and an explanation for the timing of the change, being shortly after Aoanis’ death.

(r) I do not accept Valerie’s evidence that Helen’s intention was for the property to eventually be transferred into Peter’s sole name, because this would not achieve the objective of protecting the property. I infer that Helen wanted Christina to look after her brother; that is supported by Valerie’s evidence concerning Helen’s wish that money Helen had be used to ‘take care of Peter’s needs’ and by Valerie’s evidence that Christina had said to Valerie that Helen had left Peter to Christina to look after, like a fourth child. This may also be an explanation for Valerie’s honestly held views about what Helen wanted to happen to the Reservoir property. However, a testator’s wish that one family member ‘look after’ another, after the testator’s death, does not necessarily equate to a testamentary intention that property be left to the first family member to be held on trust for another, and I do not find that Helen had that intention.

In so far as events that occurred after the making of the 2002 Will are concerned, I make the following findings:

(a) In November 2006, while they were at the Reservoir property, Peter and Christina agreed that Peter could continue to live in the property so long as he paid the rates. They did not have a ‘huge argument’ at this meeting. As explained above, I reject Valerie’s evidence in that regard.

(b) Peter lived in the property after his mother’s death and paid the rates until some time in 2015. At that time he stopped paying the rates. I do not accept that Christina ‘strongly suggested’ that he stop paying; that is inherently implausible. Rather, I conclude that he simply stopped; after which Christina paid the rates.

(c) I do not accept Peter’s evidence that he regularly asked Christina when the property was to be transferred to him. I accept that Valerie asked Christina about transferring the property to Peter on occasion, and that Christina said that she wanted the property for her children. However, that statement is consistent with the property having been left to her. I do not accept that Christina said to Valerie that she would transfer the property to Peter.

(d) I do not accept that Christina ‘hid’ the will from Peter after Helen’s death. There was no evidence that he ever asked for a copy of the will, either from the solicitors or from Christina. Nor do I accept that she ‘hid’ the grant of probate from Peter.

(e) I accept Christina’s evidence that she delayed transferring the Reservoir property into her sole name because she viewed engaging solicitors and transferring the property as a formality and did not consider there to be any urgency to do so, and because she was dealing with other matters (including the council, and a medical condition).

Do the facts raise a well-grounded suspicion of lack of knowledge and approval?

The starting point in the present case is that there is an apparently valid will that has been duly executed. There is no dispute as to capacity. The 2002 Will was drawn up by an independent solicitor; and Helen’s execution of it was witnessed by her solicitor and another witness. In those circumstances, there is a presumption of due execution. The question is whether that presumption is displaced by suspicious circumstances.

In light of the findings of fact set out above, I do not consider that there are circumstances that create a well-grounded suspicion that Helen did not know and approve of the contents of the 2002 Will. In particular, in relation to the five ‘main categories’ of suspicious circumstances identified by Peter, I have reached the following conclusions.

Christina’s role in the making of the 2002 Will

Although Christina was the sole beneficiary under the 2002 Will, I have found that both she and Peter were present at the meeting with the solicitor when the 2002 Will was explained to Helen and executed by her. This negates any suspicion that might have arisen if Christina, as beneficiary, had been the only person present when the 2002 Will was explained to Helen. The presence of a beneficiary in the room when a will is executed, together with another family member, is not itself a suspicious circumstance.

Further, I am satisfied that Helen had given instructions to her solicitor prior to the meeting at which the 2002 Will was executed. There was no evidence that Christina had initiated the making of the new will. Nor was there any evidence that Christina had any role in Helen’s giving of instructions to the solicitor. Christina did not take Helen to the solicitor’s office — Peter did so.

In my opinion this case is quite different from Hawes, on which Peter relied. In that case the beneficiary was involved in making the arrangements for the testator to make a new will, had remained in the room when instructions were given, had provided inaccurate information to the solicitors, and was the only family member present when the will was executed. In that case there was also a rift between the siblings; and the deceased was in a deteriorating state of physical and mental health, with a diminishing capacity. None of those factors is present in relation to Helen and the 2002 Will.

Helen’s English language capabilities

Although Helen did not read English well, and was not capable of reading the 2002 Will herself, I have found on the balance of probabilities that the contents of the 2002 Will were explained to Helen by Christina and by Helen’s solicitor, and that Helen had indicated that she approved of the 2002 Will in the terms explained to her. Thus her lack of proficiency in reading English is not sufficient to constitute a suspicious circumstance.

Peter’s exclusion under the 2002 Will

Peter had been the beneficiary under Helen’s 1981 Will, if Aaonis predeceased her, for some 21 years. The 2002 Will involved a significant departure from that position. As noted above, a radical departure from a testamentary disposition, long adhered to, may require explanation.[36] In this case I consider that there is an explanation for Helen’s departure from the terms of her 1981 Will. Peter’s exclusion under the 2002 Will, despite being Helen’s child and having lived with and cared for her (to some extent), was explicable by reason of Helen’s understanding of Peter’s financial issues and the risk that the Reservoir property could be lost if it were left to Peter. In that sense, there had been a significant change in circumstances since the 1981 Will was made. Indeed, Peter’s own case was that these matters were sufficient to cause Helen to take steps to alter her will (although he disputed the precise nature of the change she intended to make).
[36]John Martyn and Nicholas Caddick (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20^th ed, 2013) 207 [13–30], quoted with approval in Veall (2015) 46 VR 123, 177 [175] (Santamaria JA).

In so far as Peter’s case was that Helen had told him and others that the property was to be left to him, I do not accept that that had occurred after the making of the 2002 Will; and in so far as it occurred prior to the making of the 2002 Will it simply reflected the terms of the 1981 Will.

Further, as noted above, Peter also submitted that it was unlikely that Helen would have made a will excluding Peter entirely, but not told him of that for the four years during which he lived with her after the 2002 Will had been made. However, he accepted that, if I were to conclude that he had been at the meeting at the solicitors’ office when the 2002 Will was signed — which I have concluded — then he would have known about the contents of the will and thus there could be no question of Helen having failed to tell him of the terms of the 2002 Will.

Proximity between Aoanis’ death and the execution of the 2002 Will

I do not consider that the proximity in time between Aoanis’ death (and funeral) and the making of the 2002 Will is suspicious. First, the precise relevance of this proximity was not made clear. Peter did not submit that this rendered Helen incapable of knowing and understanding what was in the 2002 Will, nor that it made her vulnerable to some form of undue influence by Christina.

Secondly, as noted above, in the particular circumstances Aoanis’ death might well have prompted Helen to change her will given that, if she were to die, then under the 1981 Will the Reservoir property would no longer go to Aoanis, but would instead go to Peter, and thus would be placed at risk given his financial circumstances.

Christina’s conduct after Helen’s death

In so far as Peter relied upon Christina’s conduct after Helen’s death, I do not accept that that conduct was suspicious. I have found that Christina did not hide the 2002 Will from Peter; nor did she hide the grant of probate from him. Her conduct in allowing him to live in the property if he paid the rates and bills was not such as to support a suspicion that Helen did not know and approve of the 2002 Will. I have also accepted Christina’s explanation that she delayed transferring the property into her own name essentially because it was administratively burdensome to do so and it was not a priority for her.

Inconsistencies in Peter’s case

Finally, I observe that Peter’s case contained various internal inconsistencies. He gave evidence that he believed that the only change Helen proposed to make to her will was to change the executor, and that the Reservoir property was to be left to him. But his case, as run before this Court, was that Helen intended to leave the property to Christina to hold on trust for him. He also gave evidence that he thought that the property ‘would one day pass to’ him. Yet in his oral evidence he also accepted that in 2006 he did not fully understand the concept of a trust, and said that he thought the property had been left to him, consistently with the terms of the 1981 Will, of which his mother had given him a copy.

Ultimately, these different formulations of Peter’s beliefs about Helen’s testamentary intentions might be explained by his lack of understanding of relevant legal concepts; he might have genuinely believed that the consequence of Helen changing her executor would mean that the property would be held by Christina as trustee for Peter, and that it would one day pass to him. Valerie’s evidence also contained similar inconsistencies; and she too might have been mistaken about legal matters. But even accepting that that is so, this is not a coherent explanation for Helen’s actual testamentary intentions. First, changing the executor would not achieve the purpose that Peter said motivated Helen’s change to her will, namely to protect the property from being lost as a result of Peter’s financial issues; and a competent solicitor would have advised Helen of that fact. Secondly, and relatedly, Peter’s (and Valerie’s) understanding of Helen’s intention or wishes was not reflected in the terms of the 2002 Will, as drawn up by the solicitor.

Conclusion on suspicious circumstances

Ultimately, I do not consider that the matters on which Peter relied, whether individually or taken together, are such as to arouse a suspicion that Helen did not know and approve of the 2002 Will.

In light of that conclusion, there is no onus on Christina to prove affirmatively that Helen knew and approved of the 2002 Will.

For these reasons, the application to revoke the grant of probate of the 2002 Will is dismissed.

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APPENDIX

I have determined the objections not resolved in the course of the hearing as follows:

(a) In relation to the affidavit of Peter Klapsas sworn on 14 September 2021, I uphold the objection to the words ‘I was forced to move’ on the basis that the statement is meaningless.

(b) In relation to the affidavit of Valerie Lazarou sworn on 19 November 2021:

(i) I uphold the objection to the words in paragraph 3 commencing ‘she was well aware’ until the end of the paragraph. I accept that this evidence constituted speculation and unfounded opinion evidence.

(ii) I dismiss the objection to the words in paragraph 4 commencing ‘It is my belief’ until the end of the paragraph. This is evidence of Valerie’s subjective understanding of what she had been told — that is, of her state of mind — and is admissible on that basis. However, the relevance of this evidence is marginal, and I give it very little weight.

(iii) To the extent that the objections to paragraph 5 of the Lazarou affidavit were not resolved by the granting of leave to adduce evidence of the foundation for the opinions there expressed, I dismiss those objections in light of the further oral evidence given about the matters there raised.

(c) In relation to the affidavit of Christina Muscat sworn on 3 November 2021:

(i) I dismiss the objection to the words in paragraph 5 commencing ‘however, he would rarely’ until the words ‘then go out’. The objection was that these passages were speculation and unfounded opinion. However, Christina explained the basis for these statements in the following sentence. Counsel for Christina accepted that those words were very ‘broad brush’, and given that concession I give this evidence little weight.

[2022] VSC 755

8 December 2022