Re Larcombe

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2017 08846

IN THE MATTER of the will of GEOFFREY WILLIAM LARCOMBE, deceased
APPLICATION BY:
LYLE JOHN LARCOMBE	Plaintiff

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2022
DATE OF JUDGMENT:	1 December 2022
CASE MAY BE CITED AS:	Re Larcombe
MEDIUM NEUTRAL CITATION:	[2022] VSC 741

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WILLS AND ESTATES – Informal will – Application to admit informal will to probate – Where informal will executed prior to deceased’s hospital admission – Where deceased died in hospital – No evidence of cognitive impairment – Testamentary capacity – Knowledge and approval – Suspicious circumstances – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J McOmish	Harwood Andrews
For the Contradictors	Ms U Stanisich	Hicks Oakley Chessell Williams

HER HONOUR:

Introduction

Geoffrey William Larcombe (‘the deceased’) died on 17 January 2017, aged 58 years. The cause of his death was disseminated Wegener’s granulomatosis, sepsis and multi-organ failure. The deceased was survived by his four siblings: Lyle John Larcombe (‘the plaintiff’), Trevor Percy Larcombe (‘Trevor’), Carolyn Merle Martin (‘Carolyn’) and Glenda Margaret McLoughlin (‘Glenda’).

By originating motion filed 7 June 2017, the plaintiff sought a grant of probate of a testamentary document dated 3 December 2016 (‘the informal will’). The informal will was prepared by the plaintiff on 3 December 2016 and signed by the deceased the same day. The informal will names the plaintiff as executor and bequeaths some of the deceased’s assets to the plaintiff and Trevor, although not equally. The informal will does not contain an attestation clause or a revocation clause and fails to dispose of the residue of the estate of the deceased. Although the informal will was signed by the deceased, his signature was witnessed in the presence of only one witness. Accordingly, the informal will does not comply with the requirements of s 7(1) of the Wills Act 1997 (Vic) (‘the Wills Act’).

Other than the informal will, searches have not uncovered any prior testamentary documents of the deceased.

Pursuant to s 9 of the Wills Act, the Court is empowered to dispense with the requirements of s 7(1) of the Wills Act and determine whether the informal will constitutes a valid will, notwithstanding that it has not been executed in conformity with the statutory formalities.

In the event that the informal will is not admitted to probate, the estate of the deceased stands to be distributed in accordance with intestacy provisions, pursuant to s 70A of the Administration and Probate Act 1958 (Vic) (‘the Administration and Probate Act’). The deceased’s intestacy beneficiaries are his four siblings.

Pursuant to r 2.09 of the Supreme Court (Administration and Probate) Rules 2014 (Vic), the Registrar of Probates may exercise the powers of the Court under s 9 of the Wills Act if all persons affected by a decision under s 9 consent to those powers being exercised by the Registrar. Following requisitions from the Registrar in 2017 noting, inter alia, that the informal will did not contain an attestation clause, had only been signed by one subscribing witness, did not contain a revocation clause and did not contain a clause to deal with the residue of the deceased’s estate, it became clear that Carolyn and Glenda did not consent to the informal will being admitted to probate and the proceeding was referred to the Court.[1] Trevor initially opposed the plaintiff’s application, but subsequently consented after entering into a purported settlement agreement with the plaintiff. In the circumstances, the Court appointed contradictors, Natalie Talia, solicitor, and Ursula Stanisich, of counsel, to represent the interests of the intestacy beneficiaries by orders made 18 December 2019.
[1]If consent is not given, the Registrar of Probates may exercise the powers of the Court under s 9 of the Wills Act 1997 (Vic) if the deceased person died leaving property not exceeding $1,000,000 in value, however, the value of the deceased’s estate given in the inventory of assets and liabilities was $1,666,724.98.

After considering the evidence concerning the testamentary capacity of the deceased, the contradictors concluded there was no positive evidence that the deceased lacked testamentary capacity and that the concern was rather whether the deceased knew and approved of the informal will. They noted, however, that the plaintiff would still bear the burden of proving that the deceased had testamentary capacity when he executed the informal will.

The contradictors remained troubled by the issue of knowledge and approval in circumstances where the plaintiff prepared the informal will and was present when it was signed, and is the major beneficiary of the estate. The informal will was executed in circumstances where the deceased was seriously ill and was admitted to hospital later that evening. The contradictors contended that great care must be taken in determining whether the suspicious circumstances surrounding the execution of the informal will could be dispelled by the plaintiff.

Facts
Background

Prior to his death, the deceased worked as an earth moving contractor and operated a civil and farm contracting business known as W Larcombe & Sons (‘the business’), together with the plaintiff and Trevor. The deceased owned two-thirds of the business and the plaintiff and Trevor each owned one-sixth.

In or around August 2016, the deceased began to complain of persistent headaches, and soon after complained of a blocked ear. These conditions persisted despite the deceased visiting a local doctor and treatment with antibiotics.

In late November 2016, the deceased was referred to an ear, nose and throat specialist (‘the ENT specialist’) who identified a tumour behind the deceased’s nose. The deceased stopped working from around this time, and otherwise remained at his home.

The deceased’s health continued to deteriorate. On 3 December 2016 at 11:49pm, the deceased attended the emergency department of Epworth Geelong hospital in Waurn Ponds, where he was admitted and remained until his death on 17 January 2017.

The informal will

The informal will is a one-page, handwritten document of four paragraphs dated 3 December 2016. It is untitled and written in black ink in capital letters on unlined paper, and bears the signatures of the deceased and the deceased’s housekeeper, Warich Lakatong (‘Warich’). The deceased’s first and last name are misspelled above his signature, as ‘Geofrey’ and ‘Larombe’ respectively.

The informal will purports to:

(a) appoint the plaintiff as executor and power of attorney;

(b) devise property located at 530 and 660 Ghazeepore Road, Freshwater Creek, along with land providing access to 530 Ghazeepore Road, to the plaintiff;[2]

(c) bequeath the deceased’s stock and farm machinery to the plaintiff; and

(d) bequeath the deceased’s interests in the business and ‘working authority 303’ (being a gravel extraction licence) to the plaintiff and Trevor equally.

[2]At the time of his death, the father of the deceased and the plaintiff owned three adjoining blocks of land (Blocks E, F and G) of approximately 80 acres each at Ghazeepore Road, Freshwater Creek. The business had been established there since approximately 1960. Block E (660 Ghazeepore Road) provides road access to the family home on Block F (530 Ghazeepore Road), which is supplied with water and electricity via Block G (also 530 Ghazeepore Road). Under their father’s will, Blocks E and F were devised to the deceased, and Block G to the plaintiff. Trevor was separately devised land at Louttit Bay Road, Freshwater Creek.

As at 4 October 2018, the deceased’s estate was valued at $2,317,364.75, comprising:

(a) the land at 660 Ghazeepore Road, Freshwater Creek, valued at $900,000;

(b) the land at 530 Ghazeepore Road, Freshwater Creek, valued at $1,100,000;

(c) a one-third share in land at Mt Duneed Road, Freshwater Creek, valued at $1,000;

(d) a Commonwealth Bank term deposit in the amount of $20,070.05;

(e) a Commonwealth Bank passbook account in the amount of $739.14; and

(f) a two-thirds interest in the business, valued at $295,555.56.

The term deposit and bank account are not referred to in the informal will. In addition, furniture and personal effects valued at $2,000 and cash on hand of $2,000 are not disposed of by the informal will, nor are they included in the 4 October 2018 valuation of the estate.

Evidence
Plaintiff’s evidence

The plaintiff gave oral evidence at trial and also relied on six affidavits affirmed by him, as well as seven affidavits affirmed by others, as follows:

(a) affidavit affirmed 2 June 2017 (‘plaintiff’s first affidavit’); affidavit affirmed 20 July 2017 (‘plaintiff’s second affidavit’); affidavit affirmed 9 March 2018 (‘plaintiff’s third affidavit’); affidavit affirmed 8 October 2018 (‘plaintiff’s fourth affidavit’); affidavit affirmed 8 February 2019 (‘plaintiff’s fifth affidavit’); and affidavit affirmed 20 July 2020 (‘plaintiff’s sixth affidavit’).

(b) affidavits of Justin John Hartnett, principal of the law practice Harwood Andrews, affirmed 2 June 2017 and 23 July 2018; affidavit of Warich affirmed 1 February 2019, and corresponding affidavit of interpreter Weenuttawee Strickland affirmed 1 February 2019; affidavit of Julia Larcombe, the plaintiff’s former wife (‘Julia’), affirmed 7 February 2019; affidavit of Harry Malcolm Imer, a previous employee of the deceased, affirmed 11 June 2020; and affidavit of Stephen Percy Larcombe, cousin of the deceased (‘Stephen’), affirmed 11 June 2020.

Contradictors’ evidence

The contradictors relied on the oral evidence of Elsie Merle Elizabeth Williams (‘Merle’), the deceased’s paternal aunt, and Merle’s affidavit sworn 14 May 2020; affidavits of Heather Grossman (‘Heather’) and Christine Leanne Grossman (‘Christine’), long-time neighbours of the deceased, sworn 14 May 2020 and 15 May 2020, respectively; and an affidavit of Amanda Maree Caddaye, a long-time friend of the deceased (‘Amanda’), sworn 13 May 2020.

The contradictors also relied on two affidavits Trevor sworn 8 July 2018 and 28 September 2018, which were prepared when Trevor contested the plaintiff’s application. As noted above, Trevor now consents to the application. The contradictors submitted that Trevor’s evidence should be considered on the basis that it raised a number of concerns in relation to the informal will. On this basis, Trevor was called by the contradictors to give oral evidence at trial.

Deterioration of the deceased’s health in late 2016

Trevor deposed that the deceased mentioned he was suffering from a blocked ear in October 2016, and that in November 2016 the deceased complained that he had been suffering from headaches for some time. The plaintiff’s evidence was that the deceased had complained to him about a persistent headache in late August 2016 and complained of a blocked ear a few weeks later. Stephen deposed that he was aware the deceased was unwell a few weeks before he was admitted to hospital, and that the deceased had told him he was not feeling well.

Merle deposed that the deceased had complained of headaches from around three months before he went to hospital. She further deposed that about three or four weeks before the deceased went to hospital in early December 2016, his condition seemed to deteriorate, he looked very unwell, and he was not eating much of the food she took to him.[3]
[3]Merle deposed that, after the death of his father in 2011, she cared for the deceased by taking him meals and checking in on him regularly.

Trevor deposed that the deceased went to see a doctor at the Medical One clinic in Waurn Ponds in early November 2016 (‘the first doctor’) and was prescribed antibiotics, as he was bleeding from his nose and his left eyelid had closed over. The plaintiff deposed that he arranged for the deceased to see the first doctor, who said an inner ear infection was present and prescribed antibiotics. When the deceased’s condition did not improve, the plaintiff arranged another visit with the first doctor, who prescribed stronger antibiotics.

When the deceased’s condition did not improve after visiting the first doctor, the plaintiff scheduled an appointment with a second doctor on 30 November 2016, who arranged a series of tests and, after reviewing the results, referred the deceased to the ENT specialist. The ENT specialist saw the deceased the next day and diagnosed the deceased with a left sinonasal tumour, and advised the deceased that the diagnosis was extremely serious and potentially fatal. The plaintiff deposed that the ENT specialist’s diagnosis ‘shook’ the deceased, his main symptom of illness at this time being shortness of breath. He further deposed that the deceased’s mind appeared to be operating normally at the time of his diagnosis and for the remainder of his life, although he was unable to carry out farming work for about two weeks prior to signing the informal will on 3 December 2016.

Preparation and execution of the informal will

The plaintiff’s first, second, third, fourth, fifth and sixth affidavits set out the circumstances under which the informal will was purportedly prepared and executed by the deceased, as well as evidence of the plaintiff’s relationship with the deceased, the events leading up to the preparation and execution of the informal will, and other relevant matters. Those affidavits, in conjunction with the evidence of Trevor and the other persons referred to above, disclose the following account of the making of the informal will.

In the plaintiff’s second affidavit, he deposed that the deceased became ill unexpectedly and arranged for a ‘homemade’ will to be prepared, despite the plaintiff prompting the deceased to make a will as his health declined, the deceased’s stated intentions in this regard, and an earlier warning to make arrangements for a will by lawyers acting for the plaintiff and the deceased while defending a claim initiated in 2015 by Carolyn and Glenda pursuant to Part IV of the Administration and Probate Act against the estate of their late father (‘the Part IV claim’).[4] The plaintiff later deposed that he would have preferred the deceased to make a will with the assistance of lawyers, but that the deceased had no interest in engaging with lawyers and preferred to leave any arrangements concerning legal issues to the plaintiff.
[4]The Part IV claim ultimately settled at mediation, with Carolyn and Glenda receiving further provision from their late father’s estate.

Warich deposed the deceased told her before he became ill that he wanted to make a will, and that he wanted the plaintiff to arrange this because the plaintiff ‘did all the paperwork’.

There was contested evidence that a few weeks before the deceased was admitted to hospital, he had asked the plaintiff to buy him a ‘will kit’ and was annoyed this had not been done. The plaintiff subsequently deposed that such conversations took place immediately after mediation of the Part IV claim in 2015, well before the deceased fell ill in late 2016. The plaintiff also variously stated that he did not agree that the deceased should use a will kit and that he told the deceased the matter should be completed properly, with the assistance of a lawyer. The plaintiff also deposed that he did not consider using a will kit when the time came to prepare the document now the subject of this proceeding, because he thought he could write a will and the option of a will kit did not occur to him. However, the plaintiff also said that he did not learn of the formalities or requirements for making a will as a result of being an executor of his father’s estate and had never prepared a will before.

Merle deposed that the plaintiff was more proactive than the deceased with arranging lawyers for the Part IV claim. She also said that, since the plaintiff and the deceased had already been involved in the Part IV claim and the plaintiff was ‘pedantic’ about the practical and financial side of the business, she believed the plaintiff would have encouraged the deceased to make any such arrangements pertaining to the deceased’s estate and a possible will.

Trevor deposed that he had a conversation with the plaintiff in November 2016, who mentioned that the deceased was either going to or had made an appointment to visit his lawyers to ‘sort out his affairs’. On or around 26 November 2016, Trevor said that he also had conversations with the deceased about his estate, and that at the time, the deceased said he wanted to leave all of his assets to the business. The plaintiff did not directly challenge this evidence, nor did others.

Genesis of the informal will

The evidence of the genesis of the informal will was somewhat unclear. Broadly speaking, the plaintiff was the only person able to give direct evidence of these circumstances.

In the plaintiff’s first affidavit, he deposed that the deceased died on 17 January 2017, leaving property in Victoria and a will dated 3 December 2016 which was unrevoked. The plaintiff said the informal will was executed in the presence of himself and Warich, and that the plaintiff witnessed the signing of the informal will but did not sign his name on the will.

In the plaintiff’s second affidavit, he deposed to having written the informal will at the direction of the deceased while the deceased was ill at home. The plaintiff again deposed that the informal will was signed by the deceased in the presence of himself and Warich, who also signed the informal will as witness. The plaintiff stated that he was not aware that he could, or should, also sign the informal will as a witness.

In the plaintiff’s third affidavit, he deposed that in the week following the deceased’s appointment with the ENT specialist, the plaintiff suggested that the deceased make arrangements for a will, and in the evening of 3 December 2016, the deceased decided to do so. The plaintiff stated that he offered to prepare the document due to the deceased’s very poor literary skills. The plaintiff deposed that he wrote out the informal will exactly as the deceased said he wanted it to be, and that the informal will was then signed by the deceased in the presence of the plaintiff and Warich, with the latter also signing as witness. It was also said that the deceased’s condition deteriorated on this night, although the precise timing of that deterioration and, importantly, the deceased’s condition when the informal will was purportedly signed was not clear.

Further detail in relation to the above was set out in the plaintiff’s fourth affidavit. In it, he deposed that:

(a) On 30 November 2016, the deceased told the plaintiff that he ‘better sort out his will’ in the car while they were driving home from the appointment with the ENT specialist. The plaintiff further stated that when they arrived home, he and the deceased sat down and prepared a list of the deceased’s assets, so that the deceased could think about his testamentary intentions.

(b) On 1 December 2016, the deceased told the plaintiff he had considered his will, and that he wanted the business to continue and would leave all his interest in the business to the plaintiff and Trevor, ‘even though Trevor had put very little into the business’. The plaintiff deposed that the deceased said words to the effect that the plaintiff ‘own[ed] part of the farm now and … should have the rest so that it stays together’ and that the deceased indicated he wanted no part of the farming property to end up in the hands of Trevor’s wife, Lisa Larcombe (‘Lisa’). According to the plaintiff, the relationship between Lisa and the deceased was very hostile and the deceased feared that Lisa might ultimately own any part of the farm which was left to Trevor.

(c) On 2 December 2016, the deceased gave the plaintiff instructions for the content of the informal will, which he then wrote upon request from the deceased. The plaintiff said the deceased read the informal will, and requested that a couple of changes be made, but did not sign it at that point.

(d) On 3 December 2016, the plaintiff visited the deceased at his home in the early evening and observed that the deceased was seemingly in the same condition as he had been on the previous day. The deceased said ‘[w]here did we get to with the will as I might need it if I get any worse’. The plaintiff said he told the deceased he would need to sign and date the informal will, and that after the deceased said that was what he wanted to do, the plaintiff inserted the date at the top of the page, the deceased signed it, and the plaintiff and Warich witnessed the deceased sign the informal will. It was said the signing of the informal will occurred at about 5:30pm.[5]

[5]This was the first time that the plaintiff provided a specific time for the signing of the informal will. The plaintiff later said that this was incorrect, and that the informal will was signed at about 8:30pm or 9:00pm. At trial, the plaintiff gave evidence that the informal will could have been signed at 5:30pm or 6:30pm — it was early in the evening and he ‘guestimated’ it was 5:30pm or just after.

In the plaintiff’s fifth affidavit, he deposed that:

(a) On 1 December 2016, the plaintiff and the deceased discussed his will. The plaintiff said the deceased was ‘lucid and clear minded’ at the time and that they variously discussed the deceased’s assets; Trevor’s and the plaintiff’s assets; what would constitute a viable land holding for the farm; the business; and the deceased’s will and his reasoning behind its provisions. The plaintiff deposed that the deceased noted Trevor already owned two houses, plus farmland inherited from their father, while the plaintiff did not own a home after the breakdown of his marriage to Julia, although the plaintiff had inherited the farming land adjacent to the two lots owned by the deceased upon the death of their father. The plaintiff deposed that the deceased thought it preferable to keep the combined three lots of land under one ownership, as this would result in the property being a workable farm size, and that the deceased wanted the plaintiff to also have the stock and farm machinery he owned. The plaintiff said the deceased wanted his interest in the business to pass to the plaintiff and Trevor equally, even though the deceased did not believe that Trevor deserved it, because Trevor had not contributed sufficiently to the farming operation or the business. The plaintiff said the deceased blamed Trevor and particularly Lisa for this.

(b) On 2 December 2016, the plaintiff visited the deceased at his home at about 2:00pm. During this visit the deceased asked the plaintiff to write out his will, following their discussions the previous day. The plaintiff said he wrote out the informal will per the deceased’s stated wishes, which were consistent with the deceased’s comments the previous day. The plaintiff said the informal will was not signed at that time, as the plaintiff believed a witness was required and he assumed he could not be a witness.

(c) On 3 December 2016, the plaintiff visited the deceased at his home at about 8:30pm or 9:00pm. The plaintiff said the deceased was sitting on the sofa in the living room, and his shortness of breath was noticeable. The plaintiff deposed that the deceased said words like, ‘the way I feel, I better sign the [informal] will’, which had been ‘written out on the previous day’ and was sitting on a desk in the same room. The plaintiff said the deceased walked from the sofa to the desk, sat down and signed the informal will. The plaintiff said Warich was also present at the time, and that she signed the informal will as witness upon his request.

In the plaintiff’s sixth affidavit, he provided further detail and clarification of the above, including deposing that:

(a) On 2 December 2016, the plaintiff wrote a draft will on a page of foolscap pad, on a desk in the living room of the deceased’s home. The plaintiff said the changes to this draft which the deceased subsequently requested were in respect of wording only — not gifts of estate property — and that this draft was a list of the deceased’s intended gifts only. The plaintiff said the deceased did not sign a will on this day, because there was no witness available apart from the plaintiff, and he did not realise he could be a witness. The plaintiff also said that Warich may have been at the deceased’s home on 2 December 2016, but was not present while the plaintiff was there. The plaintiff deposed that he did not retain a copy of this draft document, and that he assumed he threw it out as he considered that it was not important.

(b) On 3 December 2016, the plaintiff prepared the informal will based on the draft prepared the previous day, ‘but with neater writing… on a piece of paper’. The plaintiff deposed that the wording adopted in the draft was repeated in the informal will, with the plaintiff also adding opening words setting out the deceased’s name and address, which had not been included in the draft prepared the day before.

Critical events of 3 December 2016

The evidence of the broader events surrounding the signing of the informal will on 3 December 2016 was also unclear.

Trevor deposed that on 3 December 2016, he was working on the deceased’s property. Trevor said that the deceased’s health worsened badly over the course of this day, and that while the deceased had initially been sitting upright in his chair in the morning, his condition deteriorated and by the afternoon he was lying flat on the couch, unable to breathe properly and sweating profusely.

In contrast, the plaintiff’s evidence variously indicated that the deceased was ‘not well’ but ‘fully competent’, in the same condition as he had been the previous day, resisting any suggestion that he seek medical attention, and noticeably short of breath.

Warich deposed that the deceased was physically unwell and complaining about breathlessness and pain, but was mentally well and capable, and in a normal mental state with full comprehension of his circumstances. This evidence was primarily given in relation to the deceased’s condition in the late afternoon or early evening of 3 December 2016.

Merle deposed that she visited the deceased twice on this day, first at around 8:00am, and again at 3:00pm. Merle also said that on one of these visits, likely in the afternoon, the plaintiff and Warich were also at the house and while she did not see Trevor, ‘he was out in the paddock’. Merle recalled saying to the plaintiff that she thought the deceased looked very ill and they should ‘do something, take him to the hospital’, but left it to the plaintiff to decide, since he was ‘always in charge of these things’. Merle deposed that she did not see the deceased sign a will, or anyone witnessing a document with the deceased on that day. She further deposed that she was surprised when she learned the deceased had signed a will on the day he was taken to hospital. Merle said he seemed to be very ill and worried, and she was concerned he was not capable of making decisions about what he wanted to do with his property and the business.

Trevor further deposed that he was working on the deceased’s property from about 7:30am until around 9:30pm on this day, and that the plaintiff did not attend the farm during the day. However, Warich deposed that she was at home on this day, and the plaintiff arrived in the late afternoon or early evening. Heather and Christine also deposed to having visited the deceased on this day for around 20 minutes, although the time of this visit was not specified. Heather said the deceased was sitting in a lounge chair, looked tired and unwell and seemed worried and uncomfortable, but was able to speak clearly. Heather said that the plaintiff was in the house while she was talking to the deceased, Trevor was not in the house at the time, and she could not be sure if Warich was there. She deposed that no discussion about a will took place. At trial, Trevor said he saw Christine’s car outside the deceased’s house in the afternoon, and went into the house to talk to her and the deceased. No mention of Trevor being in the house was made in Heather’s or Christine’s affidavits.

The plaintiff deposed that he was living in Geelong around this time but visited the deceased’s home every day. He stated that on this day, he visited the deceased in the ‘early evening’, although the precise time of his arrival was not clear. The plaintiff deposed that as he arrived, Trevor was raking or bailing hay in a paddock at the opposite end of the property to the entrance, from where it was not always possible to see people coming to and going from the property.

Warich deposed that she was asked by either the deceased or the plaintiff, although she was unable to remember which, to sign the informal will in the late afternoon or early evening of 3 December 2016 and that she believed that both the deceased and the plaintiff saw her sign it. The plaintiff said he clearly explained to Warich what she was signing. Importantly, Warich deposed that, at the time the informal will was signed, the deceased, the plaintiff, Trevor and Warich were all in the living room of the deceased’s home. Warich deposed that she was unsure whether she saw the deceased sign the informal will, as she was focused on looking after the deceased and getting him to hospital at the time. Warich also stated that the deceased said that he did not want to go to hospital, but that Trevor said he should and the plaintiff agreed when he arrived, and ‘they all discussed this’. After Warich signed the informal will, the plaintiff took the deceased to hospital.

At trial, Trevor gave evidence he arrived back at the deceased’s house that evening at around 8:30pm or 8:45pm after baling hay in the paddock during the day. Trevor said the deceased was ‘struggling to keep alive’ and ‘looked like someone who had just finished an iron man event […] puffing like I’ve never seen him puff before, struggling to get air’. Trevor deposed that Warich was also in the house at that time. Trevor said he strongly urged the deceased to let him call an ambulance, but the deceased refused. At trial, Trevor said he thought they were talking for around 45 minutes. After arguing about these matters, Trevor went outside and tried to telephone the plaintiff to enlist his help with convincing the deceased to go to hospital. When the plaintiff did not answer, Trevor got into his vehicle and began driving home. Trevor’s evidence was that he believed the plaintiff wrote the informal will and caused the deceased to sign it prior to taking the deceased to the hospital.

As outlined above, the plaintiff gave evidence that after the informal will was signed, he returned home to Geelong and went to bed but missed a call from Trevor, who indicated that the deceased was ‘in a bad way’. The plaintiff returned Trevor’s call somewhere between 9:00pm and 10:00pm and subsequently drove out to the deceased’s home to check on him, arriving sometime between 10:30pm and 11:00pm. His evidence was that the deceased’s breathing was worse when he arrived, but he could still talk, and ‘after some persuading’ the deceased agreed to go with the plaintiff to hospital. After the deceased changed his clothes, they left for the hospital at about 11:30pm.

Events at hospital

The plaintiff deposed that after the deceased walked unassisted to the car, which was parked 15 metres away from the deceased’s house, he drove the deceased straight to the casualty department at the Epworth Geelong hospital, which was about a ten minute drive. While they were driving to the hospital, the plaintiff stated that the deceased was speaking to him and behaving in a normal manner, ‘although his shortness of breath may have worsened’.

When they arrived, the plaintiff left the deceased in the car and went to the reception area inside the main entrance, where he reported that the deceased was outside and having difficulty breathing. An orderly took a wheelchair to the car and wheeled the deceased into the emergency department. The plaintiff returned to reception to provide information requested by hospital staff in relation to the deceased’s admission. When the plaintiff had finished, he visited the deceased in the emergency department, who by this time was using a ventilator and wearing an oxygen mask.

Hospital records relating to the deceased’s admission on 3 December 2016 and subsequent stay were obtained by subpoena issued by the contradictors (‘the hospital notes’). The hospital notes record the deceased as being in triage category 1 upon presentment at the emergency department, and his triage details as ‘acute respiratory distress, pale, diaphoretic +++’. The emergency department attendance details variously diagnose acute respiratory distress; chest infection and ‘[m]etastatic cancer? - lung lesions’. The hospital notes record that no history was taken from the deceased as he was in ‘extreme distress/peri-arrest’, but history notes taken from the plaintiff state, inter alia: ‘2/7 of worsening SOB – mild’; ‘[t]oday-suddenly cannot breath [sic]’; and ‘[l]ost 15kgs in a week according to brother’. In the ‘examination’ section of the hospital notes, it is recorded that the deceased was ‘[c]yanosed +++++++’; ‘[n]ot able to talk’; ‘diaphoretic +++++++’; and ‘peripherally shut down, cold and cyanosed’.

Trevor deposed that he received a text message from the plaintiff at 11:48pm that night, which read ‘His [sic] at the Epworth I don’t like the way they are rushing around’.

Later matters

In the plaintiff’s third affidavit, he deposed to having contemplated arranging for a solicitor to visit the deceased in hospital in order to formally re-execute the informal will, but that the deceased’s admission to hospital coincided with the holiday period which ‘dissuaded’ him from doing so.

Trevor deposed that, during a visit to the deceased in hospital before Christmas, the deceased said to him ‘I didn’t know what I was signing’ and ‘I don’t even know what’s written in it [the informal will]’ or very similar words to that effect. Under cross-examination, Trevor said he did not raise the issue of the informal will during this conversation, and it was the deceased who did so. At trial, Trevor gave evidence that he did not raise this conversation with anybody else and did not seek legal advice, but stated that he did ask the plaintiff whether he could see the informal will, to which the plaintiff allegedly replied, ‘Oh, it must be at home’.

In a second conversation within a couple of days of this first visit, Trevor deposed that the deceased ‘confirmed that all his assets were to be in his words left to the business’, to which Trevor asked, ‘you mean myself and [the plaintiff]’ and the deceased replied ‘yes’. The deceased did not specify or break down his assets during this conversation. In reply, the plaintiff deposed that such a comment was not inconsistent with what the deceased had told him, and what was set out within the informal will, in the sense that all the assets referred to in the informal will are gifted to the plaintiff and Trevor as proprietors of the business.

The plaintiff further deposed that he had a discussion with the deceased on 26 December 2016 about the informal will, and that the deceased stated that he did not wish to make any changes to it. The plaintiff stated that the deceased told him he was feeling well and the plaintiff suggested arranging for a solicitor to attend the hospital to check the informal will, but noted that the solicitor’s office was closed at the time for Christmas and that he thought the deceased was ‘on the road to recovery’ at that point. The plaintiff subsequently deposed that he anticipated the deceased would recover at the time of this discussion because although he was still physically ill, he remained mentally alert and lucid.

In contrast, the hospital notes record ‘social/nil visitors today, nil enquiries’ for this day, and show that the deceased had deteriorated and been readmitted to the intensive care unit the previous day. The plaintiff nevertheless maintained that, whilst the hospital notes might have indicated the deceased was deteriorating physically, he remained mentally positive and was capable of conversing in his normal manner. The plaintiff also maintained that he visited the deceased in hospital on this day, and that the hospital staff must have missed him. The plaintiff deposed that the deceased never mentioned to him that Trevor had questioned him about the informal will, or said that he did not know what he had signed or what was written in it, and that the deceased had ‘abundant opportunity’ to raise those points with him. Trevor gave evidence that he and the plaintiff were never at the hospital at the same time.

Stephen deposed that he visited the deceased regularly in hospital, initially every day, but then every second or third day as the deceased’s stay in hospital lengthened. On all his visits up until the last two or three weeks of the deceased’s life, Stephen found the deceased to be mentally responsive and capable. He did not observe any deterioration in the deceased’s mental state at the time of his transfer back into intensive care around 25 December 2016. Stephen deposed that it was difficult for the deceased to speak during the last couple of weeks of his life as he was intubated, but the deceased continued to ask pertinent questions and remained mentally alert despite his physical decline.

Amanda also deposed that she visited the deceased in hospital approximately two weeks before he died. She stated that while the deceased had been in the intensive care unit for some time when she visited him, he seemed to think he would recover.

Death

The plaintiff was intubated on 4 December 2016, and his condition remained critical on 5 December 2016. By 6 December 2016, the deceased’s mortality risk was stated to be very high, however he showed improvement and was extubated on 10 December 2016. The deceased was discharged from the intensive care unit on 22 December 2016, but was readmitted to intensive care on 25 December 2016 and died in hospital on 17 January 2017.

The plaintiff’s and Trevor’s children

Evidence was given concerning the children of the plaintiff and Trevor vis-a-vis the deceased. Trevor has one son, Troy Larcombe (‘Troy’), who was around 19 or 20 years old at the time of the deceased’s death. The plaintiff has two children from his marriage to Julia, Kristen Larcombe (‘Kristen’) and Rowan Larcombe (‘Rowan’).

Amanda deposed that around six or 12 months before she learned that the deceased was unwell, she recalled a discussion with him in which she asked what he would do if something happened to him, given that he did not have any immediate family to leave property to. Amanda said the deceased replied that he had a nephew who helped him, and who would ‘get anything [the deceased] had’.[6] Amanda said she was surprised at the time, as she ‘knew that Merle was so good to [the deceased]’. Amanda also deposed that she knew the deceased was not fond of Carolyn and Glenda, and had told her about his involvement in legal proceedings with them. Amanda deposed that although the deceased was a reserved person, this affair had made him angry, and he said during her visit to him in hospital ‘those greedy bitches won’t be getting anything from me’.
[6]It is presumed that this was a reference to Troy, given the evidence of Troy’s contributions to the business and relationship with the deceased.

Merle deposed that Troy helped the deceased with the business from when he was around 16 or 17 years of age. Merle said she recalled a discussion with the deceased around six months before he died concerning what would happen if he was ill or needed help in the business. She recalled saying words to the effect of ‘Isn’t there anyone who could help you?’ and deposed that the deceased replied ‘Troy … He will get everything I’ve got.’ In light of this conversation, Merle said she was surprised that there was no mention of Troy in the informal will, and that the plaintiff was to receive a greater share of the estate of the deceased than Trevor. Merle deposed that Trevor was ‘very much involved in the business and certainly as much if not more than [the plaintiff]’. She also stated that the plaintiff was very aggressive, and would make sure things were done his way, and that he would easily ‘fly off the handle’ at the deceased, who was very passive and would do whatever the plaintiff told him to do. Merle’s affidavit evidence did not mention Kristen or Rowan. However, at trial she gave evidence that the deceased hated Kristen immensely and that he didn’t say much about Rowan, because he never came near the deceased’s property.

Trevor’s affidavit evidence also made no mention of Troy, Kristen or Rowan. However, at trial, Trevor gave evidence that the deceased didn’t know Rowan at all, and that he said he would call the police if Kristen ever came back to his property, because she had once removed the deceased’s dog and taken it to the pound. In contrast, Trevor said that the deceased and Troy enjoyed a ‘close, friendly’ relationship and Troy assisted the deceased with work relating to the farm and the business.

According to the plaintiff, the deceased did not mention the possibility of bequeathing anything to Troy, who he deposed was 19 years old at the time of the deceased’s passing and did not have the maturity or work experience to own or run the deceased’s property.

In written submissions, the contradictors noted that Troy had originally given a statement confirming, inter alia, that he assisted the deceased in the business over many years; that the deceased told him he would receive the deceased’s estate; and that he was working for the deceased on 3 December 2016 and saw him twice that day, and when he saw him in the afternoon between 4:00pm and 6:00pm, the deceased was very unwell, unable to breathe, and only able to speak a couple of words at a time. The contradictors noted that Troy was unwilling to swear an affidavit when informed the deceased’s estate would be administered on intestacy to the plaintiff, Trevor, Carolyn and Glenda in equal shares if the informal will was not proved. No other evidence was given of Troy being present at the deceased’s property on 3 December 2016.

Submissions
Plaintiff’s submissions

In written submissions, the plaintiff submitted that the statutory pre-conditions in s 9 of the Wills Act are satisfied and the informal will should be admitted to probate as:

(a) The informal will is a ‘document’ within the meaning of the Wills Act.

(b) The informal will expresses or records the deceased’s testamentary intentions as the words ‘will my interests’ are written three times in the informal will. It was submitted that this could only refer to testamentary intentions, and the appointment of the plaintiff as executor shows that the informal will expresses or records testamentary intentions.

(c) The content of the informal will and the evidence indicates that the deceased intended it to have effect as his will. In this regard, the plaintiff variously emphasised that:

(i) the informal will is serious in nature and clearly records testamentary intentions;

(ii) the deceased’s signature alone shows his intention that the informal will be binding as a will;

(iii) the other formalities of execution show that the deceased intended the informal will to be binding and have testamentary effect;

(iv) according to the evidence of the plaintiff, Trevor and Merle, the deceased could not be influenced by others, was stubborn and did not do anything that he did not want to do;

(v) the deceased carefully considered his assets;

(vi) the circumstances necessitated a will;

(vii) the will-making process was careful and considered, not rushed, occurring over four days;

(viii) the informal will was written out by the plaintiff at the sole direction of the deceased;

(ix)the informal will records what the deceased wanted;

(x) the informal will was read by the deceased;

(xi)the informal will reflects the deceased’s desire that the lots comprising the farming property stay together and not be broken up;

(xii) the informal will reflects the deceased’s personal and business relationships;

(xiii) the plaintiff’s financial need was greater;

(xiv) Troy was ‘never in the picture’, was not capable of taking on responsibility for the property at 20 years of age, and was paid for the work that he did on the deceased’s property; and

(xv) the deceased was in intensive care for six weeks between the date of the informal will and the date of his death. There was no evidence that he sought to revoke the informal will or make a new will during that time (apart from Trevor’s contested evidence in this regard). Further, on 26 December 2016 the deceased told the plaintiff that he did not want to change the informal will.

The plaintiff submitted that non-compliance with the formal requirements of s 7 of the Wills Act was due to ignorance and/or inadvertence only.

The plaintiff also submitted that the deceased retained testamentary capacity at the time he executed the informal will. Testamentary capacity was not contested by the contradictors, but they submitted that the plaintiff bore the onus of satisfactorily discharging that enquiry. The plaintiff emphasised the following factual circumstances as going to a positive finding that the deceased had testamentary capacity at the relevant time:

(a) the only two witnesses to the signing of the informal will (the plaintiff and Warich) confirmed that the deceased was not suffering impaired cognition:

(xvi) the plaintiff’s affidavit evidence emphasised that the deceased was ‘fully competent’, ‘resisting any suggestion that he seek medical attention’, and ‘lucid and clear minded’, and that ‘his illness appeared to have no bearing on his mental state’; and

(xvii) Warich’s affidavit evidence emphasised that the deceased was ‘physically unwell [but] mentally well and capable’, ‘in a normal mental state’, possessed ‘full comprehension of his circumstances’ and displayed normal memory and conversation.

(b) there was no other indication (apart from Trevor’s evidence) that the deceased lacked capacity:

(i) nothing recorded on the deceased’s death certificate suggested he was suffering from dementia or any other condition affecting mental capacity;

(ii) it was not until after the deceased signed the informal will — at around 11:30pm on 3 December 2016 — that the deceased’s breathing became worse, and even at that time, he was still able to talk, change his clothes and discuss whether he should go to hospital; and

(iii) the deceased continued to have satisfactory mental health during the six weeks between the signing of the informal will and the date of his death.

(c) the evidence therefore showed that the deceased had testamentary capacity, on the basis that:

(i) the deceased understood the nature of the act;

(ii) the deceased understood his property;

(iii) the deceased understood the claims to which he ought to give effect; and

(iv) there was no credible evidence that the deceased suffered from a disorder of the mind or insane delusions.

(d) at trial, the plaintiff also gave evidence that the deceased was able to converse just before going to hospital, and during the drive to hospital. In addition, Trevor gave evidence that he had a 45 minute discussion with the deceased at around 8:30pm on the evening of 3 December 2016.

The plaintiff further submitted that there was no evidence of any undue influence in the signing of the informal will, and such a claim was not pressed by the contradictors.

The plaintiff originally made written submissions in respect of whether the deceased knew and approved of the contents of the informal will. Subsequently, the plaintiff maintained at trial and in closing written submissions that such an enquiry was redundant on the basis that it was unnecessary to undertake a separate enquiry as to knowledge and approval in an informal will proceeding. However, the plaintiff’s initial written submissions did not advance particulars of argument with respect to knowledge and approval, but rather focused on testamentary capacity and also undue influence. Accordingly, it is difficult to identify with precision any specific submissions concerning knowledge and approval, beyond a claim that the enquiry was satisfied on the facts before the Court, which was particularised in the plaintiff’s reply to the contradictors’ initial written submissions.

The plaintiff also made submissions variously inviting the Court to:

(a) afford no weight to Carolyn’s and Glenda’s refusal to consent to the plaintiff’s application for probate of the informal will;

(b) afford no weight to Trevor’s evidence, noting that Trevor had a financial interest in opposing the plaintiff’s application;

(c) look past Warich’s statement that she was unsure whether she saw the deceased sign the informal will, noting that she was focused on looking after the deceased and emphasising the plaintiff’s repeated confirmations that Warich did, in fact, witness the signing of the informal will;

(d) afford no weight to Amanda’s evidence that the deceased intended to leave his estate to ‘a nephew’; and

(e) afford no weight to Merle’s evidence that the deceased intended to leave his estate to Troy, or that the deceased may have lacked testamentary capacity.

Contradictors’ submissions

The contradictors opposed the grant of probate of the informal will on the basis that there were alleged suspicious circumstances attending its preparation and execution, such that it could not be said the deceased knew and approved of the contents of the informal will. In particular, the contradictors sought to impugn the plaintiff’s evidence on the basis that it was inconsistent, not only as between his own affidavits but also with the affidavits of others relied on to support his application, and was not given in a forthright manner. As such, there was said to be no clear or consistent picture of the timing or circumstances of the making of the informal will.

The suspicious circumstances alleged by the contradictors in their submissions were as follows:

(a) the informal will was written out by the plaintiff;

(b) the plaintiff was instrumental in the making of the informal will;

(c) the informal will names the plaintiff as the major beneficiary of the deceased’s estate, and gives him an absolute interest in a substantial asset, namely, farming property valued at approximately $2 million, in addition to other assets;

(d) no one else (including solicitors) was involved in the preparation of the informal will;

(e) the deceased had very poor literacy skills;

(f) the deceased relied on the plaintiff for all his paperwork;

(g) prima facie, the informal will appears to have been written in a hurry, as ‘Larcombe’ is misspelled twice and ‘Geoffrey’ is also misspelled;

(h) the plaintiff recounted an ‘ever-evolving’ and ‘contradictory’ recollection of the making of the informal will, which was contradicted not only by the plaintiff’s own evidence but also the evidence of witnesses relied on by him;

(i) the deceased did not express an intention to gift the whole, or even part, of his farming property to the plaintiff, to any third party;

(j) the contents of the informal will are contrary to testamentary intentions stated by the deceased to independent third parties;

(k) if it is accepted that a list of the deceased’s assets was carefully written out prior to making the informal will, then there was no explanation for the deceased failing to include his two bank accounts in that list, and the plaintiff now alleges this list was destroyed;

(l) the deceased was seriously ill during the period in which it was alleged the informal will was prepared and executed, which resulted in him being in a ‘vulnerable’ position, as reflected in the poor quality of the deceased’s signature on the informal will;

(m) there was no evidence that the deceased read the informal will, as opposed to an earlier draft which was purportedly prepared and amended, or that the informal will was read to the deceased; and

(n) Warich, who ‘does not speak English’, was not summoned on the evening of 3 December 2016 to act in the capacity of a witness to the informal will, but rather had the informal will presented to her and signed it, and she was not sure if she saw the deceased sign the informal will.

The contradictors therefore submitted that the Court could not be satisfied that the testamentary intentions recorded in the informal will are those of the deceased or that the deceased intended the informal will to operate as his will.

As noted, the contradictors did not dispute the plaintiff’s assertion of testamentary capacity, but submitted that when seeking probate of an informal will, the presumptions regarding testamentary capacity do not apply and it remained incumbent on the plaintiff to satisfy the Court, on the balance of probabilities, that the deceased retained testamentary capacity at the time of making the informal will.

The contradictors also made various submissions rejecting the plaintiff’s arguments with respect to the evidence of Glenda, Carolyn, Trevor, Warich, Amanda, Merle and other persons.

Applicable principles

Section 9 of the Wills Act empowers the Court to dispense with the requirements for execution of a will that are set out in s 7 of that Act. It is a remedial provision, and consequently should be given a broad construction. Care must be taken, however, to ensure that the statutory formalities for execution are not unduly relegated in importance.[7]
[7]Re Estate of Brock; Chambers v Dowker [2007] VSC 415, [20] (Hollingworth J).

Three criteria must be established for the Court to admit a document to probate in accordance with s 9:

(a) there must be a ‘document’;

(b) the document must express or record the testamentary intentions of the deceased; and

(c) the document must have been intended by the deceased, without any alterations, to be her or his last will.[8]

[8]Re Estate of Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Equity Trustees Ltd v Levin [2004] VSC 203, [14]–[15] (Whelan J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Re Besanko [2020] VSC 170, [30] (McMillan J).

The greater the departure from the formal requirements, the more difficult it is for the Court to be satisfied as to the second and third elements.[9] As to the third element, the Court must be satisfied that the testator, by some word or act, demonstrated an intention that the informal will should have effect as his or her will, without any alteration or reservation.[10] The relevant intention can be proven to exist either at the time the subject document was brought into being, or at some later time.[11]
[9]Re Estate of Graham (1978) 20 SASR 198, 205 (Jacobs J).
[10]Ibid.
[11]Hatsatouris v Hatsatouris [2001] NSWCA 408, [59] (Powell JA, Priestley and Stein JJA agreeing).

In making a decision as to whether to admit an informal will to probate pursuant to s 9, the Court may have regard to any evidence relating to the manner in which the document was executed and any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased.[12]
[12]Wills Act 1997 (Vic) s 9(3).

As the Court’s jurisdiction to ‘dispense’ with the statutory requirements in s 7 of the Wills Act in respect of an informal will as distinct from its jurisdiction to admit such a document to probate,[13] not only must it be determined whether the conditions of the dispensing power in s 9 of the Wills Act are satisfied, but also whether the party seeking to rely on an informal will has established to the Court’s satisfaction that the deceased had testamentary capacity, knew and approved of the contents of the document, and was free of any undue influence.[14]
[13]See, eg, Re Stuckey [2014] VSC 221, [40] (McMillan J).
[14]Re Hancock; Rennie v Whippet Association of Victoria Inc [2016] VSC 496, [18]–[19] (McMillan J).

An informal will does not benefit from the same rebuttable presumptions that apply to duly executed wills.[15] Accordingly, the onus is on the propounder to satisfy the Court, on the balance of probabilities, that the deceased had testamentary capacity and knew and approved of the contents of the informal will.[16] The propounder likewise bears the burden of dispelling any suspicious circumstances surrounding the execution of an informal will. In accordance with the principles expressed in Briginshaw v Briginshaw[17] and s 140(2) of the Evidence Act 2008 (Vic), the cogency of the evidence necessary to displace any suspicion will depend on the circumstances of each case.[18] The application of Briginshaw dictates that the Court’s reasonable satisfaction regarding the dispelling of those circumstances should not be attained by ‘inexact proofs, indefinite testimony, or indirect references’.[19]

Testamentary capacity

[15]Ackerley v Felton [2012] NSWSC 1468, [30] (Young AJ); Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ); Jageurs v Downing [2015] VSC 432, [19] (McMillan J); Re Kelsall [2016] VSC 724, [22] (McMillan J). See Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA, Beach and Kyrou JJA agreeing) (‘Veall v Veall’) regarding the usual presumptions.

[16]Ibid. See also Re Estate of Wai Fun Chan [2015] NSWSC 1107, [18]–[24] (Lindsay J).

[17](1938) 60 CLR 336 (‘Briginshaw v Briginshaw’).

[18]Evidence Act 2008 (Vic) s 140(2).

[19]Barbon v Tessari [2015] VSC 490, [157] (McMillan J), citing Briginshaw v Briginshaw (n 17) 362 (Dixon J).

As stated, unlike the presumption of testamentary capacity that applies in the case of a formal will, there is no such presumption in relation to informal wills. In proving testamentary capacity, the Court must be satisfied that the deceased understood the nature and effect of the informal will; was aware of the general nature and value of his estate; was aware of those who would have a natural claim on his estate; and was able to evaluate and discriminate between such claims.[20]
[20]Banks v Goodfellow (1870) LR 5 QB 549, 567 (Cockburn CJ).

The inquiry is directed toward the deceased’s capacity to understand rather than actual understanding.[21] It is not necessary to show that the deceased viewed each and every clause with the ‘eye of a lawyer’.[22] As to the estate, the deceased is only required to have a general knowledge of the state of her or his property and of what it consisted.[23] Capacity is not a test of memory, rather, a test of disposition; it is the soundness of the testator’s ability to dispose which concerns the Court.[24] At times, however, a finding of lack of capacity may result if the deceased was mistaken or uncertain as to substantial assets.[25]
[21]Hoff v Atherton [2004] EWCA Civ 1554, [34] (Lord Gibson LJ, Lord Chadwick LJ and Lindsay J agreeing).
[22]Banks v Goodfellow (n 20).
[23]Frizzo v Frizzo [2011] QCA 308, [66]–[68] (Muir JA, Margaret McMurdo P and White JA agreeing).
[24]Brown v Guss [2014] VSC 251, [345] (McMillan J).
[25]Re Prien [2019] VSC 47, [47] (McMillan J), citing Wood v Smith [1993] Ch 90.

In Worth v Clasohm, the High Court stated emphatically that the propounder of a will is not required to prove capacity beyond a reasonable doubt:

The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.[26]

Knowledge and approval — suspicious circumstances

[26](1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).

Counsel for the contradictors directed the Court to several authorities regarding the effect of a finding of ‘suspicious circumstances’ surrounding the preparation or execution of a will. These authorities concerned proceedings where a will was duly executed but there were issues as to validity due to an alleged lack of knowledge and approval of the contents of the relevant will. In one such case, Robertson v Smith, the principle was stated as follows:

The essential feature of the principle, where it applies, is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testator executed it in the presence of witnesses after it had been read to or by him.[27]

[27][1998] 4 VR 165, 174 (Tadgell JA, Phillips and Kenny JJA agreeing).

In Veall v Veall, it was stated that ‘knowing and approving’ of the contents of one’s will is traditional language for saying that the will ‘represented one’s testamentary intentions’.[28] This is a necessary avenue of enquiry in validity cases, where testamentary intention is otherwise assumed from a duly executed will. It is unnecessary, however, to separately undertake this enquiry in an informal will proceeding, where the plaintiff is already required to prove testamentary intention.[29]
[28]Veall v Veall (n 15) 175 [173] (Santamaria JA, Beach and Kyrou JJA agreeing), citing Gill v Woodall [2011] Ch 380, 387 [14] (Lord Neuberger of Abbotsbury MR), in turn quoting Fuller v Strum [2002] 1 WLR 1097, 1116 [59] (Chadwick LJ).
[29]Re Ray [2020] VSC 699, [112] (McMillan J).

Consideration
Evidentiary matters

At the outset, various difficulties in respect of the state of the plaintiff’s evidence of the making of the informal will deserve mention. The plaintiff is the only person capable of providing proof of the circumstances under which the deceased was said to have signed the informal will, and as such, the Court is ‘placed wholly in the hands of’ the plaintiff for proof of whether the informal will reflected the testamentary intentions of the deceased and whether the deceased intended that it stand as his last will,[30] as well as for proof of the testamentary capacity of the deceased at the relevant time.
[30]See Dawson v Peters [2007] NSWSC 1329, [63] (Bryson AJ).

The plaintiff stands to gain significantly in the event that the informal will is admitted to probate. Other than the plaintiff, no witness positively supported the position that the deceased wished to leave the bulk of his assets to the plaintiff and intended the informal will to stand as his last will. Indeed, the evidence of several other witnesses cast doubt as to the testamentary capacity of the deceased at the relevant time and whether the informal will reflected the deceased’s testamentary intentions.

The plaintiff was cross-examined extensively at trial. He struggled to give direct answers to many of the questions put to him by counsel for the contradictors, and his evidence was at times contradictory and evasive. He did not give evidence in a forthright manner, as evidenced by the evolving account of events surrounding the making of the informal will that is contained within the six affidavits he affirmed for the purposes of this proceeding. Not only was the plaintiff’s affidavit evidence concerning the genesis and execution of the informal will inconsistent and contradictory as between his own affidavits, but various facets of his account were also contradicted by other witnesses.

For example, after initially deposing that the deceased signed the informal will at approximately 5:30pm on 3 December 2016, in the plaintiff’s sixth affidavit, he deposed that the informal will was signed around 8:30pm or 9:00pm and that Trevor was not present in the deceased’s house at that time. Trevor’s evidence, however, was that he remained at the deceased’s property until around 9:30pm and spoke to the deceased at the house not long before the deceased was taken to the hospital. Warich’s evidence was that Trevor, the plaintiff and the deceased were all in the deceased’s house at the time the informal will was signed. At trial, the plaintiff again changed his evidence as to the timing of the execution of the informal will, stating that it was signed sometime around 5:30pm or 6:00pm.

Further, in the plaintiff’s sixth affidavit, he stated that the informal will was written on 3 December 2016 based on a draft prepared the previous day. This evidence contradicted that set out in the plaintiff’s fourth affidavit, where it was said that the informal will was prepared on 2 December 2016 and not signed until 3 December 2016. It was also contrary to the account set out in the plaintiff’s fifth affidavit, where he deposed that the informal will was signed by the deceased on 3 December 2016 after it had been ‘written out on the previous day’ and was sitting on a desk in the living room.

There are obvious difficulties arising from either fading memories or the tendency of a witness to tailor the evidence to suit his or her case, which can result in inconsistencies in oral evidence. Where the recollections of a witness are relied upon, any contemporaneous materials are of assistance in determining the facts. In this proceeding the contemporaneous documentary evidence was limited.

The plaintiff relied heavily on the affidavit evidence of Warich, who deposed that she was unsure whether she saw the deceased sign the informal will. Warich’s evidence was clear and detailed in multiple respects. She recalled the numerous persons in the room at the time the informal will was said to be signed and that the deceased was sitting in his old chair. Unlike the plaintiff, Warich does not stand to gain in any way from the informal will. She was an impartial witness. Counsel for the plaintiff sought to explain Warich’s reservation on the grounds that she was focused on looking after the deceased at that time. Even if this explanation is accepted, it does not substantiate a positive finding in favour of the plaintiff. The fact that the plaintiff deposed in three separate affidavits to the contrary is not to the point, particularly in the suspicious circumstances that exist surrounding the informal will.

Criteria for admission of an informal will

Clearly, on its face, the informal will is a document which records testamentary intentions, purportedly those of the deceased. However, in order for the informal will to be admitted to probate pursuant to s 9 of the Wills Act, it is also necessary for the Court to be satisfied that the testamentary intentions that are set out in the informal will are those of the deceased, and that the deceased intended that the informal will stand as his will.

Evidently, a finding that the informal will satisfies the latter two criteria will not be made lightly, given the significant degree to which the informal will departs from the formal requirements set out under s 7 of the Wills Act. As previously discussed, the informal will does not contain an attestation or revocation clause, fails to dispose of the residue of the deceased’s estate, and is only signed by one witness. Most significantly, however, this sole witness deposed to being uncertain whether she saw the deceased sign the informal will or not — meaning, in effect, that there were no true witnesses to the execution of the informal will. In light of this, for the reasons set out below, the Court is not satisfied on the evidence that the informal will meets the criteria for admission to probate pursuant to s 9 of the Wills Act.

Besides the content of the informal will itself, the only evidence which supported a finding that the informal will records the deceased’s testamentary intentions was that given by the plaintiff. The various and significant difficulties which are encountered in relying on the plaintiff’s evidence in respect of the genesis, preparation and execution of the informal will are discussed above. In sum, the plaintiff prepared the informal will in circumstances where:

(a) the plaintiff was the only person able to give evidence of the deceased’s testamentary instructions in the preparation of the informal will;

(b) those purported instructions conflicted with the evidence of other witnesses;

(c) the plaintiff was, by his own evidence, someone in whom the deceased reposed complete trust with respect to documentary matters; and

(d) the plaintiff stood to take a substantial and major benefit under the informal will, if admitted to probate.

For these reasons, it is difficult to place a great deal of weight on the plaintiff’s assertions that the testamentary intentions recorded in the informal will are those that were held by the deceased. This is particularly so in circumstances where several other witnesses gave evidence of testamentary intentions expressed by the deceased that were directly contradictory to those set out in the informal will. Both Merle and Amanda deposed that in the year preceding his death, the deceased disclosed to them an intention that Troy would receive the entirety of his estate upon the deceased’s death, and yet no provision is made for Troy under the informal will. The content of the informal will is also contrary to the evidence given by Trevor as to the testamentary intentions expressed by the deceased subsequent to the making of the informal will, namely, that all his assets were to be left to the business.

Additionally, several factors lend to a conclusion that the informal will was prepared hurriedly, without sufficient contemplation or reflection on the part of the deceased as to his testamentary intentions. Despite the plaintiff’s submission that the process of drafting the informal will was ‘careful and considered, not rushed, occurring over four days’, the informal will fails to identify or make provision in respect of a number of the deceased’s assets, including money held in various bank accounts. While the plaintiff deposed that a draft list of assets and several previous draft wills were drawn up by the plaintiff and the deceased, neither of these documents nor any other records of such conversations were in evidence, and have apparently never been located. On balance, it would seem unlikely that, had several days of careful and considered contemplation, the drawing up of a list of assets, and the preparation of various previous drafts been involved, the deceased’s cash assets would have been overlooked entirely.

Further, as noted above, the informal will misspells the deceased’s first and last names several times, as ‘Geofrey’ and ‘Larombe’ respectively. As submitted by the contradictors, this militates against a conclusion that the deceased read the informal will, either carefully or indeed at all. While accepting that there was evidence that the deceased’s literacy skills were poor, it is nevertheless likely that had he read, understood and approved of the contents of the informal will, he would have noticed an error as blatant as the misspelling of his own name. Moreover, in view of his involvement in the Part IV claim, it can be assumed that the deceased would have appreciated the significance of a will and, by extension, of preparing and executing such a document accurately.

In circumstances where there was no conclusive evidence that the informal will was read by or explained to the deceased, and instead may simply have been proffered for his signature at a time when he was seriously unwell and was admitted to the emergency department soon afterwards, there are strong grounds for questioning whether the informal will is reflective of the testamentary intentions of the deceased. This is particularly so given that no witness other than the plaintiff — the primary beneficiary under the informal will — provided evidence that the deceased had ever expressed testamentary intentions consistent with those set out in the informal will.

The plaintiff’s written submissions invited the Court to focus on the ‘generational’ approach to testamentary inheritance within the Larcombe family in considering whether the informal will recorded the deceased’s testamentary intentions. However, the plaintiff’s submissions to the effect that ‘it is not a big farm’ and it ‘does not justify shared ownership’ sit uncomfortably with the decision of the deceased’s father to devise the farming properties to both the deceased and the plaintiff. A decision on the part of the deceased to leave all his farming land to the plaintiff on this basis would diverge from the approach taken by the deceased’s and the plaintiff’s father, whereby blocks of his farming land were divided and left to both the deceased and the plaintiff.

For these reasons, it is difficult for the Court to be positively satisfied in the circumstances that the informal will records the testamentary intentions of the deceased. In addition, a finding that the deceased demonstrated an intention that the informal will should have effect as his or her will without any alteration or reservation, either at the time it was made or by some subsequent act, is difficult to make on the available evidence for several reasons.

First, the only evidence of such an intention on the part of the deceased came from the plaintiff. There is clear difficulty in placing any significant weight on the plaintiff’s evidence to the effect that the deceased confirmed he did not wish to make any changes to the informal will during a discussion at the hospital on 26 December 2016, in which the deceased was said to be physically and mentally well. Aside from the various issues with the plaintiff’s evidence more generally as outlined above, his evidence was inconsistent with contemporaneous records set out in the hospital notes, to the effect that the deceased had no visitors on this particular day, and that his condition had deteriorated the previous day, necessitating his re-admission to the intensive care unit.

The plaintiff’s evidence of the deceased’s stated intentions in respect of the informal will was also directly contradicted by evidence provided by Trevor, who deposed that the deceased expressly disclaimed any knowledge of the contents of the informal will in a conversation at the hospital sometime between the deceased’s admission and Christmas. Clearly, Trevor’s evidence weighs against a finding that the deceased knew and approved of the contents of the informal will and intended that this document stand as his will.

Secondly, the deceased made no efforts to retain a solicitor for the purposes of formalising the informal will in the six weeks between the making of the informal will and his death. Presumably, the importance of preparing a formal will with the assistance of legal practitioners would have been impressed upon both the plaintiff and the deceased during their defence of the Part IV claim. In spite of this, neither the deceased nor the plaintiff organised for a solicitor to attend hospital and arrange for the informal will to be formalised and executed at any point between 3 December 2016 and the deceased’s death. Had the deceased intended the informal will to take effect as his will, it would seem likely that such efforts would have been made, or at the very least contemplated. The plaintiff’s submissions in relation to the holiday shutdown period and the deceased’s optimism as to his prospects of recovery are unpersuasive. The holiday period is not generally taken to span for six weeks, and the plaintiff’s submission as to the deceased’s outlook conflicts with the information contained within the hospital notes, namely, that the deceased was seriously unwell for the majority of the time he spent as an inpatient.

Thus, on balance, in addition to raising doubt that the informal will records the testamentary intentions of the deceased, the available evidence casts doubt as to whether the deceased intended that it stand as his last will. Accordingly, the Court considers that the criteria for admitting the informal will to probate pursuant to s 9 of the Wills Act are not satisfied in the circumstances.

Testamentary capacity

Serious questions also arise in respect of the deceased’s testamentary capacity. The plaintiff bears the onus of satisfying the Court that the deceased possessed testamentary capacity at the relevant time, namely the time at which the informal will was made. The plaintiff made submissions regarding the deceased’s testamentary capacity at certain other points in time, including before the informal will was signed and subsequently while the deceased was in hospital.

The evidence raised some significant concerns as to the deceased’s testamentary capacity on 3 December 2016. The first issue concerns precisely when the deceased was said to have signed the informal will. As noted above, the plaintiff gave evidence on this issue that was inconsistent, with the time at which the informal will was alleged to be signed changing several times over the course of the plaintiff’s six affidavits. This inconsistency creates obvious difficulties for the plaintiff in discharging his onus of proving that the deceased had testamentary capacity at the time that the informal will was made.

The second issue is the seriousness of the deceased’s state of health when he is alleged to have signed the informal will. His condition was such that he was taken to hospital late in the evening of 3 December 2016, and the evidence suggested that the informal will was signed not long before the plaintiff took the deceased to hospital. The lay evidence of third parties suggested that the deceased’s physical health was significantly and negatively impacted by his illness on 3 December 2016. Both Trevor and Merle deposed that the deceased looked very unwell from early in the afternoon onwards, and both attempted to convince the deceased and the plaintiff that urgent medical attention should be sought for the deceased.

In addition to the recollections of Trevor and Merle, there were several other indications of the severity of the deceased’s condition on the evening of 3 December 2016 within the available documentary evidence. It is noted in this regard that the deceased’s name is misspelled and not corrected on the informal will, that the deceased’s signature appears to be made with a shaky and unsteady hand on the informal will, especially when compared to a later signature of the deceased contained in the hospital notes, and that the hospital notes record that upon his admission later that evening, the deceased was ‘[n]ot able to talk’, ‘peripherally shut down, cold and cyanosed’ and in ‘extreme distress/peri-arrest’.

Even in the absence of any direct medical evidence of cognitive impairment, it is more likely than not that the deceased’s cognitive functioning and capacity was impacted by the severity of his condition on the evening of 3 December 2016. Indeed, the only evidence to the contrary was the assertions of the plaintiff (and to a lesser extent, of Warich) that the deceased’s mental functioning appeared to be sound on the evening that the informal will was signed. In light of the inconsistent and ever-evolving nature of the evidence given by the plaintiff as to the events of 3 December 2016, it is difficult to place any significant weight on these assertions.

Further, Warich deposed that the plaintiff took the deceased to the hospital after she signed the informal will, and that she was unsure whether she saw the deceased sign the informal will as she was focused on looking after the deceased and getting him to hospital at the time. This evidence established that the deceased’s health was already critical by this point, and Warich’s evidence would appear to indicate that by this point in time, the deceased was no longer capable of looking after himself. This evidence was contrary to the plaintiff’s various positions that the deceased was seemingly in the same condition as he had been on the previous day when he signed the informal will; that the informal will was signed and the plaintiff then went home before returning later that night; and that, before going to hospital, the deceased walked from the living room to his bedroom to change his clothes, and then walked unassisted to the car which was parked 15 metres away from the house.

The plaintiff maintained that the deceased was not seriously ill but merely unwell at the time the informal will was signed. Yet he simultaneously claimed that Trevor ‘left [the deceased] for dead’ after trying to reach the plaintiff by phone. Putting aside questions of timing already adverted to above, these positions are clearly inconsistent — the plaintiff simultaneously claimed that the deceased’s condition was not critical, but also maintained that Trevor left the deceased in a perilous state at his home.

The plaintiff’s evidence that the deceased behaved and spoke normally during the short car trip from the deceased’s property to the hospital was also inconsistent with the state in which the deceased was described to have been in upon his arrival and admission in the hospital notes. While the plaintiff’s evidence reiterated the deceased’s stable condition, upon arriving at the hospital, the plaintiff walked to the emergency department alone to get help, rather than accompanying the deceased to the entrance. This indicates urgency, and speaks against the deceased being in satisfactory health at this stage, a conclusion that is confirmed by the hospital notes.

Additionally, the observations as to the deceased’s cognitive functioning on the evening of 3 December 2016 made within the evidence of the plaintiff and Warich must be balanced with the concerns expressed by Trevor and Merle. Based on their observations of the deceased’s condition that day, Trevor deposed to his belief that the deceased ‘did not understand the content and consequences of the [informal will]’ and Merle expressed concern that the deceased would not have been ‘capable of making decisions about what he wanted to do with his property and the business he had dedicated his life to’. Heather and Christine likewise deposed that the deceased appeared to be very unwell when they visited him earlier that day.

On balance, the evidence supports a conclusion that the deceased was in a critical state on the evening of 3 December 2016, despite the plaintiff’s suggestions to the contrary. In applying the test for testamentary capacity with the severity of the deceased’s condition at the time the informal will was made in mind, it cannot be concluded positively that the plaintiff has discharged his onus of proving that the deceased had testamentary capacity. On balance, it has not been proven that the deceased understood the nature and effect of the informal will, was aware of the general nature and value of his estate, was aware of those who would have a natural claim on his estate, and was able to evaluate and discriminate between such claims.

These conclusions are likewise reached in considering the informal will itself. In addition to its failure to satisfy various formal requirements for a valid will and the various misspellings it contains, several features of the informal will support a conclusion that the deceased lacked the requisite degree of capacity at the time it was made, including that:

(a) The informal will purports to appoint the plaintiff as the deceased’s attorney, notwithstanding that a power of attorney and a will are very different documents, addressing subject matters in life and death respectively.[31]
[31]See Re Phillipson [2020] VSC 857, [72] (McMillan J).

(b) The informal will fails to account for the significant care and support that Merle is said to have provided to the deceased, particularly from 2005 onwards.

(c) The informal will fails to account for the assistance and work that Troy is said to have provided to the deceased in operating the business, and the ‘close, friendly’ relationship that is said to have existed between the deceased and Troy.

(d) The informal will fails to account for various assets held by the deceased, including cash assets of not insignificant value.

(e) The informal will fails to dispose of the residue of the deceased’s estate.

Thus, taking into account the substance and the nature of the evidence provided by the various persons who witnessed the deceased and observed his condition on the day that the informal will was made, the content and form of the informal will, and the medical evidence contained within the hospital notes of the criticality of the deceased’s condition shortly after the informal will was said to be signed, doubt arises as to the deceased’s testamentary capacity on the evening of 3 December 2016. This doubt is not dispelled by the plaintiff’s inconsistent evidence as to the events of that evening, particularly in light of the suspicious circumstances surrounding the making of the informal will.

The plaintiff has therefore not discharged the onus of proving, on the balance of probabilities, that the deceased had testamentary capacity at the time that the informal will was signed.

Conclusion

On the evidence that is available of the circumstances under which the informal will is said to have been made and signed, the Court is not satisfied that the informal will is reflective of the deceased’s testamentary intentions nor that the deceased intended that it stand as his will. Moreover, the plaintiff has failed to discharge his onus of proving that the deceased had testamentary capacity at the time that the informal will is said to have been signed.

Accordingly, the informal will fails to satisfy the criteria for admission to probate pursuant to s 9 of the Wills Act.

Other matters

This proceeding was commenced in June 2017. At the later stages of the proceeding, the Court enquired of the position of the farming assets of the estate, given the length of time that had elapsed since the application was filed by the plaintiff. In light of the findings in the proceeding, it is incumbent on the plaintiff to provide up to date financial information and accounting of the estate’s assets commencing from the date of death of the deceased.

Orders

The Court orders that:

(a) The plaintiff’s application filed 7 June 2017 for a grant of probate of the informal will dated 3 December 2016 of Geoffrey William Larcombe, deceased, be dismissed.

(b) Submissions as to the costs of and incidental to the proceeding be filed by 15 December 2022.

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Re Larcombe [2022] VSC 741

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Re Norris; Lindsay v Howie [2025] VSC 85

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Re Norris; Lindsay v Howie [2025] VSC 85

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Re Estate of Brock [2007] VSC 415

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[2022] VSC 741

1 December 2022