Re McKenzie: Watts v Cardell

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 18563

IN THE MATTER of the Estate of KATHLEEN ELLEN VERONICA MCKENZIE (deceased)

BETWEEN:

CORY JAMES WATTS & ANOR (according to the attached Schedule)	Plaintiffs
v
LOUISE NARELLE CARDELL	Applicant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2025
DATE OF JUDGMENT:	28 May 2025
CASE MAY BE CITED AS:	Re McKenzie: Watts v Cardell
MEDIUM NEUTRAL CITATION:	[2025] VSC 295

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PROBATE — Application for the revocation of a grant of probate — Whether the applicant’s grounds of objection establish a prima facie case for revocation — Whether particulars of grounds of objection involving allegations that the deceased’s will was made in suspicious circumstances, was procured by undue influence or that the deceased did not know or approve the contents of the will should be struck out — Montalto v Sala (2016) 15 ASTLR 393 and Gardiner v Hughes [No 2] [2019] VSCA 198 referred to — Offending grounds unsustainable and should be struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Gannon of counsel	BJT Legal
For the Applicant	Mr P Duggan of counsel	Mann Legal

HER HONOUR:

Introduction and background

Kathleen McKenzie (‘deceased’) died on 7 March 2023 at the age of 99. She was not married at the time of her death, and had borne no children. She made her last will on 7 March 2018 (‘2018 will’), in which she nominated the plaintiffs, her great-nephew, Cory Watts (‘Cory’) and another person, Paul Ryan, as the executors and trustees of her estate.

The plaintiffs obtained probate of the 2018 will on 24 August 2023. The inventory of assets annexed to the application for a grant of probate shows that the deceased held real estate (being farmland) valued at $2,665,000, and personal assets (mostly livestock, shares and chattels) valued at $119,203.53. The 2018 will, which was drawn up and witnessed by a solicitor from Harwood Andrews,[1] provided for pecuniary legacies of $2,000 each to be paid to Cory, his siblings Scott and Kassey, and their mother Lucinda, with the residue of the estate to pass to Cory, and then to Scott if Cory predeceased the deceased.
[1]The second witness was a law clerk employed by Harwood Andrews.

The dispositions in the 2018 will were different from those made in the deceased’s penultimate will (‘2014 will’), which was made on 17 December 2014. In the 2014 will, the deceased left some modest pecuniary legacies to some relatives, and left the bulk of her estate to her sister, Noela Stevens (who died in 2017), then to a nephew, Graham Fridey, who also predeceased the deceased, then to any of Graham’s living children.[2] Also in evidence were wills made by the deceased in 1998, 2008 and 2011 (‘prior wills’).
[2]The current applicant, Louise Cardell, is Graham Fridey’s only child.

On 9 April 2024, Lucinda Watts, the niece of the deceased and Cory’s mother, issued a summons seeking revocation of the grant of probate of the 2018 will, and sought the grant of probate to her of a will that Lucinda had sighted, but was unable to locate. In her affidavit in support of her summons dated 16 April 2024, Lucinda deposed that in about 2012, the deceased showed her a copy of her will,[3] which provided for the bulk of her estate to be left to Noela (Lucinda’s mother), and if Noela predeceased the deceased, the bulk of the estate would pass to Lucinda.
[3]Which must have been the will made by the deceased in 2011.

Further inquiries then led to the discovery of the 2014 will, which resulted in Lucinda no longer having standing to challenge the 2018 will. On 17 September 2024, Lucinda issued a summons seeking that the current applicant, Louise Cardell (the daughter of Graham Fridey and the primary beneficiary under the 2014 will) (‘applicant’) be substituted for Lucinda as the applicant for revocation of the grant of probate of the 2018 will (‘revocation application’). Orders were made giving effect to the substitution of the applicant on 8 November 2024. Orders were also made that day for the applicant to provide an amended summons and fresh grounds of objection with particulars, following criticism of the original grounds of objection made by the plaintiffs’ legal representatives.

The revised grounds of objection (‘grounds’) with particulars were filed on 6 December 2024. The first nine grounds referred to background factual matters and the facts underpinning the applicant’s standing to bring the revocation application, which are not controversial for present purposes. Paragraphs 10 to 15 of the grounds are reproduced in full below:

The Deceased lacked testamentary capacity at all relevant times after 2014.
The 2018 Will was procured by the undue influence of the first plaintiff: Cory James Watts (“Cory”).
The Deceased did not know and approve the contents of the 2018 Will.
Particulars of the above matters
a)The Deceased had suffered Alzheimer’s dementia for years prior to her death.
b)The Deceased was assessed on 20 December 2017 (being approximately 3 months before the 2018 Will was made) as having Addenbrooke Cognitive Examination (ACE-III) score of 46/10 (cf a score of 82-88 being usually indicative of dementia).

c)        As of 2018 —
(i)        the Deceased was 94 years old;
(ii)       frail; and
(iii)suffering dementia which was or should have been evident to both the Deceased's professional advisors and to Cory.

d)Cory was known (including by the Deceased) to be prone to violent and threatening behavior generally including towards older female members of his own family.
e)The Deceased had reason to be fearful of Cory in the circumstances.
f)By reason of her dementia and/or susceptibility to Cory’s influence, the Deceased lacked testamentary capacity as of March 2018 and was incapable of knowing and approving the contents of the 2018 Will.

g) Of the Deceased’s four wills before the 2018 Will —
(i)the wills made in 1998 and 2008 made no provision whatsoever for Cory; and
(ii)the wills made in 2011 and 2014 each made provision for a legacy of only $2000 to Cory.

h)The 2018 Will’s provision for Cory constitutes more than 99 per cent of the Deceased’s estate (likely to equate to a legacy to Cory of approximately $2.8 million).
i)Until 2017 the Deceased lived across the road from Cory’s parents, Mark and Lucinda (aka ‘Cindy’) Watts (“Mark and Cindy”) and for many years until late 2017 received daily care and assistance from them in her own home. In about September 2017 the Deceased moved into Mark and Cindy’s home with them and received very close personal care from them thereafter. In early 2018 the Deceased moved into temporary respite care at Homestead Wallington.
j)As of early 2018 Cory was estranged from Mark and Cindy following, inter alia, —
(i)a dispute between Mark and Cindy on one part and Cory on the other part arising out of the deceased estate of the Deceased’s late sister, Mrs Noela Theresa Agnes Stevens (“Noela”);

(ii) violence and threats of violence by Cory against Mark;
(iii) threats of violence by Cory against Mark and Cindy; and
(iv)an intervention order dated 14 November 2017 against Cory taken out by Cindy.

k) As of early 2018 the Deceased —
(i)had personally witnessed Cory’s violent temper against other members of the family;
(ii)was aware of Cory’s reputation for violence within the family; and

(iii) had reason to be frightened of Cory.
l)In or about early 2018 Mark caused, suffered or permitted without consultation with Mark, Cindy or any other of the Deceased's close friends or relations —
(i)the Deceased to be removed from respite care at Homestead Wallington;
(ii)the Deceased’s contact and communications with Cindy and Mark as the Deceased's closest surviving members to be immediately severed by such removal;
(iii)the Deceased to be permanently removed from her home of many years (being that across the road from Mark and Cindy’s house) and from her more recent household (being Mark and Cindy’s home itself);
(iv)the Deceased to be isolated from all those members of her and Cory’s shared family from whom Cory was estranged;
(v)the Deceased to make the 2018 Will by which Cory’s entitlements were increased from $2000 (per the 2014 Will) to approximately $2.8 million.

m)It is likely in all the circumstances that as at the time of the making of the 2018 Will —
(i) the Deceased lacked testamentary capacity; and
(ii)in the alternative, even if the Deceased otherwise had testamentary capacity, that her will at that time was overborne by -
1. her isolation from Mark and Cindy;
2.her knowledge of Cory's reputation for intra-family violence and threatening behaviour; and
3.her heightened vulnerability to Cory following her removal in early 2018 at Cory’s instigation from respite care at Homestead Wallington and from Mark and Cindy’s household.

Further particulars will be provided following discovery and/or the issuing of subpoenas.
The applicant otherwise refers to and relies upon -
a)Cindy’s affidavits sworn 16 April 2024 and 10 September 2024; and
b)the applicant's own affidavits sworn 10 September 2024 and 5 December 2024.

These matters taken together constitute suspicious circumstances in connection with the making of the 2018 Will.

The applicant also relied upon affidavits sworn by her and Lucinda in support of the revocation application, which will be referred to in more detail in the following section of these reasons.

On 19 March 2025, the plaintiffs issued a summons seeking determination of the following questions:

(a)whether the “Applicant’s grounds of objection” dated 6 December 2024 makes out a prima facie case that the deceased’s Will dated 7 March 2018 “was procured by the undue influence of the first plaintiff Cory James Watts” (paragraph 11);
(b)whether the “Applicant’s grounds of objection” dated 6 December 2024 makes out a prima facie case that the deceased did not know and approve of the contents of her Will dated 7 March 2018 (paragraph 12);
(c)whether the “Applicant’s grounds of objection” dated 6 December 2024 makes out a prima facie case of “suspicious circumstances in connection with the making of the 2018 Will” (paragraph 15);
(d)whether any of the above grounds of revocation should be struck out or dismissed.

(e) what, if any, orders for costs ought be made.

The plaintiffs’ summons also sought that the grounds ‘…be summarily dismissed wholly or in part pursuant to sections 62-63 of the Civil Procedure Act 2010 (Vic)’.

Neither of the plaintiffs have served any affidavits in response, although they are not required to do so for the purpose of the current application.

The evidence

The applicant relied upon the following affidavits:

(a) an affidavit sworn by Lucinda on 16 April 2024;

(b) an affidavit sworn by the applicant on 10 September 2024;

(c) a further affidavit sworn by Lucinda on 11 September 2024; and

(d) a further affidavit sworn by the applicant on 6 December 2024.

In her first affidavit sworn on 16 April 2024, Lucinda deposed, in summary, as follows:

(a) as to the relevant family relationships;

(b) that the 2018 will was made by the deceased when the deceased lacked testamentary capacity and/or was acting under undue influence exerted by Cory;

(c) as to the deceased’s personal circumstances and family relationships, and said that the deceased ‘…was not survived by any of her nieces and nephews other than me’;

(d) in about November 2017 the deceased was referred by her general practitioner to a consultant in geriatric medicine, who provided a report on 20 December 2017 (see paragraph 16(b) of these reasons) some three months prior to the date of execution of the 2018 will;

(e) as to her relationship with Cory, deposing that Cory has been estranged from her and her husband since 2009, and is also estranged from his siblings;

(f) as to Cory’s alleged abuse of her and her husband, deposing that Cory ‘…has threatened us with both physical violence and financial harm’, that Cory has physically assaulted her husband, and that there are mutual intervention orders and undertakings in place between her and her husband on the one hand, and Cory on the other hand; and

(g) she deposed as follows:

Cory’s violent temper has long been notorious within our wider family. The Deceased had witnessed Cory’s violent temper and threateing [sic] behaviour and at all material times was well aware of his reputation within the wider family.

Lucinda then went on to depose as to the deceased’s living arrangements and her further dealings with Cory, as follows:

(a) the deceased lived with her sister Noela (Lucinda’s mother) in a house across the road from Lucinda until Noela’s death in September 2017, and Lucinda provided both Noela and the deceased with care and assistance over the years;

(b) Noela left her estate to Lucinda and Cory in equal shares, which angered Cory. Cory was angered further when Lucinda made a claim against Noela’s estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic), which was settled, and made threats to her and her husband;

(c) the deceased, who was ‘physically and mentally incapable of managing her own affairs’ lived with her and her husband after Noela’s death;

(d) however, as Lucinda’s own health had deteriorated from 2012, she and her husband needed a break from caring for the deceased, and they arranged for the deceased to be placed in respite care;

(e) at that time, she intended that the deceased would stay in respite care for about six weeks and then return to live with her and her husband;

(f) however, she was informed by staff at the care facility that about three weeks after the deceased entered the care facility, Cory removed the deceased from the care facility and arranged permanent accommodation for the deceased elsewhere;

(g) she and her husband had no contact with the deceased during the last five years of the deceased’s life as they had no way of locating or contacting her save via Cory, which was prohibited by the outstanding intervention orders and related undertakings;

(h) she learned of the death of the deceased eight or nine weeks after the fact via a third party; and

(i) she deposed as follows:

I believe the Deceased would have lacked sufficient mental capacity to make the Probated Will on 7 March 2018. Moreover, the Probated Will was made —
a)less than six months after the Deceased had been bereaved by Noela’s death;
b)Less than two months after Cory had caused the Deceased to be removed from the respite care facility at Homestead Wallington and thereby isolated from Mark, me, Kassey and Scott; and
c)Almost six months after Cory had threatened me saying “I am going to fuck you over,” and “I’ll put you out on the street; and
d)at a time when the Deceased would have been vulnerable to Cory’s temper, improper threats and inducements.

Lucinda then deposed as to the disparity between Cory’s entitlements under the 2018 will and the will she saw in 2012, as follows:

I believe there to be suspicious circumstances attending the making of the Probated Will which warrant investigation including the following:
a)Cory’s entitlements under the Probated Will having been increased from $2,000.00 under the Deceased’s Pre-2012 Will to almost the entirety of the estate under the Probated Will;
b)My own entitlements under the Probated Will having been reduced from the entirety of the Deceased’s estate under the Deceased’s Pre-2012 Will to almost nothing under the Probated Will;
c)The Deceased’s legacies and bequests to her three great nephews and niece (namely Scott, Cory and Kassey) having been so very disparate from each other;
d)The Probated Will having been made soon after Cory caused the Deceased to be permanently removed from respite care without any prior consultation with other family members; and
e)The Probated Will having been made while the Deceased was apparently and in communication with no family members other than Cory and relatively soon after he threatened me that he would “fuck me over” and put me “out on the street”.

In relation to the issues of delay and prejudice, Lucinda deposed, in summary, as follows:

(a) she first sought legal advice concerning the deceased, and learnt of the grant of probate of the 2018 will to the plaintiffs in late November 2023;

(b) she has not received any communication from the plaintiffs or either of them regarding her pecuniary legacy under the 2018 will; and

(c) title searches for the land previously owned by the deceased shows that the plaintiffs are the registered proprietors of that land, such that the deceased’s estate has not been finally distributed.

Lucinda exhibited to her affidavit, among other things, the following documents:

(a) a letter from the deceased’s general practitioner (‘GP’) dated 5 April 2024, which included an extract from the GP’s letter of referral to the Barwon Memory Clinic in November 2017, the notes of the GP’s referral to the Barwon Health Emergency Department in February 2018 and an extract from the Barwon Health Emergency Department discharge summary;

(b) a report from a geriatrician regarding the deceased dated 21 December 2017, which concluded that the deceased ‘likely’ had underlying dementia due to Alzheimer’s dementia, but that her cognitive performance may also have been undermined by grief, depression, and stress;

(c) a copy of an interim intervention order made against Cory on 14 November 2017, where Lucinda was the applicant;

(d) Noela’s will; and

(e) title searches showing that the plaintiffs are the registered proprietors of the deceased’s real property in their capacity as the executors of the deceased’s estate.

In her second affidavit sworn 11 September 2024, Lucinda deposed as to receiving copies of the 2014 will and the prior wills from the plaintiffs’ solicitors, and noted that both Noela and Graham Fridey (the alternative primary beneficiary under the 2014 will) predeceased the deceased. She exhibited to her affidavit copies of the 2014 will and the prior wills.

In her first affidavit sworn on 10 September 2024, in support of her application to be substituted as the applicant in this proceeding in place of Lucinda, the applicant deposed, in summary, as follows:

(a) she seeks to be excused from disclosing her residential address in this proceeding because she is fearful of Cory by reason of what she has learned about Cory from Lucinda and other family members;

(b) to the best of her knowledge, the matters deposed to by Lucinda in her affidavits are correct; and

(c) that she was Graham Fridey’s only child, and thus is entitled to the residue of the deceased’s estate under the 2014 will.

The applicant exhibited to her first affidavit a copy of the 2014 will and draft grounds of objection.

In her affidavit sworn on 6 December 2024, the applicant explained how she had changed her surname from ‘Fridey’ to ‘Cardell’, and exhibited a document evidencing same.

Submissions

In their written outline of submissions filed on 7 May 2025, the plaintiffs submitted, in summary, as follows:

(a) the issue before the Court is whether Louise has a prima facie case for revocation of the grant of probate, in circumstances where neither the applicant nor Lucinda, the predecessor applicant, made any objection to the grant of probate;

(b) the Court should not allow the matter to proceed via the usual pre-trial processes until the applicant establishes a prima facie case, as defined by the grounds;

(c) the plaintiffs concede that there is a case for further investigation as to whether the deceased lacked testamentary capacity at the time she executed the 2018 will; and

(d) the applicant has provided rolled up particulars under one heading relating to several grounds.

The plaintiffs’ submissions referred to some of the authorities relevant to determining whether there is a prima facie case for revocation, and went on to submit, in summary, as follows:

(a) the particulars do not make it clear as to which ground the particulars relate;

(b) the grounds include vague and scandalous assertions which are ‘…abusive, unduly prejudicial and irrelevant to the validity of the will’;

(c) it is not clear what Cory is said to have done which bears upon the validity of the 2018 will, as the applicant has failed to articulate what conduct constituted undue influence and/or the existence of suspicious circumstances; and

(d) it is not clear from the grounds whether the allegation that the deceased’s alleged lack of knowledge and approval of the contents of the 2018 will is related to the allegation of lack of capacity, to the alleged undue influence, or is a stand-alone ground of objection. If it is a stand-alone ground it should be struck out, because the particulars do not provide any support for that ground.

While the plaintiffs’ written submissions focussed to a significant extent upon the form of the grounds, in his oral submissions, counsel for the plaintiffs largely focussed upon the substance of the grounds. His primary contention was that the particulars provided by and the evidence relied upon by the applicant did not and could not support the grounds that the deceased did not know and approve of the contents of the 2018 will, and/or made the 2018 will by reason of the undue influence of Cory. He submitted further that, taken together, the particulars and evidence do not support a finding that there are suspicious circumstances warranting further investigation.

In relation to the question of whether the deceased knew and approved of the contents of the 2018 will, counsel for the plaintiffs submitted that there is nothing in the grounds to support a conclusion that she did not know and approve the contents of the 2018 will over and above the allegation of lack of testamentary capacity. Given that the 2018 will was drawn up and witnessed by a solicitor, there is a presumption that the deceased knew of and approved its contents. Further, in relation to the allegation of undue influence, the authorities require that there must be particulars or evidence of the exercise of undue influence, or in other words, actual coercion, not simply particulars or evidence concerning the vulnerability of the testator or the opportunity to exercise undue influence.

Counsel for the plaintiffs submitted that the particulars to the grounds refer to disputes and estrangement between Cory and members of his immediate family, and allegations that Cory made threats and was violent towards his parents, but no allegation was made with respect to Cory’s conduct towards the deceased.

Counsel for the plaintiffs referred to the decision of the Court of Appeal in Montalto v Sala,[4] (‘Montalto’) where the Court upheld a decision to strike out grounds and particulars involving an allegation of undue influence. In that case, the allegations were strikingly similar to the allegations made by the applicant in the current case.
[4](2016) 15 ASTLR 393.

In Montalto,[5] the deceased had been placed in respite care by a caveator objecting to the grant of probate, who was one of her sons, and then removed by another son and taken to an undisclosed location. The deceased then made a new will which disproportionately favoured two of her sons at the expense of the caveator.
[5]Ibid.

However, the Court found that it was insufficient for the caveator to rely upon matters which went only to the opportunity to exert undue influence: rather, conduct which amounted to the actual exertion of undue influence must be pleaded and particularised.

Counsel for the plaintiffs submitted that the applicant has not, in the evidence or the particulars, established that there are suspicious circumstances of sufficient strength to justify the scrutiny of the Court. The trial should proceed solely on the issue of whether the deceased had testamentary capacity at the time she made the 2018 will.

The applicant resisted the plaintiffs’ application for summary judgment, submitting that the grounds do not require amendment, and the plaintiffs do know or should know the case they have to meet at trial. The applicant submitted that, in accordance with the usual practice with respect to applications of the current kind, the applicant’s (uncontested) grounds and evidence should be accepted for the purpose of determining whether there is a prima facie case for investigation, and allowance must be made for the possibility of further evidence emerging during the course of the pre-trial evidence gathering process.

The applicant referred to the plaintiffs’ written outline of submissions (see paragraphs 21 to 22 of these reasons), and observed that the plaintiffs’ criticisms of the grounds appear to go largely to form rather than substance. The applicant submitted as follows:

a)The Plaintiffs do not attack the substance of the Applicant's case (cf the expression of that case in the Grounds of Objections document).
b)The Plaintiffs appear by their submissions to have largely overlooked or ignored the affidavit material relied upon by the Applicant.
c)The Plaintiffs do not submit that their application, if successful, would obviate the need for a trial.
d)The Plaintiffs do not appear to submit that their application, if successful, would meaningfully narrow the scope of the trial.
e)The Plaintiffs do not demonstrate that they cannot know from the current Grounds of Objections and affidavit material the case against them that they will have to meet at trial.
f)The Plaintiffs do not show that they are otherwise prejudiced in preparing for the trial of the proceeding.
g)The Plaintiffs do not profess any doubt as to what (in the terminology of s. 7 of the Civil Procedure Act) is “the real issues in dispute” between the parties.

The applicant observed that the plaintiffs have never sought any clarification regarding the matters about which they now complain. As for the plaintiffs’ complaint that the allegations against Cory are scandalous, the applicant submitted that while the allegations made against Cory are grave, the plaintiffs ‘…fail to identify even a single allegation…which is not genuinely relevant to an investigation by the Court as to whether [the 2018 will] was made by [the deceased] competently and in the free and independent exercise of her testamentary discretion’.

The applicant’s submissions then went on to the refer to the summary by Meek J in Re Tsialamandris[6] of the relevant principles arising from the Court of Appeal’s decision in Gardiner v Hughes (No 2), (‘Gardiner’)[7] and noted that in Gardiner,[8] the Court of Appeal emphasised that the task of the Court is to determine ‘whether the particulars as a whole constituted a narrative warranting further investigation’.[9]
[6][2024] VSC 9 [140].
[7][2019] VSCA 198.
[8]Ibid.
[9]Ibid [82].

The applicant submitted as follows:

The ‘overall narrative’ revealed by the Applicant’s Grounds of Objections and the affidavit material here is both clear and (for the moment at least) uncontested. In broad outline -
a)The Deceased was a very old lady who suffered from Alzheimer’s Disease and related conditions in the final years of her life.
b)The Deceased was aged 94 years when she made the contested will and vulnerable being unable physically and mentally to care for herself.
c)Three months before she made the contested will, the Deceased was assessed by a specialist geriatrician as scoring only 46/100 on the Addenbrooke Cognitive Examination (ACE III) test.
d)The Deceased's ultimate will had the effect of increasing Cory’s entitlements from $2000 under the penultimate will to almost $2.8 million (or more that 99 per cent of the Deceased’s estate).
e)Cory has a history of threats and violence against older members of his family (including in connection with testamentary issues).
f)The Deceased had personally witnessed Cory’s violent temper and was aware of his reputation within the family for violence against older family members.
g)Cory caused the Deceased to be isolated from her family shortly before she made the contested will.
h)If the Plaintiffs are aware of the Deceased having been mentally assessed at the time she made her ultimate will, they have not elected to date to put such material before the Court.

The applicant’s submissions concluded by saying that the allegations demonstrate ‘highly suspicious circumstances’ which should be fully investigated at trial, unimpeded by ‘the highly artificial and impracticable disallowance of some parts of the Applicant’s case’.

At the hearing of the application, counsel for the applicant submitted, in summary, as follows:

(a) none of the evidence relied upon by the applicant has been contested;

(b) the applicant and the Court have not been provided with any information about the circumstances in which the 2018 will was executed, about which the applicant does not and cannot know; and

(c) while the applicant accepts that evidence of a mere opportunity to exert undue influence is not sufficient to support the revocation of a grant of probate, at this stage of the proceeding all that is necessary for the applicant to establish is that there is a prima facie case for investigation.

As for the plaintiffs’ submission that there was nothing in the grounds to support an allegation that Cory was threatening and/or violent towards the deceased, counsel for the applicant submitted that the relevant allegation was that Cory was violent towards his mother, and the deceased was an eyewitness to that conduct. Counsel submitted that the inference might fairly be drawn that an elderly lady isolated from her wider family by a young man known to be violent to others may have her will overborne by his reputation.

Counsel for the applicant sought to distinguish the position in the current case from the facts in Montalto.[10] In that case, there was no reference to the alleged perpetrators of any undue influence having a reputation for violence, or to any particular reason for the testator to be fearful of them. Further, in the current case, there is the additional ground of suspicion arising from the fact that Cory, a mere great-nephew in a large family, is the primary beneficiary of the deceased’s estate under the 2018 will.
[10](2016) 15 ASTLR 393.

Counsel for the applicant submitted that there is no particular benefit or efficiency to be gained from striking out part of the grounds, as there will be a trial on the question of testamentary capacity. There should be a trial where all of the evidence relevant to the question of whether the deceased was competent to make the 2018 will, and whether she made it of her own free will, can be adduced and evaluated.

In his submissions in reply, counsel for the plaintiffs submitted, in summary, as follows:

(a) it is difficult to see what the process of discovery will add to the body of knowledge regarding the allegation of undue influence;

(b) the applicant’s reference to further information being obtained through the discovery process and the issue of subpoenas highlights that the applicant has embarked upon a fishing expedition;

(c) the plaintiffs are not required to file evidence or otherwise join issue in an application of the current kind;

(d) the grounds are an abuse of process, as they contain vague and non-specific allegations of violent conduct, and fail to specify the inference which is to be drawn from the alleged conduct;

(e) the decision of the Court of Appeal in Gardiner,[11] has not overruled or overridden the Court’s decision in Montalto;[12] and

(f) the only purpose of the allegations of violence is to bring Cory into disrepute, but Cory’s character is not on trial, only his conduct. Only proper, relevant and particularised allegations should consume the resources of the Court.

[11][2019] VSCA 198.

[12](2016) 15 ASTLR 393.

Relevant legal principles

In Re Pellettieri,[13] I identified a number of matters relevant to the question of whether an applicant of a grant of probate has established a prima facie case for revocation of probate, as follows (citations omitted):
[13][2025] VSC 20.

(a)the onus for establishing the existence of a prima facie case for investigation rests upon the party raising doubt as to the validity of the will;

(b) however, that onus is relatively easy to discharge;
(c)there may be cases where the evidence adduced in response to an application for revocation makes it clear that there is no case for investigation, but the evaluation of that question may proceed on the basis that additional evidence may arise during the course of pre-trial steps;
(d)the task of the Court is to examine ‘whether the particulars as a whole constituted a narrative warranting further investigation’;
(e)mere ill-health or cognitive decline is not necessarily sufficient to establish a lack of testamentary capacity. One needs to establish that the effect of the testator’s illness, disorder, or disability ‘… so affected his mental faculties as to make them unequal to the task of disposing of his property’;
(f)in Rasheed, Millhouse J referred to the following statement of Isaacs J in Nock v Austin:
(1)In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2)Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, 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.
(4)The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will.

(g)in relation to the question of delay, a long unexplained delay may be a bar to an application for revocation. However, mere delay is not of itself fatal to an application for revocation: it must be established that allowing the application to proceed would constitute an abuse of process.[14]

[14]Ibid [27].

Counsel for the applicant relied upon the decision of the Court of Appeal in Gardiner[15] in support of his contention that the bar for establishing a prima facie case for investigation is relatively low, and that the Court should focus on the overall narrative, not the individual particulars provided in support of the grounds. I agree that the following summary of the principles derived from Gardiner[16] by Meek J in Re Tsialamandris[17] is an accurate summary of the relevant principles:
[15][2019] VSCA 198.
[16]Ibid.
[17][2024] VSC 9.

(1)whilst a prima facie case may be demonstrated by evidence such as affidavit evidence, it may also be established by provision of particulars which is an instance of an alternative approach to establishing a prima facie case;
(2)whilst mere speculation is insufficient, a prima fade case may be established if the facts particularised, assuming them to be true, justify the conclusion that there is a “case for investigation” or “something to go on” or call for “further investigation” as to or regarding the claim, and grounds justifying revocation;
(3)determination of a prima facie case should not necessarily be limited to focus on the contents of the particulars themselves nor foreclose any role for inferences in deciding whether the particulars establish a prima facie case;
(4)the Court is not required to decide whether an inference justifying revocation should be drawn from the facts relied upon or which of two possible inferences is to be preferred (which are matters for trial);
(5)there may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged;
(6)evaluation of a prima facie case is not of itself an exercise of discretion but rather an application of a legal test to alleged facts and although minds may differ as to the correct outcome of that process, in law there is either a prima facie case or there is not;
(7)application of the prima facie case threshold does not require a determination whether or not the particulars, in isolation or taken together, justify an inference giving rise to the ground for revocation (whether it be incapacity as in Gardiner v Hughes (No 2) or otherwise);
(8)the fact that a particular allegation might, depending on the context, either support an inference as to the ground for revocation or not, does not mean that the case does not warrant further investigation based on that allegation, as the very process of investigation will (ultimately) determine whether or not the inference should be drawn;
(9)whilst regard may be had to the particulars individually, it is appropriate to consider whether the particulars as a whole constitute a narrative warranting further investigation; and
(10)the determination of weight to be attached to individual particulars should not be done without regard to the overall narrative.[18]

[18]Ibid [140].

In Re Tsialamandris,[19] Meek J also reproduced a useful summary of the law relating to undue influence, as follows (citations omitted):
[19]Ibid.

(a)The primary element of undue influence is “conduct that overbears the will of the testator so that the will is made without intending or desiring the disposition thereby made”.
(b)Whether influence exercised over a testator is undue, is a “question of the nature and extent of that influence”.
(c)There must be ... “coercion”. Coercion has a wide meaning and “is not confined to conduct involving persuasion of an unwilling person by some kind of threat of force”.
(d)The “degree and nature of pressure which has the effect of invalidating the will making process will vary according to the particular vulnerability and susceptibility of an individual testator”.
(e)Such an effect can be achieved in a variety of circumstances and relationships and can be a product of a chain of events, or a single event.
(f)What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual.[20]

[20]Ibid [101].

In Montalto,[21] the Court of Appeal referred with approval to the following statement of Ipp JA in Trustee for the Salvation Army (NSW) Property Trust v Becker:[22]
[21](2016) 15 ASTLR 393.
[22][2007] NSWCA 136.

Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will. The point was put succinctly in Wingrove v Wingrove by Hannen P:
‘[i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence.’

See also Hall v Hall where Sir J P Wilde described undue influence as the overpowering of the volition without convincing the judgment.
The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she was coerced into making it.[23]

[23]Ibid [63]-[64] (citations omitted).

The relevance of ‘suspicious circumstances’ to the determination of the validity of a will was discussed at some length by the Court of Appeal in Veall v Veall.[24] The discussion commenced as follows:

Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.[25]

[24](2015) 46 VR 123.

[25]Ibid [169]. See also Re Tsialamandris [2024] VSC 9 [97].

The Court then went on to say as follows:

Once suspicious circumstances are established, it is then for the propounder to dispel that suspicion. 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. For instance, where a person who stands to gain a benefit under the will participated in its production and execution, it is said that special vigilance is required.[26]

[26]Ibid [172].

The Court referred to what the learned authors of Williams, Mortimer & Sunnucks on Executors, Administrators and Probate[27] considered might amount to suspicious circumstances, as follows:

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. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside.
The testator’s feebleness of body or mind may be relevant to knowledge and approval.[28]

[27]John Ross Martyn and Nicholas Caddick QC (eds) (Sweet & Maxwell, 20^th ed, 2013).

[28]Ibid 207.

The Court emphasised that in cases where there is an allegation that the testator did not know and approve of the contents on their will, ‘[i]t is the testator’s understanding that is decisive’.[29]
[29]Veall v Veall (2015) 46 VR 123 [179].

As for the distinction between an allegation that the testator did not know and approve of the contents of their will and an allegation of undue influence, the Court summarised the position as follows (citations omitted):

The circumstances sufficient to displace the presumption of knowledge and approval must give rise to a suspicion that the testator either did not know the true contents of the will or did not assent to them. Circumstances that arouse a suspicion only of fraud or undue influence will not displace a presumption of knowledge and approval. But circumstances arousing a suspicion of fraud or undue influence will often also support a well-grounded suspicion about the testator’s knowledge and approval.[30]

[30]Ibid [193].

And further:

…a testator may yet know and approve the contents of his or her will, even though the will does not reflect his or her true intention because its preparation is tainted by coercion or fraud. Approval, in this context, concerns whether the testator has given his assent to the contents of the will, of which he has a full appreciation. Approval does not entail that the testator’s will was not overborne; nor does it entail that his approval was not procured by fraud. Hence a testator cannot be said to have not approved the contents of his or her will where he or she would not have approved its contents in the absence of coercion or fraud.[31]
[31]Ibid [197].

Discussion and disposition

In my view, the grounds, insofar as they allege that the 2018 will was made in suspicious circumstances, was procured by undue influence, or that the deceased did not know and approve of the contents of the 2018 will should be struck out. I would strike out those grounds under r 23.02(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), or alternatively, by exercising the power under r 8.08(b) of the Supreme Court (Administration and Probate) Rules 2023 (Vic) to ‘make any other direction for the conduct of the proceeding which the Court thinks conducive to its effective, complete, prompt and economical determination’. However, I will not grant summary judgment, and will reserve to the applicant liberty to apply to amend the grounds to reinstate some or all of the grounds, provided that any such application is supported by affidavit evidence.

I accept that the applicant (or any other family members that support her allegations in this proceeding) do not know and cannot know the circumstances in which the 2018 will was made, and about the nature and the quality of the relationship between Cory and the deceased. However, the proposition that the deceased must have been fearful of Cory because of his reputation within the family for violence is somewhat undermined by the lack of evidence to the effect that any family member took any steps to inquire after the deceased’s location or well-being in the five years leading up to her death.

Lucinda deposed that she had not been able to contact the deceased or ascertain the deceased’s whereabouts because of the intervention orders and undertakings in place which prevented her from contacting Cory. However, the evidence shows that Cory was the proving executor of Noela’s estate, with Lucinda having leave to apply to be the substitute executor, which she did. Noela’s estate was represented by the solicitors who drew the 2018 will, and it seems that Cory and Lucinda were engaged in litigation between 2018 and 2021, and were presumably represented by solicitors, through whom relevant inquiries could be made. Accordingly, Lucinda’s assertion that she was in no position to find out further information about or contact the deceased should not necessarily be accepted unreservedly.

Further, the relevance of Lucinda’s evidence regarding the threats allegedly made by Cory to her as a consequence of their dispute over the terms of Noela’s will is quite limited in circumstances where Lucinda was not a primary beneficiary under the 2014 will. The deceased herself had chosen to exclude Lucinda as a contingent beneficiary well prior to the making of the alleged threats.

Of course, any reservations concerning the reliability of Lucinda’s evidence and the question of how fearful the deceased may have been or should have been as a consequence of Cory’s behaviour or reputation are not matters that can be resolved in the context of the current application. However, as observed by Meek J in Re Tsialamandris,[32] in Gardiner,[33] the Court of Appeal made the point that ‘it is insufficient to advance…a set of particulars which allege facts which self-evidently are, for example, impossible to have occurred or based on guesses or suspicions without any semblance of some factual basis’.[34]
[32][2024] VSC 9.
[33][2019] VSCA 198.
[34]Re Tsialamandris [2024] VSC 9 [191].

Further, as was the case in the scenario before the Court of Appeal in Montalto,[35] the particulars and evidence relied upon by the applicant go only to the question of the opportunity of Cory to exert undue influence over the deceased and possibly the tendency to engage in coercive conduct, not the actual exertion of undue influence over the deceased. Without any allegation of material fact to the effect that Cory did actually exert undue influence over the deceased, the ‘cause of action’ is incomplete.
[35](2016) 15 ASTLR 393.

I accept the plaintiffs’ submission to the effect that the current case is, for all material purposes, on all fours with the circumstances before the Court of Appeal in Montalto.[36] However, what is more significant to the determination of the current application than the similarities between the facts in Montalto[37] and the facts in the current case, is the application by the Court of the test for undue influence to the particulars provided in that case, as shown by the following section of the Court’s reasons:

The particulars in the fourth section allege nothing more than that (a) the applicant placed the testatrix in residential care in October 2012; (b) some four weeks into her stay in residential care, Tommaso removed her from residential care; (c) thereafter the testatrix was under Tommaso’s ‘care and control’; and (d) the testatrix executed her will when she was being kept substantially isolated from the applicant until her death. If the applicant were to adduce evidence at trial that supported these particulars, his allegation of undue influence would be dismissed. The allegations do not satisfy any test of undue influence such as that set out above. There is no allegation of influence let alone that the influence was undue. There is no allegation that, in making the dispositions under the 2013 Will, the testatrix was coerced or that her will was overborne in circumstances that her judgment was not convinced.
The fact that an allegation of undue influence is a serious allegation does not mean that, in an appropriate case, it should not be made. But, the respondents to any such allegation are entitled to be given notice of how the allegation is to be advanced. Fairness demands no less. Particulars which are consistent only with the opportunity to influence a testator or testatrix are insufficient. Undue influence will not be presumed.[38]

[36]Ibid.

[37]Ibid.

[38]Ibid [31]-[32].

In the current case, the applicant has alleged that (a) the deceased was a vulnerable person; (b) the deceased was aware of Cory’s violent conduct and reputation for violence within the family; (c) Lucinda placed the deceased in respite care; (d) Cory removed the deceased from respite care and took her to alternative accommodation; and (e) the deceased executed the 2018 will shortly thereafter. Accordingly, all that the applicant in this case alleges is that, like in Montalto,[39] there were circumstances which gave rise to the opportunity to exert undue influence, unaccompanied by any particulars of any conduct said to amount to taking advantage of that opportunity. Indeed, in the current case, there is not even an allegation that the deceased was in the custody and control of Cory, or actually resided with him at the time she made the 2018 will. The allegation that Cory exerted undue influence over the deceased is speculative, and lacks any proper factual basis.
[39]Ibid.

Counsel for the applicant submitted that the decision of the Court of Appeal in Montalto[40] needs to be read in the light of the Court’s later decision in Gardiner.[41]
[40]Ibid.
[41][2019] VSCA 198.

I infer from that submission that the applicant contends that, in Montalto,[42] the Court imposed a high bar as to what amounts to a prima facie case requiring further investigation into the validity of the will, and that the effect of the Court’s subsequent decision in Gardiner[43] was to substantially lower that bar.
[42](2016) 15 ASTLR 393.
[43][2019] VSCA 198.

However, I do not see any difficulty in reconciling the decisions and reasons in Montalto[44] and Gardiner.[45] These decisions were concerned with different issues. In Gardiner,[46] the Court was concerned with the approach to be taken to establishing whether there was a prima facie case for investigation. In particular, the Court emphasised the principle that the facts alleged were to be taken to be true, emphasised the importance of looking at the whole narrative rather than the individual particulars in isolation, and cautioned against evaluating the competing inferences arising from the particulars as if at trial. That is, the Court in Gardiner[47] was concerned with the means by which the merits of whether there was a prima facie case for investigation should be evaluated, or whether, in effect, the allegations should be summarily dismissed.
[44](2016) 15 ASTLR 393.
[45][2019] VSCA 198.
[46]Ibid.
[47]Ibid.

The issue before the Court in Montalto[48] on the other hand, was whether the facts alleged, if true, could possibly give rise to a finding that the testator’s will had been executed under undue influence. That is, the issue before the Court was analogous to an issue which might arise in a pleadings summons, where a pleading could be struck out on the basis that the facts alleged could not support a cause of action known to the law. In Montalto,[49] as in the current case, the ground of undue influence was found to be unsustainable, and could not proceed to trial, because no particulars had been provided of conduct by which a party benefiting from the will in question had exerted undue influence over the testator.
[48](2016) 15 ASTLR 393.
[49]Ibid.

Accordingly, the issues raised in Gardiner[50] were akin to those which might arise in a summary judgment application, while the issues in Montalto[51] (and the current case) were those which might arise in a strike out application, with both decisions having regard to the particular features of and principles underpinning the probate jurisdiction. There is nothing in the reasoning in Gardiner[52] which undermines or detracts from the reasoning and outcome in Montalto.[53]
[50][2019] VSCA 198.
[51](2016) 15 ASTLR 393.
[52][2019] VSCA 198.
[53](2016) 15 ASTLR 393.

Counsel for the applicant submitted that a feature of the current case which distinguishes it from the facts described in Montalto[54] are the allegations concerning the violence perpetrated by Cory upon family members, Cory’s reputation within the family for violence, and the deceased having witnessed Cory’s violent conduct.
[54]Ibid.

I agree that these allegations are a distinguishing feature of the current case. However, they do not take the matter any further. All those particulars do is to assert a tendency on the part of Cory to make threats: there is still no allegation to the effect that he made threats to the deceased which caused her to give instructions to her solicitors to draft the 2018 will in a particular way.

Accordingly, the undue influence ground should be struck out.

As for the allegation that the deceased did not know and approve of the contents of the 2018 will, I agree with the submissions of the plaintiffs to the effect that there is nothing in the particulars (save for the question concerning the testamentary capacity of the deceased) which overcomes the presumption of validity when a will has been prepared by a solicitor and duly executed by the deceased.

As for the question of whether there were suspicious circumstances surrounding the making of the 2018 will which give rise to a suspicion that the deceased did not know or approve of the contents of the will, the applicant appears to rely upon two matters:

(a) the removal of the deceased from the care facility and her subsequent isolation from other family members; and

(b) the difference in the testamentary dispositions in the 2018 will, the 2014 will and the prior wills.

One difficulty with the assertion that the removal of the deceased from the care facility in 2018 amounted to suspicious circumstances is that this conduct did not appear to arouse suspicions or particular concerns at the time. Given that Lucinda gave evidence that she spoke with staff members at the care facility, one would expect that she may have been able to give more detailed evidence regarding what occurred at the time, and in particular, whether her departure was at the behest of Cory or was arranged by the deceased herself.

As for the change in the deceased’s testamentary dispositions over time, it is correct to say that the bequest to Cory did amount to a material change to the deceased’s testamentary dispositions from those made in the 2014 will, and from those made in the prior wills. The making of the 2018 will was the first occasion where the major gift in the estate effectively passed down two generations, not one, as had previously been the case. However, this is not a case where the deceased’s testamentary dispositions were so unusual, or so at odds with prior dispositions, or were in such conflict with her moral duty so as to give rise to a case to investigate.

Being childless, and without a spouse or surviving siblings, the deceased owed no moral duty to any person, and there was no obvious object of her bounty. Her freedom of testation was therefore unconfined by any duty recognised by statute or otherwise known to the law. Prior to Noela’s death, Noela had been the deceased’s primary beneficiary, with the bulk of the estate passing to different nieces and nephews if Noela predeceased the deceased. However, while the 2014 will and the prior wills followed a similar pattern, the objects of the deceased’s bounty changed significantly over time.

By way of illustration:

(a) in her 1998 will, the deceased gave three pecuniary legatees $2,000 each, and gave a life interest in the residue to Noela, and upon her death, to her niece Sheree Stevens;[55]
[55]Based upon Sheree’s surname, it seems likely that Sheree was Lucinda’s sister. The 1998 will also included the following statement: ‘[i]t is my wish that the farm property not be sold upon my death and Sheree endeavour to allow it to remain in the family in the future when she has no use for it’.

(b) her 2008 will was in substantially similar terms, at least insofar as the objects of her bounty were concerned;

(c) in her 2011 will, the number of pecuniary legatees increased from three to 10 (including both Lucinda and Cory), with the residue to pass to Noela absolutely, and, if Noela predeceased the deceased, the residue would pass to Lucinda and another niece in equal shares; and

(d) in the 2014 will, the number of pecuniary legatees fell from 10 to six (still including both Lucinda and Cory), with the residue to pass to Noela, and, if Noela predeceased the deceased, the residue would pass to her nephew Graham, and, if Graham predeceased the deceased, then to any surviving child of Graham.

That is, the deceased habitually made substantial alterations to her will, presumably dependent upon which niece or nephew was in favour at the relevant time. This was not an example of a situation where a testator suddenly disinherited a child or spouse, or drastically altered the disposition of their estate as between their children.[56]
[56]Cf Veall v Veall (2015) 46 VR 123; Montalto v Sala (2016) 15 ASTLR 393; Re Demdiuk [2016] VSC 587; Re Tsialamandris [2024] VSC 9; Re Baird [2024] VSC 74.

Accordingly, the change in the deceased’s testamentary dispositions between 2014 and 2018 was not particularly out of character, and was not of a nature as to give rise to any particular suspicion. Further, no allegation is made that Cory had custody and control of the deceased, and the will was drawn by a long established firm of solicitors, who had also drawn up the 2014 will. All that the applicant can point to as being suspicious circumstances are the deceased’s declining health and cognitive capacity, the fact that Cory collected the deceased from respite care, and the allegation that Cory is an unpleasant and disreputable person.

Accordingly, the plaintiffs’ application will be granted, at least in part. However, I do not propose to grant summary judgment in favour of the plaintiffs. As the grounds confine the issues to be dealt with at trial, at this stage it is sufficient to strike out the offending grounds. It may well be that further evidence will emerge during the pre-trial evidence gathering process, including discovery of the solicitors’ files, and medical records (which are also be relevant to the issue of testamentary capacity) which may provide the applicant with a basis to apply to amend to reinstate some or all of the grounds, and she should not be precluded from doing so at this stage.

Accordingly, I will hear from counsel as to the appropriate form of order to give effect to these reasons, and on the question of costs.

SCHEDULE OF PARTIES

S PRB 2023 18563
BETWEEN:
CORY JAMES WATTS	First Plaintiff
PAUL MATTHEW RYAN	Second Plaintiff
- v -
LOUISE NARELLE CARDELL	Applicant

Citations

Re McKenzie: Watts v Cardell [2025] VSC 295

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Re Tsialamandris [2024] VSC 9

Gardiner v Hughes (No 2) [2019] VSCA 198

Re Pellettieri [2025] VSC 20

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28 May 2025