Reginald Alfred Becker v Public Trustee of New South Wales & 2 ors

[2006] NSWSC 743

CITATION:	Reginald Alfred Becker v Public Trustee of New South Wales & 2 ors [2006] NSWSC 743
HEARING DATE(S):	24.02.06, 26.06.06, 27.06.06, 28.06.06, 29.06.06, 30.06.06, 03.07.06, 04.07.06, 05.07.06
JUDGMENT DATE :	25 July 2006
JUDGMENT OF:	Nicholas J
DECISION:	Para 91
CATCHWORDS:	SUCCESSION - Wills, Probate and Administration - whether testatrix approved of the contents of her will - whether suspicious circumstances by reason of alleged fraudulent misrepresentation by principal beneficiary - undue influence
LEGISLATION CITED:	Wills, Probate and Administration Act 1898 s 13(2)(c)
CASES CITED:	Cubillo v Commonwealth of Australia (2000) 174 ALR 97 Estate of Fuld [1968] PD 675 In the Will of Hempel (1959) 60 SR NSW 147 Nock v Austin (1918) 25 CLR 519 Nowell v Palmer (1993) 32 NSWLR 574 Miller v Jones [1999] NSWCA 467 Miller v Miller (2000) 50 NSWLR 81 Re Fenwick (1972) VR 646 Revie v Druitt [2005] NSWSC 902 Tonkiss v Graham [2002] NSWSC 891 Watson v Foxman (1995) 49 NSWLR 315
PARTIES:	Reginald Alfred Becker - plaintiff Public Trustee of New South Wales – first defendant The Royal Flying Doctor Service – second defendant The Salvation Army – third defendant
FILE NUMBER(S):	SC 3332/03
COUNSEL:	L Ellison SC/W J Wilcher - plaintiff Submitting appearance – first defendant C J Bevan/E Young – second and third defendant
SOLICITORS:	Tress Cox- plaintiff Submitting appearance – first defendant Mallesons Stephen Jaques – second and third defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

25 July 2006

3332/03 Reginald Alfred Becker v Public Trustee of New South Wales & 2 ors

JUDGMENT

1 His Honour: These proceedings arise from a dispute over the validity of the will of the late Joyce Pippa Wilson (Miss Wilson) made on 21 February 2002 (the Balmoral will). The plaintiff, Reginald Alfred Becker (Mr Becker) is the executor of Miss Wilson’s estate and had been a friend of hers for about seven years. Under the will, Miss Wilson left her house at No. 28 Wyong Road, Mosman (the house) to Ms Sandra Abel (Ms Abel) who had been a friend for about six years. She left the residue of her estate to be divided equally between Mr Becker, Ms Abel, The Royal Flying Doctor Service, the second defendant, and The Salvation Army, the third defendant. For convenience I refer to these defendants as “the charities”.

2 The plaintiff’s application for grant of probate of the Balmoral will in solemn form is opposed by the charities on grounds (1) that at the time it was signed and attested, Miss Wilson had not approved of its contents, and (2) that it was executed under undue influence. The defendants accept that at the relevant time Miss Wilson knew of its contents and was of testamentary capacity. It was common ground that her delusion that her father was still alive did not impair her testamentary capacity.

3 The Public Trustee of New South Wales, the first defendant, (the Public Trustee) is the executor and trustee of Miss Wilson’s estate under her next previous will made on 23 January 2002 (the January will). Under this will the whole estate was given to the charities. They cross-claim for an order for the grant of probate in solemn form of the January will. If there is no grant of probate of the Balmoral will there is no challenge to the grant of probate of the January will.

4 Miss Wilson, a spinster, died on 30 March 2002 aged 80 years. She was an only child, and had no living relatives except for a cousin who lived in the United Kingdom. Her estate consisted of the house, furniture, and money in banks or financial institutions. The total value of the estate was then estimated at $1,332,461.25, which included the house then valued at $1,200,000.00.

Background

5 In about 1995 Mr Becker, a retired schoolteacher, and his wife became associated with Miss Wilson through the Baptist Church, Mosman of which they were parishioners. Miss Wilson was living alone at the house, and in poor health. Until the time of her admission to Royal North Shore Hospital in about July 2000 Mr Becker assisted her frequently with her banking and shopping and, as did other church members, visited her at home from time to time. On occasions he assisted in the garden and about the house.

6 In December 1995 Ms Abel, then aged 47 years, with two sons and a daughter, came to live in a rented flat at Cremorne. She joined the Baptist Church, Mosman and became a volunteer frail age group person, and in early 1996 became acquainted with Miss Wilson at the Church. In about mid-2000, following Mr Becker’s encouragement to the congregation to do so, she visited Miss Wilson at the house. Thereafter developed their relationship to which further reference will be made later in these reasons.

7 During July 2000 Miss Wilson was transferred from Royal North Shore Hospital to Greenwich Hospital. On 31 July 2000 she gave the Public Trustee her general power of attorney. On the same day she made a will by which the Public Trustee was appointed executor and trustee, and her whole estate was given to the charities. (The January will was in identical terms).

8 On 16 October 2000 Miss Wilson was admitted to the Harley Nursing Home, Cremorne (Harley) and remained there until she died. She continued under the care of her general practitioner, Dr Clifford Hing. The conditions from which she suffered included asthma, ischaemic heart disease, congestive cardiac failure, diabetes, vascular disease and recurrent painful leg ulcers, and back pain. Her mobility was limited and she required a wheelchair.

9 Thereafter, until she died, Miss Wilson had numerous regular visitors who included Mr Becker. Ms Abel visited about twice a week and on many occasions took her for outings, usually to Balmoral for meals at the Bathers’ Pavilion. An example was in September 2001 when Ms Abel arranged a birthday party breakfast for Miss Wilson at the Watermark Restaurant, Balmoral, at which Mr and Mrs Becker and Mr and Mrs Pat Mawson attended. Another example was on 25 December 2001 when Miss Wilson joined Ms Abel and her family at their Christmas party at Northmead, which lasted for several hours.

10 In early January 2001 Miss Wilson consented to Ms Abel and her children, Christian and Hannah, moving into the house. On 8 February 2001 she advised the Public Trustee of this. In mid-February 2001 Ms Abel and the children moved in. It appears that the arrangement was that she would pay no rent, but would pay outgoings such as council and water rates. Since then she has made, and continues to make, such payments and has lived continuously in the house on this basis.

11 On 21 January 2002 Ms Abel visited Miss Wilson at Harley. Whilst she was present Miss Wilson wrote and signed a document which was witnessed by a nurse. It expressed her intention to leave the house to Ms Abel after her death. Its terms are set out in para 30 below.

12 On 22 January 2002 the director of nursing at Harley, Miss Lea Cousins, learnt that Miss Wilson had signed the document, and telephoned the Chatswood office of the Public Trustee to express her concern.

13 On 23 January 2002 Mr Stephen Gaal and Miss Lisa Jones, officers of the Public Trustee, visited Miss Wilson at Harley. There was a conversation during which Miss Wilson was reminded of her will made 31 July 2000 in which she left her estate to the charities. She was asked whether she wished to give the house to Ms Abel instead, and options for providing for Ms Abel to stay in the house were discussed. In due course she executed the document which is the January will. It had been prepared in the Public Trustee’s office prior to the visit.

14 On 21 February 2002 Miss Wilson executed the Balmoral will. The events of that day are dealt with in detail later in these reasons. In summary, Ms Abel collected Miss Wilson from Harley and took her to the Bathers’ Pavilion. Whilst they were on the Esplanade Miss Wilson asked for the home will kit which Ms Abel had given her to read the week before. The kit containing a will form was given to Miss Wilson who proceeded to complete the form whilst sitting in her wheelchair. It was decided that the signing of the will by Miss Wilson should be witnessed by Mrs Prue Reid, a friend of Ms Abel and a person known to Miss Wilson. By arrangement, about an hour later Mrs Reid and her housekeeper, Mrs Nura Sunjic, witnessed Miss Wilson sign the will outside Mrs Reid’s house in Hale Street, Mosman. Ms Abel then returned Miss Wilson to Harley. Miss Wilson gave the will to Ms Abel and requested her to give it to Mr Becker.

15 The clinical notes of Harley for that day record the following:

“In good spirits this morning. Out with Sandra to Balmoral for lunch. Returned to unit at 1500 hours very fatigued and breathless, lips cyanotic. Nebuliser and paracetamol given as chartered. Friend returned to unit at 2000 hours to drop off parking authority card. Stayed till 2045 hours”.


The “friend” referred to was Ms Abel.

In her diary for that day Miss Wilson recorded that, after her return to Harley, Miss Lucinda Warren, a long time friend, came to see her and gave her some stamps and a magazine.

16 On 27 February 2002 Miss Wilson attended a breakfast party at the Watermark Restaurant, to celebrate Mr Becker’s birthday. Also present were Mrs Becker, Ms Abel, and Mrs Mawson.

17 On 6 March 2002 Mr Gaal and Miss Jones visited Miss Wilson at Harley. They informed her that, following an inspection, the building inspector reported that the house was in very bad condition. Miss Wilson accepted their advice that it was too dangerous to allow Ms Abel to continue living there. She authorised the Public Trustee to seek vacant possession with a view to selling the house as soon as possible.

18 By letter dated 15 March 2002 the Public Trustee’s solicitor, Mr David Webb, wrote to Ms Abel advising that it was necessary to sell the house and requesting Ms Abel to vacate. However, the matter was not pursued, and Ms Abel has remained there.

19 On 30 March 2002 Miss Wilson died in her sleep of heart failure.

Ms Abel as a witness

20 Ms Abel was the only person present when the Balmoral will was made. The ability of the court to make findings as to the circumstances in which Miss Wilson made the will depends to a large extent on whether Ms Abel’s evidence of these matters should be accepted. Because she is the principal beneficiary it is appropriate to evaluate her evidence with caution and vigilance. This I have done.

21 For the charities it was submitted that Ms Abel was not a credible witness, and her evidence should be found to be generally unreliable. It was put that where objective evidence as to the circumstances of the making of the Balmoral will contradicted hers it should be preferred, and that where evidence of other witnesses was in conflict with hers it, too, should be preferred.

22 I observed Ms Abel’s demeanour in the witness box, and have given close consideration to her affidavit and oral evidence with regard to the other evidence in the proceedings. I found her to have been an honest, straightforward and candid witness whose evidence should be generally accepted. In particular, I accept her account of her relationship with Miss Wilson, and as to the circumstances of the making of the Balmoral will to which she adhered during the course of extensive cross-examination. Indeed, there was ample corroboration for her evidence as to the close relationship which existed between her and Miss Wilson from Mr Becker, Mrs Mawson, and Mrs Reid, as well as from the records in the clinical notes and in Miss Wilson’s diary of visits and outings. It was neither challenged nor contradicted. With regard to her cross-examination about the Balmoral will, the general impression I gained was that once an answer was given the quite proper forensic decision was made not to pursue the question further. I am satisfied that her account of the making of the will was consistent with the probabilities.

23 To the extent that her evidence was in conflict with others, it is unnecessary to analyse each of the occasions relied upon by the charities, or to express a view as to which account is probably correct. In my opinion, the competing evidence on each occasion (to the extent there was any substantial difference at all) related to entirely peripheral incidents. For example, whether or not on 23 January 2001 Ms Abel told Mr Booth in the car park at Harley that she would not move into the house; whether or not on 9 February 2001 she had a telephone conversation with Mr Booth on the subject of moving into the house; whether or not on 23 January 2002 Miss Cousins told her that Miss Wilson was with the doctor; whether or not on about 8 March 2001 she had an appointment with Dr Hing during which he gave her a note setting conditions for visits by Miss Wilson to the house or whether she received it from the nursing staff. (From the terms of questions put in cross-examination (T p 137, l 35) it appears that Ms Abel’s version was accepted). Even if I came to the view that one or more of the other versions should be preferred to hers, it would not undermine my firm view that her evidence overall was truthfully given and reliable. Furthermore, it is well settled that a trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. (A recent discussion of the cases is in Cubillo v Commonwealth of Australia (2000) 174 ALR 97 paras 118-123).

Miss Wilson’s relationship with Ms Abel

24 The evidence of the nature and extent of the relationship between Miss Wilson and Ms Abel was not contested. It may be summarised as follows.

25 In early 1996 Miss Wilson and Ms Abel met as parishioners of the Baptist Church, Mosman. In about mid-2000 Miss Wilson became unwell, and members of the congregation were encouraged to visit her at the house. Ms Abel did so. On her second visit she became so concerned that Miss Wilson was living alone and in poor health that she arranged for her to be taken by ambulance and admitted to Royal North Shore Hospital. She visited Miss Wilson there several times a week. Some weeks later Miss Wilson was transferred to Greenwich Hospital and, on 16 October 2002, to Harley. Thereafter, until she died, Ms Abel regularly visited her at Harley, took her for outings, usually including meals, and paid the associated expenses.

26 In about December 2000 Ms Abel told Miss Wilson that she and her two children were required to vacate the flat she was renting. A short time later Miss Wilson invited her and the children to move to the house. Mr Becker confirmed with Miss Wilson that she wanted this to happen, and he informed the Public Trustee accordingly.

27 Ms Abel’s offer to pay rent was declined, and the term of her occupancy was not discussed. Ms Abel’s suggestion that, instead of rent, she pay outgoings such as council and water rates, take Miss Wilson out for meals, and buy her what she needed was accepted. This arrangement continued thereafter and is described in detail in Ms Abel’s letter to the Public Trustee of 14 March 2002 (T p 147). Its terms are set out in para 60 below. Miss Wilson gave Ms Abel to understand that the Public Trustee’s view was that the question of rent was a matter for them to decide, and it did not wish to be involved.

28 During 2001 Ms Abel would take Miss Wilson out for several hours at a time, usually on Sundays for a late breakfast at The Bathers’ Pavilion, after which she would push her along the promenade in a wheelchair. People they met included Mrs Reid, a friend of Ms Abel, who, in turn, developed a friendship with Miss Wilson. Occasionally they went together to services at the Baptist Church. In September 2001, for Miss Wilson’s birthday, Ms Abel arranged a party at the Watermark Restaurant, which was attended by Mr and Mrs Becker and Mr and Mrs Mawson. On Christmas Day 2001 Miss Wilson was the guest of Ms Abel and her family for several hours. The evidence shows that all these were happy and pleasurable occasions for Miss Wilson.

29 It was Ms Abel’s evidence, which I accept, that on many of the outings Miss Wilson told her that she worried about what would happen to Ms Abel when she died, and that she wanted her to stay in the house after her death. Ms Abel would reply to the effect that she could look after herself, and having rented before could rent again. Miss Wilson would reply that renting was too expensive.

30 On 21 January 2002 whilst visiting Miss Wilson, Ms Abel gave her a writing pad which she had purchased at her request. Towards the end of the visit Miss Wilson said she wanted to write a letter to say that she could have her house when she died. She then proceeded to write the following:

“To whom it may concern
In the advent of Joyce Pippa Wilson dying, the house at 28 Wyong Rd, Mosman is be (sic) given to Mrs Sandra Abel birthdate 2/12/48.
Yours faithfully JP Wilson (Miss)
Witness Roma Corkanas
Signed and witnessed this 21st day of January 2002”

(The words below Miss Wilson’s signature are in Ms Abel’s handwriting.)

31 Ms Abel denied any role in formulating the document, or that she had influenced Miss Wilson. The suggestion in cross-examination that her account was untrue was rejected, and this issue was not further pursued. Ms Abel doubted the legal efficacy of the document. She did not think it was a will, but a document which expressed Miss Wilson’s intention.

32 For a period from late January 2002 Miss Wilson was not well enough to go out, and Ms Abel continued to visit her at Harley. In mid-February 2002 her outings with Ms Abel resumed for periods limited to about two hours. On these occasions Miss Wilson stated her concern that after she died Ms Abel and the children would have nowhere to live, and stated her wish that Ms Abel should have the house.

33 During the last weeks before Miss Wilson died, Ms Abel continued to visit her at Harley, and to sit with her.

34 The evidence clearly establishes that during the period of over 18 months before she died, there developed a close and affectionate relationship between Miss Wilson and Ms Abel. I find that during this period Ms Abel played a significant supportive role in Miss Wilson’s life which, as she had no family, was one of special importance to her and from which she derived much comfort and pleasure.

The issue of approval

35 Mr Becker, as executor, claims that at the time she executed the Balmoral will Miss Wilson knew and approved of its contents. The charities accept that she read, and thereby knew of, its contents.

36 It is for Mr Becker to show that Miss Wilson knew and approved of the contents of this will at the time she executed it (Re Fenwick (1972) VR 646, pp 652-653). Given the concession as to knowledge, it is necessary for him to establish her approval. He therefore undertakes to prove that Miss Wilson, having read the document, understood its contents to be her will which set out her real intention as to the disposition of her estate (eg Nock v Austin (1918) 25 CLR 519, p 528; In the Will of Hempel (1959) 60 SR NSW 147, p 150). In short, it is for Mr Becker to show that at the time she and the attesting witnesses signed the will, Miss Wilson understood that it contained what she wanted to be done with her estate.

37 The issue attracts the application of well settled principles summarised in Nock (p 528) and in Re Fenwick (pp 651-653) which, relevantly, are:

(i) the due execution of a will raises a presumption that the testator knew and approved of its contents;
(ii) where it is established that a will has been read by or to a testator, the presumption that the testator knew and approved of the contents of the will is a very strong one and can be rebutted only by the clearest evidence;
(iii) where there are circumstances which excite suspicion that the provisions of the will may not have been fully known and approved by the testator the onus is on the proponent to establish by proper evidence that they were so known and approved.

38 In Miller v Miller (2000) 50 NSWLR 81 Young, J (as his Honour then was) considered the principles in a case which attracted the application of s 13(2)(c) of the Wills, Probate and Administration Act 1898 (the Act) which allows the court to nullify the effect of the interested witness rule vitiating a gift if the witness proves (a) that the witness’ entitlement was known to and approved by the testator (without the aid of any evidentiary presumption); and (b) that the provision was not included in the will by any undue influence. His Honour adopted the approach that in cases which engendered suspicion where the beneficiary had witnessed the will it was necessary for the court to be vigilant and jealous in its scrutiny of the evidence, but should be sensible in doing so. He said (para 25):

“ … One starts with suspicion. That suspicion may be deep or surface, depending on the circumstances. The onus is on the claimant to establish by proper evidence that the testator did indeed know that he or she was making a gift to the witness and that the gift was a free and voluntary one.”

39 In a similar case, Tonkiss v Graham [2002] NSWSC 891 Campbell, J explained (para 104):

“ What Young J (in Miller ) is saying is that the fact that a will has been witnessed by a beneficiary, or a beneficiary’s spouse, is in itself a suspicious circumstance, though one which excites only a low degree of suspicion. Thus, before the “knowledge and approval” limb of section 13(2)(c) can be satisfied, that suspicion must be allayed. There will be, in practice, a significant overlap between evidence which proves that a testator knew and approved a particular gift to an interested witness, or the spouse of the interested witness, and the evidence which proves that that gift was made freely and voluntarily. In practice, the way of allaying suspicion about whether the testator knew and approved of the contents of a will, is to place before the Court the full story of giving instructions for the Will, and execution of the Will.”

40 In the present case, of course, Ms Abel was not an attesting witness and therefore the provisions of s 13 of the Act do not apply. However, because she was the only person who was present and observed Miss Wilson complete the will prior to its execution and was the principal beneficiary, it is appropriate that there be a vigilant examination of the whole of the evidence of the circumstances of its execution. The following passage from the judgment of Scarman, J in Estate of Fuld [1968] PD 675 is apt (p 719):

“Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguards in will cases. The first type of safeguard is part of the substantive law – the requirements … are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences – presumptions as they are sometimes called – to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and ‘he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.’ “

41 Furthermore, Scarman, J (pp 697-699) explained that the rule of knowledge and approval is evidential and is concerned with the approach required of the court to the evidence submitted for its consideration. He said (p 698) that it is a rule:

“… which in certain cases requires of the court vigilant care and circumspection in investigating the facts of a case. It is a rule which calls upon the court not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased”.

and (p 699):

“… The English Court is being asked to grant probate in solemn form. Upon it falls the responsibility of deciding whether the instruments propounded express the real intentions of the testator…”

The events of 21 February 2002

42 The circumstances of the making of the Balmoral will on 21 February 2002 should be considered with regard to the document of 21 January 2002 and the January will.

43 Ms Abel’s evidence described how the document of 21 January 2002, the terms of which are set out in para 30 above, was made. Towards the end of a visit that day Miss Wilson said to Ms Abel that she wanted to write a letter to say that she could have her house when she died. Ms Abel was present whilst Miss Wilson wrote and then read to her the contents of the document, and arranged for the nurse, Miss Roma Corkanas to witness her signature. Afterwards, Miss Wilson gave it to Ms Abel. I find that it reflected Miss Wilson’s intention at the time. It was not argued otherwise.

44 On 23 January 2002 Mr Gaal and Miss Jones, officers of the Public Trustee, visited Miss Wilson at Harley to obtain her instructions for a will. There was a conversation during which the effect of the document of 21 January 2002 was discussed, and Miss Wilson was asked whether she wished to leave the house to Ms Abel or her estate to the charities as she had under her will of 31 July 2000. Options for providing for Ms Abel to stay in the house after she died were discussed. Miss Wilson was satisfied with the suggestion that Ms Abel would be able to continue to live there until it was sold which might happen three or four months after she died. In due course she executed the document which is the January will.

45 On occasions of visits and outings between late January and 21 February 2002, Miss Wilson asked Ms Abel how she could give effect to her wish that Ms Abel should have the house. This prompted Ms Abel to buy the home will kit (Ex E) which she gave to Miss Wilson, who read and returned it without discussion.

46 On 21 February 2002 the clinical notes record that Miss Wilson was “… in good spirits this morning. Out with Sandra to Balmoral for lunch”. After lunch at the Bathers’ Pavilion they went on to the Esplanade. Miss Wilson sat in her wheelchair and Ms Abel on a bench nearby. Miss Wilson asked Ms Abel if she had the will kit, and was given it. Miss Wilson browsed through it, asked for, and was given, a pen. She was seen by Ms Abel to write on the will form which was attached to the will kit. As she proceeded to complete it she read it to Ms Abel.

47 When Miss Wilson came to cl 2, which provides for the appointment of an executor, she asked Ms Abel whether Mr Becker would accept being executor, and said that the Public Trustee charges a percentage to be one but Mr Becker would not. Ms Abel said that she thought he would agree, whereupon Miss Wilson wrote his name, date of birth, and address in the space provided.

48 Miss Wilson, whilst writing, read out cl 4 which gives the house to Ms Abel. She may have asked Ms Abel for her date of birth.

49 When she came to cl 5 the following conversation took place:

Miss Wilson: “Who should I give the residue to?”

Ms Abel: “Please Joyce don’t ask me questions about what to write on your will. You write what you want.”

Miss Wilson: “I am going to give the residue to Reg Becker, Sandra Abel, the Flying Doctors and the Salvation Army equally”.

Ms Abel: “Oh Joyce, I am embarrassed that you are giving so much to me”.

Miss Wilson: “This is what I want”.

At some time Ms Abel asked Miss Wilson about her cousin to which she responded: “No”.

50 From the document itself it may be seen that Miss Wilson made a number of corrections to what she had written.

51 After she finished writing Miss Wilson read to Ms Abel from the will the instructions as to signing in the presence of two witnesses. Then followed a discussion about witnessing the will. Miss Wilson suggested they visit Mrs Reid on the way back to Harley for this purpose. She was not at home when they first called. It was then about 2pm, the time for Miss Wilson’s return to Harley. Miss Wilson stated her wish to wait for Mrs Reid. They then left Mrs Reid’s house, had coffee nearby, and returned shortly before 3pm. There they met Mrs Reid and Mrs Sunjic.

52 Mrs Reid and Mrs Sunjic, whose evidence I accept, each said that she agreed to witness Miss Wilson sign the will. They watched her sign it while she sat in the passenger seat of Ms Abel’s car, and then each signed and wrote her name and address in the space provided. They described Miss Wilson’s health and condition as normal, and observed nothing unusual about her. Their evidence was consistent with Ms Abel’s account.

53 Ms Abel then drove Miss Wilson back to Harley. Miss Wilson handed the will to Ms Abel and asked her to give it to Mr Becker. Ms Abel’s unchallenged evidence was that she told Miss Wilson that if she wanted to change the will she should inform the nursing staff who would contact the Public Trustee.

54 On arrival at Harley at about 3pm Ms Abel observed that Miss Wilson was breathless, not confused, and well and happy. It was recorded in the clinical notes that Miss Wilson was very fatigued and breathless, and her lips were cyanotic. She was given a nebuliser and paracetamol as chartered.

55 In her diary Miss Wilson recorded that after she returned from Balmoral Miss Warren came to see her, and gave her some stamps and a magazine. Miss Warren gave evidence of visiting Miss Wilson on several occasions in the early evening, and accepted the likelihood that her last visit was on this day. She did not suggest that she noticed anything unusual about Miss Wilson’s health.

56 At about 8pm Ms Abel returned to Harley to deliver a parking authority. She sat with Miss Wilson for about 45 minutes. She expressed no concern about Miss Wilson’s condition.

Subsequent events

57 On 27 February 2002 a breakfast party was held at the Watermark Restaurant to celebrate Mr Becker’s birthday. Ms Abel arranged it at Miss Wilson’s request. Miss Wilson was well able to participate in the event. There was no evidence that the will was discussed.

58 On 6 March 2002 Mr Gaal and Miss Jones visited Miss Wilson at Harley, and informed her that the house was virtually uninhabitable. Their evidence was that Miss Wilson agreed with their strong advice that the house was too dangerous to allow Ms Abel to continue to live there, and that it should be sold. She instructed them to seek vacant possession with a view to sale as soon as possible.

59 By letter of 15 March 2002 the Public Trustee’s solicitor wrote to Ms Abel stating that it was necessary to sell the house, and requesting her to vacate. He also stated:

“Mrs [sic] Wilson is now very frail and does not wish you to contact her in respect of the house”.

However, Mr Gaal in cross-examination acknowledged that these words were written without instructions and should not have been in the letter (T p 293). He said he knew that Miss Wilson appreciated the contacts she had with Ms Abel.

60 Shortly after receiving the letter Ms Abel told Miss Wilson that she had been asked to vacate the house. Miss Wilson replied that she did not wish to sell it. The matter was not discussed again although Ms Abel visited her a number of times before she died. In response to the Public Trustee’s request to vacate, Ms Abel wrote it a letter dated 14 March 2002 in the following terms:

“Please find enclosed postal order for $612.64, being payment for land and water rates for the above address. Can you please send me a receipt.
As Ms Wilson has told me that you believe the above address is not fit to be habited, I want to inform you that:
* all broken glass has been removed, and replaced,
* all electrical extension cords have been removed, and a power socket installed,
* the bath has been relined,
* and garden refuse has been removed, so that the back garden now has access.
There is still no hot water in the kitchen, but that of course is not a danger. When I was a child my new house did not have hot water in the kitchen.
Mosman council now believes that his (sic) house is safe to be habited. I am happy for you to reinspect the premises. I have contents insurance that includes public liability cover.
I wish to inform you that my 17 years (sic) old son, my 14 years (sic) old daughter (both students) and I are the only people residing in Ms Wilson’s house. You seem to be under the misapprehension that because my daughter visited me the day of the inspection that she and her child also reside in the house. Ms Wilson has visited my daughter’s home where she lives with her partner and two children.
I would also like to inform you that I believe that I do indeed pay rent for the house. Averaging the money that I spend, I pay:
* $28 a week for rates
* $14 a week for Ms Wilson’s clothes. I have purchased orthopaedic shoes ($200), a short woollen coat ($150), panties, singlets, petticoats, brassieres and dresses.
* $50 lunch at Balmoral every week (Ms Wilson wants to lunch at the Bathers Pavilion).
* I earn $50 an hour. (I am able to work from home, as I am a writer). I spend 4-6 hours a week with Ms Wilson.
So without costing my time, I spend $92 a week. Costing my time, I spend $292 to $392 a week. I am sure that you agree that this money could not be earned by renting the house to someone else, because of the condition of the house, and because Ms Wilson does not want a stranger in her home.
I have spent this time and money in an endeavour to repay Ms Wilson for permitting me to stay in her house. Our outings to Balmoral are the highlights of her life”.

61 On an occasion about a month before Miss Wilson died Mrs Mawson visited her at Harley. Mrs Mawson gave evidence, which I accept, that Miss Wilson was crying and the following conversation took place:

Mrs Mawson: “What’s wrong? Why are you crying?”

Miss Wilson: “Sandra forced me to sign a will leaving her my home. I didn’t want to do it. I wanted to leave the will as it was.”

Mrs Mawson: “What do you mean? What did she do?”

Miss Wilson: “Sandra cried and told me that she and her children would be on the street if I didn’t leave the house to her. What can I do?”

62 On 30 March 2002 Mr Becker and Ms Abel visited Mrs Mawson to discuss arrangements for Miss Wilson’s funeral. Mrs Mawson’s evidence, which I accept, was that she had the following conversation with Ms Abel:

Mrs Mawson: “Why did you do it Sandra? Why did you make Joyce change her will?”

Ms Abel: “Don’t be stupid”.

Mrs Mawson: “I found her crying and she said: ‘Sandra’s taking my house and I don’t know what to do about it.’ “

The issues considered

63 For the charities it was submitted that the presumption of approval arising from the due execution of the Balmoral will had been rebutted, and Mr Becker had failed to prove that it contained what Miss Wilson wanted to be done with her estate.

64 It was submitted that want of approval should be inferred from surrounding circumstances, principally the following:

(i) that the will was made in haste over a period of only 17 minutes;

(ii) that it was executed about one hour after completion;

(iii) that it was made during a 10 day period which commenced on 14 February 2002 in which Miss Wilson suffered the worst concurrence of episodes of hypoxia, cyanosis and dyspnoea of the last three months of her life;
(iv) the absence of evidence of any change in circumstances between 23 January 2002 and 21 February 2002 which explains the revival, in effect, of the testamentary intention expressed in the document of 21 January 2002 which had been revoked by the January will;
(v) that it was made with the assistance of the principal beneficiary; and
(vi) that at the time she made the will Miss Wilson was labouring under the misapprehension that Ms Abel would be homeless if she did not give the house to her. It was put that this misapprehension was the product of fraudulent misrepresentations made by Ms Abel to Miss Wilson on occasions during the preceding 12 months the effect of which was to constrain her to give the house to Ms Abel against her wishes to leave her estate to the charities.

65 In my opinion there is ample evidence, beyond any need to rely on the presumption, which establishes that Miss Wilson approved of the contents of the Balmoral will and dispels any reasonable suspicion which might arise out of Ms Abel’s relationship with her.

66 The core question is whether at the time the Balmoral will was made Miss Wilson approved its contents. Appropriate guidance is given by what the court said in In the Will of Hempel (pp 149, 150) which, too, was a case concerned with a will which consisted of a printed will form containing handwriting:

“The question is not merely whether the portion of the will in dispute came to the attention of the testator, but whether that came about in such a way that he must be assumed to have confirmed it by his subsequent signature as being his will. It is not a matter of whether the testator read the will so much as of how he read it. If a testator reads a will prepared on his instructions by a solicitor who has his confidence, he reads in contemplation of approval of the whole and by signing it, unless it is proved that he signed it unread, he must be taken to have endorsed it as being in conformity with his testamentary intentions. If, however, he buys a printed sheet, containing alternative forms of will and samples of special dispositions, he reads quite differently. He must choose what he wants of it and reject the rest. No doubt the most appropriate method of indicating what he intends to be his will is to fill in and sign only the appropriate part; … But to some extent also his choice may be indicated by the filling in of blanks”.

67 In this case Miss Wilson read the will as she proceeded to complete it. I find that the very structure and contents, including corrections, of the document itself demonstrates she understood what was required to make a will, and was able to make the choices necessary for its proper completion. Acceptance that Miss Wilson had testamentary capacity supports the likelihood that she understood and approved of what she was doing. The structure of the will is rational, simple, and not difficult to follow, and it is understandable that, given her relationship with them, she would wish to benefit Mr Becker and Ms Abel, as well as the charities.

68 The fact that Miss Wilson raised with Ms Abel matters concerning Mr Becker, the gift of the house, and the disposal of the residue in the course of writing the will is, in my opinion, further persuasive evidence of approval.

69 The fact that Miss Wilson completed the will in 17 minutes is not in my opinion, having regard to all the circumstances, indicative of a lack of understanding and approval of what she was doing. Nor was it shown that the assistance provided by Ms Abel (to the extent that any was) diminished her understanding and approval.

70 The submission that Mr Becker had not established that Miss Wilson had approved the will at the actual time of signature and attestation is without substance. There is no rational basis for finding that her approval at the time she finished writing did not endure until the time she signed it in the presence of Mrs Reid and Mrs Sunjic. In any event, and as a matter of common sense, the evidence that she insisted on having the will signed before she returned to Harley, and of her request that it be given to Mr Becker provides additional support for the finding that at this time it was signed with her approval.

71 The charities correctly submitted that a relevant factor was Miss Wilson’s state of health and the evidence about it should be evaluated with care. With regard to Dr Hing, it appears from the clinical notes that he did not visit Miss Wilson between 12 February and 26 February 2006 from which I infer that she did not need his assistance during that time. There was no evidence that at the relevant time Miss Wilson was in a state of confusion or distress by reason of hypoxia or otherwise. Dr David Bell, a neuropsychiatrist, made it clear that hypoxia came from exertion, was transient, and would dissipate during a period of rest such as when sitting in a chair. Its extent and effect varied with the circumstances. It was consistent with his evidence that after the exertion associated with returning to Harley on 21 February 2002 after an outing of several hours, and then getting out of the car and into a wheelchair, Miss Wilson would be breathless and fatigued as recorded in the clinical notes for this day. Furthermore, there was no evidence which showed that her mental faculties were impaired on outings without an oxygenator.

72 In evaluating Miss Wilson’s condition I took into account that the clinical notes also recorded that prior to the outing she was in good spirits. There was no evidence of deterioration during the outing. I also gave weight to the observations of those who were with her on the day, namely Ms Abel and the attesting witnesses who said her condition was normal. I am satisfied the evidence as to the circumstances referred to in the submission does not provide a basis for doubt that Miss Wilson was well able to, and did in fact, approve her will at the time of its execution.

73 It was also submitted that account should be taken of the lack of explanation for the change of testamentary intention in the January will to that expressed in the Balmoral will. In my opinion the probable, plausible explanation should be inferred from the evidence of the nature of the relationship she enjoyed with Mr Becker and Ms Abel. I find that they played an important, supportive role in her life, equivalent to family. The change to her will involved the inclusion of two close friends as beneficiaries and variation of the earlier disposition to the charities. My conclusion is that by the time she came to make the Balmoral will she had decided, probably for reasons of affection, gratitude, or to discharge what she saw to be their moral claims upon her bounty, to provide for Mr Becker and Ms Abel as she did.

74 Finally, the charities submitted that an important circumstance which demonstrated want of approval was that Miss Wilson had been constrained to give the house to Ms Abel against her wishes. As I understood the submission it was that Ms Abel, on a number of occasions during the 12 months prior to making the Balmoral will, had fraudulently misrepresented to Miss Wilson that she would be homeless and impecunious if not given the house. It was put that the cumulative effect of this conduct caused Miss Wilson to labour under the misapprehension that Ms Abel would be homeless and impecunious after her death whereby her volition was overborne and the will did not express her true wish which was that the charities be given her estate.

75 It was argued that there was direct evidence which established that the gift to Ms Abel was the product of mental coercion. This was Mrs Mawson’s evidence of her conversation with Miss Wilson about a month before she died (para 61). It is convenient to repeat it:

Mrs Mawson: “What’s wrong? Why are you crying?”

Miss Wilson: “Sandra forced me to sign a will leaving her my home. I didn’t want to do it. I wanted to leave the will as it was.”

Mrs Mawson: “What do you mean? What did she do?”

Miss Wilson: “Sandra cried and told me that she and her children would be on the street if I didn’t leave the house to her. What can I do?”

It was submitted that the court should find that Miss Wilson told Mrs Mawson, in substance, that because of the representation made to her by Ms Abel she was morally obliged to make the will, and her words were admissible to prove that the representation was, in fact, made. (cf Nowell v Palmer (1993) 32 NSWLR 574, pp 578G-579E).

76 The evidence relied upon in support of the contention that Ms Abel made the fraudulent misrepresentation on a number of occasions prior to 21 February 2002 is the following:

(i) The words spoken by Miss Wilson to Mr Gaal on 23 January 2002 in a conversation prior to making the January will:

“I still want to leave my house to the Salvation Army and the Royal Flying Doctors Service but what will happen to Sandra? Where would she live?”

(ii) Words spoken by Miss Wilson to Miss Jones on 23 January 2002 in a conversation prefatory to making the January will:

“I want the house to go to the charities but I don’t want my father or Sandra to be forced out of the house”.

(iii) Words spoken by Miss Wilson to Miss Cousins:

(a) probably early in 2001 in a conversation concerning the arrangement for Ms Abel to move into the house:
“This is going to be for a short time only. Sandra can’t pay rent because she doesn’t have a job at the moment and she doesn’t have any money and she has children to look after”.
(b) on 23 January 2002 in a conversation with Mr Gaal and Miss Jones:
“What would happen to Sandra? Will she have to sleep in the car?”
(c) on 23 January 2002:
“I think that Sandra is upset with me because she thinks she will have to move out of the house”.

(iv) Words spoken by Miss Wilson to Miss Daphne Rutter:

(a) about Christmas 2000:
“Sandra wants to move into my home but I’m not sure about it because of Dad and how he’d react. Sandra told me that she’s been evicted from her home unit. She’s quite prepared to sleep in her car but it wouldn’t be fair to expect her two children to sleep and live in the car”.
(b) about one month before she died:

“I think I will have to buy Sandra a mobile phone”.

(c) on an unspecified occasion:
“Sandra needs dental work done but she said she can’t afford it”.
(d) on an unspecified occasion:
“Sandra said to me that if she has to pay rent then she won’t be able to come and take me out”.

(v) Words spoken by Miss Wilson to Miss Jennifer Diprose on an unspecified occasion after about June or July 2000:

“I feel sorry for Sandra because she has two children and she has lost her job. She doesn’t have much money. She is visiting me regularly”.

(vi) Words spoken by Miss Wilson to Miss Warren on an unspecified occasion:

“Sandra is living in my house but she’s not paying rent. Apparently she will have to live in a car if she doesn’t stay in my house”.

(vii) Words spoken by Miss Wilson to Miss Hayley Wyndham on an unspecified occasion on being asked how she felt about her house:

“Because I am a self-funded retiree, I want to make sure I have enough money to pay for my care at the nursing home and to buy things. I want to sell my home but Sandra has asked to live in it and I don’t want Sandra to be homeless. Sandra told me she has no money and didn’t know where she was going to live. What can I do?”

77 In deciding the fraudulent misrepresentation issue I found the principles stated in Watson v Foxman (1995) 49 NSWLR 315, per McLelland, CJ in Eq. to be apt (pp 318-319):

“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ...attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), in the absence of some reliable contemporaneous record or other satisfactory corroboration”.

78 In my opinion none of the statements attributed to Miss Wilson on the occasions prior to making the Balmoral will proves that Ms Abel represented to her that she and her children would be homeless and impecunious after her death if the house was not left to her. However else the terms of each may be reasonably understood (in context, where provided), each statement is simply incapable of supporting an inference that Ms Abel made the alleged representation on or about the occasion Miss Wilson’s statement was made, or at all. In my opinion her statements to others of her concern for Ms Abel reinforce Ms Abel’s evidence, earlier referred to (paras 29, 32), that Miss Wilson often told her that she worried about what would happen after she died, and that she wanted Ms Abel to have the house. The submissions on behalf of the charities on this issue are rejected.

79 It is necessary to evaluate Miss Wilson’s statements to Mrs Mawson against Ms Abel’s and other evidence in the case. There is no evidence of the circumstances or context in which the conversation took place which would assist in gauging the weight to be given them.

80 Under cross-examination Ms Abel denied, a number of times, that she encouraged Miss Wilson to think that she would have nowhere to live if she was not given the house, and denied ever making such a suggestion to her. She denied making the alleged representation. Although it was put that her denials should be rejected as false, nothing was referred to which would justify me doing so. She was not shaken in cross-examination. I have found her evidence, generally, should be accepted. I find it improbable that Ms Abel made the statement attributed to her by Miss Wilson. In any event, left to choose between the tested evidence of Ms Abel and the untested statement of Miss Wilson, I prefer Ms Abel’s evidence.

81 Support for this conclusion is derived from the absence of evidence of any similar expression of concern or complaint thereafter. Had she in truth come to realise or believe that the Balmoral will was not what she wanted, she had many opportunities to raise the matter with people she trusted e.g., Mr Becker, the nursing staff, or representatives of the Public Trustee. Relevantly, Ms Abel had told Miss Wilson that if she wanted to change the will she should inform the nursing staff who would contact the Public Trustee. It is significant also, in my opinion, that the matter was not discussed on the occasion of the visit by Mr Gaal and Miss Jones to Miss Wilson at Harley on 6 March 2002 when instructions in respect of the house were given.

82 Furthermore, Ms Abel gave evidence of her financial position and employment, that she was paying the outgoings for the house, and expenses on outings and other items for Miss Wilson. She was not questioned about her capacity to maintain herself and the children whether she lived in the house or not, or to rent accommodation. There was nothing which supports the likelihood that she would have falsely misrepresented to Miss Wilson that she was impecunious and/or would be homeless if not left the house.

83 It follows that the submission that Ms Abel made the fraudulent misrepresentation alleged must be rejected. The case that Miss Wilson was improperly constrained by Ms Abel to leave her the house fails. Further, to the extent that Miss Wilson’s statement is evidence that she was forced to make the Balmoral will against her wishes it is inconsistent with, and outweighed by, the totality of the evidence of the circumstances in which it was made and my findings based upon it. Whatever inspired her to make the statement is a matter of speculation, but I find it to be untrue.

84 Accordingly, I am satisfied that Miss Wilson’s statements to Mrs Mawson on an occasion sometime after 21 February 2002 provide no reasonable foundation for a suspicion in light of all the circumstances, that at the time of its execution Miss Wilson did not approve of the contents of the Balmoral will and had been constrained to give the house to Ms Abel against her wishes.

85 By way of comment it seems to me that the submissions on behalf of the charities overlook the fact that in many wills are included gifts motivated by affection, gratitude, or a sense or moral obligation which involve no impropriety in the making of them (e.g., Tonkiss, paras 87-94). As earlier observed, given her relationship with Mr Becker and Ms Abel it was natural and unsurprising that she provided for them.

Conclusion

86 Mr Becker, as executor, has satisfied the court that Miss Wilson approved of the contents of the Balmoral will.

The issue of undue influence

87 In Miller v Jones [1999] NSWCA 467, Beazley, JA said (para 28):

“For a finding of undue influence to be made, the Court must be satisfied that the Will was the result of the overbearing of the testator’s will. However, appeals to sentiments of affection do not, of themselves, constitute undue influence. As Sir James Wilde explained in Hall v Hall (1868) LR 1 P & D 481 at 482:
“… a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.””

88 In Revie v Druitt [2005] NSWSC 902 Windeyer, J explained (para 51):

“The onus is on the person alleging undue influence to prove it. It is not sufficient to establish pressure or importuning conduct bearing on the deceased. What is needed for a claim of undue influence to be successful is evidence that the conduct of the person or persons alleged to be exerting pressure was such that it amounted to coercion so that it overbore the free will of the testator: Wingrove v Wingrove (1885) LR 11 PD 81; Boyse vRossborough (1857) 6 HL Cas 1; Winter v Crichton (1991) 23 NSWLR 116.”

89 The charities undertook to prove that the Balmoral will was made in circumstances where Miss Wilson’s volition and judgment had been overborne by Ms Abel’s fraudulently based appeal to her bounty. Similarly to the submission on the issue of approval, it was contended that the effect of Ms Abel’s fraudulent misrepresentation made on occasions in the preceding 12 months that she would be homeless if not left the house was to coerce Miss Wilson against her true wishes into making the Balmoral will.

90 I have earlier found that the contention that Ms Abel coerced Miss Wilson into making the Balmoral will is without evidence to support it. It follows that the claim of undue influence must be rejected.

Conclusion

91 Mr Becker is entitled to a grant of probate of the Balmoral will in solemn form. The cross-claim must be dismissed. The parties should prepare short minutes to give effect to this conclusion.

92 The parties should have the opportunity to make submissions on the question of costs, should there be no agreement as to the appropriate order to be made.

93 I direct the parties to apply to my associate by 4pm 3 August 2006 for the re-listing of the matter when final orders may be made.

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