Roos v Karpenkow No. Scgrg-97-250 Judgment No. S6766

[1998] SASC 6766

ROOS  v  KARPENKOW

DOYLE CJ

Introduction

In this action, the plaintiff Mrs Roos claims probate in solemn form of the will of her mother, Vera Hein.  The plaintiff is the sole executor of that will.

The defendant, Mr Karpenkow, is the plaintiff’s step-brother.  He admits that Mrs Hein executed the will.  He denies that Mrs Hein knew and approved of its contents.

Mrs Roos says that the will was prepared by her at the request of Mrs Hein, and in accordance with her wishes.

Background

Mrs Hein was born in Russia.  She lived in Russia until, with her husband, she emigrated to Australia in 1949.  Mrs Roos, then unmarried, came with her.  Mr Karpenkow had come to Australia about twelve months earlier.

The plaintiff and the defendant are the only children of Mrs Hein and are the persons entitled to share on intestacy.  The plaintiff, aged 64, is the daughter of Mrs Hein’s second husband.  The defendant, aged 73, is the son of her first husband.  Mrs Hein, the plaintiff and the defendant were all born in Russia.

Mrs Hein and her husband settled in South Australia.  Mr Karpenkow settled in Victoria.  Mrs Roos married her present husband in 1952.  Mr and Mrs Roos, and Mr and Mrs Hein, lived in or near Adelaide for some years.  Mr Hein died in 1963.  By his will he left all of his property to Mrs Hein, with the provision that if she should predecease him, his estate passed to his grand children in equal shares.

Mrs Hein continued to live in the family home at Royal Park in Adelaide after Mr Hein’s death.

It appears that in 1990 Mrs Hein made a will.  She provided that her estate was to be divided equally between Mrs Roos and Mr Karpenkow.  In the event of Mrs Roos or Mr Karpenkow predeceasing her, or failing to survive her for a period of thirty days, the relevant share was to pass to the child or children of that person.  Mrs Hein told Mrs Roos about the will, but Mrs Roos never saw the will.  Mrs Hein sent a copy to Mr Karpenkow.  The original, however, has not been located.

Mr and Mrs Roos had two children.  They are Helen Hesketh and Peter Roos.  By the time of the will just referred to, Mr and Mrs Roos were living at Murray Bridge.  Their son Peter died in 1992.  It is clear that this severely affected Mr and Mrs Roos.

Not long after Peter’s death, Mrs Hein fell and broke her hip.  By then she was about 90 years of age.  She spent some time in hospital.  After that, it was decided that she should move to a nursing home.

In about March 1993 Mrs Hein began to live in a nursing home at Kings Park.  She had regular contact with Mr and Mrs Roos, and still maintained contact with Helen Hesketh, who was by then living in New South Wales.  She also kept up regular contact with Mr Karpenkow, with his wife and with his son.  I will refer to the son as “Eugene Karpenkow”, although that given name is shared by father and son.

On 22 February 1996, Mrs Hein’s 94th birthday, Mrs Hein executed the will in question.  Under the will her property is to be divided equally between her grandchildren and great grandchildren.  Her grandchildren are Helen Hesketh and Eugene Karpenkow.  Her only great grandchildren are two children of Mrs Hesketh.  Mrs Roos is the sole executor of the will.

Mrs Hein died on 27 September 1996.  She died from respiratory complications arising out of pneumonia.  At the time of her death her assets totalled $87 667, comprising principally cash in a savings account.  She had no liabilities.  The funeral account had been prepaid.

The issues

The only issue is whether Mrs Hein knew and approved of the contents of the will.  There is no dispute that she had testamentary capacity.  There is no allegation of undue influence.

It is convenient to begin with a summary of the evidence.  I will then deal with the legal principles that I propose to apply.  I will identify the factual issues that fall to be resolved, and make my findings.

Evidence of Dr Switajewski

Mrs Hein was a patient of Dr Switajewski.  He said that from his initial consultation with her in 1993 until the date of her death, he saw her about once every two months.  He saw her for a variety of ailments such as arthritis, poor mobility, high blood pressure, pneumonia, infections and general old age.  He said that he communicated with her in both Polish and English.  They did not communicate in Russian.  He said that he would use English to explain everyday things, and Polish to explain particular medical terms.  He said that whilst she would get confused at times if she was emotionally upset, she exhibited no significant memory loss.  Her conversation was appropriate to the occasion.  There was no suggestion that she lacked testamentary capacity.  Although Dr Switajewski did not see her for her eyesight and had never given her a vision test, he was aware that she suffered from macular degeneration of the retina.  By early 1996 she had very poor eyesight.  From what he knew of her eyesight, he thought that with the aid of a magnifying glass she would have been able to read print.  I took that to mean print of the size that one would get in a newspaper or book.

In November of 1996 Dr Switajewski had been asked by a solicitor to express an opinion on the testator’s capacity to understand the nature of a will, her capacity to understand and appreciate what assets she owned, and her capacity to understand whom she wished to benefit by and exclude from her will.  He was asked to form a professional opinion, based upon his knowledge of the testator, of her capacity to make an appropriate judgment on these issues and whether she suffered from any delusions.  At that time he had said that she was able to understand and respond appropriately to these issues.  He went on to say that if she was spoken to in Russian, had her assets carefully explained to her, and was given a list of people that may benefit from or be excluded from the will, she would have been able to make appropriate decisions.  In cross-examination he was shown a copy of the impugned will and asked whether, if its contents were simply read out, she would have been able to understand it.  He said that if it were simply read out she would not have understood it; he said that the will would have to be paraphrased and explained in simple terms.

Evidence of Mrs Roos

Mrs Roos said that her father had made a will.  This will provided that when he died everything was to go to her mother, and in the event that they both died the estate was to be divided between the grandchildren.

Mr Roos said that after Mr Hein died, Mrs Hein asked Mr Karpenkow to come live with her in Adelaide.  If they did, she would leave everything to them.  But Mrs Karpenkow was not willing to move, and nothing came of it.

Some time after the death of Mrs Roos’ father in 1963, Mrs Hein told her that she had made a will that provided that her property was to be divided between the plaintiff and the defendant.  She said that she had done this because the plaintiff’s son was intellectually disabled, and would not need any money.  The plaintiff never saw this will.

Mrs Roos said that when Mrs Hein broke her hip in 1992, she again asked Mr Karpenkow to come to Adelaide to live.  He was not willing to do so.  As a result, she moved into the nursing home at Kings Park.  But, according to Mrs Hein, she was never happy there.  Mr and Mrs Roos were not in good health.  They found it difficult travelling from Murray Bridge to visit Mrs Hein.  They suggested that Mrs Hein move to a nursing home in Dandenong, near Mr Karpenkow.  The staff and patients spoke Russian, and they thought that Mrs Hein would be happier there.  But Mr Karpenkow would not agree to this.

The plaintiff said that in late 1995 she was looking through her mother’s papers trying to find her mother’s will.  She could not find it.  She asked her mother where it was.  Mrs Hein said that she did not know.  Mrs Roos suggested that she make a fresh will.  The plaintiff told Mrs Hein that the defendant had told her on many occasions that he did not want any of his mother’s money because he was already very wealthy and so was his son. The plaintiff told her mother that she did not want or need her mother’s money.  She said that her mother decided to leave her estate to the grandchildren and the great grandchildren.  Mrs Hein said that she wanted to leave her money to someone who needed it.  The plaintiff said that her mother asked her to arrange the new will.  This conversation was in November or December 1995.

The plaintiff purchased a will kit.  The will kit came with instructions enclosed.  She took the blank will form to her mother and they had another discussion about what Mrs Hein wanted in the will.  This was in December 1995, before Christmas.

She said that she read the blank document to her mother in English and then translated and explained it to her in Russian.  She said that she normally conversed with her mother in Russian.  She said that the only member of the family who spoke in English with her mother was her daughter, Mrs Hesketh.  She said that Mrs Hein did not read English books, although she could read the newspaper in English.  When probed in cross-examination about why she read the blank form to her mother even though her mother had already told her what she wanted in the will, she replied that she did this because she wanted her mother to understand “perfectly well what’s in it.” After her mother had given her instructions, she told her mother she would take the will home and fill it out.

She did this and presented it to her mother for signature on 22 February 1996, Mrs Hein’s birthday.  The plaintiff said that she read the completed will in English and translated into Russian, as she did with the blank will in December.  She said that her husband was present.  She said that when she arrived at the nursing home her mother was in bed.  After she had read over the will to Mrs Hein she left her mother to look over the will while she went and paid some bills for her.  When she returned she asked Mrs Hein if she understood the will and was happy with it, to which her mother replied that she was happy with the will.  She noticed that her mother had signed the will.  She told her that she should have waited.  They then went to lunch, and when they returned her mother signed the will again, this time in front of two witnesses.  The two witnesses were nurses at the nursing home whom they had met on previous visits.

She said that on the day of her mother’s funeral the defendant was upset when she told him about the fresh will that Mrs Hein had executed.  He repeatedly said to her, “Why did you do it?”.   She claimed in evidence that he said to her, “Look, if I’m not going to get anything no-one will get anything.” She told him that, based upon what he had previously said to her, she thought that he did not want anything.

Mrs Roos believed that Mr Karpenkow made contact with his mother “just once in a while”.  This was based upon what Mrs Hein said to Mrs Roos.  As I have mentioned, the day on which the will was signed, 22 February 1996, was Mrs Hein’s 94th birthday.   When Mr and Mrs Roos visited Mrs Hein, there was no discussion about Mr Karpenkow having telephoned Mrs Hein that morning, or having sent her a birthday card.

After the will was executed, Mrs Roos did not inform her daughter Helen, nor did she inform Mr Karpenkow.  As to him, she said:

“No, he wasn’t interested in it.  He didn’t want anything.  Why should I tell him?  It wasn’t my place to tell him, mother should have told him.”

Nor did she tell Eugene Karpenkow.  As to him she said:

“No, that was a surprise for him.”

Evidence of Mr Roos

Mr Roos said that in about 1992, at about the time that Peter died, his wife had suggested that Mrs Hein take up residence at a nursing home at Dandenong, near where Mr Karpenkow lived.  The reason for that was that the staff and residents spoke Russian.  However, he said, Mr Karpenkow had not been in favour of that, and nothing came of it.

He recalled a conversation late in 1995 when he and Mrs Roos visited Mrs Hein.  In response to a question, Mrs Hein said that she did not know where her will was.  There was talk about making a new will.  I set out a short passage from Mr Roos’ evidence.  “Olga” is a reference to his wife.  He said:

“A....... Yes, Mrs Hein reckon you make a new will and Olga reckon yes, and make a new will and for grandchildren and great grandchildren because she said ‘If Eugene don’t want, he got plenty of money, you don’t want’ Olga reckon we don’t want money too, so ‘give it to someone who need it’.

Q...... Who said that.

A...... Mrs Hein, ‘give it to somebody who need it’ and Olga said ‘That good, you are right, that good idea’ and she said ‘Oh well, keep going then make a new will’ and she did.  When she done that new will, well - ”

His recollection was that Mrs Roos got the will form by post, and then they visited Mrs Hein with the form, not yet filled in.  They talked in Russian about it.  That was the language which they usually used in conversation with Mrs Hein.  This was early in 1996.  His evidence about this occasion was as follows:

“... Olga said to mum that she get that form now and what I should doing now, and she said ‘You put it in will, what I tell you before’ and she took form home and she fill it up, form, at home ... ”

On Mrs Hein’s birthday they visited her again.  Mrs Roos gave the completed will to Mrs Hein.  Mr Roos said:

“She tell her ‘I put it mum, what you wanted, everything going for grandchildren and great grandchildren’.”

He said that Mrs Hein’s response was “All right, good.”  They left Mrs Hein looking at the will, with her glasses on.  They went to pay some bills.  They returned about half an hour later.  Mrs Hein was still looking at the will.  She said that she had already signed it.  When Mrs Roos told her that she had signed in the wrong place, and should have signed before witnesses, she said that she did not know that.

They then took Mrs Hein out to lunch.  After lunch, she signed the will again in the presence of two witnesses.

In relation to the occasion when Mr and Mrs Roos visited Mrs Hein with the will form uncompleted, Mr Roos said that Mrs Roos did not read the form to Mrs Hein.  He explained:

“No, she don’t read that form because nothing to read.”

In relation to the day on which the will was signed, he was sure that there was no significant conversation with Mrs Hein in English.  He seemed to be clear that Mrs Roos did not read the will to her mother.  Although he said that Mrs Roos read the will to Mrs Hein, his expansion on that was as follows:

“Well, when we come down and she said ‘Everything in will what you put in Mum’ and wife took, she hold the will in her hands and she read it to her and explain in Russian again, not in English, what is in will.”

But a little later, I asked Mr Roos to explain more clearly what had happened.  The evidence in response to my questions is as follows:

“HIS HONOUR

Q...... You told me a minute ago that your wife held the will and you said she read it and she explained it in Russian.

A...... Yes, Russian, yes.

Q...... Tell me a bit more about how she did that.  Did she seem to be reading things out from the will, what was she doing.

A...... Well, she just - she know what Mum wanted and she just tell Mum ‘I put everything what you wanted’, that mean she said everything went for grandchildren and for great grandchildren, that’s what she tell in Russian for Mum.

Q...... She did not read through the will all the words in it.

A...... No, I don’t think so, because Mum don’t understand perhaps everything in what that English say.”

.................. Mr Roos confirmed that after Mrs Hein’s funeral, when Mrs Roos showed Mr Karpenkow the will, he was annoyed.  He said that Mr Karpenkow said:

“... If I don’t get it, nobody get one cents, nobody.”

Mr Roos confirmed that Mrs Hein had given money to Helen Hesketh and to her two children.  He agreed that Mrs Hein had sent clothing and money to relatives in Russia.

Evidence of Helen Hesketh

The plaintiff’s daughter (the deceased’s grand-daughter) gave evidence.  She said that she was close to her grandmother and used to stay at her house when she was young.  She said they also spoke on the phone.  She said that she would communicate in both Russian and English with her grandmother.  She distinctly remembered that her grandmother used to search for bargains in the local newspaper.  She never saw her read a book in English, although she often saw her read books in Russian.  She said that her grandmother used to write letters and send birthday cards in Russian.  She could not recall her grandmother ever writing a letter to her in English.

Evidence of Mrs Luke

Mrs Luke was an enrolled nurse at the nursing home.  She witnessed the will.  Her evidence left me in no doubt that the will was duly executed by Mrs Hein, in the presence of two witnesses.

Evidence of Mr Karpenkow

Mr Karpenkow said that he visited his mother and step father each year.  After the death of his step father, the annual visits to Adelaide continued.  He usually brought his wife and son Eugene with him.

He testified to an affectionate relationship between himself and his mother.  He said that he telephoned his mother quite regularly.  Telephone accounts that were tendered supported this evidence.  He said that he wrote to his mother regularly.  He said that she wrote to him.  A few letters from his mother were tendered.  They did not establish the frequency of communication, but the translations confirmed his claim that the relationship was an affectionate one.  He said that the letters from his mother ceased when her eye sight began to fail during 1995.

He confirmed other evidence that Mrs Hein sent gifts of money and goods to relatives in Russia.  He helped with this.  Sometimes he sent parcels for her, and sometimes he assisted her with sending money to Russia.

He agreed that after his step father’s death, his mother had asked him to come to South Australia to live in her house at Royal Park.  He declined to do so.  He had just obtained a new job that paid well, and he did not want to interrupt Eugene’s schooling.  I mention here that that seemed to me to be a perfectly reasonable explanation.  He denied that there was any discussion with his mother about her coming to live in Dandenong.  He said that Mrs Roos raised the matter with him, but his mother did not.  He said that Mrs Hein liked the nursing home at Kings Park.  He did not think that Dandenong was a good place for Mrs Hein to live.

He said that he rang his mother on the morning of 22 February 1996, to wish her a happy birthday.  She seemed to be quite normal.  She said nothing about the will, then or later.  She had sent him a copy of her earlier will in about 1990.

He came to Adelaide shortly before his mother died.  She was in hospital at the time.  He visited her on a number of occasions.  She told him that she wanted her clothes sent to relatives in Russia after her death.  She said this although under the will in question her clothes and personal effects passed to Helen Hesketh.

He agreed that he had, in the course of conversation with Mr and Mrs Roos, said that he did not need his mother’s money.  However, he denied that he said it in the manner in which Mrs Roos took it.  He said that it was said, not in the context of talking about the distribution of his mother’s estate after her death, but rather in the context of him saying that it was for his mother to do what she wanted to do with her own money in her lifetime.

He agreed that Mrs Hein understood English quite well, and that she could read English.

Evidence of Eugene Karpenkow

His evidence was to the effect that he was on affectionate terms with his grandmother, Mrs Hein.  Eugene lives with his parents.  He quite often spoke to Mrs Hein by telephone.

He described his grandmother as a very determined lady.

He said that she was an avid reader.  During 1995 she told him that her eye sight was failing.  She said that she could not read any more, and that she had trouble dialling numbers on the telephone.  She was upset about this.

Principles to be applied

The relevant principles are reasonably clear.  They were stated authoritatively, for my purposes, by the High Court in Nock v Austin (1918) 25 CLR 519. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment, and appears to me to be consistent with other cases of persuasive authority. I propose to set out the relevant statement of principles by his Honour, omitting from that statement all reference to authorities. His Honour said (at 528):

“(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 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 of 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.

(5)... But the rule does not go further than requiring vigilance in seeing that the case is fully proved.  It does not introduce a disqualification.

(6)... Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.

(7)... The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.”

I mention that these principles were applied by the Court of Appeal of the Northern Territory in Re Herbert (1990) 101 FLR 279.

If what are called suspicious circumstances are found to be present, what must the proponent of the will do to meet the requirements stated by Isaacs J?

In Barry v Butlin (1838) II Moo 480 at 482; 12 ER 1089 at 1090, Baron Parke said that a circumstance of suspicion:

“... calls upon it [the court] to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”

In Fulton v Andrew (1875) LR VII HL448 at 471-472, Lord Hatherley said, in words often referred to with approval, that when there are circumstances of suspicion, those who propound the will:

“... have thrown upon them the onus of showing the righteousness of the transaction.”

In Wintle v Nye [1959] 1 WLR 284 at 291 Viscount Simonds said:

“In all cases [of suspicion] the Court must be vigilant and jealous.  The degree of suspicion will vary with the circumstances of the case.  It may be slight and easily dispelled.  It may, on the other hand, be so grave that it can hardly be removed.”

These statements are helpful, but in the end I consider that Isaacs J has adequately stated the position.

I must examine the evidence with care.  I must bear in mind that when, as here, the only witnesses to the critical events are those who propound the will, their evidence and motives must be carefully scrutinised.  I must pay careful attention to any circumstances of suspicion that do arise, and the suspicions that arise from them.  It is not a question of whether Mr Karpenkow has made out a case of fraud or of undue influence, or a case that Mrs Hein did not know or approve of the contents of the will.  If there are circumstances of suspicion, the onus that always rests upon the plaintiff to prove knowledge and approval will not be discharged unless the suspicion that arises from those circumstances is dispelled.  In the end, I must be affirmatively satisfied, on the balance of probabilities, that this is the freely made will of Mrs Hein, and that she knew and understood what she was doing.  While what is required is always proof on the balance of probabilities, the evidence required to dispel a suspicion will depend upon the nature and gravity of the suspicion.  The fact that neither fraud or undue influence is pleaded does not mean that I can ignore the possibility of either fraud or undue influence being present.  Any suspicion along those lines must be displaced:  Tyrrell v Painton [1894] P 151.

Findings about Mrs Hein

I find that Mrs Hein had the necessary capacity to make a will.  In that respect I accept the evidence of Dr Switajewski.

I find that on the day on which she made the will, Mrs Hein was her usual self.  As to that, I accept the evidence of Mr Karpenkow, Eugene Karpenkow and the implicit evidence to that effect from Mrs Luke and Mr and Mrs Roos.

I find that by then Mrs Hein’s eye sight was so poor that she would not have been able to read the will without the assistance of a magnifying glass.  I accept the evidence of Dr Switajewski about this, and the evidence of Eugene Karpenkow to the effect that his mother complained that she could no longer read.

I find that Mrs Hein spoke English well enough to get by in everyday conversation.  I find that she could read English, but that her command of written English was quite limited.

I find that Mrs Hein would not have understood the English text of her will, had she read it.  It would have been necessary for someone to explain to her, in every day terms, its effect.  As to that, I accept the evidence of Dr Switajewski.  I also base my finding upon her age and her somewhat limited command of English.

There was no suggestion by anyone that Mrs Hein was easily lead.  Eugene Karpenkow described her as a very determined lady.  I find that Mrs Hein was not unduly susceptible to persuasion.  However, I recognise her dependence upon Mr and Mrs Roos who, by February 1996, were managing her affairs for her, including looking after her bank accounts and paying her bills.  I recognise also an element of emotional dependence upon them, because they appear to have been her only close relatives living in South Australia.

Findings relating to other witnesses

As I have indicated, I accept generally the evidence of Dr Switajewski.  I accept the evidence of Mrs Luke.

I accept, generally, the evidence of Mr Karpenkow and of Eugene Karpenkow.  There really was nothing controversial about their evidence.

I find that the relationship between Mr Karpenkow and Eugene Karpenkow on the one hand, and Mrs Hein on the other, was an affectionate one on both sides.  I find no reason to think that Mrs Hein had any reason to treat Mr Karpenkow less favourably than Mrs Roos, or that she manifested any wish or intention to do so.  I find that Mr Karpenkow remained in regular contact with his mother during 1995 and 1996.

It is clear that the evidence of Mrs Roos and Mr Roos is central to the case.  I observed them both closely while they gave evidence.

It was clear that Mrs Roos resented the fact that Mr Karpenkow did not play a greater part in caring for Mrs Hein.  She referred to his refusal to come to live in Adelaide after Mr Hein died, and again when Mrs Hein broke her hip.  I have already said that I regard that decision as quite reasonable.  On several occasions she referred to a refusal by Mr Karpenkow to agree to Mrs Hein going to live in a nursing home at Dandenong, where the residents and staff spoke Russian.  I am sure that Mrs Roos has made too much of this.  I am not able to make any precise findings about the issue, but I do not think that from Mrs Hein’s point of view it was a major issue.  I accept the evidence of Mr Karpenkow about this.

I am satisfied that now, at least, Mrs Roos harbours some resentment towards Mr Karpenkow.  I do not think that it is justified, but that is neither here nor there.  I have borne that resentment in mind when considering the evidence of Mrs Roos.  To a much lesser extent I consider that Mr Roos shares that resentment.

It was also clear to me that Mrs Roos believed that Mr Karpenkow had not kept up much contact with Mrs Hein in the last years of her life.  I accept Mr Karpenkow’s evidence to the contrary effect  She was mistaken in that.  I consider that she tended to minimise the amount of contact that occurred, and tended to overstate somewhat the amount of contact that she had with her mother.  I find that, in her own mind, Mrs Roos is the one who has done what a dutiful daughter should do, and that Mr Karpenkow has not done what a dutiful son should do.

In short, there was, for some reason, an underlying resentment on the part of Mrs Roos towards Mr Karpenkow.  On what I have heard, that resentment is unjustified.  Nevertheless, it clearly coloured Mrs Roos’ evidence.

Despite that, and subject to it, I accept most of what Mrs Roos said about her dealings with Mrs Hein.  But I have thought carefully about her evidence, because of the resentment to which I have just referred.

I accept the evidence of Mr Roos, again making allowance, although it is hardly necessary, for his attitude towards Mr Karpenkow.  I thought that Mr Roos gave his evidence quite spontaneously and frankly, and with no indication that he was greatly concerned about the tendency of any particular answer.  I am prepared to put a good deal of weight on his evidence, although I do not accept it unquestioningly.

I do not accept Mrs Roos’ evidence that she read the will over, and explained it, to Mrs Hein, both before and after it was completed.  Mr Roos did not support this aspect of her evidence.  Indeed, the effect of his evidence was to the contrary.  I do not think it at all likely that the reading over occurred, but in his absence.  That was not suggested.  Apart from the fact that Mrs Roos’ evidence on this point was not supported by Mr Roos, I think that in giving this part of her evidence she was somewhat unconvincing.  I do not find that Mrs Roos consciously set out to mislead me.  I consider that she has convinced herself that she explained the will to her mother more fully than she did.

I accept the evidence of Mrs Roos that she believed that Mr Karpenkow did not want to share in his mother’s estate, even though I also accept Mr Karpenkow’s evidence that what he said about this was not intended in the manner in which Mrs Roos took it.  While I accept that Mrs Roos believed in the truth of what she said to her mother about this, I consider that Mrs Roos was not concerned to ensure that this was in fact still Mr Karpenkow’s attitude.  Her wish was that her mother should make a will on that basis, and she was not concerned to give Mr Karpenkow the chance to speak to himself.

I am not influenced by the discrepancy between the evidence of Mrs Roos before me, and the terms of her affidavit and of the Reply, to the extent that there is a conflict.  I do not consider that these matters add anything to my failure to accept her evidence about the reading over of the will.  I do not think that the documents just referred to indicate any deliberate attempt to mislead.

Circumstances of suspicion

I find that there are circumstances attending the giving of instructions for the preparation of the will, and its execution, such that I need to be affirmatively satisfied that Mrs Hein freely made the will, and knew and approved of its contents.

First, there is the fact that the provisions of the will benefited Mrs Roos’ family to a greater extent than they benefited Mr Karpenkow’s family.  Three equal shares in the estate pass to Mrs Roos’ daughter and grandchildren.  One share passes to Mr Karpenkow’s son.  However, it is important not to overstate this.  The departure from an equal division is not great.

Second, there is the fact that the will accords with what is clearly Mrs Roos’ firmly held view about the appropriate way to deal with her mother’s estate.  She was a little reluctant to admit this in evidence.  But it is clear that that was her view.  Again, in fairness to her, I acknowledge that there was a disinterested aspect to this.  She did not want anything for herself.

Third, I find that Mrs Roos suggested to Mrs Hein, at least indirectly, by saying that neither she nor Mr Karpenkow wanted to share in the estate, that the will should be made as it was made.

Fourth, there is the failure to consult with Mr Karpenkow before she drew the will up, or to suggest to Mrs Hein that she might do so.  There is also the failure to inform Mr Karpenkow, after the event, that the will had been made, or to suggest that Mrs Hein might do so.

Fifth, there is the fact that Mrs Hein was dependent upon Mr and Mrs Roos to manage her affairs and, as I have already said, for social contact and company.  As part of this I bear in mind her age and physical frailty.

Sixth, there is the absence of any independent advice to Mrs Hein, coupled with the fact that she was not left with a copy of the will and did not, as I find, have it read over to her.  These matters are not of any great weight.

Seventh, there is the failure of Mrs Roos to inform any of the beneficiaries about the will.

Eight, there is the failure by Mrs Hein to make any provision for her relatives in Russia, a matter which I find was a concern of hers in her latter years.

Ninth, there is the failure by Mrs Hein to allude to the will, when asking Mr Karpenkow, only shortly before her death, to send her clothes to relatives in Russia after her death.  I accept the evidence of Mr Karpenkow about that.

Viewed objectively, these circumstances in combination raise a real suspicion that this was not a freely made will, the contents of which Mrs Hein knew and approved.  The suspicion embraces the possibility of undue persuasion being exercised by Mrs Roos and the possibility that Mrs Hein did not know or understand what she was doing.

Findings on the case

To begin with, I am satisfied that Mrs Hein knew that she was making a will.  My finding that she had testamentary capacity does not, of itself, lead to that conclusion.  But the evidence of Mr and Mrs Roos about leaving Mrs Hein with the will, about her premature signing of it, and about the signing again before witnesses, all satisfy me that Mrs Hein must have realised that this was an important document and, in fact, her will.  Mrs Luke’s evidence supports this finding.  The presence of two witnesses must have indicated the significance of the document to Mrs Hein.  I am satisfied that when the witnesses were there there was reference to “signing the will”, something that Mrs Hein would have understood.

I am satisfied that Mrs Hein had the capacity and will power to decline to make a will as suggested by Mrs Roos, if that was not her wish.  I give full weight to her dependency upon Mr and Mrs Roos.  But there is no hint from anyone that she had lost the ability to make her wishes known and to act upon them.  In so concluding I bear in mind that the will disposes of Mrs Hein’s estate in a manner that is quite understandable.

I am satisfied that the making of the will did not result from coercion, or even inappropriate importunity, on the part of Mr Roos or Mrs Roos.  I recognise an element of persuasion on the part of Mrs Roos.  But I am satisfied that it did not go beyond the sort of natural and acceptable persuasion that might be used with a testator.  I accept the evidence of Mr and Mrs Roos that there was no more than a suggestion that a will in favour of “the kids” was the sensible and desirable thing to do.  I accept their evidence to the effect that there was no prolonged persuasion on their part.  I am satisfied that Mrs Hein freely chose to make a will in favour of her grandchildren and great grandchildren.  I am satisfied that her reason for doing so was sensible.

The failure to make any provision for the Russian relatives is surprising, but I put it no higher than that.

As I am satisfied that Mrs Hein knew that she was making her will, and would not have done so unless she was genuinely willing to do so, and was not subjected to undue influence or inappropriate importunity, my attention shifts to the question of whether Mrs Hein in fact gave instructions to Mrs Roos to prepare the will as it was prepared:  cf Astridge v Pepper (1970) 1 NSWR 542 at 548.

Once again, on this issue, I accept the essence of the evidence given by Mr and Mrs Roos.  I thought that their evidence had a ring of truth to it.  As I said earlier, I found Mr Roos in particular to be a spontaneous and frank witness.  I regard his support for Mrs Roos on this point is important.  If he had been intent on deceiving me, he surely would have claimed that the will was read over to Mrs Hein.  He did not do that.  But his evidence was quite clear that there had been a discussion about leaving the estate to “the kids”, and that Mrs Hein had readily agreed to the suggestion.

Finally, I am satisfied that Mrs Hein understood what she was doing with her estate.  The concept was quite simple.  She would have had no difficulty understanding it.

What am I to make of her failure to tell Mr Karpenkow or Eugene Karpenkow about the will?  I am puzzled by that.  It may be that she thought that this was what Mr Karpenkow wanted, and so thought it unnecessary to tell him.  I regard her failure to inform the beneficiaries of the will as being of little significance.  I bear in mind her apparent failure to tell Mr and Mrs Roos that she had spoken to Mr Karpenkow and to Eugene Karpenkow on the morning on which she signed the will.  Perhaps there were some things about which she was not particularly communicative.

I think that the failure by Mrs Roos to inform Mr Karpenkow is understandable.  That is not to say that I agree with it.  I think that her attitude or resentment towards her brother led to her failure to urge her mother to tell him, or to tell him herself.

Despite the criticisms of Mrs Roos that are implicit in some of my findings, at the end of the day I am satisfied that Mrs Hein knew and approved of the contents of her will.  I consider that the suspicions about the will being freely made, and understood, are dispelled by the evidence of Mrs Roos and Mr Roos.  I accept the basic thrust of their evidence, and on what I heard from them and others I am satisfied that Mrs Hein would have known, understood and freely chosen to do what she did.

Accordingly, I pronounce in favour of the force and validity of the will propounded by the plaintiff.