Sultanova v Bolgarow
[2019] VSCA 245
•30 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0124
| TATYANA SULTANOVA | Applicant |
| v | |
| VALENTINA BOLGAROW AND ROBIN MARCHMENT | Respondents |
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| JUDGES: | BEACH and NIALL JJA and KENNEDY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 October 2019 |
| DATE OF JUDGMENT: | 30 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 245 |
| JUDGMENT APPEALED FROM: | [2018] VSC 498 (Lyons J) |
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WILLS AND ESTATES – Informal will – Will not seen by, or read to, deceased - Testator given opportunity to execute will - Whether will intended by deceased to be her final will – Whether sufficient evidence - Whether failure to take into account relevant considerations - No errors made - Briginshaw v Briginshaw (1938) 60 CLR 336, Fast v Rockman [2013] VSC 18 cited - Wills Act 1997, ss 7 and 9.
COURT AND JUDICIAL SYSTEM – Appeal - Where new point or issue raised on appeal which was not taken at trial - New issue not permitted to be raised - No merit in any event - Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C H Sparke QC with Ms S Aufgang | Saunders Family & Estate Lawyers |
| For the Respondents | Dr K Hanscombe QC with Mr T Mah | M & K Lawyers |
BEACH JA
NIALL JA
KENNEDY AJA:
Nina Elzow (‘Nina’) died on 7 July 2016 aged 91 years.
On 14 April 2010 she executed a will (the ‘2010 Will’) wherein, subject to some small legacies, she gave her substantial asset, being her home at Hawthorn East, to be divided equally among five overseas relatives.
Shortly prior to her death, a will was prepared on her behalf by her solicitor, Charles Reichman, on 23 June 2016 (‘the New Will’) which has not been executed. The only change to the 2010 Will was that each of her five overseas relatives was to receive a legacy of $180,000, but with the residue of the estate to go to the first respondent, Valentina Bolgarow (‘Valentina’), a close friend, principal carer, and co-executor.
Valentina and her co-executor sought orders that the (informal) New Will be admitted to probate pursuant to s 9 of the Wills Act1997 (Vic) (the ‘Act’). These orders were opposed by the applicant, Tatyana Sultanova (‘Tatyana’), one of the overseas relatives.[1]
[1]Tayana also claimed to be authorised to oppose the application on behalf of three of the other relatives but said that one of the relatives, Dikanskaya Nina Vitalivna, did not oppose the grant of probate sought. See affidavit of Tatyana Sultanova dated 29 June 2018 at [18].
The sole issue in dispute was whether the New Will was intended by Nina to be her final will in circumstances where the document was not seen by, or read to, Nina, but where she understood the changes it made to the 2010 Will, and told her solicitor that the will was ‘exactly what she wanted’ and was ‘settled.’
The trial judge determined that Nina intended the New Will to be her will and found that it should be admitted to probate.[2]
[2]Estate of Elzow [2018] VSC 498 (‘Reasons’).
Tatyana now seeks leave to appeal this decision on the basis of the following proposed grounds:
(a)His Honour misdirected himself by accepting that there was sufficient evidence, in accordance with the Briginshaw principles,[3] to support a finding that Nina Elzow’s Will, prepared on 23 June 2016 by her solicitor Charles Reichman, should be admitted to probate as an informal Will pursuant to section 9 of the Act (ground 1).
(b)His Honour erred in his findings by failing to take into account all relevant facts (ground 2).
(c)His Honour erred in his findings by failing to take into account public policy considerations (ground 3).
[3]Briginshaw v Briginshaw (1938) 60 CLR 336.
In oral submission, Senior Counsel for the applicant clarified that the case was put in two critical ways:
(a)first, that there was error in the finding that the document constituting the New Will was intended to be Nina’s final will in circumstances where it was not seen by Nina, or read to her in full (grounds 1, 2, and 3);
(b)secondly, that there was error in the finding that Nina had testamentary capacity in circumstances where Nina did not know the value of her home (grounds 1 and 2).
Background[4]
[4]This section is generally based on the facts set out in the Summary for Court of Appeal dated February 2019 provided by the parties save where otherwise indicated.
In about April 2010 Nina asked a solicitor, Mr Charles Reichman, to make a new will for her. Nina told Mr Reichman that her assets consisted of approximately $70,000 in the bank plus her home in Hawthorn East which she thought was worth about $900,000. Nina said that she wanted each of her five relatives to receive around $180,000.[5]
[5]Reasons [47].
Mr Reichman prepared a will, saw Nina read the will and, as was his practice, explained the contents of it to her prior to her signing it. Nina and Mr Reichman conversed in a mixture of English and Polish.
The 2010 Will was a simple document containing 7 clauses. It made provision for the following gifts:
(a)$10,000 to each of the executors (clause 3);
(b)$1,000 to each of three charities (clause 4);
(c)The residue to the five overseas relatives to be divided into five equal parts or shares (clause 5).
It also included other more standardised formal provisions (at clauses 1, 2, 6 and 7).
Nina retained the original of this 2010 Will (which was found at her house by Valentina after her death).
12 March 2016
On 12 March 2016 Mr Reichman visited Nina at her home to discuss making changes to her will. The trial judge found that the following conversation occurred:
Nina said that the value of houses had gone up so much that she was reconsidering her will. She told Mr Reichman that her husband was a factory worker but they could afford to buy a house in Hawthorn. She said that now there was no way a factory worker could buy a house in Hawthorn. She said that she wanted to give her relatives one fifth of about $1 million and the rest was to go to Val. Mr Reichman said he did not discuss the exact amounts at the time. Nina said she would contact him about the new will once she had settled into her new nursing home.[6]
[6]Ibid [68].
Mr Reichman asked a work experience student to prepare a draft will based on his discussions with Nina (‘the March 2016 Will’).
The March 2016 Will provides for gifts to the overseas relatives of $200,000 each (clause 5), with the residue left to Valentina (clause 6), but otherwise generally duplicates the 2010 Will (with the amounts given to the executors and the three charities unchanged).
11 June 2016
Mr Reichman gave evidence that Nina contacted him again on 11 June 2016 and he visited her that evening at a nursing home. He was given instructions to prepare a new will.
The trial judge’s summary of this meeting was as follows:
Nina told Mr Reichman that she wished to change her will. She said that, at the time her previous will was made, she thought the house was worth approximately $900,000 and that a fifth of that would be an extremely good amount for each of her relatives to live a good life. She said that the house had gone up quite a bit since the 2010 Will and she now wanted to leave more money to Val. Nina said that she wanted to change her will to provide $180,000 for each of the five relatives with the balance to be given to Val and that otherwise all parts of the will were to remain the same.
Nina told Mr Reichman that giving each of the Overseas Relatives this money would allow them to live like ‘nobility’. Mr Reichman said Nina used the Polish word ‘szlachta’, which means nobility.[7]
[7]Ibid [73]-[74].
Mr Reichman also gave evidence that Nina told him to tell no one about the New Will. In particular, she told Mr Reichman not to tell Val that she was changing her will because Nina did not want it to look like Val was influencing her.[8]
[8]Ibid [75].
23 June 2016
On 23 June 2016, Nina telephoned Mr Reichman to see if the will had been prepared. Mr Reichman specifically raised whether she wanted to change the amount she was giving to charities. She said no. He also raised whether, since she was giving everything else to Val, she needed to give her the gift of $10,000. Nina said that she did not want to change the 2010 Will in any way except to provide for $180,000 to each of her five relatives and the balance to her god-daughter.[9]
[9]Ibid [78]-[79].
Mr Reichman prepared the New Will in accordance with Nina’s instructions which effected the following substantive changes:
(1)$180,000 to each of the Overseas Relatives [clause 5]; and
(2) the residue to Valentina [clause 6].
This will otherwise repeated the gifts of $10,000 to the executors (cl 3)and $1,000 to the three charities (cl 4); as well as the formal provisions contained in the 2010 Will (at cls 1, 2, 7, and (a second) 7 ).
Late June 2016
Mr Reichman gave evidence that a few days later Nina again telephoned him. He told her that the will was ready and he summarised the contents of it for her.
Mr Reichman deposed:
I told her that the Will would be the same; that she would keep the two executors her god-daughter Mrs Bolgarow and Robin Marchment who would each get $10,000.00; that the legacies of $1,000.00 to the charities would remain; that $180,000 would go to each of the five relatives that had received provision under the 2010 will, and the balance of the estate would go to Mrs Bolgarow. She said that was exactly what she wanted.[10]
[10]Affidavit of Charles Marcus Reichman affirmed 22 April 2017 [20] cited at Reasons [82].
Mr Reichman was not cross examined on his statement that the New Will was ‘exactly what she wanted.’ He confirmed that he went through and discussed each of the terms of the New Will, but he did not read every word of every paragraph of the New Will to her. He suggested she might want to raise the amounts to be given to the charities - to which Nina said no. He also again raised whether the $10,000 gift to Val was necessary, but Nina said she did not want to change this. [11]
[11]Reasons [83].
As summarised by the trial judge:
Nina then informed Mr Reichman that she wanted him to come over to the nursing home with the New Will as soon as possible so she could sign it. Mr Reichman told her he was busy and preparing to go overseas but that he could arrange for another solicitor to visit her with the will, for the purpose of executing it, while he was away. Nina said that she did not want that to happen ‘as she felt comfortable with and trusted [Mr Reichman] and she did not want to be cheated’. She also told Mr Reichman she was ‘comfortable that the will “was settled”’. In re-examination, Mr Reichman said that Nina in fact used a Polish word meaning ‘settled’ or ‘sitting down’ i.e. finished or completed.[12]
[12]Ibid [84].
Under cross examination Mr Reichman said that he was certain that Nina would have signed the will if he had gone to see her.[13] However, Nina did not execute the New Will before she died on 7 July 2016.
[13]Transcript of Proceedings Estate of Elzow (Supreme Court of Victoria, Lyons J, 11 July 2018) 61.21-24.
Statutory framework
It was not in dispute that the New Will was not executed as required by section 7 of the Act for a formal will. Section 9 of the Act then makes provision for an informal will as follows:
9.When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person–
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act–
if the Court is satisfied that that person intended the document to be his or her will …
(3)In making a decision under subsection (1) … the Court may have regard to–
(a) any evidence relating to the manner in which the document was executed; and
(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
It is common ground that, although only the third element was in issue, there are three requirements for the admission to probate of an informal will:
(a)there must be a document;
(b)that document must express or record the testamentary intentions of the deceased; and
(c)that document must have been intended by the deceased to be his or her will.[14]
[14]Fast v Rockman [2013] VSC 18 [46]; Re White; Montgomery & Anor v Taylor [2018] VSC 16 [50].
The party must also establish these elements on the balance of probabilities evaluating the evidence in accordance with the Briginshaw[15] principles, now found in s 140 of the Evidence Act 2008 (Vic).[16]
[15]Briginshaw v Briginshaw (1938) 60 CLR 336.
[16]Fast v Rockman [2013] VSC 18 [48]; ReEstate of Robertson [2018] VSC 373 [26]-[29]; Re White; Montgomery & Anor v Taylor [2018] VSC 16 [51].
Reasons of trial judge
The trial judge found Mr Reichman to be a credible and honest witness, and accepted his evidence about the conversations.[17]
[17]Reasons [36]; see also [92].
In terms of the third element, he found that there were many facts which supported the conclusion that Nina adopted the New Will, and intended that document to be the manner in which her property was to be disposed of.[18]
[18]Ibid [91].
First, he highlighted that all of the contacts between Nina and Mr Reichman in 2016 showed that Nina had given careful consideration to her estate and its distribution.[19]
[19]Ibid [92].
He further found that the conversations on 11 and 23 June 2016 indicated that Nina was aware of the 2010 Will and only wanted to make limited changes to it.[20]
[20]Ibid [95].
He placed particular emphasis on the conversation in late June 2016 and found that:
·Nina contacted Mr Reichman to ask if the New Will had been prepared, indicating that she wanted the matter to be resolved consistent with her earlier instructions.[21]
·Mr Reichman informed Nina that the New Will had been prepared and he went over the provisions of it. Nina was thus informed and aware of the terms of the New Will. She was also aware of the 2010 Will and only wanted to make limited but important changes to it.[22]
[21]Ibid [96].
[22]Ibid [97].
He also found that there were a number of matters which evidenced that Nina adopted the New Will:
·Nina replied that that was ‘exactly what she wanted’ indicating she adopted the New Will;
·Nina informed Mr Reichman that she wanted him to come over with the will as soon as possible so she could sign it, again indicating that Nina adopted the New Will and did not wish for any further delay;
·she told Mr Reichman in Polish that she was comfortable that the will was ‘settled’. This statement also clearly indicated that she again adopted the terms of the New Will, which Mr Reichman had prepared without reservation.[23]
[23]Ibid [98]-[100].
His Honour then dealt with the issue that Nina was given an opportunity to execute, but declined to do so until her trusted solicitor was available to be present.
He did not accept a submission that he should infer that Nina might want to change the terms of the will; rather the proper inference was that she wanted Mr Reichman there to ensure that the New Will was not changed i.e. to avoid being cheated by someone she did not know and trust.[24] His Honour therefore found that the fact that Nina was given an opportunity to execute the New Will but declined to do so, did not mean that Nina did not intend the New Will to be her will.[25]
[24]Ibid [113].
[25]Ibid [115].
His Honour ultimately concluded at paragraph 116:
In making these findings, I am conscious of the statements in the authorities to the effect that it is quite common for testators to change their minds after giving instructions or seeing a draft will. However, I am satisfied on the balance of probabilities and applying the Briginshaw principles that, in all the circumstances of this case, Nina clearly intended the terms of the New Will, without any alteration or reservation, to be the manner in which her property was to be disposed of upon her death.
Having observed that a court may still refuse probate of an informal will where the testator lacked testamentary capacity or was affected by undue influence (which issues were also relevant to the third element) he dealt with both these matters.[26]
[26]Ibid [28]; he found there was no undue influence at [124]-[125].
In terms of testamentary capacity, he noted that the only suggestion to the contrary was found in Tatyana’s affidavit to the effect that on 20 May 2016 Nina mistakenly told Tatyana that Val’s daughter had died and Nina was at times ‘somewhat incoherent.’[27] However, Counsel for Tatyana had made a concession that her affidavit did not establish that Nina lacked testamentary capacity.[28]
[27]Ibid [117].
[28]Ibid [31].
By contrast, he found that there was ‘much evidence that Nina was aware of and understood the extent and value of her estate, the calls upon it and the nature of the gifts made under the New Will.’ In so saying he referred to medical and other evidence that supported this conclusion. This included evidence of Mr Reichman who said she was aware that she still owned her house and recalled the effect of her 2010 Will.[29]
[29]Ibid [118]-[122].
His Honour determined that he was satisfied that Nina had testamentary capacity at the time she gave instructions to prepare and approve the New Will. As well as understanding the extent of her property she understood the nature of the New Will and the changes it made to the 2010 Will.[30]
[30]Ibid [123].
Accordingly, the trial judge found that the New Will would be admitted to probate.
Submissions
Applicant
Whether error re requisite intention
In written submissions Counsel suggested that there were a number of matters which pointed to a lack of adoption, including that Nina never sighted the New Will and that she gave strict instructions to Mr Reichman to tell no-one about the New Will.
It was further submitted that the trial judge had failed to take into account that the New Will was far from ‘settled’ given the mistakes it contained in clause 5 (cited below) and given the document had been created from the March 2016 Will.
In oral submission Senior Counsel submitted that there were two aspects to this complaint. First, that the evidence did not permit the finding on the basis of the Briginshaw principles.[31] Second, that the trial judge had misunderstood the third element.
[31]Briginshaw v Briginshaw (1938) 60 CLR 336.
In terms of the first complaint, Counsel highlighted that Nina did not see the New Will or the March 2016 draft. At best, the New Will was only summarised to her rather than being read to her word for word. It was submitted that the judge had wrongly elevated the taking of instructions to the serious act of making a will. It was also significant that the earlier 2010 Will document was not in front of Nina at the time.
It was also submitted that the other findings about the New Will being ‘settled’ and ‘exactly what she wanted’ did not go beyond the giving of instructions (consistent with the second element).
The lack of finality was demonstrated in two other ways. First, there were errors in the New Will: that not all of the beneficiaries listed were ‘nieces’ (one was a late husband’s niece and one was a cousin); further that there were no longer ‘parts or shares’ given each relative was to be given the fixed sum of $180,000. Although it was accepted that such errors would be a ‘non-issue’ if the will was being construed it could not objectively be said that the will was in a final state and that there would not have been changes. A lack of finality was also demonstrated in a subjective way given Nina deferred signing the will.
It was submitted that, based on the totality of the evidence, the Briginshaw principles could not have been satisfied. Rather the case only got to ‘instruction-taking’ in circumstances where Nina did not have the document in her own hands.
In terms of the second way this was put, the applicant submitted that the trial judge had not paid due attention to the difference between the second and third elements. The judge had failed to understand the requirements for completeness and finality as recorded in the document. The terms of paragraph 116 of the trial judge’s reasons were highlighted which were said to be (wrongly) directed to whether the document expressed the intentions of the deceased.
Thus, although the applicant accepted that the New Will reflected Nina’s instructions (being the second element) this was not enough. Rather, the third requirement meant that Nina needed to intend the document itself to finally stand as her will.
It was also submitted that, if the decision was to stand, then a simple telephone discussion between a client and lawyer could suffice for an informal will even without file notes in circumstances where no document purporting to be a will was ever seen by the client. This gave rise to error by reason of failing to take into account public policy considerations (ground 3).
Lack of knowledge of value of home
The applicant submitted that whether Nina had testamentary capacity at the time of the New Will was relevant to the third element of s 9 namely whether the document was intended be her final will. The applicant submitted there was no evidence that Nina understood the full extent of her estate in 2016 in circumstances where her house had more than doubled in value. She only understood that her house had gone up ‘more’ or ‘quite a lot.’ This was to be compared with 2010 wherein she knew her house was worth about $900,000 and that she had about $70,000 in the bank.
In particular, the applicant submitted that a ‘possible’ explanation for the maintenance of the gift to Valentina of $10,000 was to provide at least that amount in the event that the residue of her estate might not be substantial. In oral submission it was also suggested that it was not rational for Nina to maintain the $10,000 gift.
It was accepted that Nina’s knowledge did not need to be ‘precise’. However, given she was effecting a particular will-making scheme wherein she was leaving $180,000 to each of the relatives and the balance to Valentina, it was significant that she had no idea what the balance was.
As will appear, the applicant did not put testamentary capacity in issue before the judge, but the applicant submitted that there was an onus to positively establish testamentary capacity. Further, there was a reference in the affidavit of Tatyana of 29 June 2018 (at paragraph 11) wherein she suggested that, after being advised about the 2010 Will, Tatyana had a number of (undated) conversations with Nina wherein she said her house was worth about $1 million.
Respondents
In written submissions, the respondents highlighted the evidence that the document was ‘settled’ in the sense that it was ‘finished’ noting that the judge accepted the word used to mean ‘finished or completed.’ The trial judge had also made an unchallenged finding as to the reason why Nina did not execute the document (which was not because she was uncertain, but because she trusted Mr Reichman). The fact that she wanted to keep her will confidential was also not evidence that the new document did not embody her wishes.
In relation to ground 3 the respondents highlighted that the argument was speculative with each case turning on its own facts. Further, that it was only after an analysis of the detailed facts (not only the last conversation) that the trial judge ultimately made his findings in this case.
In oral submission the respondents submitted that given the ‘mistakes’ in the New Will raised no real point of construction, they also did not assist in relation to whether the New Will was a final document intended to be Nina’s will.
Senior Counsel also highlighted that the legislation was remedial[32] and that it was unnecessary for every word to be read. Rather, the evidence supported the finding in this case. This included the evidence regarding the 2010 Will; the making of clear changes; and that the result was ‘exactly what [Nina] wanted.’
[32]Estate of Peter Brock [2007] VSC 415 [19].
In relation to testamentary capacity, the respondents submitted that the applicant had not raised the issue that Nina did not know the value of her house before the trial judge. The matter had not even been put to Mr Reichman in cross examination. The applicant relied on the decision of the High Court in Whisprun Pty Ltd v Dixon[33] and submitted that the applicant ought not be permitted to change a position on appeal where that change might have resulted in a change to the evidence below.
[33](2003) 200 ALR 447.
In oral submission Senior Counsel suggested that other evidence as to the obtaining of a valuation may also have been called if the matter had been pursued before the trial judge. More particularly, given that Nina had recently been placed in care and needed to have her assets valued, it was entirely possible that the respondents could have called evidence about the obtaining of a valuation which was communicated to the deceased.
In any event, the evidence showed that Nina knew she owned her property in Hawthorn East and that it had increased in value. It was not necessary for her to know the precise value to find testamentary capacity.
It was highlighted that Nina knew the value had increased which was why she made changes to her will in the first place. This was in circumstances where she knew the relatives would each comfortably receive $180,000 with sufficient value left over to look after her friend/carer.
Analysis
Requisite intention
It is of no consequence whether the March 2016 Will was used as a precedent, or whether Nina wanted the contents kept confidential. Rather, the real issue was whether Nina adopted the New Will as her final will - a matter expressly considered and answered by the trial judge.
Further, even presuming that the trial judge was asked to take the inconsequential errors in the New Will into account (which was not demonstrated), we consider that Nina, as a layperson, would be indifferent to the matters highlighted. Put another way, we are not satisfied that she would want to revisit her position that her will was ‘settled’ or ‘completed’ because, for example, her husband’s niece was described as a ‘niece.’ The applicant has not thereby demonstrated any failure to take a relevant consideration into account.
The suggestion that the New Will was not ‘subjectively final’ also ignores the unchallenged finding that the only reason Nina did not execute it was because she did not want to be cheated; not because she might want to change the will.
It is undisputed in this case that Nina had not seen the New Will, nor was every word read to her at the time her ‘instructions’ were taken in late June. However, Senior Counsel accepted that this did not mean that s 9 could not be satisfied since cases are dealt with on a fact by fact basis. This concession is consistent with the approach of Habersberger J in Fast v Rockman as follows:
What I take from these authorities is that there is no absolute rule that a document must have been seen or read to a person before a court can be satisfied that the person intended the document to be his or her will. That is, the bare fact that a person has not seen a document does not present an insurmountable difficulty to the invocation of the powers conferred on the Court to admit to probate a document which has not been executed in accordance with the prescribed legislative formalities. Much will depend on the state of evidence.[34]
[34][2013] VSC 18 [66].
We agree with this observation. The issue of intention raises a question of fact to be decided on its own facts and in its own context.
Returning to this case, the evidence about the late June 2016 meeting is to be considered in the light of the other findings made by the trial judge which went beyond the mere ‘taking of instructions’ and included:
· that Nina was aware of, and recalled the effect of, the 2010 Will;
· that over the course of a number of conversations Nina indicated she only wanted to make ‘limited changes’ to that will;
· that she understood the nature of the New Will and the changes it made to the 2010 Will;
· that Nina adopted the New Will and regarded it as ‘exactly what she wanted’ and ‘settled’;
· that Nina wanted Mr Reichman to come over as soon as possible so she could sign the New Will;
· that the reason for non-execution was not because Nina wanted to make a change to the New Will.
Subject to the matters already dealt with, none of these findings were challenged, nor was it suggested that the evidence did not support these findings. Moreover, the fact that Nina was aware of the 2010 Will and knew its effect means it is immaterial that the actual document was not ‘in front of her.’
The evidence about the late June 2016 meeting must then be considered in the light of the above findings. That evidence was that Mr Reichman went through and discussed each of the terms of the New Will, and, more particularly, that he advised Nina of the crucial changes (being $180,000 to each relative and the balance to Valentina). Given that Nina recalled the effect of the 2010 Will it is unnecessary for ‘every paragraph’ to be read to her.
The trial judge has therefore not misdirected himself in accepting that there was sufficient evidence in this case. More specifically, there was ample evidence before the judge to justify his finding that the New Will was intended by Nina to be her final will. In making his finding the trial judge also expressly cited and applied the Briginshaw principles.[35]
[35]Reasons [20], [116].
We are also not satisfied that the trial judge misdirected himself about the test to be applied. It is true that some of the matters considered may also go to whether the New Will expressed the testamentary intentions of Nina (element 2). However, at paragraph 18 the trial judge correctly characterised the issue as being whether all the circumstances lead to the conclusion that the deceased intended the ‘subject document’ to constitute his or her will. Having examined the Reasons as a whole, we are also not satisfied that the trial judge otherwise misdirected himself. The paragraph highlighted by the applicant was paragraph 116. However, in that paragraph the judge expressly records that he was conscious of statements in the authorities to the effect that it is quite common for testators to change their minds ‘after giving instructions…’ He was therefore well aware of the need for the evidence to go beyond the giving of instructions. He also went on to address directly the question of finality in finding that Nina intended the terms of the will ‘without any alteration or reservation’ to be the manner in which her property was disposed of.
No error has been demonstrated in this approach.
In terms of the alleged failure to take into account public policy considerations, the trial judge expressly stated that the real issue turned on whether Nina intended the New Will to be her will ‘notwithstanding she did not see it or read it and, being aware of the need to execute the New Will, had an opportunity to execute it but did not do so.’[36] He therefore explicitly had regard to the fact that the deceased had not seen or read the New Will. The facts in this case also went beyond ‘a simple telephone discussion’ as already outlined. It was otherwise not demonstrated that some relevant consideration was ignored in dealing with what was a question of fact on its merits.
[36]Ibid [32].
It follows that, subject to the complaint about testamentary capacity, none of the grounds are established.
Knowledge of estate
In relation to testamentary capacity, the trial judge acknowledged that there was an onus on the plaintiffs. However, the defendant did not suggest to Mr Reichman that Nina did not know the value of her home. In submission, the defendant’s position was also that she ‘does not say that the deceased lacked capacity’. She also stated that ‘the only evidence’ (from the defendant) as to capacity was in paragraph 17 of the affidavit of Tatyana which did not establish a lack of testamentary capacity.[37] The submission otherwise made no reference to the undated statements that Nina valued her home at $1 million (which are unhelpful in any event).
[37]Defendant’s submissions for trial listed 11 July 2018 [7]-[8]; the reference to paragraph 17 appears to be a mistake and should be paragraph 15.
The result is that, as properly conceded by Senior Counsel, the matter was not ‘an actively pursued argument.’ In fact, the point was not taken before the trial judge at all.
In Whisprun Pty Ltd v Dixon the High Court stated:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.[38]
[38]200 ALR 447, 461 [51].
We are not satisfied that the point now sought to be raised ‘could not possibly’ have been met by further evidence. Rather, consistent with the respondents’ suggestion that other evidence might have been available, the matter is an evidentiary one which ‘could’ well have been met if appropriately raised by submission and cross examination.
We therefore consider that it is contrary to the interests of justice for the point to be taken on appeal now with the result that the point must fail on this basis.
However, even if it was necessary to consider the point, we also consider it to be without merit.
Nina clearly understood that her home had substantially increased in value given this prompted her to change her will. She was also aware that there would be funds left over for her carer after giving $180,000 to each of her five relatives. It is not irrational for her to retain her gift of $10,000 to Valentina which recognised her role as executor. Nor does this suggest that she thought the residue would be insufficient.
As conceded by Senior Counsel, there is no need for a testator’s knowledge of her/his assets to be precise in order for that person to have testamentary capacity.[39] To suggest otherwise would necessitate the obtaining of frequent valuations while saying nothing about the true capacity of a testator. The fact that this was part of a ‘scheme’ wherein Valentina was to receive the residue also does not advance the point further.
[39]And see Brown v Guss [2014] VSC 251 [345]; Kerr & Anor v Badran & Anor Estate of Badran [2004] NSWSC 735 [49] cited in Julie Ann Nicholson & Ors v Timothy Peter Knaggs & Ors [2009] VSC 64 [99].
The trial judge otherwise cited ample evidence for his (unopposed) finding that Nina had testamentary capacity.
The complaint that the trial judge wrongly found testamentary capacity to exist and/or failed to have regard to the fact that Nina did not know the precise value of her home must therefore fail.
Conclusion
Leave to appeal will be granted but the appeal will be dismissed.
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