Theophanous v Gillespie

THE SUPREME COURT

[2001] QSC 177

OF QUEENSLAND

BRISBANE	No. S 4022 of 1999
BETWEEN:

MARLISS KAYE THEOPHANOUS, BENJAMIN CYRIL
GILLESPIE, NICOLE ANN GILLESPIE and ANNA KAREENA
KIVIRANTA (as executors of the Will of CYRIL BERTRAM
GILLESPIE deceased)
Plaintiffs

AND:

DEREK LEONARD GILLESPIE

Defendant

REASONS FOR JUDGMENT
B.W. Ambrose J.

Delivered the 14th day of June 2001

Catchwords:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – when the testator is terminally ill in hospital – whether the testator had testamentary capacity to make his last will
SUCCESSION – EXECUTORS AND ADMINISTRATORS – Administration – when there are five executors listed in the will – whether the fifth named executor can take priority over one of the other four executors
PROCEDURE – COSTS - Indemnity Costs – when the opposition to the grant of probate is without merit, unsupported by credible evidence and where there are no real prospects of success
Succession Act 1981 (Qld) s 6, s 40, s 41, s 48
Banks v Goodfellow (1870) LR 5 QB 549 Battan Singh v Amirchand (1948) AC 161 Nautilas Australia Ltd v The Ship “Rossel Current”, no. 6585 of 1998 (unreported judgement delivered 26 March 1999)
Counsel:	Mr Sofronoff QC with Mr Murphy for the plaintiffs Mr Mullins for the defendant
Solicitors:	McCullough Robertson Lawyers for the plaintiffs Deacons Lawyers for the defendant
Hearing Dates:	21 May 2001 – 28 May 2001

The plaintiffs in this action are four persons appointed as his executors by Cyril Bertram Gillespie (“the testator”) in his will dated 24 August 1998 (“the 24 August will”).
The defendant is a fifth person appointed as executor of the 24 August will.
The testator died on 15 September 1998 aged 57 years having executed five wills.
On 6 October 1998 the defendant (“Derek”) who was the elder son of the testator, filed a caveat against a grant of administration of his estate. On 9 November 1998 the plaintiffs filed a request for a grant of probate in common form of the 24 August will. On 13 November 1998 notice was given to Derek concerning entry of an appearance to his caveat. On 26 November 1998 he entered an appearance requiring the plaintiffs to prove the 24 August will in solemn form and undertaking to enter an appearance in any such action taken by the plaintiffs. On 4 May 1999 the plaintiffs commenced proceedings propounding the 24 August will in solemn form. Derek counterclaimed for an order pronouncing against the 24 August will but pronouncing for a will executed by the testator dated 24 April 1998 in solemn form. On 9 June 1999 he also made an application for provision out of the testator’s estate under s 41 of the Succession Act 1981 making the plaintiffs/respondents to his application. No issues upon that application were canvassed upon this trial.

[5]	The action is a rather complex one and it is convenient to outline briefly the facts which emerged in the course of a 7 day trial.
[6]	The first plaintiff (“Marliss”) is the eldest of the testator’s children by his first marriage.
[7]	The second plaintiff (“Benjamin”) is the younger of the two sons of the testator of that former marriage.
[8]	The third plaintiff (“Nicole”) is the younger of the two daughters of the testator by that former marriage.
[9]	The fourth plaintiff “(Anna”) was the defacto wife of the testator in a relationship that lasted approximately 18 years prior to his death.
[10]	Anna had two children by her former marriage to whom I will refer as “Yani” and “Sam”. Those children were beneficiaries under all five wills.

I should mention also that the principal asset of the testator was a commercial venture conducted by a company named Dymark (Aust) Pty Ltd (“Dymark”). At all material times that company had issued 25 shares of which the testator held 24. Many years before 1997 he had, without her knowledge, transferred the other issued share to Marliss.

[12]	An affidavit of scripts filed on behalf of the plaintiffs on 4 May 1999 exhibited 5 testamentary instruments executed by the testator.

The first was executed on 12 December 1997 (“the 1997 will”). The second was executed on 24 April 1998 (“the 24 April will”). The next was executed on 11 August 1998 (“the 11 August will”). The next was executed on 17 August 1998 (“the 17 August will”). The last one was executed on 24 August 1998 (“ the 24 August will”).

[14]	Thus the testator executed, all told, five testamentary instruments between 12 December 1997 and the date of his death on 15 September 1998.
[15]	It is the case for the plaintiffs that the testator had testamentary capacity to make each of the five wills to which I have referred.

It is the case, however, for Derek that the testator lacked testamentary capacity with respect to the last 3 wills he executed in August 1998 and that indeed he had testamentary capacity only when he executed the 24 April will.

[17]	It is the case pleaded for Derek that if the testator lacked testamentary capacity to execute his 24 April will, he also lacked such capacity to execute his 1997 will.

On 16 May 2001 Derek filed a rejoinder in which inter alia he pleaded that through 12 December 1997 the testator was anxious and upset as a result of surgical interventions at that time and when he provided instructions for and executed the 1997 will he did not know and approve of its contents. In the event that the court pronounces against both the 24 August will and the 24 April will in solemn form he seeks a declaration that the testator died intestate. It is clear from the relief sought by Derek in his rejoinder filed and delivered on the first day of the hearing that the ultimate relief he seeks is the beneficial interest he would take in the testator’s estate in the event that probate of the 24 April will is granted and should he fail to take that interest he seeks to have the testator’s estate administered in intestacy. While that result would initially at least result in the whole of his estate being divided equally between his four children, it is clear that neither Anna, Yani nor Sam would take upon intestacy. Anna’s only right would be to make an application for adequate provision out of the estate under s 41(1) of the Succession Act as a dependent (a “defacto spouse” is a “dependent” under the definition of dependent in s 40 of the Act). Derek observed that he would not mind having “a role in Dymark”; he said that he would not necessarily need to have a role. If his siblings were agreeable, he would take an interest in the company, if they were not agreeable he would be happy to continue doing what he is currently doing. He said that he could not say whether he would sell his shares to his siblings. He said that was a possibility. He said he might start to work within the family business, but he had not made up his mind at time of trial. He said he really did not know what he could do with any interest he might hold in Dymark.
In the event that “all this bitterness” with his relatives “could not be patched up” one might infer that the scene would be set for an application to be made to wind up Dymark on the just and equitable ground – particularly having regard to the inter- sibling rivalry and bitterness which emerged in the evidence.
There has been a great deal of evidence led from persons who made observations of the behaviour and intellectual acuity of the testator at and about the time all wills were executed by him, as well as evidence from doctors who treated him for terminal cancer, from which he was suffering in December 1997, until the time of his death in September 1998.
Various children of the testator and his widow, Anna, have given evidence as to the testator’s physical and mental condition observed at and about the times when the various wills were executed.
Each of the five wills executed by the testator to which I have referred, was prepared by his solicitor, Mr Walker, with whom the testator made direct contact and to whom he gave very explicit instructions for the preparation of each testamentary instrument. Each instrument was typed out by that solicitor’s secretary and taken by the solicitor forthwith for execution by the testator. Each of the wills was witnessed by the solicitor and by his secretary. Both those persons gave evidence as to what they observed of the testator at the time he executed each will relevant to the determination of his testamentary capacity at the time he executed it.
Derek, who propounds only the 24 April will, called expert medical evidence from three witnesses, Dr Meyers, Dr Brown and Dr Moyle who had never seen the testator at any material time, but who examined contemporaneous hospital records and considered the palliatory drug regime which the testator was on at the time he executed all five wills, statements, pleadings etc produced by Derek and expressed opinions based upon their experience of the effect that the consumption of such drugs at material times may have had upon the testator. Dr Meyers was first asked to consider the matter on 28 August 2000. Dr Brown and Dr Moyle were first asked to consider the matter in April 2001 – less than one month before the trial commenced.
Because the testamentary capacity of the testator when he made his 24 April will was not really put in issue upon trial, on the evidence it is strictly necessary to determine only the testamentary capacity of the testator when he made his 1997 will and his last three wills in August 1998. However, it is relevant to consider the content of the 24 April will at a time when upon the evidence led his testamentary capacity was not really in issue and to consider the variations in testamentary disposition in both the 1997 will and the 24 April will and in the last three testamentary instruments executed in August 1998.
The essence of Derek’s case is that the wills executed by the testator in August 1998 had the effect of reducing the benefit which he would have taken under the 24 April will by approximately two million dollars. It is his case that when the August wills were executed by the testator he was suffering from such confusion and delusions that he lacked testamentary capacity and therefore all three August 1998 wills should be pronounced against.

[26]	It is convenient I think to analyse the benefit that each of the plaintiffs and Derek would take under each of the five wills executed by the testator.
[27]	I will deal with the provisions of the five wills relevant to the determination of the question of testamentary capacity in chronological order:

The 1997 will

[28]	Under this will the testator appointed Derek and Benjamin to be executors and trustees. He bequeathed his 24 shares in Dymark as follows-

Anna – 6 shares
Marliss – 8 shares
Benjamin – 8 shares
Yani – 1 share
Sam – 1 share.

I observe merely that had this bequest been effective Anna would have held 6 shares, Marliss 9 shares and Benjamin 8 shares, accounting for 23 shares while each of Anna’s children Yani and Sam, would have held one share.

[29]	The testator devised property used for business purposes which he owned in Adelaide to Marliss free of encumbrance.

He left the residue of his property jointly to Anna and his four children.

[31]	He directed his trustees to consult with Craig Whitehill, his accountant, “on any major issues” involving the administration of his estate.

The 24 April will

[32]	In his will of 24 April 1998 the testator again appointed Derek and Benjamin to be his executors and trustees.

He bequeathed his shares in Dymark as follows:–
Anna – 5 shares
Marliss – 4 shares
Benjamin – 5 shares
Nicole – 5 shares
Derek – 5 shares.

[34]	The effect of this bequest was that each of Anna and the testator’s four children would hold five of the 25 issued shares in the testator’s company Dymark.

[Sam and Yani lost 1 share each and Derek and Nicole each took 5 shares].

He again bequeathed his properties in Adelaide to Marliss.

[36]	He devised his industrial property at Wacol upon which Dymark’s business ventures were conducted to Anna and his four children in equal shares.
[In the 1997 will this property fell into residue which Anna and his four children shared equally.]
[37]	He transferred 100 shares in his company Inka Constructions to Benjamin and Derek equally.

[In the 1997 will they were part of the residue]

[38]	He transferred the 1 share he held in Jancrete Pty Ltd (“Jancrete”) to Dymark. [In the 1997 will it was part of the residue]

He bequeathed to Anna $250,000.00 and to each of Sam and Yani $50,000.00.

[40]	He set aside an amount of $300,000.00 in an account to be used for the benefit of his grandchildren and those of Anna.
[41]	He bequeathed the residue of his estate equally and jointly to his four children. [In the 1997 will Anna shared the residue with the children.]
[42]	He again directed that his trustees consult with his accountant, Craig Whitehill. The 11 August will
[43]	In his will executed on 11 August 1998 the testator again appointed Derek and Benjamin to be his executors and trustees.

However, he bequeathed his shares in Dymark in the following way –
Anna – 8 1/3 shares
Marliss – 7 1/3 shares
Benjamin – 8 1/3 shares.
Keeping in mind that Marliss already held one share (albeit not to her knowledge), this disposition would have the effect of making Anna, Marliss and Benjamin equal shareholders in Dymark.
[This variation deprived Derek and Nicole of the five shares bequeathed to each in
the 24 April will.]
He again devised his Adelaide properties to Marliss.
He again devised his industrial property at Wacol which was the principal site of the Dymark business (in Queensland) upon trust for the benefit of Anna and his four children in equal shares.

[47]	He again transferred his 100 shares in Inka Constructions to Benjamin and Derek in equal shares.
[48]	He devised to Derek and Nicole his house and land at Pullenvale. [Under the 1997 will this property had been part of the residue]

He again transferred his share in Jancrete to Dymark.

[50]	He bequeathed to Anna a legacy of $250,000.00 and to each of her children, Sam and Yani one of $50,000.00.

He again left $300,000.00 for the education of his grandchildren and those of Anna, however, in addition he directed that the trustees of this education fund were to be Marliss and Anna.

[52]	He again directed that the residue of his property be held for the benefit of his four children jointly and equally.

However, under clause 16 of the will, he directed his trustees to execute a lease of his industrial property at Wacol from which the Dymark business was conducted in favour of Dymark for a period of five years with an option for a further five years at a rental to be agreed upon or assessed by a valuer. He directed that the “normal appropriate clauses” were to be inserted in the lease by his solicitor, James Walker.

[54]	He again requested his trustees to consult with his accountant, Craig Whitehill, on major issues that arose in the administration of his estate.
[55]	The dispositions in this will must be considered with the effect of a deed the testator executed at the time of execution of the will to which I will later refer.

The 17 August will

[56]	In his will executed on 17 August 1998 the testator appointed Marliss, Benjamin and Anna to be his executors and trustees.

[Substituting Marliss and Anna for Derek.]

[57]	He again transferred his shares in Dymark in such a fashion that each of those executors and trustees would have an equal interest – each holding 8 1/3 shares.

He again devised his property in Adelaide to Marliss.

[59]	He devised his industrial property at Wacol from which Dymark conducted its operations, to be held for the benefit of Anna and his four children in equal shares.
[60]	He again bequeathed his 100 shares in Inka Constructions to Benjamin and Derek in equal shares.

He again devised his house at Pullenvale to Derek and Nicole.
He again bequeathed his one share in Jancrete to Dymark.

[63]	He again bequeathed legacies of $250,000.00 to Anna and $50,000.00 to each of Sam and Yani.

He again set up a fund of $300,000.00 for the education of his grandchildren and those of Anna and again directed that Marliss and Anna should be the trustees of that fund.

[65]	He again disposed of the residue of his property to his four children jointly and in equal shares.

He again directed his trustees to execute a lease of the land that he owned at Wacol from which Dymark conducted its operations in favour of Dymark for a period of five years with an option for a further five years on similar terms to the direction given in his previous will.

[67]	He again requested his trustees to consult with Craig Whitehill, his accountant, on major issues relating to the administration of his estate.

The 24 August will

[68]	In his will executed on 24 August 1998 the testator appointed Anna and all four of his children to be his executors and trustees.

[adding Derek and Nicole]

[69]	He again bequeathed his shares in Dymark in such a way that each of Anna, Marliss and Benjamin would have an equal shareholding of 8 1/3 shares in that company.

He again directed that his properties in Adelaide be transferred to Marliss free of encumbrance. However he imposed as a condition of this devise that Marliss transfer 281 1/3 of the shares she held in a company called Glideway Pty Ltd (“Glideway”) to each of Nicole, Benjamin, Derek and Anna. He stated that that condition was imposed to “fulfil his desire” that shares in Glideway be held equally by his children and Anna.

[71]	Of the shares he held in Glideway he bequeathed to each of Nicole, Benjamin and Derek 1093 1/3, and to Anna 1718 1/3 shares.

Although this matter was not explored I assume that after Marliss had transferred the specified number of shares to her brothers and sisters and Anna, and after the testator’s bequest to each of those legatees, all five would end up with equal share holdings in Glideway.
He again bequeathed his share in Jancrete to Dymark.
He bequeathed legacies of $50,000.00 to each of Sam and Yani.

[He did not, however, bequeath a legacy of $250,000.00 to Anna as he had in his
three previous wills executed in 1998.]

He again set aside $300,000.00 as an education fund for the benefit of his grandchildren and those of Anna and again appointed Marliss and Anna to be trustees of that fund.
He directed that the rest of his property, real and personal, be held jointly and in equal shares for Anna and his four children. This variation of his prior will gave Anna an equal share in the residue of his estate with the testator’s four children in lieu of a legacy of $250,000.00.
He again directed that his trustees execute a lease of his industrial property at Wacol from which Dymark conducted its business operations for a period of five years with an option for a further five years at a rental to be agreed or assessed and directed again that the lease be drawn by his solicitor, James Walker.

[78]	He again directed that his trustees consult with his accountant, Craig Whitehill, on major issues relating to administration of his estate.

In the preparation of the various testamentary instruments executed by the testator it is clear on the evidence which is uncontradicted, that his solicitor took direct instructions from the testator and from no other person.
It is unnecessary to analyse in detail the variations that were made in the beneficial interests of the various beneficiaries named in each of the wills. It suffices to say that each will provided different benefits (some only slightly different) for each of the same named beneficiaries who were the four children of the testator, his widow, Anna, and her two children, Sam and Yani.

The principal changes in beneficial disposition were those made in favour of Nicole and Derek under the 1997 will which were greatly increased in the 24 April will at the expense of Anna, Marliss and Benjamin.
Under the 11 August will, roughly speaking, the former dispositions of the 1997 will were substantially reinstated. The beneficial interest of Derek and Nicole was significantly reduced under the 11 August will from that under the 24 April will to approximately what it had been under the 1997 will.
The 17 August will and 24 August will, although making some relatively minor alterations in beneficial interest, did not significantly alter the beneficial dispositions that had then be made in the 1997 will or the 11 August will at least with respect to shares in Dymark. Anna lost the legacy of $250,000.00 bequeathed to her under the 11 August and 17 August wills but not bequeathed in the 1997 will.
On my reading of the 24 August will propounded by the plaintiffs it is consistent with a detailed comprehension of the property owned and controlled by the testator and various dispositions which he had apparently made to Marliss prior to the execution of any of his five wills, and a desire to give to the people who had worked in and had experience with the operations of Dymark, the Dymark shares equally and to leave the rest of his property, subject to provision for Anna’s children and her grandchildren and those of the testator, equally between Anna and his four children.
It is now convenient to look at the evidence as to testamentary capacity given in respect of the execution of each of the five wills. As I understand the case for Derek, it is conceded that the testator had testamentary capacity when he executed his 24 April will. It is convenient however to consider all the evidence called relating to the execution of all wills in the context of his medical condition and drug ingestion with a view to comparing evidence of the changes, if any, in his testamentary capacity (or incapacity) observed by various persons called to give evidence in this regard.
There was no argument as to the law on proof of testamentary capacity. I refer merely to what Cockburn CJ said in Banks v Goodfellow (1870) LR 5 QB 549 at 565 and to Battan Singh v Amirchand (1948) AC 161.
Because on the pleadings at least, the testamentary capacity of the testator is in issue in respect of each of the five wills to which I have referred, I will analyse evidence relevant to that issue separately with respect to each will. The two principal witnesses for the plaintiffs on testamentary capacity are the solicitor for the testator, James Walker, and his secretary, Sophie Bourboulis.
With respect to each of the wills executed by the testator, he contacted his solicitor and gave him direct instructions for the preparation of that will. Mr Walker then returned to his office with those instructions and drafted a will for execution by the testator. His secretary, Sophie Bourboulis, then typed up the will. Mr Walker and Miss Bourboulis then together attended upon the testator where the will was read by him or to him or both, and the content discussed with him in their presence; then the testator executed each will in the presence of Mr Walker and Miss Bourboulis who then signed the will as attesting witnesses.
Mr Walker had known the testator from the early 1980s. At that time the testator was living with Anna. Mr Walker had previously met Anna in the 1970s when he had done legal work for her and her then husband. He said that he had come into contact with her on occasions since that time although he had not developed any social relationship with her or members of her family. He said that he had commenced to do legal work for the testator in the early 1990s; that work was done principally for the testator’s company Dymark. It was always the testator who gave him instructions for that work when his company was involved in litigation from time to time and indeed some such litigation was proceeding when the testator commenced to get ill in 1997. By that time of course Anna had been living with the testator as his defacto wife for about 18 years and when he became ill she took over and gave instructions to Mr Walker with respect to some litigation he was then conducting on behalf of Dymark. He said he had also spoken to Benjamin a couple of times about a few things related to litigation over the telephone. Mr Walker said the testator was very proud of his business Dymark and it seemed to be the most important thing in his life.
The 1997 will
With respect to his preparation of the 1997 will, Mr Walker said that he got a telephone message to go to the Wesley Hospital to see the testator on 11 December 1997. He said he took instructions for preparation of a will from the testator on 11 December 1997. The testator was in his hospital room at Wesley Hospital with nobody else present. He told his solicitor that he did not think he was going to die but that he wanted to get his affairs in order and Mr Walker had a discussion as to precisely what he wanted in his will and made notes of those instructions and went away to have the will prepared. According to Mr Walker, the testator talked fluently and did not seem to have any problems grasping facts or enunciating what he wanted to say. He said he appeared to be articulate and in full grasp of all the information needed to make his will. They had a discussion about the number of issued shares in Dymark and the testator informed him that Marliss held one and he held the other 24. He gave him precise instructions as to the disposition of his shares. The testator instructed his solicitor to give the direction or request relating to his accountant, Craig Whitehill to which I have referred. Mr Walker went back to his office with his instructions and prepared a will for the testator; the following morning this will was typed by Miss Bourboulis.
On 12 December 1997 the solicitor attended the Wesley Hospital with his secretary, of about 20 years experience, with him. Mr Walker said that the testator read through the will very carefully and then executed it.
He said that at that time the testator appeared to be in pain; he said that mentally at the time of execution of his will the testator was “fine”; he said neither at the time instructions were given for the preparation of the will nor at the time of its execution, did he notice anything amiss in his intellectual capacity or his grasp of relevant things. He said he had no reason to doubt that the testator was fully aware of what he was doing. He gave Mr Walker no reason to doubt that he understood fully the extent of his estate or to think that he was or might be unaware of his testamentary obligations.

[93]	The execution of the 1997 will was the first occasion upon which Sophie Bourboulis met and spoke to the testator.

Dr Lumley, a Colorectal Surgeon first met the testator on 11 December 1997, when he was an inpatient in Wesley Hospital. The testator gave that doctor a history of symptoms relevant to his diagnosis and treatment. The testator appeared to him to be coherent and to understand and be able to answer questions appropriately; he said if he had noticed anything abnormal about the capacity of the testator when he was talking to him, he would have made a note about that in the records but he did not. He said that the testator appeared to him to be a very pragmatic man who had a complicated medical problem which he fully understood. He said he had had numerous discussions with the testator about the management of his problem which was later diagnosed to be cancer. Dr Lumley referred to hospital records of drugs administered to the testator on 11 and 12 December 1997. He said the doses were average and appropriate for the pain problems of the testator. At no time during 11 or 12 December 1997 did the testator appear to Dr Lumley to be at all confused. It was at about 6:00p.m on 12 December 1997 that Dr Lumley performed a total colectomy on the testator. He discussed the intended operation with the testator just prior to 6:00pm and the testator seemed to understand completely everything the doctor said to him. He did not appear to be confused about anything.
There was nothing in the hospital notes relevant to the testator’s stay in hospital before or after his first operation in December 1997 until his discharge to suggest that during that period of time he ever became confused or delusional or that anything was observed that might give rise to a suspicion that he lacked testamentary capacity.
Derek said that over a period of 14 or 15 years prior to the testator’s death, the testator and he had conversations from time to time about his commencing work “at the family business”. He said that on a couple of occasions while the testator was living at Forest Lake, they had had similar discussions; he said that on 5 November 1997, he had a discussion with the testator at the Sheraton Hotel when he was advised by the testator that he intended to retire. Derek said that the testator told him he had decided that “he wouldn’t be concerned about Anna anymore and my involvement in the business; that he definitely wanted me to be a part of the business and that’s what was going to happen.” Such a conversation at that time seems quite inconsistent with the terms of the 1997 will executed 5 weeks later. Having regard to Derek’s interest in propounding the 24 April will I am not persuaded that this evidence is reliable. He said that he visited the testator at the Wesley Hospital in December 1997 when members of the testator’s family were advised of the diagnosis and prognosis for the testator’s condition. He said he could not remember anything that might be of assistance on the issue of the testamentary capacity of the testator in December 1997.
None of the medical evidence called on behalf of the defendant to my mind is of any assistance in determining the issue of the testator’s testamentary capacity when he gave instructions for and executed the 1997 will or for that matter any of the later wills.

[98]	I find that the testator did have testamentary capacity on the occasion he gave instructions for the preparation of his 1997 will and at the time he executed it.

The 24 April will

I do not propose to analyse in depth the evidence relating to the activities of the testator and members of his family between December 1997 and April 1998. I will mention only that he seems to have been able to converse with friends and relatives in an ordinary way. I accept the evidence of Anna, Benjamin and Marliss and indeed Nicole that there was nothing to indicate to them that he was at all confused or incapable of doing the things that he used to do prior to his December 1997 operation. He was able to take his 50 foot high-tech motor cruiser out into Moreton Bay. He understood as he had always understood how to control it and indeed would not let Anna, who also had a licence to control the boat, give him any assistance. Evidence from a number of independent persons indicates to my mind that there was nothing untoward concerning his capacity up until the time he gave instructions for and executed his April 24 will. Understandably perhaps Derek led no evidence to support a contrary conclusion.
There is one relevant fact, however, that may assist to explain why there was such a drastic alteration to the beneficial interest taken by Derek and Nicole vis à vis Anna and the testator’s other children as a consequence of the provisions in the 24 April will. Anna gave evidence that prior to Easter 1998 the testator went to Camp Eden to assist in his rehabilitation. By that time he had lost weight, and had become interested in alternative medicine etc. While he was at Camp Eden, which Anna had attended a few times herself previously, Anna and Benjamin ran the Dymark business in his absence. She said that at the Camp, natural foods were promoted and the people attending were encouraged to engage in meditation and tai chi. The testator had never been involved in that sort of activity before and she said that when he returned after 5 days at that place he had a quite different view of life to that which he had prior to going there. She said that he said that he wanted “to do everything right, he wanted to love everyone, he wanted to show everyone that he loved everyone which was often very difficult for him to do because although he was a loving man he found it difficult to show it on occasions”. At Camp Eden he had been exposed to meditation, yoga and tai chi - all disciplines with which he had no previous experience. When he returned from Camp Eden he engaged in these activities at the house he occupied with Anna at Forest Lake.
It was in about April 1998 that the testator started to keep a medication diary. At that time the cancer was spreading and he took lots of tablets of different kinds, and to ensure that he took the right ones at the right time and in the right order he kept a diary that was tendered.
Marliss came to stay with the testator and Anna at Easter in 1998. She said that she observed that the testator had lost weight, however, she noticed nothing different about his medical condition from what she had observed when she had visited him in hospital in December 1997. He seemed quite normal to her and exhibited no confusion at all. She said she noticed that “he was acting a bit more loving” . She said that she was aware that her father had been to Camp Eden and he talked about this to her during the time she spent with him at Easter 1998; she said she noticed that her father did tai chi exercises and also meditated. He talked to Marliss about events that occurred at Camp Eden and how much he had enjoyed and appreciated his interaction with other people staying there. She also noticed the care he was taking with his medication.
Nicole came up from Melbourne to visit the testator on 6 April 1998. She remained in Brisbane for about 2 weeks, returning to Melbourne on 19 April 1998. Easter Sunday was 12 April 1998. At that stage while staying with the testator Nicole noticed that he became lonely during the day time missing Anna and Benjamin who had to keep working. She looked after him and he taught her tai chi. She noticed that his personality had greatly changed. She said he was more humble and open and more verbally expressive of his emotions. Family seemed to be more important to him after the December operation than it had been before and when she saw him at Easter in 1998, this view was confirmed. He talked with her about attending Camp Eden and she expressed the view that that must have helped him to “open up emotionally”. Indeed so impressed was the testator with the effect that Camp Eden had had on him he insisted that Nicole go there and provided her with vouchers to permit her to attend in June.
Nicole was persuaded to go to Camp Eden and gave evidence as to the organised psychological structure of the “forum” which ran from Monday to Friday between 9:00 am and midday. She said that the forum leader took persons attending the camp through a series of processes which led to the persons engaging in this activity looking back at previous hurtful episodes in their life.
She observed the testator meditating. On some occasions during his meditation he would fall asleep. She said that while she stayed with the testator, she recalled that Derek visited them at least once – it could have been more than once. Typically Benjamin came to visit the testator each day after work when he would discuss Dymark business issues with him.
None of the testator’s children nor indeed anybody called on behalf of Derek observed anything abnormal in the behaviour of the testator prior to his giving instructions for and executing the 24 April will with the important exception of the apparent effect that his week long stay at Camp Eden had had on his emotions and his feelings for his family.

[107]

I will turn now to the evidence of the testator’s solicitor and his secretary
concerning the instructions given for and the execution of the 24 April will.

Mr Walker said that he received a telephone call to go to the testator’s residence at Forest Lake. He did attend at the house and took instructions on 23 April 1998 to prepare another will. He made notes of those instructions. Those notes were tendered and are Exhibit 4. He said he could not recall whether it was the testator or Anna who had asked him to attend at the house.
The testator advised him that Anna had been spending more time at home with him and that he hoped Benjamin was going to be active in the business and that he thought “they can all get along together and I am going to leave Dymark five ways”. He gave the instructions which are reflected in the will. He discussed with Mr Walker the consequences of the dispositions he proposed. After he prepared a draft in his office, Mr Walker faxed a copy to the testator, and discussed with him that draft. The testator told him that he had read through it and thought that “it looked okay”. He said that he would read the will again and call his solicitor back so that he and his secretary could come out to the testator’s home for its execution. Mr Walker did attend at the residence of the testator on 24 April 1998 with his secretary when the will was duly attested and witnessed.
Mr Walker expressed the view that the testator appeared to be in a better condition than he had been when in hospital and that he seemed to be able to move around the house without difficulty. He said he spoke perfectly lucidly and fluently and gave no indication that he was in anyway confused; he said he had no reason at all to doubt that the testator was fully competent and able to focus on being fair when meeting his testamentary obligations. In fact, he observed that the testator’s focus was on being fair in the discharge of his testamentary obligations to those of his family and loved ones who were within the sphere of his will and he was concerned to balance his dispositions fairly.
One piece of advice that the solicitor gave the testator was that as a consequence of the variation of disposition contained in the 24 April will, Anna’s share in Dymark was being “watered down” – ie. 5 shares instead of 6. The testator, however, proposed to leave her a legacy in lieu of a one fifth share in the Dymark residue. Mr Walker advised him that he should consider that Anna might have a claim against his estate in relation to a share in Dymark and the testator replied that Anna had her own house and her own company. Mr Walker assumed that the company referred to was Parisco which was involved in the sale of Dymark products in Victoria. Mr Walker informed the testator that in effect Anna had made a significant contribution to Dymark as it operated at that time. No further conversation took place then although Mr Walker said that the testator “apparently took that on board.”
Derek gave evidence that over the Easter weekend in 1998 he had a discussion with the testator to the effect that Dymark was going to be left evenly divided amongst his four children and Anna but that Anna would not accept that and said that Benjamin was going to take the reins for now. Derek said that the testator had informed him that he was going to appoint him to be executor of his estate because he was the only one the testator would trust to administer the estate properly. He said that Benjamin would also be an executor “but not the principal one”.
For the plaintiffs it is contended that the change in testamentary dispositions in the 24 April will may readily be attributed to the change in attitude brought about by the effect of the testator’s experiences in Camp Eden a short time previously. Certainly Mr Walker was impressed with the expressed desire of the testator to treat all his children, in particular, equally so far as his beneficial dispositions were concerned and to do things that he then perceived to be “right”.

[114]

On the material I am satisfied that at the time he gave instructions for and executed
the 24 April will, the testator did have testamentary capacity.

11 August will

On 10 August 1998 Mr Walker was again requested by the testator to take instructions for the preparation of another will. He attended the testator at his home at Forest Lake; he took instructions from the testator alone, although he said the testator’s housekeeper may have been there. He recorded his instructions in note form which was tendered.
The testator told him the Dymark shares “had to go 3 ways” and that the house at Pullenvale on valuable land was to be left to Derek and Nicole. He told his solicitor that Marliss was responsible for Dymark sales in Adelaide and surrounding area, Anna was responsible for the sales via her company in Victoria and Benjamin was going to be responsible for sales in Sydney and that those 3 separate companies were to get a share of the Dymark income but would “stream directly through to them and give them the understanding they were benefiting as a result of their own endeavours.” Mr Walker said that the testator did not appear to be in any way confused in discussing these matters with him but seemed to be endeavouring to dispose of his shares in Dymark so that his absence from that company would not affect its ongoing prosperity.
Mr Walker took all the notes he made in this discussion with the testator back to his office and prepared a new will. He also prepared a draft deed for which he had obtained instructions from the testator when he was taking instructions for his new will. Those notes were tendered. The draft deed was designed to implement the testator’s desire that the three companies used to distribute Dymark’s products in South Australia, Victoria and North Queensland and New South Wales should be conducted by Marliss, Anna and Benjamin respectively and should share the net profits of Dymark in the proportion that the gross sales of each company bore to the total gross sales of all three companies.
Before going to the testator to have him execute his new will on 11 August, Mr Walker contacted him by telephone and arranged to take the will and deed to him for execution.
Mr Walker and his secretary attended the testator at his home on 11 August 1998 and made notes concerning what then occurred. He gave the testator a draft will with changes made to the previous will shaded in. This was given to him so that he could readily understand the nature of the changes effected. The testator went through that will apparently understanding what he was reading and his solicitor then gave the testator the 11 August will which he again read through. He signed it and Mr Walker and his secretary witnessed his signature. They then turned to the deed that had been prepared for the testator’s signature. The testator read through the deed and pointed out a couple of errors in the spelling of company names. His solicitor then changed the spellings in his handwriting. When those changes were made the testator executed the deed.
The testator and his solicitor had a general discussion during which the testator told his solicitor that he had not been well enough recently to go down to his boat. He then advised his solicitor that he might make further changes to his will which he was then contemplating but that he would talk to Mr Walker about further changes at a later time. It is interesting to note from the terms of cl 1(c) of the deed that the testator had in mind the part played by Glideway at that time and the possibility that another company to be controlled by Benjamin might “replace” it in the distribution of Dymark’s products in New South Wales. Prior to executing the deed the testator produced the Dymark company seal and I infer that he applied it to the deed upon execution. Sophie Bourboulis confirmed the evidence of Mr Walker as to the execution of the 11 August will. In fact, when she attended with Mr Walker on the occasion of the testator’s execution of the 11 August will, she made some notes and when she returned to the office after execution of the will she typed those notes up. They were tendered.
On 11 August she noticed a big difference in the appearance of the testator from the last occasion when she had attended for his execution of the 24 April will. She said that he greeted both Mr Walker and her very warmly; she said she noticed a big difference in his personality; on this occasion he seemed to her to be a much nicer man. In fact, he remembered her name without prompting. She said that the testator asked for the will because he wanted to make sure that Mr Walker had made the changes he wanted. She said that Mr Walker went through each clause one by one making sure that the testator was happy with the dispositions. She said that he was and that he signed it and that she and Mr Walker witnessed his signature.
She said that she recalled typing the deed which the testator also executed under seal that day. She said that she had typed the deed from the handwritten notes that Mr Walker had made the previous day and that when he read it the testator pointed out that the names of the companies were spelt wrongly. At the testator’s request the solicitor then crossed out the wrongly spelt names and inserted the correctly spelt names. The testator then executed that deed.
After those documents had been executed the testator raised with Mr Walker whether he had obtained from another firm of solicitors called Woudwycks some documents on his behalf. He had given Mr Walker an authority to recover those documents but they had not been obtained before 11 August 1998. The testator asked that enquiries be made of the other solicitor as to what was happening and he told Miss Bourboulis to go into his office and make a telephone call to those solicitors straightway. He told her where she could find the phonebook and where the phone was located in his office. She said she followed his instructions and made the call and the solicitors informed her that they had not found any documents but that they would continue to search and let her know. Eventually the solicitor she had telephoned did make a telephone call and told her that the documents had been located.
After those business matters were concluded she said that she was present when there was a general conversation between the testator and Mr Walker; she said that she remembered leaving the testator’s home. He got up to let them out and she had a discussion with him about the flowers in his garden and he showed her roses that were there. She said she did not see any indication whatever that the testator was not in perfect control of all his faculties.
Derek gave evidence that on either Easter Sunday or Easter Monday 1998 he borrowed $50,000.00 from the testator in the presence of the family because he had run short of ready funds to meet an urgent commitment in his business. He said that other members of the family had protested and advised the testator not to lend him the money. However, the testator did give him a cheque drawn on Dymark for $50,000.00. The cheque is dated 14 April 1998 and is Exhibit 20. Derek said he needed the money for only a short period of time until his cash flow improved. Interestingly, he has never repaid the loan and when taxed upon this in cross- examination showed no indication that he intended voluntarily to repay to Dymark what has now been outstanding for more than 2 years.
Derek said that he next saw his father on 21 July 1998, he said he was then very slow and lacked balance on his feet. He said that on that occasion the testator asked him to go to Dymark premises, he said that the testator told him that he would make arrangements with Benjamin to give him a tour of the factory. He said that he did go out and inspect the factory with Benjamin on 23 July 1998. Derek said that he telephoned his father on 24 July 1998 and advised that he had been out to see the factory and the testator told him to see him soon because he wanted to have a “financial talk” with him. He said he visited the testator next on either 27 or 28 July 1998. His father was alone. He said that his father went to sleep. Derek said that there was not much discussion then, except that the testator had told him that “Marliss has told me some terrible things about you and what you did with your mother’s flats and her Laidley property.” Derek said that the testator told him that he wanted him to get started at Dymark as soon as possible although “the others don’t want to let you.” Derek said that he next saw his father on 6 August 1998 at his Forest Lake home, he said he had difficulty rousing his father who confused him with his cousin. He said there was some discussion that day about Dymark and the testator insisted that he wanted Derek to get settled in there soon. Derek said that the testator again told him that his siblings were not happy about him working at Dymark. He said that the testator told him that Anna and Benjamin “had been at each other’s throats lately.”

[127]

He said he did visit the testator again on 12 August and at the Mater hospital on 14
August.

He said that in the course of a visit to the testator on 11 August, his father was in a confused condition demonstrating problems with his memory and seemed unable to remember what medication he had last taken; he said that the testator informed him that Derek’s siblings were unhappy about the prospects of him working at Dymark. He said that all told he spent about one hour on 11 August talking to his father; he said that the testator had previously asked him to talk about financial matters and that when he reminded the testator on this visit about that request, his father did not seem to know what he was talking about. This evidence of Derek is quite inconsistent with that of Mr Walker and Ms Bourboulis. I prefer their evidence as to the testator’s observable condition on 11 August to that of Derek. Moreover, the preparation and execution of the deed on 11 August 1998 is quite inconsistent with the evidence of Derek as to the state of the testator on that day.
Anna said that she did not know that the testator had made a fresh will on 11 August. Neither did she know about the instructions he gave for preparation of the deed he executed that day, nor indeed that he had executed that deed.
She said that at that stage the testator did not show any signs of confusion.
Towards the end of July 1998 the testator asked Benjamin to assist him in preparing a spreadsheet describing all his assets. Benjamin did as requested and the testator was interested to give him all the information that he needed.
Benjamin advised the testator that it would be desirable, or at least useful, to include the correct property descriptions of various assets that he described. To achieve this result it was necessary for the testator to go into the National Australia Bank, Central Branch, in the Queen Street Mall. The testator dressed himself appropriately and Benjamin drove him into town where the testator made his own way to the bank and returned with various certificates of title, mortgages etc which apparently the testator had obtained from his safety deposit box at the bank. The testator brought with him a document from the National Australia Bank for the signature of Benjamin to enable him to have access to the testator’s safety deposit box. The testator signed this document on 29 July 1998 and Benjamin signed it on 3 August 1998. That document is Exhibit 11.
In my view, the testator’s preparation of his asset spreadsheet, as it was described, towards the end of July 1998 and his procurement of the contents of his safety deposit box to enable that spreadsheet to be prepared more accurately and his giving Benjamin the capacity to have access to that box – presumably for the purpose of returning the testator’s records to it as well as having access to it for whatever other purpose it was thought appropriate - supports the evidence generally given by members of the testator’s family (apart from Derek and his friend Ivy) that certainly at the end of July the testator still had a full appreciation of his assets and was intent upon keeping them to the forefront of his mind when he embarked upon preparation of his 11 August will. Indeed getting that material together within a couple of weeks of his giving instructions for the preparation of his 11 August will on 10 August to my mind suggests that the testator then had no difficulty in comprehending the extent of his testamentary obligations with respect to that property.
The medical evidence called by Derek dealing with the drug regime to which the testator was subject on 11 August, does no more than indicate that depending upon the circumstances, a person taking that quantity and type of drug may have been confused as a result. The only evidence that suggests for one moment that the testator was confused when he executed his will on 11 August is that of Derek. I prefer the evidence of Mr Walker and Miss Bourboulis and the evidence of Anna, because it is supported by their independent evidence on this point. Neither of those witnesses have the financial interest of either Derek or Anna. I reject the evidence of Derek on this point.
I am satisfied on the evidence that when on 10 August 1998 he gave instructions for preparation of his 11 August will and when he executed it on that day – the day before he went to the Mater hospital on 12 August - the testator was of sound mind and had testamentary capacity.
17 August will
At about 8:00p.m on 16 August 1998, the testator telephoned Mr Walker at his home advising that he was then in the Mater hospital and asked that he attend that hospital to make some changes in his will. The telephone conversation lasted between 5 and 10 minutes. He advised that he wanted a change in trustees and Mr Walker made a note of the instructions he was given. Mr Walker said he discussed fully with the testator the extent of the changes he desired to make to the will that he had executed only 5 days previously and recorded those instructions.
The testator informed his solicitor that he had been concerned at the conduct of Derek over his mother’s estate. Although Mr Walker did not know much about the details, he was aware that there has been disharmony between Benjamin and Derek over some flats.
Mr Walker did not question the testator’s decision to remove Derek as an executor. In the course of his discussions with him over the telephone, he formed the opinion that he was able to make his own decision. It was on this occasion that the question of changing the executors of his will was first raised.
Mr Walker was aware that the testator was then receiving morphine to control his pain; the testator did tell Mr Walker that he had no intention of dying tomorrow when he spoke to him on 16 August 1998. 16 August was a Sunday but Mr Walker promised to attend at the Mater Hospital the next day. He took the recorded instructions he had received over the telephone, which he had noted, into the office with him next morning on 17 August. The alteration to the will was minimal involving only the change of executors and trustees. After the alteration had been effected, Mr Walker attended the hospital with his secretary, arriving there at about 8:00a.m on 17 August 1998. Mr Walker recalled that there were some people moving in or out of the room when he arrived with his secretary.
Perhaps because less than one week had passed since he executed his prior will, Mr Walker resolved to give the testator a brief test of testamentary capacity and record it on the file. Although it was suggested that Mr Walker must have had some doubts about the matter to take such a test, he said that he had no doubts whatever as to the testator’s testamentary capacity but thought in the light of the circumstances in which the will was executed and the fact that less than a week had passed since an earlier will had been executed, it was desirable take a brief test.
Mr Walker of course was aware of the contents of the various wills previously made by the testator – he and perhaps his secretary on the evidence, seem to be the only persons who were aware of them. It was clear that as a consequence of the alterations made to the disposition of his estate on 11 August the beneficial interest of both Derek and Nicole had been significantly reduced. The change made in the will of 17 August in fact removed Derek as an executor and trustee of the 11 August will. He said he had no anxiety whatever about the capacity of the testator to execute the will, but that he thought this being the fourth will to be executed within the 9 months, it was appropriate in the circumstances, to take that test and that as far as his observations were concerned he was satisfied that the testator was not confused and gave no indication whatever that he lacked testamentary capacity. Ms Bourboulis gave evidence that she had accompanied Mr Walker to the Mater Hospital on the morning of 17 August. She said the testator’s appearance had not changed much from the week before but that he said that he was in pain and that he was receiving medicine to relieve that pain. She said that the testator was able to talk freely and joke with Mr Walker about something but she could not remember what it was.
Reference to the records of the Mater Hospital indicates that nothing abnormal about the mental capacity of the testator was noted. Four days after execution of the will of 17 August it was recorded in the hospital records that the testator was alert and had a normal problem solving capacity; that he had no difficulty with communication and could understand language appropriately. There were no problems with either his vision or hearing.
Members of the testator’s family (apart from Derek) who visited him while in the Mater Hospital on this occasion said that he was alert and in no way confused. He was of course receiving palliative care for his pain and undoubtedly his condition was deteriorating. However, there was no suggestion from either Anna or any of his children (apart from Derek) that he did not at this time remain capable of discussing matters relating to Dymark and indeed to other matters in his usual way.
One event, however, that had occurred between the execution of the 11 August will and the execution 6 days later of the 17 August will was a conversation which Marliss and Anna had with the deceased after he had executed his 11 August will and shortly before he was transferred to Wesley Hospital on 21 August 1998 where he made his 24 August will.
Marliss travelled from Adelaide to be with her father. Initially she stayed with Anna at Forest Lake and then when Anna’s son Sam came down from North Queensland he stayed with her and Marliss went to stay with Derek. She said that although she had always got along very well with Derek and admired his achievements, when she went to stay with him on this occasion, he was obsessed with what testamentary disposition the testator may have made. She said that he told her that the testator had better “be leaving everything 100% equal in his will.” She said that he seemed to her to be obsessed by the possible content of his father’s will and was “relentless” in talking about it. She said that when most of the conversations in which the content of the testator’s will occurred his girlfriend, Nicole Ivanins, was present. She said that she stayed with Derek while the testator was in the Mater Hospital and for a short time after he was transferred to Wesley hospital. Marliss said that Derek informed her that if the testator’s estate was not left “100% equal” he would contest that will. She said that Derek informed her that he would contest the will and if he lost he would appeal and he would take his case to the highest court in the land until he got justice.
Shortly after that, Marliss left Derek’s residence because she became very upset with what he was saying. Before she left Derek she said he told her that she had better not tell anybody about what he had been saying. She said that she was very worried and told her husband who was in Adelaide with their child. She then told Anna. She said that she did not even know at that stage whether the testator had made a will or whether he intended to make a will because he simply never talked about that to her. After discussing the matter with her, Anna advised that she had no choice but to tell the testator. They were both upset about the whole matter. In any event, with Anna accompanying her, Marliss told her father about what Derek had been saying and it made him very angry. He then said that he could not believe Derek was talking about his will because he was not even dead yet and observed that he had Benjamin and Derek as executors of his will. After about 5 minutes he told Anna to contact immediately his solicitor, James Walker, on the telephone. She said that when Anna had raised Mr Walker she handed the telephone to the deceased who said “I’ve got a bit of problem here, can you come over and see me?” She said until that time she did not even know that her father had made a will. In the course of her discussion with the testator, he told her that his will wasn’t 100% equal because neither Derek nor Nicole were in the business. She asked him why that was so and the testator said that he was happy with the way the business was running, that it was only as good as the people running it and if the people running the business aren’t doing it properly it would fail. He said it could even fail within a year. She said she suggested to the testator that if he decided to leave Nicole and Derek out of the business, he should talk to Derek and explain why because if he did not explain Derek would always wonder why he had not been left a share in the business. The testator told Marliss he would have a talk with Derek, and she asked that he not inform Derek that she had told him what Derek had been saying because she did not want to fall out with him. She said that a day or two later while the testator was still in the Mater Hospital, Derek visited him. She said that she left the room to the two of them and went down to get a cup of coffee; she sat down having coffee with Nicole. She said that the visit Derek paid to the testator was a long one – something like 2 hours; she said eventually she observed Derek walk into the coffee shop, sat down near her and Nicole without talking to them, and then said that he was going home and left.

According to Marliss, she then went and spoke to her father; he told her that he had told Derek that he was not giving a share in Dymark to either Derek or Nicole because he would want to do his own thing as a property developer and that the Dymark business would only be as good as the people working in it.
According to Marliss, there was no indication whatever that the testator had any problems with confusion or anything else to indicate that he lacked testamentary capacity.
Nicole said that she arrived in Brisbane from Melbourne on 20 August – 3 days after the 17 August will had been executed. She visited the testator on arrival. There was nothing from what the testator said or did to suggest that he did not have his usual ability to reason and talk clearly and sensibly. She said she did see Derek at the hospital. She said that on occasions that she spoke to him at the cafeteria, Derek expressed his concern at the content of the testator’s will and made it clear that if the testator did not leave his property equally he would be unhappy about it. She said that she could not say that he said to her that he would contest it but that he did seem “quite fixated” on that topic.
When he visited him at the Mater Hospital on 17 August Derek said he noticed a big change in the testator, he said he was then have difficulty recalling people and events and exhibited indications of confusion. He said he mistook him for his brother Benjamin. He said that he was not sure that it was 17 August but on one occasion his father woke and as if holding a fishing rod. This might be consistent with him waking in the midst of dreaming.
The medical evidence called for the plaintiffs from Doctors Grimes and Lumley again established merely that the testator did not appear to them to be confused or to give any indicia of lack of testamentary capacity at all. Reference to the Mater and Wesley hospital records shows nothing to suggest that he was in any way confused or observed by hospital staff to be mentally abnormal. Three experts called by Derek examined the drug regime of the testator at times material to his giving instructions for and execution of the 17 August will. I do not propose to analyse that evidence in detail because all agreed that although that drug regime may from time to time have interfered with the comprehension of some people, it would not necessarily have the same effect on all people and none of those experts was willing or able to express any view as to whether at the time the testator executed his will of 17 August he lacked testamentary capacity.
Upon the whole of the evidence, I am persuaded that the testator did have testamentary capacity when he executed his will of 17 August to effect a change in the executors and trustees appointed in his will of 11 August and, in particular, to exclude Derek as an executor and trustee and to replace him with Marliss and Anna as executors and trustees.
A rational explanation for this change was the information which Marliss and Anna gave him concerning Derek’s threat to contest any will of the testator which did not share equally among his family members (and perhaps Anna), the testator’s property. A testator with that knowledge might validly reason that it would be pointless to appoint as an executor and trustee of his will which did not divide his property equally between interested parties, a person who had indicated that he would contest such a will or “be not happy with it”.
The 24 August will

[154]

On 23 August 1998, Sam telephoned Mr Walker and asked that he see the testator
the following morning but to contact him by telephone before he went.

On 24 August, Mr Walker telephoned the testator as he was leaving home and said that he would see him in about 20 minutes. He said that he arrived at Wesley Hospital at about 7:00 or 7:30am and made notes of the interview. He said that the testator was sitting up in a chair beside his bed eating. He said that the testator was “a bit cranky” because the room needed tidying up. He said the testator got up from the chair and moved to the other side of the bed, moving his monitor with him and plugging it in on the other side of the bed. He said that the testator then sat down on a chair beside him. The testator told Mr Walker that he was concerned about there being only 3 trustees – Benjamin, Marliss and Anna. He said he had decided to appoint all 4 children and Anna because he thought that might keep peace in the family. He repeated that as far as the shares in Dymark were concerned, only the people running the business should get those shares because if there were squabbles, the business could go down in less than a year. He said his bequest to Marliss was always going to stay but that apart from the division of the Dymark shares, he wanted all 4 children to take everything equally except for the two legacies of $50,000.00 each to Sam and Yani. He said that he wanted the legacy left to Anna in his earlier will to be removed because she was going to participate in a fifth of the residual estate. The testator then asked Mr Walker to go through the share information because Mr Walker had brought a file with him. The share information related to shares in Glideway; various of the children had various shares, Marliss however had 3125 shares in Glideway – significantly more than the other children had. There was then a discussion as to drawing a will so that the devise of the Adelaide property previously made to her and to be repeated in this will was to be made conditional upon her transferring a certain number of the shares, she held in Glideway, to the other children, the aim being to equalise everything else so that the residual estate might then be divided equally between Anna and the four children. He said that the testator told him that he loved Derek as a son but that he was mean and that he had to be very careful of what he did because it was difficult to get along with Derek.
Having taken full notes of the instructions he was given, Mr Walker then went back to the office, checked out the share register of Glideway and did some calculations on share numbers and the steps necessary to see that at the end of the day each of the children had an equal number of shares in Glideway. After doing that, the solicitor telephoned the testator and explained to him how the testator’s instructions could be implemented. That was satisfactory to the testator. Mr Walker gave instructions to his secretary who then typed out the will of 24 August and then accompanied Mr Walker to the Wesley Hospital on 24 August where they arrived in the early afternoon. Mr Walker and his secretary went up to the room occupied by the testator. He found the door open and he saw Derek there. He said he was sure he had seen Derek either early in the morning when he had taken instructions or in the afternoon when he attended Wesley Hospital to have the will read over to the testator and executed. He said that whenever it was that he saw Derek upon his arrival, Derek was sitting down beside the testator’s bed talking to him. He said that he said hello to Derek who then left the room. He seemed to think it likely that it was in the afternoon that he saw Derek because he was then accompanied by Sophie. He said that the testator appeared to be in more pain and he noted that down, but that “mentally he was still alert as ever and he was also talking about some other issues.” He talked about the conduct of the company and expressed the view that the debtor’s ledger was getting too big and some steps ought be taken to correct this and he asked his solicitor to get in touch with Anna and to start issuing summonses against debtors if it was thought appropriate. In his view, the testator was talking and acting rationally and lucidly about Dymark and its affairs and about how he was going to dispose of his goods. Mr Walker said, presumably for the same reason as he had previously given him a test, that he gave him a test as to his testamentary capacity. In fact his secretary recorded the questions and answers given in the conduct of this test and later typed them out. Mr Walker said the testator did not appear to him to have any difficulty answering any of those questions asked.
He said that he produced the 24 August will that he had prepared upon the instructions given earlier that day, and first went through it generally and then went through it clause by clause. Mr Walker said he was satisfied that at each stage of this discussion the testator clearly accepted as his testamentary wish what the 24 August will achieved. The testator signed his will and his signature was witnessed by the attesting witnesses namely Mr Walker and Sophie Bourboulis.
That was the last occasion upon which Mr Walker saw the testator. His secretary left the room and Mr Walker and the deceased had a “little personal chat” and “sort of just took our leave of each other and we sort of acknowledged that would be the last time we would see each other.”
Mr Walker said that the testator’s voice was not slurred. He said that although the testator was obviously in pain, he acted normally and his speech was perfectly normal. He said he had no reason whatever to think that he might be confused in anyway and the testator gave him no reason to have any doubt that he was fully aware of what he was doing.
Ms Bourboulis said that she had typed up the 24 August will on the morning of 24 August. She said that she travelled to Wesley Hospital with Mr Walker in his car and on arrival they both went to the testator’s room. She said that when they arrived the door of the testator’s room was closed and Mr Walker knocked on the door, opened it and went in to find that the testator and Derek were together. Derek was sitting in a chair and he got up and as he walked out, she heard Mr Walker say “hello Derek”. This was the first time that Ms Bourboulis had ever seen Derek and this occasion stuck in her mind. She was not personally introduced to Derek however. She said that there was nobody else present in the room when they went in to have the will executed.
She said that Mr Walker, upon entering the room, told the testator that they had come so that he could sign his will and that the changes he requested had been made.

[162]

Before anything else happened, however, Mr Walker asked him questions to test his
capacity.

Ms Bourboulis said that one thing that stuck in her mind was that the testator knew that it was Monday 24 August. She said that Mr Walker then went through the will item by item; sometimes the testator would ask a question to clarify something. The testator would nod in understanding, or if he didn’t understand would ask some questions. After the will had been fully read over to the testator, he signed it and his signature was witnessed by her and Mr Walker. She said that at no stage during the time they spent with the testator did he give any indication that he was in anyway confused or disoriented.

[164]

After the will had been executed and witnessed she left the room and waited down
the corridor while Mr Walker and the testator had a personal discussion.

Ms Bourboulis noted that they arrived at Wesley Hospital at 1:45 p.m on 24 August. She said she did not note the time spent in the room with the testator but it would have been 10 or 15 mintues or half an hour. Although it was put to Ms Bourboulis presumably on instructions from Derek that she had not in fact been with Mr Walker as Mr Walker entered the testator’s room and Derek left it, she denied that proposition.
She confirmed that the questions asked of the testator on 24 August 1998 were the same sort of questions asked before anything was done on the earlier August 1998 will.

[167]	Ms Bourboulis said that the appearance of the testator had not changed very much between 17 August and 24 August.
[168]	After the testator had been shifted to Wesley Hospital on 21 August 1999 Derek said that he visited him normally in company with his girlfriend Nicole.

He gave evidence of a slight argument that he had had with Marliss about borrowing a car and that she had complained to the testator about his refusal to lend her one. I must say I get no assistance from this evidence. Were undue influence an issue it might have some peripheral relevance but it seems to me to have very little to do with respect to the testator’s testamentary capacity. I will not analyse it.
Derek said that on 23 August 1998, he and his girlfriend Nicole and Marliss, Benjamin and Anna were all in the testator’s bedroom. He was sitting on his bed and he said that on this occasion the testator thought that he was actually fishing. He said that there was a degree of laughter from the people in the room. I have already commented on the evidence of this event. Derek thought it may have occurred on 17 August- when the testator was in the Mater Hospital. He said he visited the testator the following day, 24 August, getting to the hospital at 10:00 or 11:00 on the morning. He gave evidence to the effect that Anna had attempted to persuade him not to visit the testator on that day. But after a discussion with Nicole he had decided that he would. In any event his girlfriend Nicole arrived between 12:30 and 1:00p.m. According to Derek and Nicole, she was standing at the foot of the bed massaging the testator’s feet when Mr Walker arrived by himself carrying a manilla file. According to Derek and Nicole as soon as he arrived they left the room and after waiting in a lounge area for about 20 to 30 minutes they then saw Mr Walker alone walk past them leaving the hospital. It is unclear to me precisely why this evidence was led because there was no allegation in the pleadings at least that the 24 August will was not duly attested.
The importance of the evidence perhaps is that both Derek and his girlfriend Nicole asserted that when they were in the room about lunch time with the testator, he was completed exhausted and “on a low”. Derek said he did not even have a discussion with the testator. He said the next event he could remember was his observation of the testator when he visited him in September. He said he last visited the testator on 12 September 1998, and described the testator’s condition then as “paranoid.” He said the testator then accused him of burning down the Dymark factory at Wacol. He said that the testator had made this paranoid accusation in the presence of Nicole. She confirmed that evidence.
Although Derek said he observed the testator to be confused on a number of occasions in August, he agreed that he had never approached Dr Grimes to tell him about this confusion, although he said he did mention it to a nurse on one occasion.
Donald James Hall, who was related to the testator by marriage, gave evidence that he had known and worked with and for the testator for many years prior to his death. He described him as a very cautious and astute business man. He said that during the year 1997 while Benjamin was overseas travelling and Derek was conducting his own building development company, he discussed with the testator what he, Donald Hall, was doing to bring his children into the business by giving them equal shares in it. He said the testator told him that he thought that was a good idea and that he would like to bring his sons into the business but Benjamin was not there at the time. He said that the testator told him that Derek would have been his choice but he was running a successful land development business of his own at that stage. He said that he would like to groom one of his sons to take over the running of Dymark but that neither was available at that time. At what time in 1997 this conversation occurred did not emerge. He said that after the testator’s admission to Wesley Hospital in August 1998, he saw him for perhaps 10 minutes on occasions when he visited him. They then talked about casual day to day affairs. He said that sometimes on his visits the testator was not awake. He agreed that during 1997 the testator indeed appeared to him to be grooming Benjamin to take over the running of the Dymark business.
Mrs Crowther, a sister of the testator, gave evidence of a discussion that she had with Anna in about January 1998 when Anna told her that Benjamin and Derek were executors of the testator’s will and that she would “have to change that”. Anna denied any such conversation. She said also that on one occasion the testator had said to her that there would be no trouble with his will because he had divided his estate equally between his four children and also had provided well for Anna. She said that this discussion took place at Forest Lake – presumably before the testator entered hospital again in August 1998. She said that after his admission to Wesley Hospital on the second occasion (21 August 1998), the testator had mistaken her for her sister. This witness was not asked to recall these events until November 2000 – more than two years subsequent to any of the events which she then attempted to recollect.
She seemed to have difficulty in recalling dates and I am not persuaded upon analysis of her evidence that she was a reliable witness with respect to times when various events of which she gave evidence occurred.
It is clear of course that the testator did indeed in his 24 April will make provision for his children and for Anna which would be consistent with the statements Mrs Crowther said he made to her prior to his re-admission to hospital in August 1998. The content of that will was well known to Derek long before Mrs Crowther was asked to recall the conversation of which she gave evidence.
She said that when she visited the testator subsequent to his August admission to hospital he was tired from time to time and did not always want to talk. He said he would like to sleep.
I find no assistance in what the testator may have said to people concerning his intentions with respect to his testamentary dispositions or for that matter with respect to what the contents of his wills may have been, prior to August 1998. It is clear beyond argument that when he executed his 24 April will he had indeed decided to leave his property more or less equally to all his children (apart from 5 shares in Dymark to Anna) and to make a special provision for Anna. Statements as to what he intended to do – assuming that they are admissible as original evidence in determining what his testamentary capacity was when he made them- seem to me to be of little, if any, assistance in determining what his testamentary capacity was on 24 August 1998
I have already referred to the evidence given by Mr Hall and Mrs Crowther with respect to statements made by the testator prior to the execution of any of his August 1998 wills. I derive no more assistance from their evidence in connection with the 17 August will than I do with respect to the 24 August will.
However, there was evidence more directly related to his capacity from some other witnesses as to what they observed of him at about the time of execution of his 24 August will and indeed subsequent to that time.
Howard Lindsay Hall had known the testator since the early 80’s and indeed had been involved in a number of business ventures with him. At one stage they together owned land on King Island. Eventually Mr Hall transferred his interest to the testator on the understanding that the testator, although being the owner of it, would hold half of it in trust for Mr Hall. He learnt from the testator that he had been diagnosed as suffering from cancer in late 1997. He said that he visited the testator at his home half a dozen to a dozen times in 1998. He recalls that the first time he went there the testator was talking about going to Camp Eden and was discussing things about alternate medicine. He said that thereafter he recalled the testator going to hospital in August 1998. He visited him at Wesley Hospital. He said that he thought that the testator was always quite coherent.

He remembered that on one occasion in late August 1998, he visited the testator in Wesley Hospital. The testator told him that he did not have to worry about King Island because he had given Benjamin all the information relevant to Mr Hall’s interest in the property there. Mr Hall said that the testator was aware that the title to that property was in his name but had let Benjamin know that Mr Hall was entitled to a half interest in it. He said that he did not remind the testator about the land at King Island but in fact the testator brought it up in their conversation. He said that he fixed this occasion at somewhere between 25 and 28 August 1998 because he had been in China which he left to arrive home in Australia on 23 or 24 August and he had left to go to America on about 5 September 1998.

[183]

I find the evidence of Mr Hall of assistance because the discussion he had with the
testator clearly occurred shortly after the making of the 24 August will.

A second witness, whom I have found of assistance in determining testamentary capacity on 24 August, is Russell James Witham. Mr Witham was a pastor who visited the testator while in Wesley Hospital in August 1998. He said that he could recall that the visit occurred early in the day and that he had a very clear recollection of Mr Gillespie, although this was the first occasion that he had met him. He said that he had received a telephone call from a friend in Tasmania and at his suggestion called to visit the testator. He said it was part of the pastoral care in which he was involved to make such visits. He said that he had a discussion of a religious kind with the testator, who seemed to him to be very clear and precise and positive. He said he thought that the discussion was fruitful. He said that his pastoral care has given him a lot of experience in dealing with people suffering from mental problems and that in his opinion nothing emerged from his discussion with the testator to suggest that he was in anyway confused or for that matter in anyway abnormal. He said that he was quite decisive and positive and after they had talked together for 10 or 15 minutes, the testator invited him to come back and visit him again. He said that he did not at any stage have to prompt the testator when discussing religious and other matters with him. He said that prior to becoming a pastor, he had been involved in business and that in the discussion he had with the testator he inferred that he had been a CEO.
Although Mr Witham was unable to fix the date of his visit to the testator in August 1998, Marliss in fact made a telephone call to him on Father’s Day 1998, which was 6 September 1998. He advised her that since he had last spoken to her about a week earlier (which would be on or about 30 August 1998) he had been visited by the pastor, Mr Witham. He advised her that he had received that visit “the other day.” I infer that the visit occurred between 30 August 1998 and 6 September 1998 and probably about one week after 24 August 1998.
I accept the evidence of Mr Witham and of Marliss on this point and in my view it seems clear that the testator exhibited no indicia of confusion or mental abnormality or incapacity when he discussed matters with Mr Witham about six days or more subsequent to his execution of his 24 August will.
The testator, at some stage in July – probably about 24 July 1998 - received from Allan Willett, the Chairman of Willett International Limited (“Willett”), a fax reply to a letter the testator had sent to him on 2 July 1998. This letter related to a partnership/joint venture proposal between Dymark and Willett. That letter remained unanswered for about a month and Benjamin raised the matter with the testator and a letter (probably drafted principally by Benjamin) was faxed off to Willett on 26 August 1998.
Benjamin said that he discussed the content of that letter with his father and that his father showed significant interest in it and discussed aspects of the proposals in it which might appeal to Willett. He expressed his disappointment that he would not be alive to see the proposed joint venture implemented.
On 27 August 1998 Willett replied by fax to the Dymark fax of 26 August.
It is clear that at this stage of his hospitalisation, the testator was still able to pursue matters in a very businesslike fashion with a keen appreciation of the business implications of potential significance to the future operation of the Dymark company. I accept the evidence of Benjamin that at this stage far from indicating any symptoms of confusion or lack of understanding the testator exhibited his usual business acumen and capacity to make decisions for the long-term benefit of the Dymark business. The correspondence to which I have referred is Exhibit 13 in the case.
It is clear however, that during a week or so before his death on 15 September 1998, the testator’s mental condition deteriorated rapidly. Evidence given by Derek and his friend, Nicole Ivanins, as to aberrant and/or delusional thinking and behaviour on the part of the testator over a week or thereabouts before his death on 15 September 1998 gives me no assistance in determining what his testamentary capacity was on 24 August 1998.
There is nothing in the hospital records kept for a week or so either side of 24 August 1998, to suggest that anybody in the hospital during that period noted any confusion or indicated any behaviour which would indicate lack of testamentary capacity on the part of the testator. Indeed both doctors who then treated him indicated that they thought that during that period he acted normally and was in full grip of all his faculties - albeit suffering pain.
I will record briefly why I am unprepared to give weight to the evidence given by Derek. He asserted in evidence that there was a family conspiracy to ostracise him while the testator was ill and dying. This conspiracy, in his view, involved all members of the family – even Nicole whose testamentary benefit under both the April will and the August wills he knew matched almost exactly that of himself. In the course of cross-examination he volunteered the following opinion –
“I don’t know what they hoping to achieve but there was definitely a conspiracy to ostracise me that started before my father went into hospital. It actually started in earnest probably a year before but it intensified as he got sicker.”
He said that Anna was also part of that general family conspiracy against him. He said that he did not think that either Sam or Yani were part of that conspiracy. He said he believed that the conspiracy was connected with the testator’s will and his entering into the Dymark business. He later commented
“when we went into the hospital they had little plans about they would visit him and things like that but Nicole – my girlfriend – and I were just shut out from that. As far as I was concerned we were allowed in the room type of thing but that was it sort of thing… It was blatantly obvious. It wasn’t some paranoid suspicion of mine or something, it was blatantly obviously.”
There was evidence about the circumstances in which Derek had acquired the interests of Marliss and Nicole in a block of flats which their mother had left all four children. It is unnecessary and unhelpful to analyse that event although it is clear that it produced disharmony among the children. To use Derek’s words, after that “family rearrangement” they “just turned on me like a pack of dogs – like a pack of wild dog animals whatever after that time, it was so clear and so obvious.” He said that he felt that the family could have worked something out to solve the problem. He agreed that the testator must have become aware of this family dispute concerning the flats. Interestingly, Derek conceded that the testator knew his children working at Dymark (ie Marliss and Benjamin) better than he knew him. He agreed that he had never informed anybody about the various occasions when he had found the testator in a state of confusion either at his residence at Forest Lake or in the hospitals (except for one nurse of whose name he was unaware).
In evidence Derek said that he could not remember any confusion in the testator after he visited him subsequent to his operation in Wesley Hospital in December 1997. He said, however, that he did not believe the December will “would be a correct will.” He said he “probably” gave his legal representatives instructions to challenge the December will.
Derek conceded that he had observed to his sisters or at least to one of them, that if the testator’s will turned out to be something inconsistent with what he had informed him in April 1998 then he would know what his siblings were trying to do and that they had succeeded and that he would not accept that. He then observed that Marliss, for about 9 months prior to the testator’s death – presumably since December 1997 / January 1998, had been “threatening him not to contest the testator’s will.”

[197]

In the course of cross-examination although there was no issue of undue influence,
he observed –

“I have contested the will because hey presto on 24 August as soon as I saw the will, I knew that it was not my father’s will… I mean his desire his intentions the way that he wanted to leave his estate free of pressure and influence and all the other things that happened while was in hospital in the lead up.”

He then expressed the view that Nicole was very close to Benjamin and although he did not know what was “driving Nicole to do that” he believed she was just probably looking after the interests of Benjamin who had always felt “incredibly threatened about me being part of Dymark and so is Anna.”

[198]

Interestingly he observed at one stage that he was really not after any involvement
or role in Dymark.

Derek said that he had purchased a couple of houses at Laidley from his mother and then sold them at a significant profit which had led to his mother becoming quite upset when she learnt of that. At the time Derek’s mother was dying of cancer and she told him that she wanted to sell her Laidley houses and shift back to Adelaide where she would be closer to her relatives. Derek was involved in real estate at the time. He said he decided that the properties would sell for about $60,000.00, they were advertised for this price with local agents but no offers were made, so Derek purchased them himself at $60,000.00 and promptly sold the two of them for $111,000.00. He said that he had done some renovation work on the houses and that all told he made “about $20,000.00 out of buying them.” He said that he had told his mother that he would only buy them from her if he made something out of them and that in fact it had been Mr Walker who had handled the conveyancing of those properties for him. Interestingly, Derek explained that he had “provided the deposit” for one of the purchases to assist the purchaser to get finance from a lender on the basis that he had paid the deposit, which in fact Derek had given him. Presumably the gift of the deposit to the purchaser was treated as a mere “development cost.”
Unsurprisingly, Derek attributed “the beginning of ostracism” to his purchase and resale of the Laidley properties from his mother as she was dying from cancer. This transaction occurred in 1996, Derek conceded that there was a lot of ill feeling, if not indeed, “ostracism” by his brother and sisters based upon both his dealing with his mother’s Laidley property and also with his ultimate acquisition of a ¾ share in her flats at Milton.
Derek conceded that he had made a number of threatening telephone calls to Anna, Benjamin, Marliss and perhaps Nicole after the reading of the 24 August will. He said -
“I was extremely angry because what they had done and set out to do had worked for them, and I just how else can you feel except extreme anger?”
It was pointed out that he had threatened violence to Anna in July and August 2000. The transcript of proceedings taken by Anna against Derek in the Magistrates Court in respect of that threatening language was tendered and is Exhibit 17. Interestingly, a witness employed at Dymark called to support Anna was cross-examined by Derek in the course of which he put to him that Anna had “contracted you to lie under oath as a witness here today.” It is unnecessary to set forth the precise language that the Magistrate found Derek had used. It suffices to say that it was an intimidating threat of violence made in the course of steps being taking in this probate action.
The transcript of the Magistrates Court’s proceeding is Exhibit 17.
One telephone call which Derek made to Benjamin on 20 January was recorded. It is unclear from the tape of this conversation, which is Exhibit 18, what year the call was made, although I suspect it was made in the year 2000. The tape records a message reminding Benjamin that his “day is coming soon” and that he should not relax but should have nightmares because his end was coming soon. The threat is along the same lines as that made to Anna. Interestingly, after Anna had obtained an apprehended violence order against Derek, he then commenced proceedings for similar orders against Sam and Yani. Having instituted those proceedings he then did not appear. His applications were dismissed and Derek was ordered to pay costs which he explained he had not paid because he has contemplated making an application to “reopen” that proceeding. When pressed in cross-examination he eventually conceded that he did not intend to pay the costs because he intended to “reopen the claim again.” The court documents relating to Derek’s application against Anna’s two sons is Exhibit 19.
Derek conceded that when he borrowed $50,000.00 from his father, he told him that he would only need the money for one month and would repay him quickly. The cheque that he received is Exhibit 20. He conceded that he had not repaid the $50,000.00 loan that his father had made on 14 April 1998 before his father entered hospital in August 1998 – four months later.
According to Derek’s former lady friend, Nicole Ivanins, she had grown up with the testator’s daughter Nicole having attended the same school and for many years the testator treated her more or less as one of the family. Over a period of nine years she had lived with Derek for about eight. She separately finally from him in August 1999 – nearly a year after the testator’s death.

[206]

The testator used to call Nicole Ivanins “Ivy” and to avoid confusion with his
daughter Nicole, I will now refer to her by that name.

Ivy gave evidence which in essence supported that given by Derek. She said that between Easter 1998 and his admission to hospital in August 1998, the testator seemed confused and was “just clutching at straws.” She said she visited the testator at the Mater Hospital on 12 August 1998 with Derek. She said that he seemed relaxed but could not concentrate and told her that his vision was blurry. A couple of days later, she and Derek again visited the testator at the Mater Hospital. She said that the testator then told them that Anna was threatening to contest his will. The evidentiary value of this evidence which was not given by Derek is unclear to me. If it has value as original evidence on some basis, that basis was not advanced. It is clearly only hearsay evidence so far as it purports to prove what Anna was saying to the testator.
In any event, it is quite inconsistent with what Anna said. I accept her evidence that she had no knowledge of the content of either the December will or the 24 April will. In any event this matter was not pursued by counsel for Derek.
Ivy went on to say that a couple of days after the testator’s second admission to Wesley hospital (which was on 21 August 1998) she and Derek and Anna and Benjamin were together in his hospital room. She said that he sat up and “imitated that he was going fishing and said, ‘I am going fishing where is my rod?’” According to this evidence the testator was behaving in this fashion within a day of giving instructions for and executing his 24 August will. There is little doubt that something along those lines occurred at some stage. A possible, if not likely, explanation is that the testator was dreaming of past fishing activities of which he had fond recollections when he woke up suddenly, would lend little support to Derek’s contentions.
Ivy said that on the morning of 24 August 1998 she was home when Derek received a telephone call from Anna. She confirmed the evidence given by Derek as to this conversation and the decision they made between them, that both would in fact visit the testator at the hospital that morning. She said that she attended Wesley Hospital to visit the testator at about 12:30p.m on 24 August 1998. She said she went to the testator’s room where she found Derek. She said that the testator “had a glazed look” and “wasn’t very conversant” he did, however, recognise her but didn’t talk to her. She said she went to the bottom of his bed and massaged the testator’s feet which were swollen, and while she was doing this, a man arrived at the door. She said that Derek then said to the testator that Jim Walker was there to see him. The testator merely moaned and did not respond. She said that she had formed the view that the testator was not able to conduct a conversation at that time. Again, she confirmed the evidence of Derek in that she did not see any other person with Mr Walker when he entered the testator’s bedroom.
She said that she and Derek regularly visited the testator from that time until the time of his death. She said that generally speaking, his condition seemed to vary and that some days he appeared “a little bit more coherent” than on other days. She said that on occasions the testator mistook her for one of his daughters, either Marliss or Nicole and that sometimes he mistook Derek for other people. She said that his condition deteriorated during the month of September. She gave evidence as to what the testator had said to her and Derek concerning his involvement in the fire.
Ivy conceded that Marliss left Derek’s house when she came to Brisbane in August 1998 because “she was angry at him for some reason”, however, she said she was unable to recall that reason. It was put to her that the reason given by Marliss was that she was tired of Derek’s constant reference to the content of the testator’s will. However she said she was not aware of that. She said that Derek was concerned about what “they were saying to his father about the Laidley property or the flats or those – his mother’s will.”
Ivy agreed that the first time she gave a statement of her recollection of events of which she gave evidence to Derek’s solicitors was in November 2000. It is clear from her evidence that she and Derek, after the reading of the 24 August will in October 1998, had attempted to reconstruct events that had happened in the course of the testator’s stay in the hospitals in 1998. She said she “did not know” whether Derek had complained that he believed that his brother and two sisters had conspired with Anna to poison the testator’s mind against him.
I find the evidence of Marliss, Benjamin and Nicole and Anna more reliable than that of Derek and Ivy. I do so having regard not merely to Derek’s character demonstrated by the events in which he was engaged relating to his mother’s Laidley houses and estate, but also to his threatening behaviour canvassed in court and recorded on the tape recording which is Exhibit 18. I was unimpressed by his demeanour when giving evidence and particularly by what appeared to me upon the evidence to be an irrational belief of a conspiracy that had been hatched between this three siblings and Anna to “ostracise him” and to poison the testator’s mind against him. Both he and Nicole, of course, were disadvantaged beneficially by the change in the terms of the 24 April will. In spite of Derek’s protestations to the contrary, I am persuaded that the real motivation for his contesting the 24 August will and propounding the 24 April will is the significantly increased testamentary benefit that he believes he would take under the 24 April will. That belief of course rests on the assumption that the Dymark shares if held by the testator’s four children and Anna would have the same value as if held only by Anna, Benjamin and Marliss whose experience in running and controlling Dymark would probably result in Dymark’s continued prosperity.

The testator was described as a shrewd and cautious man, whose ambition was to see that his Dymark business continued to prosper under the control of persons familiar with it who had worked in it and had made it prosper for a period of the best part of 12 months prior to his death. Those persons did not include either Derek or Nicole, neither of whom had any experience in that business. The whole structure of the future Dymark business was built and firmly put in place under the control of Anna, Marliss and Benjamin in the terms of the will and the deed executed to achieve this purpose on 11 August 1998.
The testator must have been well aware at the time he executed his August wills of the disharmony that had arisen among his children as a consequence of Derek’s action in connection with his mother’s property and estate. It was a matter which on the evidence, I am satisfied, was well known to all members of the family and to some even distant relatives. Even if one or more of Anna, Marliss and Benjamin had intimated to the testator that they would prefer that Derek not become involved with them in Dymark – and they have all denied any such intimation and there is no positive evidence that they did so intimate - I cannot believe that a shrewd and experienced man in the testator’s position would not have foreseen the likely disadvantage to his Dymark business should one son, who had fallen out with the other three siblings and who had no experience in that business, be given a 1/5 share in Dymark and another daughter who, although getting along well with the other sibling or at least Marliss and Benjamin had no more experience in the Dymark business than did Derek.
I infer that the testator was initially under the influence of his Camp Eden experiences prior to Easter in April 1998, when he made provision for all four children to share equally in the Dymark business but by August 1998 had reached the conclusion that that business would best be preserved if neither Derek nor Nicole had any connection with it. Such a decision in my view was a rational one, well supported by a more mature reflection upon the attitude of his three siblings towards Derek having regard to the events relating to their mother’s property at Laidley and her estate and perhaps also upon the failure of Derek to repay $50,000.00 advanced by Dymark to him for one month within the four months which passed between the making of the loan and the making of the 11 August will and the execution of the accompanying deed on that day.

[218]

Upon the whole of the evidence I am persuaded that when he gave instructions for
and executed his 24 August will, the testator did have testamentary capacity.

In this case I am satisfied that when he made all five wills which I have examined, the testator understood the nature of the act of making a will and its effect. When he executed the deed on 11 August 1998 he also understood the nature of that deed and the effect it would have in the administration of the Dymark business after his death. I am satisfied that when he executed all five wills and the deed, he understood the extent of his property with which he was dealing and was aware of the claims which the persons named in his will as beneficiaries had upon his bounty, to which he ought give effect.
I am satisfied that the testator had no disorder of mind which poisoned his affections against Derek or perverted his sense of right or prevented the use of his natural mental and physical faculties. I am further satisfied that he suffered from no insane delusion which might influence him in disposing of his property.
I am satisfied in short that when the testator gave instructions for and executed all five wills exhibited to the affidavit of scripts he was of sound mind and of full testamentary capacity.
In respect of the testator’s 24 August 1998 will propounded by the plaintiffs, they have discharged the burden of proof upon them. I am satisfied that when he executed that will the testator had testamentary capacity. I am satisfied that that will is the last valid will and testament executed by the testator. I am satisfied that its execution was validly witnessed by the attesting witnesses and meets all requirements of the Succession Act.
Under s 48(1) of the Succession Act 1981 it is provided that a grant of probate shall not be made to more than four persons at any one time. If more than four persons have been appointed as executors that section also provides that the grant will be made to the first four executors in the order in which they are named. Obviously it will be made only to those executors who apply for a grant.

[224]

In this case, the executors of the 24 August will appointed by the testator were, in
order –

Marliss Kaye Theophanous
Derek Leonard Gillespie
Benjamin Cyril Gillespie
Nicole Ann Gillespie
Anna Kareena Kiviranta.

[225]

If all 5 had applied for a grant then pursuant to s 48 (1) the four children of the
testator (including Derek) would be entitled to a grant – to the exclusion of Anna.

Under s 6(3) of the Act, however, it is provided –
“(3) A grant may be made to such person and subject to such provisions including conditions or limitations as the court may think fit.”
Having regard to the antipathy displayed by Derek to his siblings and to Anna since the death of the testator – indeed right up until he concluded giving evidence in this case, in my view if he were involved as one of four executors administering the estate it might well prove disastrous for its proper administration and indeed for preservation of the interests of the three shareholders in Dymark involved in conducting its business.

[228]

There may be cases where as a consequence of the age or incapacity of an executor
an exercise of discretion under s 6(3) will be called for.

The structure of the will excluding Derek from any interest in Dymark while devising the testator’s industrial property at Wacol equally between Anna and the testator’s four children and the direction in cl 8 of the will, that the trustees of the will lease that Wacol property to Dymark “at a rental to be agreed upon” or to be assessed with “the normal appropriate clauses” to be drawn by the testator’s solicitor, in my view, would provide an opportunity for Derek, if granted probate, to cause unnecessary delay and expense in the proper and timely administration of the testator’s estate in accordance with his 24 August will.
I am satisfied that there are special circumstances in this case which would justify departure from the general rule found in s 48(1) of the Succession Act if permissible, and to make a grant of probate of the 24 August will to the four executors – plaintiffs who have propounded it in this action - to the exclusion of Derek, who has not merely contested the plaintiffs’ application but has made it very clear indeed, that he does not regard that will as the true will of the testator.
I am unpersuaded, however, that the general grant of discretionary power under s 6(3) would justify a departure from the specific mandatory direction found in s 48(1). The testator was well aware of Derek’s personality and attitudes and that he was “mean” and sometimes difficult to get along with. He was well aware of the inter-sibling disharmony which his actions relating to his mother’s property and estate had caused. Indeed that was probably a consideration in excluding him from Dymark. However, he decided in an effort to “make peace” in his family that he would make his four children and Anna his executors. If he had known that only the first four persons could take a grant of probate at the one time he may have deleted Derek or Nicole – for the reason that he left them no interest in Dymark.
In this case, however, Derek has not applied for probate of the 24 August will. Only Anna and his other three children have applied. Far from seeking such a grant Derek has opposed it.
Each of the applicants for a grant of probate of the 24 August will are named executors and each are therefore entitled under s 48(1) to the grant which they applied for. Derek has not renounced and it seems to me that unless his opposition to a grant of probate to the plaintiffs be treated as the equivalent of a renunciation, he will be entitled to apply for a grant in the future if a vacancy occurs.
No authority was cited to support the proposition that although Derek refused to apply for and indeed opposed a grant of probate of the 24 August will in this action contending that it was an invalid will, nevertheless I should grant probate of it to him in preference to the last of the other four executors appointed by the testator, who in fact, did successfully propound his last will and overcame Derek’s opposition to that result.
I therefore order that probate in solemn form of the will dated 24 August 1998 of Cyril Bertram Gillespie deceased be granted to Marliss Kaye Theofanous (spelt “Theophanous” in the will), Benjamin Cyril Gillespie, Nicole Anne Gillespie (spelt “Ann” in the will), and Anna Kaarina Kiviranta, (spelt “Kareena” in the will) four of the executors named therein.
It could not be said in this case that this litigation has been caused by the conduct of the testator. There was nothing in the hospital records or expert evidence from treating doctors to support the defendant’s case which essentially was founded upon his own evidence, which I have rejected insofar as it was material to the testator’s observable capacity at relevant times. The defendant has converted what should have been a relatively inexpensive application in common form to a very expensive solemn form application without any reasonable cause.
In my judgment Derek’s opposition to the grant of probate of the 24 August will and his propounding of the 24 April will as the last valid will and testament of the testator was without merit and unsupported by credible evidence. I infer that far from desiring to ensure that probate be granted of the last true and valid will of the testator, he was motivated only by his desire “to share equally” in the distribution of the testator’s estate with his siblings – particularly Marliss and Benjamin.
There was an exchange of statements of all witnesses and full disclosure of all relevant documentary evidence in this case. In my view properly advised, the defendant should have known that he had no real prospect of success. In my view it would be unjust to the other beneficiaries under the will should their beneficial interest be reduced by the plaintiffs’, much less the defendant’s, costs of this action which in my view were incurred solely as a consequence of the defendant’s intransigence. In Nautilas Australia Ltd v The Ship “Rossel Current” no. 6585 of 1998 (unreported, judgement delivered 26 March 1999) I analysed cases dealing with the granting of indemnity costs at page 3. In my view this is a proper case in which to order indemnity costs.

[239]

I order that the defendant pay to the plaintiffs their costs of and incidental to this
action including reserve costs, if any, to be assessed on an indemnity basis.

[2001] QSC 177

14/06/2001