Tonkiss v Graham - [2002] NSWSC 891

No judgment structure available for this case.

CITATION: Tonkiss & Anor v Graham & Ors [2002] NSWSC 891

CURRENT JURISDICTION: Equity - Probate List

FILE NUMBER(S): SC 118541/97

HEARING DATE(S): 17/9/02-18/9/02

JUDGMENT DATE: 4 October 2002

PARTIES :

David James Tonkiss (First Plaintiff)
Lorraine Gay Tonkiss (Second Plaintiff)
Carolyn Graham (First Defendant)
Margaret Kathleen Horan (Second Defendant)
Hamish Murdoch Angus McLean (Third Defendant)
Jessie Eleanor Tamzin McLean (Fourth Defendant)
Stephen David Tonkiss (Fifth Defendant)
Samantha Jane Tonkiss (Sixth Defendant)
Sue McKinnon Horton (Seventh Defendant)
Stuart McKinnon Horton (Eighth Defendant)
Robert McKinnon Horton (Ninth Defendant)
Peter Douglas George Horton (Tenth Defendant)

JUDGMENT OF: Campbell J

COUNSEL : P Hallen SC (Plaintiff)
D Davies SC; M Bridger (1D-4D and 7D-10D)
D Legg, Solicitor (6D)

SOLICITORS: Teece, Hodgson and Ward (Plaintiffs)
Michael H Roberts & Associates (1D-4D and 7D-D10)
Burridge & Legg (6D)

CATCHWORDS: SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - interested witness - whether testatrix knew and approved of gift to spouse of witness - whether gift to spouse of witness was given or made freely and voluntarily

LEGISLATION CITED: Interpretation Act 1987 (NSW)
Wills, Probate and Administration Act 1898
Wills, Probate and Administration (Amendment) Act 1989

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Birmingham v Renfrew (1937) 57 CLR 666
Cleland v R (1982) 151 CLR 1
Horton v Jones (1935) 53 CLR 475
Ibbs v R [1988] WAR 91
Johnson v Buttress (1936) 56 CLR 113
Karam v ANZ Banking Group Limited [2001] NSWSC 709
Meissner v R (1994) 184 CLR 132
Miller v Miller (2000) 50 NSWLR 81
Nock v Austin (1918) 25 CLR 519
R v Garry Raymond Clark (NSWCCA, 17 April 1998, unreported)
R v Holman [1970] WAR 2
R v Lee (1950) 82 CLR 133
Re Emanuel (deceased) [1981] VR 113
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Schaefer v Schuhmann [1972] AC 572
Soterious v Police [2000] SASC 256 (unreported, 4 September 2000)
Synge v Synge (1894) 1 QB 466

DECISION: Gift to spouse of attesting witness upheld

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

4 OCTOBER 2002

118541/97 DAVID JAMES TONKISS & ANOR v CAROLINE GRAHAM & ORS; ESTATE OF THE LATE MARJORIE BOBS THOMPSON

JUDGMENT

1 HIS HONOUR: Marjorie Bobs Thompson (“the Testatrix”) died on 28 July 1997, aged 97 years. She was a widow. Her husband had died in or about 1974. She had no children. Her parents and all her seven siblings had predeceased her. The inventory of property sworn in connection with this application for probate puts the value of her net estate at a little more than $5.15 million.

2 Betty Dubber was the daughter of a friend of the Testatrix. She was born in April 1929, and so was about 29 years younger than the Testatrix. Though there was no blood relationship between them, they referred to each other as aunt and niece. They kept in contact with each other over the whole of Betty Dubber’s life. The evidence includes some photographs, at intervals from the 1930’s onwards, showing the Testatrix and Betty Dubber together. By about 1983, Betty Dubber was speaking almost daily to the Testatrix, and often went to stay with her.

3 Betty Dubber in due course had two children, Lorraine and Graham. Lorraine was born on 23 December 1950, and so was about 50 years younger than the Testatrix. Lorraine’s Baptismal Certificate shows the Testatrix as one of her Baptismal sponsors. The Testatrix and Lorraine referred to each other as great-aunt and great-niece.

4 Lorraine Dubber married David Tonkiss. By the time of the events relevant to this litigation, they had two children, Stephen Tonkiss and Samantha Tonkiss. David Tonkiss and Lorraine Tonkiss are the plaintiffs in the present proceedings.

5 The last Will which the Testatrix executed was made on 14 December 1988. It revoked all former wills, and appointed David Tonkiss and Lorraine Tonkiss as executors and trustees. The dispositive provisions of that Will are as follows:

4. I GIVE DEVISE AND BEQUEATH

IN TRUST

STEPHEN DAVID TONKISS

SAMANTHA JANE TONKISS

STEPHEN DAVID TONKISS

SAMANTHA JANE TONKISS

PROVIDED HOWEVER

IN TRUST

STEPHEN DAVID TONKISS

SAMANTHA JANE TONKISS

5. I GIVE DEVISE AND BEQUEATH

IN TRUST

BETTY LORRAINE DUBBER

LORRAINE GAY TONKISS

PROVIDED FURTHER HOWEVER

BETTY LORRAINE DUBBER

LORRAINE GAY TONKISS

IN TRUST

STEPHEN DAVID TONKISS

SAMANTHA JANE TONKISS

6 The Testatrix also executed a Codicil, on 20 December 1992, which altered Clause 4 of the 1988 Will by making provision for the property at 11 Quinton Road Manly to be given to the issue of Lorraine Gay Tonkiss. The occasion for execution of this Codicil was that, after execution of the 1988 Will, Lorraine and David Tonkiss had had another child. Evidence from Dr Hayley Bennett, a consultant clinical neuro-psychologist, establishes that at the date of execution of this Codicil, the Deceased did not have testamentary capacity. All parties to the present litigation accept that evidence, and no one seeks to propound the 1992 Codicil.

7 The Testatrix’s property at 11 Quinton Road Manly was sold in July 1993 – that is, in the Testatrix’s lifetime. Hence the gift made by Clause 4 of the 1988 Will cannot take effect.

8 Betty Dubber died on 14 June 1993. Thus, Clause 5 of the 1988 Will would operate so that the gift of half the residuary estate to Betty Dubber comes to be held on the substitutionary trusts in favour of Stephen Tonkiss and Samantha Tonkiss. Stephen Tonkiss died on 24 July 2001, without having reached the age of 25 years. Thus, in the events which have happened, the share of residue given to Betty Dubber will be held on trust for Samantha Tonkiss until she attains the age of 25.

9 The problem in the present case concerns the share of residue which was given to Lorraine Tonkiss.

10 The problem arises from the fact that David Tonkiss was one of the attesting witnesses to the 1988 Will. Section 13 of the Wills, Probate and Administration Act 1898 says:

"the interested witness"

(2) A beneficial gift given or made by will is not made void by this section if:

11 Section 13(1) means that the gift of half the residuary estate to Lorraine Tonkiss will be void, unless section 13(2) applies. There was only one witness to the execution of the Will, besides Mr Tonkiss, so section 13(2)(a) does not apply. Consents of the type referred to in section 13(2)(b) have not been obtained, so section 13(2)(b) does not apply. The plaintiffs contend, however, that the Court ought be satisfied that the Testatrix knew and approved of the residuary gift, and that the gift was given or made freely and voluntarily by her, and hence that the gift of half the residuary estate to Mrs Tonkiss is not void, by reason of section 13(2)(c) of the Wills, Probate and Administration Act 1898.

12 The testamentary document which the Testatrix had executed immediately before the 1988 Will is a Will made on 28 August 1985. That Will appointed the Public Trustee as executor and trustee. Its dispositive provision was:

I GIVE DEVISE AND BEQUEATH

UPON TRUST

AND THEREAFTER

BETTY LORRAINE DUBBER

LORRAINE GAY TONKISS

13 If that Will were the operative Will of the Testatrix, its effect, in the circumstances which have happened, would be to give the whole of the Testatrix’s estate to Lorraine Tonkiss. Mr and Mrs Tonkiss have, in this litigation, a fall back position – they say that, if the Court is not satisfied about the matters which section 13(2)(c) of the Wills, Probate and Administration Act requires the Court to be satisfied for the gift to Mrs Tonkiss in the 1988 Will to be effective, then probate should be granted of the 1985 Will. The reason for this result, they say, is that the Testatrix revoked the 1985 Will conditionally upon the whole of the 1988 Will, including the gift to Mrs Tonkiss, being valid and effective. Alternatively, they support Samantha in contending that, in the event that the gift to Mrs Tonkiss is void, and if the 1988 Will governs the Testatrix’s testamentary dispositions, the gift of residue in the 1988 Will is a class gift, with the effect that the whole of the estate will pass to Samantha Tonkiss absolutely.

Role of the Defendants in this Litigation

14 Ten defendants have been named in the litigation. The first four defendants are next-of-kin who were served, and have appeared, but did not wish to take any active role in the proceedings, except on the question of costs. Mr Davies SC, with Ms Bridger, appears for them. Stephen Tonkiss was the fifth defendant, but following his death his estate has not taken any active role in the litigation. Samantha Tonkiss is the sixth defendant. Mr Legg appears for her. The seventh to tenth defendants are also some of the next-of-kin of the Testatrix, who wish to take an active role in the proceedings. Mr Davies SC, with Ms Bridger, appears for them.

15 The active defendants accept that the 1988 Will was validly executed, that the Testatrix had testamentary capacity at the time she executed it, and that no undue influence (in the sense in which that term is used in probate law), was brought to bear on her. Were they not to accept any of these matters, and be right in so doing, the 1988 Will would be invalid, and the 1985 Will would in consequence govern the disposition of the Testatrix’s estate, resulting in Mrs Tonkiss receiving the whole of the estate. What the active defendants say is that the Court ought not be satisfied that, when the Testatrix executed the 1988 Will, she knew and approved of the gift to Mrs Tonkiss, and made that gift freely and voluntarily. In consequence, they say the gift of half the residue to Mrs Tonkiss will fail, and pass on intestacy.

16 Mr Hallen SC, counsel for the plaintiffs, said several times in address that the stance taken by these defendants was “opportunistic”. He submitted that these defendants were taking advantage of the accident that, through the ignorance of the solicitor who drafted the Will and supervised its execution, Mr Tonkiss was an attesting witness to the Will, to prevent the Testatrix’s property from going in accordance with a general plan of disposition, favouring the Tonkiss family, which she had consistently followed since 1970. He said that, were it not for the accident of Mr Tonkiss being the attesting witness, the 1988 Will would take effect, and the next-of-kin would get nothing.

17 In my view, the stance of these defendants does not differ, in the result they are trying to achieve, from the stance often taken by next-of-kin in Will construction litigation, to argue that a gift in a will fails, and hence goes on intestacy, because it breaches the rule against perpetuities, or is a purpose trust which is not charitable and not otherwise valid, or fails for some other technical reason. By putting the plaintiffs to proof of the matters in section 13(2)(c) of the Wills, Probate and Administration Act, the active defendants are exercising an opportunity which the legislation has deliberately created. No doubt the active defendants are well aware that they will receive substantial benefits from the Testatrix’s estate if the plaintiffs are not able to discharge their onus of proof of the matters in section 13(2)(c). It is by reference to whether the plaintiffs have discharged that onus of proof that the case will be decided, not by reference to a characterisation of the attitude of some of the defendants.

The Testatrix’s Previous Wills

18 The Testatrix had made three previous Wills which were tendered in evidence. Their provisions can be summarised as follows:

Date	Executor	Specific legacies	Residuary clause
16/9/70	Public Trustee	None	Half to Betty Dubber (or if she predeceases me for Graham Dubber), the other half for Lorraine Dubber (or if she predeceases me for Graham Dubber)
4/8/78	Public Trustee	None	Betty Dubber absolutely, but if she predeceases me for such of Lorraine Dubber and Graham Dubber as survive me, and if both in equal shares
28/8/85	Public Trustee	None	Such of Betty Dubber and Lorraine Tonkiss as shall be living at my death, and if both in equal shares

19 By comparison, the 1988 Will appointed David and Lorraine Tonkiss as executors. For the first time, it gave a specific legacy – it gave the Quinton Road house to Stephen and Samantha when the youngest reaches 25 (with a power for the trustee to sell, but with an obligation to re-invest in Sydney real estate). The residuary clause is the same as the 1985 Will in that the residue is to be divided between Betty Dubber and Lorraine Tonkiss if they are both alive when the Testatrix dies. However the two Wills differ over what happens if either of them predeceases the Testatrix. Under the 1985 Will, if one of them survives the Testatrix, the one who survives takes the share of the one who predeceases the Testatrix. Under the 1988 Will, if either of them predecease the Testatrix then the share of that one is held in trust for Stephen and Samantha when the youngest attains 25.

20 As well, Mr Peter Horton, a nephew of the Testatrix, gives evidence that on one occasion the Testatrix showed him a Will which she had made in the 1940’s. That Will left everything to the Testatrix’s husband, and after he died then to Betty Dubber and Mr Horton equally.

The Testatrix Prior to Moving to the Nursing Home

21 Around 1939 the Testatrix (who by this time was married, but whose husband was frequently away in connection with his work) went to live with Mr Horton and his parents. In about 1943 the Testatrix bought a house at 11 Quinton Road Manly, where she lived until the mid-1980s. When Mr Horton was a child, she had shown some interest in him, taking him out for various treats, and giving him clothes and presents. Mr Horton continued to keep in contact with the Testatrix. After he married, in 1960, the Testatrix occasionally helped him out by giving him money to pay his accounts, and was fond of his children. From about 1970 Mr Horton noticed that the deceased would refuse to leave the house unattended – she said that people were trying to get into the house. After the Testatrix’s husband died in 1974, Mr Horton began visiting the Testatrix about three or four times a week, and did shopping, and other messages for her. Over this time the Testatrix continued to assert to him that there were people living downstairs in her house, and that she could hear them moving around – these assertions were quite unfounded. She lived a frugal life, with old domestic appliances, no washing machine, and no car. The Manly house deteriorated around her.

22 In about 1984 Mr Horton’s work began to require him to spend long periods away from Sydney. After this change, he visited the Testatrix when he could. Then, in about late 1984 or early 1985, he lost contact with the Testatrix. When he could not raise her on the telephone, he telephoned Betty Dubber and enquired where she was. Betty Dubber said that she was in hospital, but refused to tell Mr Horton where she was. Mr Horton continued to contact Betty Dubber over the next few months, and she continued to refuse to tell him where the Testatrix was. Mr Horton made some enquiries, from a security firm whose sign he saw on the Manly house, about where the deceased was, but got nowhere. He assumed that Betty Dubber had placed his aunt in a nursing home, and thought that she would let him know if anything was seriously wrong with his aunt. He did not hear another word about the Testatrix until some time in 2000, when a solicitor who was trying to track down next-of-kin of the Testatrix contacted him. That solicitor informed him, for the first time, that his aunt had died.

23 Lorraine Tonkiss had a close relationship with the Testatrix for all her life. She visited the Testatrix regularly at Manly. Often she took her husband, and her children, with her. The Testatrix gave her cash gifts from time to time. From the time Mrs Tonkiss was a child, the Testatrix would give her cash on her birthdays.

24 David Tonkiss first met the Testatrix in 1978, before he and Lorraine had married. From 1983 onwards, Mr Tonkiss provided the Testatrix with help with the administrative work involved in paying some of her accounts, and with banking and shopping. Over the next few years he became more closely involved in her financial affairs. At first, the Testatrix asked him to perform specific tasks which she nominated. Later, she gave him a suitcase of papers and cheques and asked him to sort it out. There, he found cheques for rent and dividends which had not been banked for months, some of which were by then too old to bank. He found that she was being sued by the Deputy Commissioner of Taxation for unpaid tax. He arranged for the payment of that tax. He sought help from a bookkeeper, a bank manager, and a solicitor in sorting out her affairs. Through this process of looking after her financial affairs, he came to understand that the Testatrix had some investment real estate, which was dilapidated, and a share portfolio. He came to understand that she was wealthy.

25 In June 1985 the Testatrix began to give him notes about what she wanted for her Will. Those notes had a common theme – that Lorraine was to be executrix, that Betty and Lorraine were to share the estate equally, that David was to be responsible for her burial in a particular named grave, and for looking after her bank money. Some of the notes also said that Mr Tonkiss was “to help” (and, from the context, one infers that that meant to help Lorraine in being executrix). Two of the notes included a request for Mr Tonkiss to “come Friday afternoon if convenient to you Friday 21 June 1985”.

26 Mr Tonkiss compared these notes to her 1978 Will, which he had come across in the suitcase which the Testatrix had given him. He did nothing about arranging for the Testatrix to be assisted in making a new Will, because he regarded Betty Dubber as the deceased’s primary beneficiary. It was only at a later time – some time before the Testatrix went into a nursing home - that he discovered that the Testatrix, no doubt sick of his inaction, had made her own arrangements to visit the Public Trustee at Dee Why, and make her Will of 28 August 1985. Considering that the 1978 Will gave his wife half the residuary estate only if Betty Dubber predeceased the Testatrix, while the notes the Testatrix was giving him in 1985 contemplated a Will under which Lorraine would receive half the estate absolutely, his inaction is hardly the conduct of someone grasping for his family to be given benefits by the Testatrix’s Will.

The Testatrix Moves to the Nursing Home

27 In the latter part on 1986 the Testatrix had a fall, in consequence of which she was admitted to a nursing home. Mrs Tonkiss found the nursing home for her. Within a short time of her admission she executed, on 21 October 1986, a general Power of Attorney in favour of Mr Tonkiss.

28 That general Power of Attorney was drawn by Paul Brown, a solicitor then practicing at Glebe. Mr Brown had acted for Mr and Mrs Tonkiss in one or two conveyancing transactions previously. He was the solicitor who Mr Tonkiss had consulted about the Testatrix’s affairs in about 1985, well prior to the Testatrix moving into the nursing home. The first request to Mr Brown to prepare a Power of Attorney came from Mr Tonkiss. Mr Brown does not remember whether he spoke to the Testatrix to check those instructions. Mr Brown went to the nursing home and spoke to the Testatrix, explaining the substance of the Power of Attorney to her, providing some advice about the practical consequences of executing a Power of Attorney, and witnessing her signature when she executed it. When Mr Brown saw the Testatrix for execution of the Power of Attorney, he saw her by himself.

29 Once the Testatrix was in the nursing home Mrs Tonkiss still visited her regularly, often with Mr Tonkiss and the children, and bought all of her clothing and toiletries (in fact, the Testatrix was in two different nursing homes, but that does not matter).

The 1988 Will – Instructions and Execution

30 On 25 March 1987 the deceased wrote a note, in her own handwriting:

“I Marjorie Bobs Thompson want David Tonkiss to look after my estate. David to hold money in trust for funeral expenses. David & Lorraine Tonkiss to arrange my funeral with Betty & Arthur Dubber. David Tonkiss has all my written instructions.”

31 The Testatrix’s signature on this document was witnessed by a member of the nursing home staff. It is likely that the “written instructions” which Mr Tonkiss had were instructions relating to where the Testatrix was to be buried.

32 In the course of 1988, the Testatrix said to Mr Tonkiss, on a few visits which he made to her, that he wanted Stephen and Samantha to get her house. She told Mrs Tonkiss on one visit, that she had been listening to the radio and heard that there was a land shortage in Sydney and that she would like to leave her house to the two children. Following this conversation, Mr Tonkiss typed up a document, dated 11 September 1988 which reads:

TO WHOM IT MAY CONCERN

I MARJORIE BOBS THOMPSON of 11 Quinton Rd., Manly, request the following:-

I acknowledge that my current Will with the Public Trustee, names BETTY LORRAINE DUBBER and LORRAINE GAY TONKISS as my joint beneficiaries.

However, with Sydney’s land shortage, I wish that my house and land at 11 Quinton Rd., Manly or the proceeds thereof is held in trust by LORRAINE and DAVID TONKISS for STEPHEN DAVID TONKISS and SAMANTHA JANE TONKISS.”

33 That document was signed by the Testatrix, and her signature on the document was witnessed by a member of the nursing staff.

34 Mr Tonkiss was uneasy about the adequacy of this document. In November 1988 he suggested to the Testatrix that, “We should get a solicitor to draw up a proper Will for you.” The Testatrix told him to do it. Mr Tonkiss told her that she would have to speak to the solicitor on the phone, and suggested that Paul Brown be the solicitor who was used. She agreed.

35 On 7 December 1988 Mr Tonkiss sent to Mr Brown a facsimile saying:

Re

I believe her requirements to be:-

1. Estate to be divided equally between Betty Lorraine Dubber and Lorraine Gay Tonkiss. If either/both deceased share to go to Stephen David Tonkiss and Samantha Jane Tonkiss equally. (To be held in trust for them till youngest reaches 25 years of age)

2. Executors & Trustees to be David James Tonkiss and Lorraine Gay Tonkiss.

3. Property at 11 Quinton Road Manly to go to Stephen & Samantha equally (to be held in trust or if sold funds to be reinvested in property by Trustees as appointed.

4. Burial as previous Will copy follows.

NB

36 On 8 December, Mr Brown received a telephone call from the Testatrix. She was calling from the nursing home, assisted by the nursing staff. Mr and Mrs Tonkiss were not at the nursing home at the time. Mr Brown says that the Testatrix said to him:

“I want to do a new Will. Up until now, I have had the Public Trustee as my Trustee but I want David to have control of my affairs, after my death instead of the Public Trustee. David’s been looking after everything for me. I am happy with what he has done and I would rather have him and Lorraine as the Executors instead of the Public Trustee. I want to leave Lorraine’s children my home in Manly and give everything else to Lorraine and her mother.”

37 Mr Brown says that he then said to the Testatrix:

“I have received a note from David and this is what I understand from the note you want, that is David and Lorraine will be executors, the house will go to the children on trust for them until they are 25 and everything else will go to Lorraine & Betty. If either of them die then it will go to Lorraine’s children again when they get to 25”.

38 The Testatrix then said: “Yes, that’s right”.

39 Mr Brown and Mr Tonkiss later spoke by telephone. Mr Brown arranged to meet Mr Tonkiss at the nursing home to execute the Will.

40 On 14 December 1988 Mr and Mrs Tonkiss, and Mrs Dubber, went to the nursing home. When they arrived, they found the Testatrix with her hair done, and well dressed. It was around morning teatime or lunchtime. Mr Tonkiss told the Testatrix that Mr Brown was coming to see her. Mrs Tonkiss recollects that Mrs Dubber was not particularly happy with the changes that the deceased was proposing to make to her Will. When Mr Brown arrived, the Testatrix said to him, “You have still got a cute behind”, and everyone laughed. Mr Brown asked everyone else to leave. He sat with the Testatrix in a communal area at the nursing home, for 10 or 20 minutes.

41 First they had a general discussion. Mr Brown gives evidence:

42 There was only one copy of the Will. Mr Brown and the Testatrix sat so that they could both see it. Mr Brown gave affidavit evidence:

“I went through the Will with her in a sense that whilst I did not read it to her word for word I paraphrased the effect of each and every provision. I have a recollection that she said to me words to the effect:

“With the cost of real estate today it is hard for children to get a start. David & Lorraine have their own home but this will help the children”.

I said words to the effect:

“David is looking after things but he’s not getting anything himself”.

She said to the effect:

“No, everything else is to go to Betty & Lorraine – David’s not family”.

I then said words to the effect:

“If either Betty or Lorraine die it all goes to Lorraine’s children”.”

43 He asked her whether she wished to sign it, and she answered in the affirmative.

44 In cross-examination Mr Brown was asked about the affidavit evidence I have just set out:

HALLEN: Your Honour, might the witness have access to the will itself?

DAVIES: I'd like the witness to answer the question before he looks at the will, your Honour.

45 At the time, Mr Brown was unaware of the full extent of the interested witness rule, contained in section 13(1) of the Wills, Probate and Administration Act. He raised no problem about Mr Tonkiss acting as one of the witnesses to the Will.

46 In September 1989, Mr and Mrs Tonkiss had another child, Ian. At some stage in 1991 or 1992, Mr Tonkiss said to the Testatrix that Ian was not included in her Will with Stephen and Samantha. She replied, “He should be, you fix it up. They should all be the same.” Thereupon, he contacted Mr Brown and asked him to draft a Codicil to that effect. It is difficult to place precisely when this occurred, because Mr Brown’s file relating to the preparation of the Codicil contains a draft of such a Codicil which leaves a blank for the actual date of execution but says that it is a date in 1991, and a covering letter dated 28 June 1991 to Mr Tonkiss, enclosing that draft Codicil and saying:

“We do not know the address for Marjorie Thompson and we should be pleased if you would telephone and advise. We would seek then to make necessary arrangements to attend with you on Marjorie Thompson with a view to signing the Codicil.”

47 Nothing seems to have been done about the Codicil until another letter from Mr Brown to Mr Tonkiss, dated 20 May 1992, saying:

“We refer to earlier discussions and enclose herewith redrafted form of Codicil. If you are in agreement with the Codicil please make the necessary arrangements for us to attend on Mrs Thompson.”

48 The form of Codicil ultimately executed was sent to Mr Tonkiss under cover of a letter dated 24 November 1992, saying:

“We refer to recent discussions and enclose herewith original Codicil document. This document should be signed by Mrs Thompson in the two places indicated, being on the front page and second page. Her signature should be witnessed by two persons who are not beneficiaries named in her will. There is no reason why you cannot be one of the witnesses.

We confirm our advice to you that should you wish the writer to attend with you on Mrs Thompson I am quite happy to do so, however if it is more convenient for you to have Mrs Thompson sign the document on one of your visits to see her then please do so.”

49 That Codicil was ultimately signed by Mrs Thompson on 20 December 1992. Mr Tonkiss, and another resident of the nursing home, were the witnesses.

Credit of Mr Brown

50 It was submitted for the next-of-kin that I could not be satisfied about Mr Brown’s evidence. By the time he was first asked to give evidence, the only file which he retained was the file relating to preparation of the Codicil – other files had been destroyed in the course of routine destruction of old files. The events of 1988 were, by the time of his first affidavit in 2000, already 12 years old and, without contemporaneous documents to act as a memory jogger, recollection of events that long ago is often hard. As well, it was submitted, his actions in relation to Mrs Thompson displayed an extraordinary degree of lack of care, in several ways. First, he was unaware of the interested witness rule, at least in so far as it related to the spouse of a beneficiary. Second, for him to prepare the Codicil, with no attempt at any time to check with Mrs Thompson that it accorded with her wishes, was seriously irregular. Third, Mr Brown knew that the Codicil was one designed to deal with the situation of Mr and Mrs Tonkiss having had a third child – yet the Codicil was one which included the third child in the specific legacy of the Quinton Road property, but did not include the third child in the residuary gift. Finally, Mr Brown had acted on the instructions of Mr Tonkiss (who in turn was acting under the Power of Attorney from the Testatrix) in selling the property at 11 Quinton Road Manly in July 1993. Mr Tonkiss effected that sale oblivious of the fact that doing so would mean that the specific gift of that property by Clause 4 of the Will (as amended by the Codicil in December 1992) could not occur – Mr Brown never brought this to his attention.

51 As well, it was submitted that Mr Brown’s evidence had changed in some respects, and had become more detailed from the time of his initial affidavit, through a supplementary affidavit sworn in the week before the trial, and finally in his oral evidence at the trial. He accepted, in cross-examination, that some of the evidence he had given was incorrect. In his initial affidavit he said that he recalled the Testatrix writing a note to him in relation to the Will. Further thought, and an examination of some documents annexed to an affidavit of Mr Tonkiss, caused him to revise that view. In the affidavit sworn in the week before the trial, he gave an account of preparation of the Will which did not have, as an element in it, his receipt from the deceased of a note relating to the Will. Rather, that account included his receiving from Mr Tonkiss, Mr Tonkiss’ note concerning the deceased’s instructions, set out at paragraph 35 above.

52 I accept all these criticisms of Mr Brown’s conduct, and evidence. Notwithstanding them, I accept the evidence of Mr Brown which I have set out or summarised above, about the circumstances in which he received instructions for the Will, drew it, and supervised its execution. Mr Brown frankly acknowledged his shortcomings, and seemed to me, when giving his evidence, to be doing his honest best.

Mr Tonkiss’ Credit

53 The active defendants also submitted I could not rely on Mr Tonkiss’ evidence. In the course of administering the Testatrix’s assets under Power of Attorney, he had, in October 1994, used money of the Testatrix to purchase (in the Testatrix’s name) a property at 2 Nursery Place, Belrose. Mr Tonkiss and his family lived in it for four or five years. They paid no rent, and the Testatrix’s money was used for the payment of rates and insurance on the property. Soon after the purchase, $12,000 or $15,000 of the Testatrix’s money was used to carry out refurbishment at the property. While Mr Tonkiss told the Testatrix that he and his family had moved into a new house at Belrose, he did not tell her that that house had been purchased with her money, that the family was living there rent free, that her money had been used for refurbishing it, or that her money was being used to pay outgoings on it. At the time of purchase of that property, about $300,000 had been borrowed (in the Testatrix’s name) on a bank bill. Those borrowings were either reduced to a small fraction of their original size, or completely repaid (the evidence does not make clear) within a few months of purchase of the house, as a consequence of the sale of another of the Testatrix’s properties. In the meantime, the Testatrix’s money met the payments which were in substance interest.

54 Given that the Testatrix died in July 1997, it would have been for somewhat less than three years that the Tonkiss family were living in the Testatrix’s property at Nursery Place under these conditions without telling the Testatrix. Mr Tonkiss said, concerning this conduct, “I believe that she would have been more than happy, if she had known the full situation, for it to occur”. As well, he said that he believed that, following the sale of the Quinton Road property, he was obliged to re-invest the sale proceeds in real estate – he thought that this obligation arose from Clause 4 of the Testatrix’s Will, even though at the time of the sale of the Quinton Road property she had not died. He had not informed the Testatrix about the sale of the Quinton Road property, because the Matron of the nursing home advised him not to tell her, as telling her that her home was being sold would distress her.

55 None of these matters excuse Mr Tonkiss from this very serious breach of his fiduciary duty.

56 Other criticisms were made of Mr Tonkiss, and his evidence, but I do not regard them as of substance.

57 Notwithstanding the serious breach of fiduciary duty which occurred concerning the Tonkiss’ occupation of 2 Nursery Place Belrose, starting at a time nearly six years after the 1988 Will was executed, the evidence which Mr Tonkiss gave about the circumstances of the deceased giving instructions for the Will in 1988, and her executing it, is evidence which I accept.

Mrs Tonkiss’ Evidence

58 No criticism has been made of either Mrs Tonkiss personally, or of her evidence. She gives evidence confirming that, on the day of execution of the 1988 Will, Mr Brown and the Testatrix discussed it separately, and that it was Mr Brown who required the other people present to leave so that he could talk to the Testatrix alone.

The Medical Evidence

59 Dr Hailey Bennett is a consultant clinical neuro-psychologist, who has examined the medical records of the Testatrix from the Manly Nursing Home. She comes to the conclusion that in 1988 the Testatrix was most likely suffering from dementia with Lewy bodies, but that, notwithstanding that, “she retained the capacity to make a new will, given that the only cognitive domain that is well documented as being consistently compromised was that of memory.” Dr Bennett’s report was addressed to the testamentary capacity of the Testatrix, not to the different, but closely related, topic of whether the gift in the residuary clause of the 1988 Will met the tests laid down by section 13(2)(c) of the Wills, Probate and Administration Act. (As its name suggests, testamentary “capacity” is concerned with whether a testator or testatrix is capable of performing the intellectual tasks involved in will making. The tests laid down by section 13(2)(c) look at whether certain mental tasks were actually performed – knowing of, and approving of, the gift – and whether the making of the gift has some attributes – being made freely and voluntarily – which can include consideration of the mental state of a testator or testatrix.) Dr Bennett’s cross-examination focused more specifically upon whether the gift to Mrs Tonkiss in the residuary clause of the 1988 Will, met the test laid down by section 13(2)(c). It included the following:

“Q. … Dr Bennett, you were fortunate enough for us to be in Court when I was asking Mr Brown about what actually transpired before the will was executed. I will try and summarise it fairly. He said first of all having had a general discussion with her about matters unrelated to the will he summarised the provisions. He then paraphrased the position. At one stage the deceased made a comment about the cost of land or the cost of housing in relation to the gift to the children. That at the conclusion Mr Brown said to her "is that what you want" or words to that effect. She said "yes". My question is, in those circumstances is that, with the difficulties and problems that Mrs Thompson had, sufficient to indicate that she did not know and approve of the gifts in the will?

I don't have any problem that she would have understood on the basis of medical evidence. I think more probably than not she would have understood it.

I have no problem with the fact that she was capable of understanding what he said he put to her.

60 In the months before she had executed the 1985 Will, the Testatrix had made many notes of what she wanted in the Will. Some of those notes were in a very unsteady cursive writing, some were in block capitals. The notes were very similar in content one to the other. Dr Bennett was asked about the significance of these repetitive and untidy notes. She answered:

“A. It didn't surprise me at all. Often as a neuro-psychologist I have little old ladies who come to see them and have written out similar sorts of things. Things that prompt themselves to remind them to talk to me about when they get to me. Look just like this. In terms of the changes, again that doesn't surprise me. She would have been - - in '85, at that time she was in what we would call a pre-clinical dementia phase, which means that she had pathology developing in her brain, but it's not clearly impacting yet. So, you couldn't really diagnose it yet. But what happens is these people have very vulnerable brains. So, when they get sick they become a bit confused. When they for instance don't have a good night’s sleep they might get a bit confused. Then they get the flu or something like that they are vulnerable in terms of things that can make their brain not as good. That impacts amazingly on how writing is drawn. So, for example I get to see people sequentially, like every few weeks, because I work on drug studies or Alzheimer studies to see if the drug is affecting them. They would come in on a weekly basis. Maybe not having a good night’s sleep the night before or having had the flu their writing would be entirely different. So, looking at that didn't arouse my curiosity and the fact that it might have been written within months again it just look likes a little ole frail 85 year old lady's handwriting that is changed. Block letters, sometimes not keeping to the line - - it's not a lined page - - interesting spelling here and there, it didn't surprise me.

61 Dr Bennett traced the general picture which the nursing notes presented, from the time of the Testatrix’s admission to the nursing home in October 1986:

“Her evolution started with having something like confusional states at night and that happened every few months. The nurses would say "Bobs is back to her old self again". Now, what her old self was during the day was quite good and they are some amazing examples in there about her capacity to initiate things, to track things, to monitor things and good memory function. I am happy to read them out to you if you like. I can easily find them.

So, in terms of her baseline during 1987 and 1988 she's pretty much - - in 1988 her memory function wasn't too bad. There's lots and lots of notes there from the nurses of good memory function, good critical function, good initiative and good monitoring. The dementia, as it was of that sort, came through at night and started in 1987, 1988, 1989. But by 1990 those confusional episodes were starting to happen during the day as well. Then they just wouldn't last for one day they would last for a week. Less and less did she ever get back to old self. By 1991 she was never back to her old self. In 1991 the nurses were writing she has lost her sparkle. She is not the same person. She had no initiative. She had no critical thinking. She had a poor memory and was mostly confused. So her baseline - - this was the thing about 1988. I had to look at her at her worst. It was those few episodes at night at which she was confused. If she was giving instructions for the will then I would have said no way. She didn't have capacity at two o'clock when she was wandering around. But she got back to her old self during the day. She had quite good memory function, good initiative and good monitoring and good critical thinking.”

62 Dr Bennett was asked whether the provisions of the 1970 Will assisted her in expressing a view as to whether it is more probable than not that the Testatrix knew and approved of the gift made to Lorraine Tonkiss in the 1988 Will. She replied:

“In terms of forming a view as to whether it was more probable than not just based on the medical evidence she would have understood what was being put to her and what the provisions of the will were. I looked at the medical evidence. I looked at her diagnosis. I also looked to see whether there was evidence of her using initiative, her using critical thinking and her been able to comprehend similar levels of complexities. I looked at the time that she made the will and the lead up to it.”

63 She went on to explain that the concept of a substitutionary gift, contained in the 1970 Will, was something which provided a “template for doing this in her brain. It’s a way of doing things. She’s thought it through beforehand and its not new information that she needs to acquire or grapple with.”

64 Dr Bennett gave some examples of conduct of the Testatrix, recorded in the nursing notes, on which she placed reliance. Dr Bennett had said that, in 1992, the Testatrix would have been more influenced by the present than by anything that had gone on in the past. This topic was returned to in the cross-examination.

65 In some supplementary evidence in chief, the following exchange occurred:

Construction of Section 13(2)(c) of the Wills Probate and Administration Act 1898

66 Some consideration should be given to what is involved in the requirement, in section 13(2)(c) that the testator “knew and approved of the gift”, and that the gift was “given or made freely and voluntarily by the testator”. I will start with the latter phrase.

67 The Macquarie Dictionary defines “freely” as, “in a free manner”. The adjective “free” cannot have its meaning dealt with so shortly – the Macquarie Dictionary records 31 different shades of meaning. Those shades of meaning which could bear upon section 13(2)(c) are:

“5. Exempt from external authority, interference, restriction, etc, as a person, the will, thought, choice, action etc; independent, unfettered.

free to choose …

from

of

free from matrimonial ties, free of taxes.

from

free from criticism

25. Given without consideration of a return, as a gift”.

68 The Macquarie Dictionary lists seven shades of meaning of “voluntary” when used as an adjective. Those which could bear upon section 13(2)(c) are:

a voluntary contribution

a voluntary substitute.

3. Pertaining to or depending on voluntary action or contribution.

Law

voluntary manslaughter.

a voluntary conveyance or settlement

69 The notion of acting “freely and voluntarily” occurs in many areas of the law outside probate. Concerning the admissibility of a confession in a criminal trial, the High Court in R v Lee (1950) 82 CLR 133 at 144 said:

“(1) That such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and

(2) That such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.

“rules”

70 Also concerning confessions in criminal cases, Brennan J said, in Cleland v R (1982) 151 CLR 1, at 18:

“The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of the case upon the will of the particular accused.”

71 A plea of guilty, in a criminal case, is one which is required to be made freely and voluntarily. In Meissner v R (1994) 184 CLR 132 at 143, Brennan, Toohey and McHugh JJ said:

“A plea made as a result of intimidation has not been made freely and voluntarily, and the court that acts on the plea has been misled and its proceedings have been rendered abortive, whether or not it ever becomes aware of the impropriety. For similar reasons, improper conduct of any kind that has the tendency to interfere with the accused person’s right to make a free and voluntary decision to plead not guilty to a charge must be regarded as having a tendency to pervert the course of justice. …

It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused’s free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.

Conduct is likely to have the tendency to interfere with a person’s free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused’s freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. Thus, to offer to pay an accused person’s legal expenses if he or she pleads guilty is not improper conduct for this purpose if the advantages in pleading guilty can reasonably be regarded as outweighing the consequences to the accused that might flow from a conviction after a plea of not guilty and the offer is made only for that reason. On the other had, to pay the accused’s legal expenses in consideration of the accused changing his or her plea to a plea of guilty when the payment is made for the purpose of protecting the interests of the payer or some other person is an interference with the course of justice. Such an offer has the tendency to interfere with the accused’s freedom of choice and seeks to serve an interest other than those interests of the accused that are threatened by the prosecution.”

72 It has been recognised, in some other legal contexts, that lack of information, or misinformation, can result in a decision not being made “freely and voluntarily”. In Soterious v Police [2000] SASC 256 (unreported, 4 September 2000) Duggan J said, at paragraph [33]:

Meissner's

73 In Karam v ANZ Banking Group Limited [2001] NSWSC 709 Santow J said, in a case concerning the avoidance of a guarantee (at paragraph [387]):

all

To sign an acknowledgment “freely and voluntarily” presupposes amongst other things that one is not precluded from an understanding of the rights that one is giving away

74 In R v Garry Raymond Clark (NSWCCA, 17 April 1998, unreported,) Simpson J considered New South Wales legislation creating an offence of sexual intercourse without consent. Her Honour was considering the applicability in New South Wales of the decision in Ibbs v R [1988] WAR 91, concerning a similar Western Australian provision. The Western Australian statute contained a definition of “consent” as:

“… means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.”

75 Ibbs had recommended against directing juries in terms of a formula derived from R v Holman [1970] WAR 2 at 6, that:

“A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear of fraud) it is not rape.”

76 Simpson J said, at 9:

”Consent”

Ibbs

Holman

“willing consent”

77 Dixon J in Johnson v Buttress (1936) 56 CLR 113 at 134 said:

“The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor’s will or freedom of judgment in reference to such a matter.”

78 Of course, given the vastly different contexts in which the judicial statements which I have just been quoting about when an act is free and voluntary have been made, one cannot expect to transfer those statements directly into the context of section 13 of the Wills, Probate and Administration Act. They serve, though, to remind one that the notion of acting "freely and voluntary" is one which has a relationship implicit in it. One acts “freely and voluntarily” when one acts free from circumstances constraining one’s actions. The sort of circumstances which the cases I have quoted recognise as being ones which can, sometimes, result in action not being free and voluntary included duress, intimidation, persistent importunity, sustained or undue insistence or pressure, harassment, force, threats, fear, fraud, being induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice. However, as the discussion and the quoted extract from Meissner shows, the mere fact that an action occurs in a context where the actor is subject to one or more of these types of constraints, an action is not always sufficient, in itself, to lead to the conclusion that the actor has not acted freely and voluntary. One legal context in which one enquires whether an action is done “freely and voluntarily” might require the absence of a different range of constraining conditions to a different legal context in which one enquires whether an action is done “freely and voluntarily”. Or one such legal context might call for those factors to be weighted differently to the way they are weighted in a different legal context. Further, as the quoted extract from Cleland shows, whether an action is in fact not free and voluntary depends on the interaction of the constraining circumstances with the particular actor.

79 As well, a person could fail to act “freely and voluntarily” for reasons which were to do with their own mental capacity or condition, rather than because of some constraining external circumstances. A particular student leaving school might have free choice whether to become a labourer or a factory worker, but not have a free choice whether to become a labourer or a nuclear physicist.

80 The equitable jurisdiction to set aside catching bargains:

Blomley v Ryan

81 It is a small step to say that part of the rationale for equity interfering in such cases is that the victim of the catching bargain is not in a position to act freely and voluntarily. Kitto J’s list of factors which brings into play the jurisdiction to relieve against catching bargains, includes both external and internal constraints on freedom of action.

82 The notion of “acting freely” is well recognised in probate law. One of the preconditions for admission of a will to probate is “that the will propounded is the last will of a free and capable testator” (eg per Isaacs J, Bailey v Bailey (1924) 34 CLR 558 at 570). A testator’s inability to perform the mental tasks necessary for will-making, or insane delusion , relevant to the subject matter of the will, prevents probate being granted because the testator cannot make a free choice about how to leave his property.

83 Turning now to section 13, there is a distinction between the two limbs of section 13 (2) (c) which arises as a matter of the meaning of the language used. The test that the testator “knew and approved” of the gift requires there to be two identified states of the testator’s mind – that he or she knew of the gift, and that he or she approved of the gift. The test “that the gift was given or made freely and voluntarily” looks at a categorisation of the testator’s action. Whether an act is one done freely and voluntarily depends to some extent, but only to some extent, on the state of the testator’s mind. As well, whether an action is committed freely and voluntarily looks to whether there are constraining external circumstances on the testator which prevent his or her action from being free and voluntary.

84 It is the context in which the “acting freely and voluntarily” expression is used which conveys what sort of constraints on action, whether external or internal, are the relevant ones. We need to know what sorts of constraints on action are the relevant ones, to decide whether a testator acted “freely and voluntarily” within the meaning of section 13(2)(c).

85 The present section 13 of the Wills, Probate and Administration Act was inserted, replacing the previous section 13, by the Wills, Probate and Administration (Amendment) Act 1989. The explanatory note which accompanied the Bill for that Act into Parliament said: “The object of this Bill is to amend the Wills Probate and Administration Act 1898 to give effect to the recommendation of the New South Wales Law Reform Commission in its Report entitled “Wills – Execution and Revocation” (LRC 47).”

86 Section 34 of the Interpretation Act 1987 (NSW) enables an explanatory note relating to the Bill for the Act to be taken into account to determine the meaning of a provision, if the provision is ambiguous or obscure. The term “freely and voluntarily”, in section 13(2)(c), is one which has considerable potential for ambiguity. It is therefore appropriate, given the terms of the explanatory note, to look to the terms of the Law Reform Commission Report to seek to elucidate the meaning of “freely and voluntarily” in section 13(2)(c).

87 Before the 1989 amendments, section 13 of the Wills, Probate and Administration Act 1898 had made absolutely void any gift to an attesting witness, or the spouse of an attesting witness. The Law Reform Commission Report, in paragraph 8.9, agreed with the following comments by a sub-committee of the Victorian Chief Justice’s Law Reform Committee:

“… this legislation, since it strikes down in toto every gift to every attesting witness, is obviously calculated to inflict much haphazard injustice. It takes no account of whether the witness ought, in justice, to have been provided for in the will. And it draws no distinction between a witness who has used improper means to obtain testamentary benefits and one whose only fault has been ignorance, either of the existence of the legislation, or else of the inclusion in the will, of the gift in his favour.”

88 In paragraph 8.12, the Commissioners considered reasons for not favouring a simple repeal of the existing section 13, and leaving any questions of attesting witnesses interfering improperly with the testator to the existing law concerning lack of capacity, absence of knowledge and approval or undue influence. One of the reasons for not favouring that course was, “It is almost impossible to prove a case of undue influence because (unlike the situation with inter vivos transactions) there are no presumptions of influence in relation to will making and it is only influence amounting to fraud or coercion that is regarded as “undue” in probate.”

89 The Commission then considered various alternatives for enacting a different type of provision to the then version of section 13, one of which was the introduction of special requirements for attesting witnesses who are beneficiaries. Concerning this, the Commission said in paragraph 8.16:

· In Ontario the Court has to be satisfied that the witness or spouse “did not exercise any improper or undue influence upon the testator”;

· In British Columbia the Law Reform Commission has recommended that the court be satisfied by the person seeking to uphold the gift that “the testator knew and approved of it”;

· In Victoria the Court has to be satisfied “that the entitlement of the applicant under the will was known to and approved by the testator and was not included in the will as the result of the exercise of any undue influence by any person”.

90 In paragraph 8.18 the Commissioners recommended:

“… that the law of wills should retain a provision which will tend to protect testators by requiring interested witnesses to establish the propriety of their gift unless relieved by the written consents of the persons entitled to benefit from the avoidance of the gift.”

91 The Commissioners continued, in paragraph 8.21:

“What should be the appropriate test of propriety? In our view the three models discussed in para 8.16 are all deficient. We agree that the beneficiary whose gift is prima facie avoided on the ground that the beneficiary is an interested witness should have to establish that the testator knew and approved of the gift, but that is a matter which has to be proved before any part of a will is admitted to probate and it is something that is almost invariably established by reference to the strong presumption flowing from proof that the will has been read by or to the testator. Nor have we any difficulty with a provision that would require the interested beneficiary to establish the absence of undue influence. Our concern lies in the fact that, with the possible exception of the Ontario Act which refers to “improper or undue influence”, a propriety test which confined itself to undue influence as that concept is understood in probate matters would give virtually no protection at all. For the reasons stated in para 8.12 undue influence is virtually a dead letter in the probate field. We therefore suggest that, in this context, the interested beneficiary who has not the requisite consents should have to establish that that testator knew and approved of the gift, and that it was the free and voluntary disposition of the testator.”

92 A footnote to the last sentence of this paragraph reads:

“We are indebted to the late Mr Justice Hutley for the formulation of the last mentioned requirement. We recognise that the second limb of the test almost certainly encompasses the first, but feel it is appropriate that two stages of the road to propriety should be clearly signposted.”

93 This footnote has as its corollary that the Commissioners see the area of inquiry involved in the “free and voluntary disposition” test as being greater than the area of inquiry involved in the “knew and approved” test, but that the scope of the “knew and approved” test is contained within the scope of the “free and voluntary disposition” test. One can draw from the whole of the portions I have quoted from the Report that the Commission’s fundamental purpose in adopting the “knew and approved” and “free and voluntary disposition” test was to articulate a test whereby a person seeking to uphold a gift to a witness or a witnesses spouse would need to satisfy the court that the gift to the witness, or the spouse of the witnesss, did not result from any improper conduct. Undue influence is one type of impropriety which would need to be negatived, but more than lack of undue influence (as that term is understood in probate law) would be needed to establish the propriety of the gift.

94 By reference to the Law Reform Commission report one can conclude that, in enacting this test, Parliament is not to have been taken to have expected testators to be making decisions about what gifts to include in a Will in circumstances devoid of any of the impulses to action coming from affection, gratitude or a sense of moral obligation. Motives such as these underlie many wills, and there is no impropriety in them. The type of freedom and voluntariness which Parliament intended is that identified by the Law Reform Commission, namely freedom and voluntariness of a kind which results in there being no impropriety in the making of the Will.

95 I should add that in section 13(2)(c) the expression “voluntarily” is not used in its usual legal sense of “without consideration”. This emerges from the consideration of the Law Reform Commission’s reasoning which led to the inclusion of the “freely and voluntary” test in section 13(2)(c). It also emerges from realising that it would often be pointless to construe “voluntary” as meaning “without consideration”. In the situation where a testator included a particular provision in the will because he had received consideration for doing so, if section 13(2)(c) were to make void that disposition, equity would, in many cases, then step in to impose a constructive trust, to require that the person who had given the consideration should receive from the estate the property he or she had been promised. The jurisdiction to impose a constructive trust where someone promises, for valuable consideration, to leave property by will in a particular fashion (other than as a pecuniary legacy), but does not, is well established: Synge v Synge (1894) 1 QB 466 at 470; Horton v Jones (1935) 53 CLR 475 at 484, 489; Birmingham v Renfrew (1937) 57 CLR 666 at 683; Schaefer v Schuhmann [1972] AC 572; Jacobs on Trusts, 6th ed, paragraph [266]-[272].

96 In Miller v Miller (2000) 50 NSWLR 81 Young J (as his Honour then was) considered section 13(2)(c). His Honour started out by setting out the two limbs of section 13(2)(c) and saying (at 86), “Both these conditions must be satisfied”.

97 His Honour then turned for guidance, for the application of section 13(2)(c) to the Victorian provision, which allowed a gift to an interested witness to take effect if the witness proved (a) that the witness’ entitlement was known to and approved by the testator (without the aid of any evidentiary presumption); and (b) that the provision was not included in the will by any undue influence. His Honour turned, next, to the decision of Jenkinson J in Re Emanuel (deceased) [1981] VR 113, which had construed that Victorian legislation. His Honour said, at 86:

Barry v Butlin

98 Young J later said, at 86:

Re Emanuel (deceased

Nock v Austin

99 Young J went on to say that a presumption of knowledge and approval arising from due execution of the will could be used as part of the evidentiary basis for a court being satisfied of the “knew and approved” limb (“New South Wales law does not exclude from consideration the normal presumptions …”), and that that presumption was strengthened if it was shown the will was read over to or by a capable testator. His Honour said that, in the facts of the case before him, there was evidence, independently of the presumption, to satisfy him that the deceased knew and approved of the gift contained in the will.

100 His Honour then referred to the second limb of section 13(2)(c), the “freely and voluntarily” limb. He quoted the footnote from the Law Reform Commission Report (set out at paragraph 92 of this judgment), and continued, at 87:

“I consider that the second limb really emphasises the requirement that the testator freely assented to the gift rather than raise any additional barrier to the success of a claim by a witness. If there is a further barrier, that barrier is not very high.

In the instant case, one starts with suspicion. However, it is a low degree of suspicion. There is no evidence to show that there was any disagreement between the plaintiff and the deceased as to the contents of the will. There appears to have been no disharmony or conflict between the plaintiff and the deceased. The deceased asked Mr Cardiff to be a witness together with the plaintiff. The evidence of the witnesses, together with the evidence of Mr Hodges who was present when the will was signed although not an attesting witness, indicates that there was nothing suspicious about the circumstances of execution of the will. There was no pressure being put on the deceased regarding the will. The will was just the sort of will that one would expect a man with a permanent de facto wife with two young children (the third was born subsequently) might make.

I am satisfied on the evidence that the gift to the plaintiff was made freely and voluntarily.”

101 To understand this portion of his Honour’s judgment, one needs to bear in mind the task his Honour was setting himself. The focus of his exposition was the way in which a court, in practice, goes about deciding whether section 13(2)(c) has been satisfied.

102 The Law Reform Commission had contemplated that the presumption of knowledge and approval, arising from the will being read by or to the testator, could sometimes suffice to prove the “knew and approved” limb of their recommended text. However, that presumption does not operate when there are circumstances which make one suspicious of whether the testator really knew and approved of the will. In Nock v Austin (1918) 25 CLR 519, which Young J referred to and relied on, Isaacs J at 528, summarised the law as follows:

Barry v. Butlin

Fulton v. Andrew

Baker v. Batt

Tyrrell v. Painton

Shama Churn Kundu

Khettromoni Dasi

Baker v. Batt

Fulton v. Andrew

Barry v. Butlin

Fulton v. Andrew

Low v. Guthrie

Barry v. Butlin

Low v. Guthrie

103 There is no limitation, as a matter of principle, on what types of circumstance count as ones which arouse suspicion that the testator did not know and approve the contents of the will, for the purpose of applying this law. Thus, in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705, Powell J said:

Guardhouse v Blackburn

10. Facts which may well cause suspicion to attach to a document include:

Barry v Butlin

Nock v Austin

Tyrrell v Painton

Kenny v Wilson

104 What Young J is saying is that the fact that a will has been witnessed by a beneficiary, or a beneficiary’s spouse, is in itself a suspicious circumstance, though one which excites only a low degree of suspicion. Thus, before the “knowledge and approval” limb of section 13(2)(c) can be satisfied, that suspicion must be allayed. There will be, in practice, a significant overlap between evidence which proves that a testator knew and approved a particular gift to an interested witness, or the spouse of the interested witness, and the evidence which proves that that gift was made freely and voluntarily. In practice, the way of allaying suspicion about whether the testator knew and approved of the contents of a will, is to place before the Court the full story of giving instructions for the Will, and execution of the Will. When Young J said that the “knowledge and approval” limb “really emphasises the requirement that the testator freely assented to the gift rather than raises any additional barrier to the success of a claim by a witness. If there is a further barrier, that barrier is not very high”, his Honour was not denying that the second limb of the test is conceptually separate to the first limb – indeed, his Honour had expressly said, at 86, that both conditions must be satisfied. Rather, he was saying that, as a matter of practice, the evidence that is likely to convince a court that the testatrix knew and approved of a gift, will in many cases also suffice to convince the court that the gift was made freely and voluntarily, or alternatively, the extra evidence that will be needed to prove that the gift was made freely and voluntarily is not likely to be great.

Conclusion on Application of on Section 13(2)(c)

105 Notwithstanding that the Testatrix had some history of delusions (concerning people getting into her house, or living downstairs in the house) well before she moved into the nursing home, there is no issue that these delusions impacted on her testamentary capacity. Nor is there any reason to believe that they compromised, short of depriving her of capacity, her ability to understand matters connected with the making of her Will, or to go through the decision–making processes involved in deciding what Will to make. The evidence of Dr Bennett, to the effect that it was probable that the Testatrix would have been able to understand the Will from Mr Brown going through it with her, should be accepted. On the day of execution of the Will, the Testatrix was dressed appropriately for receiving visitors. Her remark about Mr Brown still having a cute behind demonstrates that on that day she remembered him, and had the sort of cerebral function needed to be able to make a joke. All this establishes, in my view, that there is no reason arising from the Testatrix’s mental condition, either generally or on the specific occasions when she gave instructions for the Will and executed it, to doubt that she knew and approved of the gift to Mrs Tonkiss.

106 That there should be a gift of half the residue to Mrs Tonkiss is consistent with the Testatrix’s previous testamentary dispositions, back to 1970. Her Wills of 1970, 1978 and 1985 were all made without input or assistance from Mr or Mrs Tonkiss, and all made substantial provision for Mrs Tonkiss. The handwritten notes which she made in 1985 (and which Mr Tonkiss did not act on, notwithstanding that acting on them would have advantaged his wife substantially) confirm that she had thought through in some detail the pattern of her testamentary disposition over a period of months. For her 1988 Will, the initiative for change in the Will came from her – its starting point being her desire to leave the Quinton Road property to Stephen and Samantha. While the evidence has not disclosed what the impetus was for the change in the substitutionary residuary gift, so that it came to be in favour of Stephen and Samantha, instead of whoever was the survivor of Mrs Dubber and Mrs Tonkiss, the focus of the inquiry, for the purpose of section 13, is the gift of half the residue to Mrs Tonkiss. That gift is completely in accord with the long-standing pattern of the Testatrix’s previous Wills. There was no event in the life of the deceased since the time she made the 1985 Will which might have caused her to change or reconsider conferring a benefit on Mrs Tonkiss.

107 In relation to all provisions of the Will, the Testatrix gave instructions to Mr Brown on the telephone on 8 December 1988. He went through the provisions of the Will again with her immediately prior to it being executed on 14 December 1988. That there would be a gift of half the residue to Mrs Tonkiss was specifically mentioned on both occasions. The Testatrix actually executed the Will. That there was a provision in favour of Mrs Tonkiss in the Will at all is not a fact which, from its nature, excites suspicion, in the way that a gift to a comparative stranger would.

108 All these facts allay any suspicion which arises from Mr Tonkiss having been a witness, and lead to a conclusion that she knew and approved of the gift to Mrs Tonkiss.

109 Mr Davies SC submitted as follows:

“We don't assert that Mr or Mrs Tonkiss tried to influence the deceased, but a court might infer from all the surrounding circumstances that she was influenced in what she wanted to do, again not because they tried to do it but because they were the people that she had all the contact with. They did a lot of things for her. She was grateful for that. In one way it was not unnatural that she might have come to do that, but nevertheless, looked at from another point of view, all those circumstances could lead the court to say that she was influenced by the limitation of her surroundings, by the people she ever saw, a very confined number of people with whom she had any sort of relationship at all, and that's why the court has to be satisfied, when all those circumstances are there, that she still really wanted to give this gift.”

“influence in a passive sense”

110 I would accept that the close contact which Mr and Mrs Tonkiss had with the Testatrix over the years, and the fact that she had contact with few other people, may well have confirmed her, in the decision which she had come to many years previously, to confer substantial testamentary benefits on Mrs Tonkiss. That does not prevent her decision to confer those benefits on Mrs Tonkiss, by the residuary clause in the 1988 Will, being one which she freely and voluntarily arrived at. These factors are not ones which constrained the testamentary decision-making of the Testatrix in a way involving any impropriety.

111 While it is true that Mr Brown was the solicitor for Mr and Mrs Tonkiss, as well as the solicitor for the Testatrix, that is not in itself a circumstance exciting more than a mild level of suspicion. It would be an extremely common occurrence, in Wills where the Testator or Testatrix left substantial gifts to close family members, for the same solicitor to have acted, on occasions, for both the testator or testatrix, and the beneficiary. Mrs Tonkiss, though not a blood relation, was treated by the Testatrix as though she was a relation. Mrs Tonkiss likewise treated the Testatrix as though she was a relation. Here, when Mr Brown took the opportunity to speak privately with the Testatrix concerning her testamentary intentions on two separate occasions, the fact that Mr Brown had previously acted for the Tonkiss’ did not improperly influence the decisions which the Testatrix made about the destination of her assets. Indeed, she had made her mind up about that before she and Mr Brown spoke about it. When she and Mr Brown spoke about it, he treated her as his client. Thus the previous slight relationship between the Tonkiss’ and Mr Brown provides no basis for not being satisfied the Testatrix knew and approved the gift, nor for concluding that the Testatrix’s decision to give the gift to Mrs Tonkiss was other than free and voluntary.

112 While it is true that Mr Tonkiss had taken over the running of the Testatrix’s financial and business affairs, had typed the Testatrix’s document dated 11 September 1988, and had written out the Testatrix’s instructions for the Will and sent those instructions to Mr Brown, none of these matters improperly constrained the Testatrix’s freedom of decision about her testamentary dispositions. Thus, none of those matters stopped the Testatrix’s decision to give benefits to Mrs Tonkiss from being a free and voluntary act. That the Testatrix made the 1988 Will notwithstanding that Mrs Dubber was not pleased supports the conclusion that the gift to Mrs Tonkiss was made freely and voluntary.

113 These particular considerations are part of an important, more extensive, negative fact. The full story of the circumstances of the Testatrix’s giving instructions for, and executing, the Will has been placed before the Court, and there is nothing in that story which shows that the Testatrix was acting under a constraint, either of external circumstance or of her own mental condition, which made the gift to Mrs Tonkiss an improper one.

114 That Mrs Dubber refused to let Mr Horton know where the Testatrix was, is the sort of behaviour which might, in some circumstances, cause a court disquiet about the propriety of a will. In the present case, however, there is no reason to believe that it had any influence on the Testatrix’s testamentary intentions. Mr Horton had been a beneficiary of the Testatrix’s estate under the Will she made in the 1940’s, but he had not been a beneficiary from 1970 onwards. The evidence does not establish whether the Testatrix had any wills between the will of the 1940’s, about which Mr Horton gave evidence, and her 1970 Will. Mr Horton was not a beneficiary of the Testatrix’s estate, even during the time when he was providing considerable help to her. The disappearance of Mr Horton from the Testatrix’s life, in 1985, did not lead the Testatrix to make any greater provision for Mrs Tonkiss in her Will. The circumstances in which Mrs Dubber brought about a situation that Mr Horton did not continue to see the Testatrix, does not lead to a conclusion, it seems to me, that the Testatrix did not know and approve of the gift which she made to Mrs Tonkiss, nor to the conclusion that that gift was not made freely and voluntarily.

115 I conclude that the plaintiffs have discharged the onus of proving the matters which section 13(2)(c) requires.

Dependent Relative Revocation

116 In light of the conclusion I have come to, the question of dependent relative revocation does not arise. Further, the law of dependent relative revocation would become relevant only in the circumstance that the facts, about whether the Testatrix knew and approved of the residuary gift to Mrs Tonkiss, and made that residuary gift freely and voluntarily, were different to what I have found them to be. Hence, it is not possible for me to make findings of primary fact, relevant to the law of dependent relative revocation, for the purpose of assisting the Court of Appeal in case the Court of Appeal disagrees with my findings about the application of section 13(2)(c).

Class Gifts

117 In light of my conclusion concerning section 13(2)(c), this question also does not arise. However, as it is a question of law I can consider it on the hypothetical basis that my views about section 13(2)(c) are wrong.

118 Mr Legg, solicitor for Samantha Tonkiss, submits that in that situation, notwithstanding that the residuary gift to Mrs Tonkiss is void, the whole of the residue passes to Samantha Tonkiss.

119 The basis of this submission is the contention that the residuary clause of the 1988 Will creates a “class gift”. Jarman on Wills, 8th edition, page 348 says:

“children”

“grandchildren”

“nephews”

120 In my view the residuary clause is simply not a gift of that type. There is not the slightest uncertainty about the number of people who are to take, the number of people is not to be ascertained at some future time, and the share of each of them is not dependent on the ultimate number of persons who take. Rather, at the time the instrument is to take effect (the date of the Testatrix’s death) the people who are to take are instantly ascertainable – if Mrs Dubber and Mrs Tonkiss are both alive, it is Mrs Dubber and Mrs Tonkiss; if one or other of them is dead, the substitutionary clause takes effect. In either of these alternatives, the identity, and the number, of the people who take is quite clear.

121 If the gift to Mrs Tonkiss were void, her share would pass on intestacy.

Orders

122 I make the following orders and declarations.

1. Order that probate, in solemn form, of the Will made 14 December 1988 by the Late Marjorie Bobs Thompson be granted to David James Tonkiss and Lorraine Gay Tonkiss.

2. Order that the proceedings be remitted to the Registrar to complete the grant.

3. Declare that the Court is satisfied that Marjorie Bobs Thompson knew and approved of the gift of 50% of the residue of her estate, made by Clause 5 of her said Will, to Lorraine Gay Tonkiss, and that she made the said gift to Lorraine Gay Tonkiss freely and voluntarily.

123 I have, at the parties’ request refrained from making any order for costs at this stage. If any party wishes to make application for costs, they may do so by restoring the matter before me within 28 days from today’s date, on a date arranged with my Associate, with three days notice to other parties of the date when the matter is to be restored.

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Last Modified: 10/11/2002

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Citations

Tonkiss v Graham [2002] NSWSC 891

Most Recent Citation

R v HBU [2018] QCA 346

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Cases Cited

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Statutory Material Cited

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CITATION:	Tonkiss & Anor v Graham & Ors [2002] NSWSC 891
CURRENT JURISDICTION:	Equity - Probate List
FILE NUMBER(S):	SC 118541/97
HEARING DATE(S):	17/9/02-18/9/02
JUDGMENT DATE:	4 October 2002
PARTIES :	David James Tonkiss (First Plaintiff) Lorraine Gay Tonkiss (Second Plaintiff) Carolyn Graham (First Defendant) Margaret Kathleen Horan (Second Defendant) Hamish Murdoch Angus McLean (Third Defendant) Jessie Eleanor Tamzin McLean (Fourth Defendant) Stephen David Tonkiss (Fifth Defendant) Samantha Jane Tonkiss (Sixth Defendant) Sue McKinnon Horton (Seventh Defendant) Stuart McKinnon Horton (Eighth Defendant) Robert McKinnon Horton (Ninth Defendant) Peter Douglas George Horton (Tenth Defendant)
JUDGMENT OF:	Campbell J

COUNSEL :	P Hallen SC (Plaintiff) D Davies SC; M Bridger (1D-4D and 7D-10D) D Legg, Solicitor (6D)
SOLICITORS:	Teece, Hodgson and Ward (Plaintiffs) Michael H Roberts & Associates (1D-4D and 7D-D10) Burridge & Legg (6D)
CATCHWORDS:	SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - probate and letters of administration - interested witness - whether testatrix knew and approved of gift to spouse of witness - whether gift to spouse of witness was given or made freely and voluntarily
LEGISLATION CITED:	Interpretation Act 1987 (NSW) Wills, Probate and Administration Act 1898 Wills, Probate and Administration (Amendment) Act 1989
CASES CITED:	Bailey v Bailey (1924) 34 CLR 558 Birmingham v Renfrew (1937) 57 CLR 666 Cleland v R (1982) 151 CLR 1 Horton v Jones (1935) 53 CLR 475 Ibbs v R [1988] WAR 91 Johnson v Buttress (1936) 56 CLR 113 Karam v ANZ Banking Group Limited [2001] NSWSC 709 Meissner v R (1994) 184 CLR 132 Miller v Miller (2000) 50 NSWLR 81 Nock v Austin (1918) 25 CLR 519 R v Garry Raymond Clark (NSWCCA, 17 April 1998, unreported) R v Holman [1970] WAR 2 R v Lee (1950) 82 CLR 133 Re Emanuel (deceased) [1981] VR 113 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Schaefer v Schuhmann [1972] AC 572 Soterious v Police [2000] SASC 256 (unreported, 4 September 2000) Synge v Synge (1894) 1 QB 466
DECISION:	Gift to spouse of attesting witness upheld