Trust Company of Australia Limited v Daulizio

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION

COMMERCIAL AND EQUITY DIVISION

Prob. 6 of 2002

IN THE MATTER of the Will of Edith Grizelda Gastineau Tennent, deceased
TRUST COMPANY OF AUSTRALIA LIMITED	Plaintiff
v
CATHY DAULIZIO	First Defendant
and
ELIZABETH FENSHAM	Second Defendant
and
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Third Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 - 23, 26 - 28 May, 2 June 2003
DATE OF JUDGMENT:	26 September 2003
CASE MAY BE CITED AS:	Trust Company of Australia Limited v Daulizio & ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 358	1^st revision: 2 October 2003

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Probate – testamentary capacity of aged testatrix – will prepared by person obtaining large benefit thereunder – suspicious circumstances – whether testatrix knew and approved of the contents of her will

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.G. Southall QC Mr S.G.E. McLeish	Abbott Stillman & Wilson
For the First Defendant	Mr R. Phillips	G.C.F. Mier & Associates
For the Second Defendant	Mr S.P. Newton	Maddocks
For the Third Defendant	Mr R. Wells	Victorian Government Solicitor

HIS HONOUR:

Introduction

This probate proceeding was commenced by the plaintiff, Trust Company of Australia Limited (“Trust Company”) by originating motion dated 7 November 2001. The plaintiff is the executor named in and appointed by two wills of Edith Grizelda Gastineau Tennent, deceased (“Miss Tennent”), the wills being dated 5 June 1995 and 2 September 2000. Miss Tennent died on 24 February 2001 leaving net assets of approximately $2M, comprising her unit at Balwyn Manor (valued at about $170,000) and personal estate substantially being shares in listed Australian companies (valued at about $1.9M).

By Order made by Harper J on 22 November 2001 the plaintiff was given leave to prove the will dated 2 September 2000 in solemn form, alternatively, to prove the will dated 5 June 1995. In accordance with that Order, notices of the proceeding were sent to various persons, and three of them entered an appearance pursuant to that Order and were represented at the trial of the proceeding. They were not formally joined as defendants but I will so order. Those persons are Ms Cathy Daulizio (formerly known as Mrs Cathy Kordell), a beneficiary under the later will, Mrs Elizabeth Fensham, a first cousin once removed of Miss Tennent and also a beneficiary under the later will, and the Attorney-General for the State of Victoria, representing the charities who are beneficiaries, in particular under the earlier will.

The essential question to be decided is whether the will of 2 September 2000 should be admitted to probate, there being no contest that the earlier will dated 5 June 1995 may be admitted to probate if the later will is not. By her earlier will, Miss Tennent gave the whole of her estate to charities (apart from certain personalty). The later will contains two important new provisions: there is a legacy in the sum of $400,000 to Mrs Fensham and a legacy in the sum of $450,000 to Ms Daulizio. The later will was prepared by Ms Daulizio in circumstances to which I will refer and which led the plaintiff to seek leave of the Court to prove one or other of the wills in solemn form.

In the particular circumstances of this case, the plaintiff (Trust Company) and the Attorney-General contended that the Court should refuse to grant probate of the will dated 2 September 2000 and should grant probate of the earlier will. Ms Daulizio and Mrs Fensham shouldered the burden of propounding the later will. The parties were in substantial agreement as to the general principles of law which were applicable to the facts of this case.

The first point which was generally agreed was that, given that the later will was prepared by Ms Daulizio who took a substantial benefit under it, there were “suspicious circumstances” within the meaning of the relevant case law.[1] The next point (again generally agreed) was, given those suspicious circumstances, that before granting probate of the will the Court had to be satisfied of the “righteousness of the transaction” which meant, as the cases demonstrate, that the Court must be satisfied that the testatrix knew and approved of the contents of her will.[2]
[1]See Barry v Butlin [1838] 2 Moore 480, 482 – 3, 485 per Parke B; 12 ER 1089, 1090 - 1091; Atter v Atkinson (1869) LR 1 P & D 665, 668; Fulton v Andrew (1875) LR 7 HL 448, 471; Hegarty v King (1880) 5 LR (Ir) 249; Tyrrell v Painton [1894] P 151; In re Nickson (1916) VLR 274, 281 per a’Beckett J; Nock v Austin (1918) 25 CLR 519; In re Breen [1927] VLR 164; Wintle v Nye [1959] 1 WLR 284; Tanner v Public Trustee [1973] NZLR 68; McKinnon v Voight [1998] 3 VR 543; Fuller v Strum [2002] 2 All ER 87.
[2]See in particular Atter v Atkinson (1869) LR 1 P & D 665, 668 per Sir J P Wilde (later Lord Penzance); Tyrrell v Painton [1894] P 151; Nock v Austin (1918) 25 CLR 519; In re Breen [1927] VLR 164 and McKinnon v Voight [1998] 3 VR 543.

It was further accepted that the Court must therefore subject the evidence to a vigilant, jealous and anxious examination, and in doing so, must scrutinise the totality of the evidence.[3] In addition, in the case of suspicious circumstances the same approach to the evidence must be taken by the Court to any question of testamentary capacity.[4] This is necessarily and logically the case, given that the Court must be satisfied that the testatrix knew and approved of the contents of the will, which she could hardly do if she lacked the capacity to make any will.
[3]See cases cited in footnote 1; see too In the Estate of Fuld [1968] P 675, 697 – 698.
[4]See Barry v Butlin [1838] 2 Moore 480, 482 – 3; 12 ER 1089, 1090; Nock v Austin (1918) 25 CLR 519.

As to testamentary capacity, the parties made reference to the well-recognised authority of Banks v Goodfellow.[5] In that case, the Court of Queen’s Bench[6] said that it was essential to the exercise of testamentary power that the testator understood the nature of the act and its effects and the extent of the property of which he was disposing and was able to comprehend and appreciate the claims to which he ought to give effect.[7]
[5](1870) LR 5 QB 549; see too In the Will of Mary Wilson (1897) 23 VLR 197, 198 – 200 per Hood J and Timbury v Coffee (1942) 66 CLR 277, 283 per Dixon J.
[6]Constituted by Cockburn CJ, Blackburn, Mellor and Hannen JJ.
[7]Banks v Goodfellow (1870) LR 5 QB 549, 565.

Facts

In the light of the above general principles and before setting out the law in more detail together with the submissions of the parties, it is now appropriate to turn to the evidence and a number of factual findings which I make. Miss Tennent was born on 17 April 1907 and died at the age of 93 years and 10 months. She was born in Johannesburg, South Africa, and was brought up with her widowed father in New Zealand. Miss Tennent’s father later went to Australia, and Miss Tennent lived for a time with various relatives in New Zealand, including persons who were also close relatives of Mrs Fensham. Miss Tennent came to Australia in about 1931. She had never married and was without issue. Her death certificate gives her “usual occupation” as secretary. For many years, Miss Tennent and one Miss Nancy Ewart lived together in a house in May Street, Deepdene. Mrs Fensham, her husband Robert and, after their birth, their two children Alex and Timothy, were all known to the two ladies and they saw each other about three or four times a year. Mrs Fensham, whom I found to be a most honest witness, albeit very talkative and prone to exaggeration, provided evidence of her personal relationship with Miss Tennent and of a number of gifts and family mementos that she had received from her over the years.

In the late 1960s, Miss Tennent and Miss Ewart had become clients of Trust Company (or a predecessor) and Trust Company at some stage began to manage their respective financial affairs and continued to do so until they died. Trust Company prepared various wills for Miss Tennent (in 1976, 1987, 1989 and 1995). Miss Ewart, who was born on 7 January 1913, predeceased Miss Tennent, dying on 24 June 1996. Her death certificate states her “usual occupation” as accountant.

Ms Daulizio (then Kordell), a qualified accountant, was born in the United States of America and came to Australia with her husband in 1974 (they divorced in 1990). In Australia, Ms Daulizio studied accountancy at Footscray Institute of Technology where she met a fellow student, Warwick Ryan, now her employer in his accountancy practice.

Ms Daulizio commenced employment with Perpetual Trustees Victoria in 1987 as Assistant Taxation Manager (where her principal duties were interviewing clients and overseeing their tax returns) and then moved on to Estate Administration (where her duties involved safeguarding estate assets, and in general administering wills). She then moved on to Client Services, where she worked with people whose affairs were administered under power of attorney. If such clients wanted to make a will, she would direct them to an in-house solicitor.

In 1994 Ms Daulizio was retrenched by Perpetual Trustees and, on 5 July 1994, she commenced employment with Trust Company as Client Services Officer. Her duties were to liaise with clients but she did not administer their financial affairs. She took instructions for wills if clients so wished. For the first time she became involved in the preparation of wills. She took instructions from the clients, put them on a special form and gave them to the in-house solicitor (one Ron Monroe) to draw up. She would take the will, when drawn, and arrange for it to be signed at Trust Company’s office or at the client’s residence. At Trust Company, Mr B M Dermody was Ms Daulizio’s immediate superior for the first year and, after that, Mr Peter Dowel was her superior. At some stage Ms Daulizio was made Manager of Corporate and Client Services. In this role, an additional task was to speak to solicitors and others to get funds to put under management. Part of her job was to see clients in their homes or institutions. A different department (“Asset Management”) dealt with the investment of clients’ money; Mr Dowel was in that department. Ms Daulizio’s ultimate superior was one of the Joint Managing Directors, Mr B G Barker.

Miss Ewart’s health began to deteriorate in the early 1990s. Mrs Fensham began to visit the two ladies more often. In late 1994 or early 1995, Mr Barker telephoned Ms Daulizio and arranged for her to meet him at a hospital in Richmond, where she was introduced to Miss Ewart. She met Miss Tennent either then or at some time shortly thereafter. Ms Daulizio learned that Miss Ewart and Miss Tennent lived in Miss Ewart’s house in May Street, Deepdene, and had done so for a considerable number of years, before which they had been neighbours and friends. When Ms Daulizio met her, Miss Ewart had the beginnings of a degenerative disease.

On 21 April 1995 Ms Daulizio witnessed the last will of Miss Ewart, cl. 5(b)(iii) of which provided for a life interest in the residue to Miss Tennent, and, upon the death of the survivor of Miss Ewart and Miss Tennent, the residue was left upon trust in perpetuity as a separate fund to be called “The Nancy Ewart and Grizelda Tennent Trust”. These provisions were in somewhat similar terms to those contained in the will of Miss Tennent executed shortly thereafter.

Ms Daulizio was not seeing the two ladies on a regular basis at this stage. On 18 May 1995, Ms Daulizio visited the two ladies at the Deepdene house and took instructions for a will for Miss Tennent. Ms Daulizio recorded those instructions on the Trust Company form provided for the purpose. In fact, Ms Daulizio completed a number of Trust Company forms, one of which was entitled “Client Profile and Instruction Form”, from which it appears that the following company services were at that time used by Miss Tennent: power of attorney, common funds investment, taxation service, will client, safe custody and agency. That will was duly executed on 5 June 1995 and was witnessed by Ms Daulizio and Mr Dowel. Prior to her executing the will, Miss Tennent read the will over to herself.

By that will, Miss Tennent gave three portraits to her cousin, Philippa Wilson, some spoons, a silver tea service and other items to her cousin by marriage, Helen Tennent and her remaining personal chattels to her trustee to distribute in accordance with any list which she might leave with her will or amongst her private papers. The will then gave the sum of $10,000 to each of five charities, and $5000 to another charity. The residue of her estate was left “UPON TRUST for my friend…Nancy Ewart…but should she predecease me then for my trustee in perpetuity as a separate fund to be called THE NANCY EWART AND GRIZELDA TENNENT TRUST and in each calendar year to pay the net income to arise therefrom to such charitable organisations as my trustee shall think fit AND I EXPRESS the wish without creating any binding trust that my trustee assist those organisations (such as The Smith Family) which endeavour to make life easier for people in necessitous circumstances.”

On 5 June 1995, Ms Daulizio wrote to Miss Tennent in the following terms:

“Dear Grizelda,
It was a pleasure meeting with you and Nancy once again.
I am now enclosing a copy of your Will dated 5^th June 1995 for your file.
Thank you both for accepting my invitation to lunch on Sunday, 18^th June. I will be speaking with you in due course to make all the arrangements for the day.
With kind regards.
Yours sincerely…”

The two ladies came to Ms Daulizio’s house in Heathmont for lunch on 18 June 1995. Miss Ewart was then in a wheelchair and Trust Company agreed to pay the costs of transport.

Miss Ewart’s health was declining significantly and the burden on Miss Tennent was such that they were unable to continue living in the Deepdene house. Apparently Ms Daulizio was alerted to this problem by a telephone call from Miss Tennent during which Ms Daulizio learnt that Miss Ewart was in a nursing home. It seemed quite possible that Miss Ewart and Miss Tennent would be separated. Miss Tennent had apparently become aware of the existence of “Balwyn Manor”, a “retirement village” where residents were required to be independent and which did not provide the sort of care which might be obtained in a nursing home or other similar institution. Miss Tennent asked Ms Daulizio for her assistance and Ms Daulizio was successful in arranging for them to be permitted to take up residence at Balwyn Manor.

Ms Daulizio on behalf of Trust Company was involved in the transfer of the ladies to Balwyn Manor, the sorting of their possessions and the sale of the Deepdene house. In a precise and efficient memorandum dated 10 November 1995 from Ms Daulizio to Mr Dowel, Ms Daulizio referred to the various matter which she had arranged at the time of the move of the ladies to Balwyn Manor and she noted, among other things, that she had found the director of nursing, Louise Testart, to be extremely helpful, and that Mrs Testart had indicated that Balwyn Manor would do everything in its power to ensure that the ladies remained together for as long as possible. Ms Daulizio concluded her memorandum by saying that she would be visiting the ladies on Sunday 12 November to see how they were settling in.

As I have said, the sale of the Deepdene house was arranged by Trust Company. At that time, Ms Daulizio bought a piano from Miss Ewart based on a valuation – there was some cross-examination about this, but I do not regard the transaction as of any significance.

Ms Daulizio visited the two ladies at Balwyn Manor from time to time to see how they were progressing but her relationship with Miss Tennent was primarily a professional one prior to the death of Miss Ewart which, as I have said, occurred on 24 June 1996.

After Miss Ewart’s death, the relationship of Ms Daulizio and Miss Tennent gradually became of a more personal nature. Mrs Fensham also increased her visits to Balwyn Manor to see Miss Tennent (at least on a weekly basis and sometimes more often) and other members of her family also attended fairly regularly. There were also family excursions in which Miss Tennent was included. Miss Tennent showed a fondness for Mrs Fensham’s children, especially Timothy. Mrs Fensham testified, and I accept, that an intimate relationship arose between herself and Miss Tennent.

On 13 September 1996, Miss Tennent was briefly admitted to Cotham Private Hospital and she placed the names of Ms Daulizio (Trust Company of Australia) and Mrs Fensham (cousin’s daughter) in the box headed “next of kin/contact person”.

On 9 October 1996, Ms Daulizio sent a memorandum concerning Miss Tennent to Mr Barker with a copy to Mr Dowel. In the memorandum she said that Miss Tennent’s health had been deteriorating since the death of Nancy Ewart and that she rarely left her residence. The staff were taking very good care of her and she would not be asked to move. The memorandum referred to Miss Tennent’s need for cash and Ms Daulizio said that she intended to take cash sums of money to Miss Tennent on an irregular basis – each time moneys were required she would consult with Mr Dowel and a receipt would be signed by Miss Tennent. On 22 June 1997, Mr Barker added a note on the memorandum concerning procedures in relation to cash, noting that there had been a payment of $1300 in seven cash payments since 9 October 1996.

During 1997 Ms Daulizio continued to visit Miss Tennent, both during and outside working hours.

In April 1997 Mrs Fensham organised a ninetieth birthday party for Miss Tennent. Present at the party were a number of friends and acquaintances of Miss Tennent, including one Margaret Greig (whom Miss Tennent used to telephone every day for a chat), one Alice Byers (a former neighbour of Miss Tennent who had continued to visit her to run errands and on occasions provide transport for her) and Ms Daulizio.

Ms Daulizio testified that a personal friendship with Miss Tennent developed “over the years”, certainly not immediately after Miss Ewart died. Ms Daulizio said that they had much in common and that Miss Tennent was a delight to speak with and that, on visits after work, she found herself confiding in Miss Tennent, who always took an interest and would make comments at the time or telephone with some comment or suggestion the next day. Ms Daulizio had Miss Tennent to her house for lunch and introduced her to various people. In the course of their conversations, Ms Daulizio heard about Miss Tennent’s relatives in New Zealand, and subsequently became aware of Mrs Fensham, who lived near Melbourne (in “the Dandenongs”).

In or about February 1998, Ms Daulizio informed Miss Tennent that she was leaving her employment with Trust Company and, according to Ms Daulizio, Miss Tennent was upset about her leaving. I accept that evidence. On 5 March 1998, Miss Tennent signed an enduring Power of Attorney in favour of Ms Daulizio concerning which Ms Daulizio testified as follows:

“Q: How did that document [the Power of Attorney] come into existence? --- Well, basically before I even handed in my resignation, I had spoken to Grizelda and told her I was leaving Trust Company. She was very concerned about the fact that there wouldn't be anyone there to keep bringing her her cash payments, and she wanted me to continue, and I told her, because it was my belief, that the only way I could remove money from her bank account was to have a Power of Attorney.
Q: Did you prepare that document? --- Yes, I did.

Q: Was that executed on 5 March 1998? --- Yes, it was.
Q: Where was that executed? --- At Balwyn Manor.
Q: There were two witnesses, is that correct? --- Yes.
Q: One was Louise Testart? --- Correct.
Q: Do you know who she is? --- At the time she was the manager of Balwyn Manor.
Q: The other is I think a lady called Sandra Partridge? --- I think she was just one of the nurses or one of the people that worked there.”

When challenged in cross-examination by Mr Wells that she had not told Trust Company about the power of attorney until June 1999,[8] Ms Daulizio responded by saying that she was accompanied by Mr Dermody on the day the Power of Attorney was signed, and he was present. This fact was not mentioned by Ms Daulizio in an affidavit by her which had been filed in the proceeding. Ms Daulizio said that Mr Dermody did not witness the Power of Attorney because he did not think it was in his best interests to do so and that Mr Barker would not have been happy about it. Ms Daulizio testified that she wanted Miss Tennent to meet Mr Dermody because she was leaving and that she wanted the power of attorney because she did not think that Trust Company was willing to continue the process of taking out cash to Miss Tennent and Miss Tennent had expressed concern about this matter.
[8]See para [36] below

I am satisfied that after Ms Daulizio had advised that she was leaving the employ of Trust Company and at the same time as the Power of Attorney was executed, Ms Daulizio and Mr Dermody did indeed meet with Miss Tennent. Miss Tennent told Mr Dermody that Ms Daulizio was of assistance to her and said words to the effect that she did not know what she would do without her. I am satisfied that Miss Tennent’s perception was accurate, in that Ms Daulizio had provided a great deal of assistance to her and they had got to know each other well. After the meeting, Ms Daulizio told Mr Dermody that she regarded Miss Tennent as a friend and would continue to remain in contact with her, but she would not prevent Trust Company from continuing to manage Miss Tennent’s affairs.

Ms Daulizio’s employment with Trust Company finished on or about 12 March 1998. Ms Daulizio testified, and I accept, that her relationship with Miss Tennent “really blossomed” after that. It became a close personal relationship, and Miss Tennent was like a replacement mother to her. Ms Daulizio testified that after a while, Miss Tennent started speaking about Mrs Fensham and also her son Tim. I am satisfied that, with the death of Miss Ewart, Miss Tennent developed a closer relationship with and interest in the affairs of both Ms Daulizio and Mrs Fensham and her family.

On 13 March 1998, Ms Daulizio commenced employment with Permanent Trustee Company (“Permanent”) as Business Development Manager. At some time after that Ms Daulizio told Mr Dermody that Miss Tennent would have difficulty in understanding her financial statements and asked that they be sent to her instead. As a result, Trust Company ceased its previous practice of sending financial statements to Miss Tennent and sent them instead to Ms Daulizio.

In September 1998 Ms Daulizio telephoned Mr Dowel and requested that a statement for the year ended 30 June 1998 be forwarded to Miss Tennent, and when Mr Dowel offered to take the statement out personally to Miss Tennent, Ms Daulizio said that she would arrange a suitable time. As a result, on 29 September 1998, Mr Dowel visited Miss Tennent at Balwyn Manor and Ms Daulizio was also present. In the course of conversation, Mr Dowel asked Miss Tennent if she would like to review her will, to which Miss Tennent replied that this would be a good idea. Ms Daulizio then said to Miss Tennent that she had reviewed her will only six months previously and “all was fine”. The discussion on this topic did not proceed further.

On 4 November 1998, Mr Dowel visited Miss Tennent at Balwyn Manor and introduced her to Ms Anne Harris, a new employee of Trust Company. The meeting was brief, and after that occasion there were no further visits to Miss Tennent by representatives of Trust Company.

On 16 June 1999, Mr Dowel had a telephone conversation with Ms Daulizio in which she informed him that she had an enduring power of attorney executed by Miss Tennent in her favour. Following that conversation, Mr Dowel received a certified copy of the enduring power of attorney dated 5 March 1998 in favour of Ms Daulizio signed by Miss Tennent and witnessed by Louise Testart and a nurse, Sandra Partridge. The document was certified as a true copy by a solicitor, Suzanne Jones. The document was forwarded under cover of a typewritten letter dated 8 June 1999 signed by Miss Tennent and prepared by Ms Daulizio, requesting an increase of the monthly deposit into Miss Tennent’s Commonwealth Bank Account from $200 to $600, advising of the power of attorney and stating “in future…I would greatly appreciate it if you would ensure that Cathy [Daulizio] is notified of any financial recommendations that you may have in regards to my investment portfolio”. On 24 June 1999, Ms Daulizio telephoned Mr Dowel and asked him to deposit $1000 into Miss Tennent’s bank account the following day as Miss Tennent required funds.

On 1 March 2000, Ms Daulizio took up her employment as a senior accountant with Warwick Ryan & Co Pty Ltd. Ms Daulizio and Mr Ryan had met very occasionally since they had been students together, but at one such meeting Mr Ryan had offered her employment, an offer which she accepted some months later.

According to Ms Daulizio, the first time that Miss Tennent suggested leaving Ms Daulizio something in her will “was probably back after I had left Trust Company…It was quite frequently and I always just told her that I couldn’t accept anything.” Ms Daulizio said that amounts of money were not mentioned: “It was just saying that she [Miss Tennent] wanted to leave me something because she wanted to help me out in life”. I accept that evidence.

Ms Daulizio then gave evidence as follows:

“Q: Was this subject raised again before she went into hospital in August 2000? --- Yes, before she went into hospital she was talking more seriously about leaving something to Mrs Fensham and myself.
Q: What did she say to you in regard to Mrs Fensham? --- She basically if I remember correctly, she had spoken about her before but it was mainly after she had been to visit Mrs Fensham. She was talking about her visit, she had a wonderful time and everything but she thought maybe it would be good if she would give some money to Mrs Fensham to help with the house and also to help with Tim's education. She was very concerned about Tim’s education
Q: Did she say anything to you about Mrs Fensham’s house? --- No, nothing. She just said that she thought maybe it could use a little bit of - that perhaps she could use some money to do some work on the house.
Q: Did she talk again about leaving you something? --- Yes.
Q: At this time did she mention any specific sum of money or specific object? --- No.
HIS HONOUR: What time is this can I ask?
MR PHILLIPS: Prior to her going to hospital? --- No, I used to always stop her.
Q: Did Miss Tennent mention to you about wanting to leave some money to any other person? --- Alice Byers.
Q: Who was Alice Byers? --- Alice Byers was the woman who used – who came and took her sometimes to see the eye doctor, even sometimes the medical doctor if the doctor wasn’t called to Balwyn Manor, and she would also run little errands and get for her toiletries, biscuits, you know, tea, coffee, things that she wanted to have in her room. Alice had been really very kind to her and she wanted to leave her money but she was extremely concerned because she wasn't aware of her circumstances. She didn’t know whether she was a pensioner or whether or not she actually did have sufficient means of her own.
Q: Do you know how old Mrs Byers or Alice Byers is? --- No. I never inquired. That was the other problem that we had when we were discussing it because neither one of us actually knew how old she was. I suggested that Grizelda perhaps ask her but Grizelda felt that was very unladylike.
Q: Did Ms Tennent sort of discuss a monetary sum with you as to what she wanted to leave Alice Byers? --- Yes, she worked out that - she didn’t know how old she was but she didn’t think she could live much longer than 10 years and it would be really nice to give her a gift for her birthday and a gift at Christmas time.”

I accept Ms Daulizio’s above evidence, subject to what appears in paragraphs [41] and [61] below.

Ms Daulizio further testified, and I accept, that Miss Tennent asked her to do something (it would seem at some time between about March and July 2000) as follows:

“Q: Now, before [she took ill], did Ms Tennent ask you to do anything? --- Yes.
Q: What? --- She wanted to update her Will. And she also wanted to know at that time, how much it was really worth because neither of us really knew, she hadn’t received any financial statements from the Trust Company since 1999.
Q: Did she tell you how she wanted to update her Will? --- She told me that she wanted to leave - or she wanted to leave the money to me for Alice Byers to give her as a surprise birthday present, $2,500, and $2,500 for Christmas. And she also spoke about leaving money to Libby, but she didn’t know how much, and again of course she mentioned me. She also mentioned that she had been spending quite a bit of time with Libby and Libby was doing a type of history on the family and she wanted Libby to have all of the - all of her contents of her unit.
Q: Did Ms Tennent ask you to do anything about the updating of her Will? --- Yes.
Q: What did she ask you to do? --- She asked me to arrange for it to be updated.
Q: And after that had happened, what happened to Ms Tennent? --- She went into hospital. I was called by Balwyn Manor to tell me and - - -
Q: We know that she went into hospital on the evening of 29 August 2000? --- Yes.
Q: How long before that time did you have this discussion with Ms Tennent about her updating her Will? --- I’m embarrassed to say it was quite some time.
Q: Are you able to put a time frame on that? --- No. Could have been a month, two months, three months. I just dragged my feet.”

In cross-examination by Mr Wells, Ms Daulizio said that some months prior to September 2000, Miss Tennent said that she was thinking of leaving Mrs Fensham something and “she always mentioned, and she had been mentioning, since 1998 that she wanted to leave me something, but I always glossed over that one. We had a list of her personal chattels and she told me the changes she wanted on that.” Ms Daulizio made notes of the changes on the original list. Ms Daulizio put the document in a file which she had for Miss Tennent, but did not retype the document prior to 30 August 2000. Ms Daulizio inferred that Miss Tennent wanted to leave money for Mrs Fensham for the purpose of the renovations of her property and to assist especially Mrs Fensham’s son, Tim, with his ongoing education. The inference was drawn by her from Miss Tennent’s expressed concerns about these matters which was not tied directly to her instructions to leave Mrs Fensham money. No amount was discussed. This was not necessarily at the same time as the discussion about chattels. The question of leaving money for Mrs Byers may well have been discussed on a different occasion.

In cross-examination, Ms Daulizio did not remember when Miss Tennent had told her she would be holding $50,000 on trust for Mrs Byers – she said at least a month or so before the “trust document” was drawn up, but she could not remember the exact time. Ms Daulizio testified that Miss Tennent brought up the figure of $5000 per annum, but the other phrase she used in evidence was “kind of worked it out” which suggests a conversation between the two of them, in which I would infer that Ms Daulizio was pro-active.

Ms Daulizio said that her failure to put Miss Tennent’s instructions into effect was because she was very busy and was a procrastinator. In cross-examination by Mr Southall QC, she was asked whether she was an inveterate procrastinator, and replied “I can be at times when it’s for my own good”. I note that her employer Mr Ryan agreed, when asked, that Ms Daulizio was a procrastinator.

In about August 2000, Ms Daulizio had moved from Heathmont to Abbotsford. She took Miss Tennent to see her new house and there was some visits afterwards.

On 29 August 2000, Miss Tennent took ill and she was taken by ambulance to hospital, ultimately spending the night in the emergency section of the Austin Hospital, Heidelberg. The ambulance collected Miss Tennent at 8:10 pm and her case was given as pneumonia. The ambulance officer recorded good verbal and motor responses both at point of departure and at destination.[9] Miss Tennent was able to inform the ambulance officer that she had been short of breath for the last two days or so and coughing up green phlegm and that she had been managing her shortness of breath “OK” with a ventolin pump. She told the officer that that day it had been hard to walk even to dinner due to her shortness of breath, the local doctor was called, the ventolin pump was not as effective and the doctor arranged for the ambulance. The ambulance officer recorded that, on examination, Miss Tennent was fully conscious, was speaking short sentences, and was quiet and relaxed.
[9]Best verbal response – oriented (not confused) – 5/5; best motor response – obeys – all at the highest level.

On 29 August 2000, Balwyn Manor called Ms Daulizio and told her that Miss Tennent had been taken to hospital. Mrs Fensham also learned that Miss Tennent was being taken to hospital and both Ms Daulizio and Mrs Fensham found their way to the Austin Hospital separately. Mrs Fensham testified, and I accept, that on the evening of 29 August 2000 at the Austin Hospital, despite Miss Tennent’s physical condition, she was “cheerful” and “chatty”.

On 30 August, Ms Daulizio went to the office – she thought that she had “better to do something really quick, because if something happened to her at least her list of chattels and how she wanted that to be distributed could probably be [done].” The nurses and doctors had told her on 30 August that Miss Tennent’s condition was not too good.

Ms Daulizio prepared a personal chattels list on 30 August 2000 at her office and also a document headed “Trust Fund for Alice Byers”. On 30 August 2000 the latter document was signed by Ms Daulizio and her signature was witnessed by Mr Ryan (although he could not recall having done so). This “Trust Fund” document read as follows:

“I, Cathy Daulizio, of 153 Park Street, Abbotsford in the State of Victoria give an undertaking to Grizelda Tennent of 45/23 Maleela Street, Balwyn that I will give to her friend Alice Byers of 14 May Street, Balwyn $2,500 on each birthday and at each Christmas until the date of her death or until she is no longer capable of using such funds for her own purposes. The total sum payable by me shall not exceed $50,000. These amounts are to be paid from the funds received by me from the Estate of Edith Grizelda Gastineau Tennent.”

From 30 August 2000 onwards, Dr James Pang was Miss Tennent’s treating doctor at the Austin Hospital. Dr Pang was a first year intern at the hospital, having graduated in 1999.

On 30 August 2000, the Austin Hospital medical notes record that, on examination, Miss Tennent was an elderly patient and not distressed. The notes record Miss Tennent’s wish that she not be resuscitated in the event of cardiac arrest. Dr Pang’s notes record that she was short of breath with a wheeze in the chest and a chest infection. The nursing notes record (at 3:25 pm) that Miss Tennent was ambulant with assistance and (at 8:10 pm) that she refused analgesia, was ambulant with a stick to the toilet and was short of breath on return to bed from the toilet.

In examination in chief, Ms Daulizio said that she went to the Austin Hospital on 30 August – she could not recall any discussion on that day.

Mrs Fensham said that on 30 August 2000 she returned to the Austin Hospital with Miss Tennent’s friend Alice Byers, and that they had separate conversations with Miss Tennent. Mrs Fensham said that she saw Miss Tennent for about half an hour. She said that Miss Tennent was semi-propped up in bed, her arms were straight and rigid. Mrs Fensham said that Miss Tennent banged her arms up and down on the bed, and said that she had been waiting for a long time for Cathy to bring her some papers, but that Cathy always got to Balwyn Manor too late. Mrs Fensham did not seek any further explanation for what she described as Miss Tennent’s “anger”. I accept Mrs Fensham’s account of what occurred on this occasion.

On 30 August 2000, at about 3 pm, Ms Daulizio sent an e-mail to Mr Dowel reading as follows:

“Would you please advise me of the market value of Grizelda’s investments as at today by return e-mail.
As you are aware I changed employment and my new contact number is 9696 0877 and my e-mail address is…
Hope you are going well and please pass on my best wishes to all at Trust Company.”

In cross-examination by Mr Wells of Counsel, Ms Daulizio testified that she was asked by Miss Tennent to get her the value of her property, although she could not remember when she had been asked by Miss Tennent to do that. Mr Southall QC cross-examined Ms Daulizio as to the fact that she had not told Mr Dowel at this time that Miss Tennent was in hospital or sick, or that Miss Tennent had given instructions as to alterations to her will. Mr Southall QC put to Ms Daulizio that she had not informed Trust Company because it would have taken over the matter and ensured that a will would be drawn up in accordance with instructions independently witnessed. Ms Daulizio denied that, and said that she did not think of mentioning those matters to Trust Company. In my opinion, Ms Daulizio, whether consciously or not, wished to avoid what she regarded as “interference”.

By e-mail dated 31 August 2000, shortly after 1 pm, Mr Dowel replied to Ms Daulizio as follows:

“Hi Cath
$2,188,406 includes Unit at Balwyn Manor at $154,000.
Regards
Peter”

On 31 August 2000, the nursing notes (at 3:45 pm) record that Miss Tennent was afebrile, tolerating diet and fluids and ambulant with stick and supervision.

Ms Daulizio said that she had it in mind to take to Miss Tennent on 31 August the list of chattels and the trust fund document and the value of her estate “because those were things that we had spoken about before and I said I would do”. As I have said, Ms Daulizio could not remember when she was asked to get the value of the estate: it may have been a month, it may have been a few weeks, she could not remember. Of course, Ms Daulizio knew that the value of the estate was a necessary piece of information if there were to be new benefits in the will for Mrs Fensham and herself, but I accept her evidence that she had earlier been asked by Miss Tennent to obtain this information.

Ms Daulizio visited Miss Tennent on 31 August after work. Miss Tennent was still in a ward. Ms Daulizio then gave evidence (which I generally accept) as follows:

“Q: When you got there, what sort of condition did you find her? --- I couldn’t believe it. She was really - she was sitting up and she was happy and she was cheerful, and we had coffee together and accidentally spilled it all over the bed sheets and everything, and she was just laughing. I mean, it was just like two little schoolgirls unfortunately, or fortunately.
Q: How long did you stay with her for? --- Quite some time.
Q: She was able to talk? --- Yes, she was.
Q: After a while, did you talk about some serious matters? --- I showed her the personal list of chattels, and I can’t remember whether she read it or I read it to her, but we were sitting quite close together, and I asked her if that’s what she wanted and if that’s what she wanted would she please sign it.

Q: And is that what happened? --- Yes, she did. I also showed her the one that I typed out with Alice Byers, and said to her that that was my understanding of what she wanted, and she confirmed it.
Q: Was there then some discussion about other matters? --- Yes. I was a little bit embarrassed because I was afraid somebody was going to overhear us - and maybe they did, I don’t know - but she then wanted to discuss about leaving money to Libby.
Q: Did she say how much? --- We discussed again, we went through the same things that we had gone through once before when she wanted to know if I knew how much Libby’s house was and I said to her no, I didn’t know what the house was worth - she lived in Mount Dandenong - and she decided that 400,000 would probably be adequate to assist her with the renovations and with Tim’s ongoing education.
Q: That was a figure that she told you; is that right? --- It’s a figure she told me.
MR SOUTHALL: Could I ask my learned friend not to lead, Your Honour. These are pretty critical matters.
MR PHILLIPS: Did she then say anything else to you? --- Yes, she then said that she wanted me to have the same, and I - -
Q: What did you say to that? --- Well, I just told her what I’ve always told her, that no, I can’t do that, I can’t accept it, I couldn’t take instructions, I couldn’t write the Will, I couldn’t do anything, and she got really angry with me, which is the first time in all the time I’ve known her that she got really angry, and - and said that she was sick of it and to get her someone that would do it, because she leave her money the way she wanted to.
Q: What did you understand her to mean when she said to get someone to do it? --- I assume she meant somebody from Trust Company or a solicitor or someone that could do it other than myself, because I said I couldn’t.
Q: You said that Miss Tennent became angry? --- Yes, she - - -
Q: Perhaps you could describe how she became angry? --- She threw her arms and she said, “I’m tired of this, I want to leave you something, I should be entitled to leave my money the way I want to.” She was just - she raised her voice. She’s never raised her voice to me in the time I knew her, and I’d never heard her raise her voice to anyone else, she’s such a lady.”
MR PHILLIPS: There’s just a couple of matters I want to go back over from late yesterday afternoon. Do you remember I showed you Exhibit PD4 which was an e-mail that had been sent to you by Mr Dowel on 31 August 2000 giving you information as to Miss Tennent’s assets? --- Yes.
Q: That said that the asset position was something like $2.1m? --- I recall, yes.
Q: Once you’d received that information, what did you do with it? --- I advised Grizelda of the information as she requested, but not at the hospital.
Q: What did you tell Grizelda? --- I told Grizelda that I had received a response from Peter Dowel, and - I can’t recall the figure that you quoted - but that her estate was around $2m.
Q: During the course of that discussion, was anything said to you about the existing charitable trusts in the Will? --- Yes. Grizelda - we had gone through the fact that, of what she wanted, and then she said to me that she really wanted to leave her - the money to charity but to specific trusts, which I believe is something that she did quite some time ago before - when the original Wills were done, Nancy Ewart’s Will was to set up a foundation, but that foundation originally had in it means, different charitable trusts that they wished to - the income to be provided for, so what that meant was that Trust Company would hold the capital in perpetuity but the income would go to those specific named trusts, charities within that trust. I think before in 1995 when I went out to see Grizelda, she wasn’t all that - - -
Q: I’m not concerned about 1995, I’m concerned about August 2000? --- Okay, my - sorry.
Q: After you had that discussion with her, was anything else said that night about this charitable trust in Miss Ewart’s Will? --- Yes, well, I just basically said to her, “Look, according to Nancy’s Will, the foundation leaves the money in trust to be used for charities, but it was left up to Trust Company to decide which charities would receive that income”, and that it’s always been the practice that her money would fall into that foundation or form part of that foundation, and it would be quite awkward to administer if she wanted specific trusts, and Nancy only had – Nancy’s was whatever, whomever Trust Company was to give the money to.
Q: Did Miss Tennent make any decision that evening about what she wanted to do with the charities? --- She thought it was very sensible that it remain the way it is.”
[emphasis added]

Ms Daulizio said that the mention of large sums of money for herself and Mrs Fensham came as a surprise to her.

Ms Daulizio said she inferred from previous conversations that the $400,000 for Mrs Fensham was based on amounts to provide for renovations of her house and her son’s education. Her evidence (which I accept) continued:

“Q: So in terms of what Miss Tennent actually said to you on 31 August, is all she said was “well, I think I’ll leave $400,000” or words to that effect to Libby, is that right? --- Well, after I told her how much her estate was worth, yes.”

Later in her evidence she confirmed that it was purely her assumption and that there was no mention as to the purposes of the gift to Mrs Fensham on 31 August and she admitted that her earlier evidence was incorrect in so far as she had said that they had gone through the same things that they had gone through before. I am satisfied that Miss Tennent never had a discussion with Ms Daulizio in which Miss Tennent decided that $400,000 would probably be adequate to assist Mrs Fensham with the renovations and with Tim’s education, and that, contrary to Ms Daulizio’s initial testimony, her previous discussions with Miss Tennent were not related to any particular purpose of a gift for Mrs Fensham. I did not think that Ms Daulizio was seeking deliberately to mislead the Court, but rather that she rationalised what had occurred.

When Ms Daulizio left the hospital on 31 August, she said, and I accept, that she believed that “Grizelda had improved and she would probably be going back to Balwyn Manor” and so she did not think that there was any rush to organise a new will.

Dr L C K Chan, the night resident doctor, saw Miss Tennent at 6:20 am on 1 September 2000. His notes recorded that she appeared to be confused, that her eyes opened spontaneously, but that there was no verbal or motor response and she did not respond to direct questioning. Dr Chan considered that she may have suffered a stroke and he contacted Mrs Fensham regarding Miss Tennent’s condition. As a result, as Mrs Fensham testified, she immediately got in her car and drove to the hospital where she remained for the next two days.

Further, Dr Chan deposed that, having read the medical notes made by Dr Pang later in the same day as to Miss Tennent’s improved condition during the day, he was of the view that “the episode of unresponsiveness suffered in the morning was most probably not the result of a stroke”. Dr Chan had no further contact with Miss Tennent and in fact had no independent recollection apart from his notes.

At 7:30 am Miss Tennent was moved to a single room. At some stage after this, Mrs Fensham arrived and found Miss Tennent with “those prongy things in her nose having oxygen” and “pretty breathless”. However, Mrs Fensham testified and I accept that Miss Tennent told her that she was relieved to be in a room by herself because she hated being in the ward and because she had a nice big window which she could look out of, and that Miss Tennent also indicated that she liked the window because she knew that home was “thataway”. Mrs Fensham said that Miss Tennent remained conscious during the entire time she was with her during that day.

The nursing notes for the morning of 1 September 2000 were made by Nurse Salter who noted that at mid-morning (approximately 10 am) Miss Tennent was bright and able to assist with personal grooming. Nurse Salter recorded that at 11:30 am Miss Tennent’s condition was “deteriorating, cool pale and flaccid limbs with poor response to communication…Family and friends remain in attendance”.

On 1 September Ms Daulizio said that she was feeling very guilty because she had not attended to Miss Tennent’s wishes beforehand, and had been informed that Miss Tennent had deteriorated during the night: she was told it was quite serious. She contacted Trust Company, spoke to the receptionist and asked for Mr Dermody because he knew Miss Tennent and Ms Daulizio wanted to ask him to come out and take the instructions for a will. The receptionist told her that Mr Dermody was on annual leave so she asked for the solicitor (Ron Monroe) and was told he was not available. Ms Daulizio then said that she looked for Phillip Jones, another solicitor in the building. I accept the foregoing evidence. In cross examination, Ms Daulizio said that she made no attempt after that to contact any other solicitor: “I only thought of the fact that she might die and Libby might not get what she wanted…her to have”. I have no doubt that Ms Daulizio was also considering her own interests at this point. As a result, Ms Daulizio said “I drafted the will in desperation”. She said that she had a copy of Miss Tennent’s 1995 will which she obtained some months earlier from Miss Tennent at a time when Miss Tennent was discussing different things she wanted to do “especially with the bequests, one of them being the bequest to Libby”.

Ms Daulizio prepared a new will on her computer. Ms Daulizio used a pro forma for the will (which she had on disk from the time she worked at Permanent and which had been devised by Suzanne Jones, the solicitor at Permanent).

The will prepared by Ms Daulizio, omitting machinery matters, contained the following provisions:

“THIS IS THE LAST WILL AND TESTAMENT of me EDITH GRIZELDA GASTINEAU TENNENT of 45/23 Maleela Street, Balwyn in the State of Victoria Retired.
1.I HEREBY REVOKE all prior testamentary acts
2.I APPOINT TRUST COMPANY OF AUSTRALIA LIMITED A.C.N. 004 027 749 OF 151 Rathdowne Street, Carlton South in the said State to be the Executor and Trustee of this my Will (“my Trustee”).
3.I GIVE the following free of duties and taxes:
01TO my cousin PHILLIPPA WILSON my sketch portrait of my grandmother Edith Jessie Tennent.
02TO my cousin NOREEN STREET of 31 Petworth Avenue, Goring-by-sea, Worthing BN12-4QL, West Sussex, England, my small silver jug marked “Edith”, my silver tea caddy, my pearl-set star brooch, my 5 ruby and pearl ring, my gold necklace (1/2” wide), my gold 2 strand twisted rope necklace, my single diamond gold ring with diamond shoulders, and all other jewellery, including costume jewellery, for her own use or to distribute to family members as she thinks fit.
03TO my cousin SHEILA LIDSTER of 4 Micklebring Lane, Braithwell, Rotherham, South Yorkshire S66 7AS England my three hand painted cups.
04TO my cousin KATHLEEN GROSART of 42 Bennett Road, Four Oaks, Sutton Coalfield, West Midlands B74 4TH England my three blue and gold cups.
05TO ROSE TENNENT of 10 Davidson Street, Rotorua, North Island, New Zealand my gold pearl-set flower pendant with pearl set chain.
06TO my friend MARGARET ELIZABETH GRIEG of 2/13/201 Spring Street, Melbourne my small round tapestry footstool.
07TO my friend LOIS RICHARDS of 18 Second Street, Black Rock my painting of the nine (9) large open petunias with one (1) unopened.
08TO ELIZABETH FENSHAM (LIBBY) of ‘Langlands” 27 Georges Road, The Patch the sum of FOUR HUNDRED THOUSAND DOLLARS ($400,000) PROVIDED THAT should LIBBY predecease me THEN for such of her children as survive me and attain the age of 21 if more than one as tenants-in-common in equal shares AND FURTHER my remaining personal chattels for her own use or to distribute to family members as she thinks fit and any items not distributed to be given to THE SMITH FAMILY.
09TO CATHY DAULIZIO of 153 Park Street, Abbotsford the sum of FOUR HUNDRED AND FIFTY THOUSAND DOLLARS ($450,000) absolutely.
10TO the FRANK PATON MEMORIAL UNITING CHURCH Burke Road, Deepdene, Victoria the sum of TWENTY THOUSAND DOLLARS ($20,000) to be used as the Council of Elders of the Church shall at their absolute discretion determine.
11TO THE SMITH FAMILY the sum of TEN THOUSAND DOLLARS ($10,000) for its general purposes.
12TO the MELBOURNE CITY MISSION the sum of TEN THOUSAND DOLLARS ($10,000) for its general purposes.
13TO the BROTHERHOOD OF ST LAURENCE the sum of TEN THOUSAND DOLLARS ($10,000) for its general purposes.
14TO VISION AUSTRALIA the sum of TEN THOUSAND DOLLARS ($10,000) for its general purposes.
15TO WESLEY CENTRAL MISSION OF MELBOURNE the sum of TEN THOUSAND DOLLARS ($10,000) for its general purposes.

4.I GIVE TO my Trustee the balance of my estate both real and personal of whatsoever nature and kind and wheresoever situate UPON TRUST subject to the payment of all my debts funeral administrative and testamentary expenses (“my residuary estate”) TO HOLD in perpetuity as a separate fund to be called THE NANCY EWART AND GRIZELDA TENNENT TRUST and in each calender year to pay the net income to arise therefrom to such charitable organisations as my Trustee shall think fit AND I EXPRESS the wish without creating any binding trust that my Trustee assist those organisations (such as The Smith Family) which endeavour to make life easier for people in necessitous circumstances.”

It is evident that sub-clauses 02 – 08 of cl. 3 of the will were derived by Ms Daulizio from the personal chattels list dated 31 August 2000 which, in turn, could only have been based upon very detailed instructions obtained by Ms Daulizio from Miss Tennent. In addition, that part of sub-cl. 08 of cl. 3 of the will is also based upon what is set out in the personal chattels list dated 31 August 2000. Sub-clause 01 of cl. 3 of the will gives a sketch portrait of Miss Tennent’s grandmother to her cousin Phillippa Wilson. This item is not mentioned in the personal chattels list, but is one of three portraits given to Phillippa Wilson in the 1995 will, and there is no reason to think that the change was based on anything other than instructions from Miss Tennent. The same comment might be made about other items which were referred to in the 1995 will, and which were omitted from the later will. Mrs Fensham testified, and I accept, that Miss Tennent’s disposition of her personal chattels reflected a strong sense of family history, in that particular items were given to appropriate relatives.

The will also increased the specific legacies to two of the named charities. The only significant changes for present purposes were sub-cls. 08 and 09 of cl. 3, which gave $400,000 to Mrs Fensham and $450,000 to Ms Daulizio respectively. Ms Daulizio explained the origin of the $450,000 for herself as being based on the instructions the evening before that she should receive the same as Mrs Fensham, together with her undertaking in relation to Mrs Byers, ie, the “trust” document.

Ms Daulizio had already spoken to Mr Ryan of her close friendship with Miss Tennent and from time to time had mentioned to him that she was leaving work early in order to visit Miss Tennent. While Ms Daulizio was typing the will, Mr Ryan observed that she was upset, approached her, and asked her what she was doing. Ms Daulizio said to Mr Ryan that Miss Tennent was very ill and had taken a turn for the worse and that she needed to get the document to the hospital in a hurry and to see if there was a doctor or doctors that could verify that she was able to sign it and witness it. Mr Ryan had become aware of Ms Daulizio’s connection with Miss Tennent since the commencement of Ms Daulizio’s employment by him, but had been unaware until that moment that Miss Tennent was in hospital.

Ms Daulizio said to Mr Ryan that she was concerned because Miss Tennent had previously asked her to attend to amendment of her will and she had not done it.

Mr Ryan said to Ms Daulizio that she was too upset and that he would drive her to the hospital. At some point Ms Daulizio asked Mr Ryan to be a witness to Miss Tennent’s will, and he agreed.

After typing out the will, Ms Daulizio contacted the hospital to speak to a doctor [Dr Pang] “to ensure that Grizelda may be able to sign it because I was really uncertain at that stage”. Dr Pang told Ms Daulizio that Miss Tennent had deteriorated quite a bit but that he had not examined Miss Tennent yet that morning.

Early in the morning of Friday 1 September 2000, Miss Tennent was handed over to the care of Dr Pang by Dr Chan. Dr Chan told Dr Pang that he was concerned about Miss Tennent, who had experienced a sudden deterioration in conscious state during the night and said that he thought she had had a stroke, and was concerned that she would not pull through. Later that morning, but before examination of Miss Tennent, Dr Pang was paged and spoke by telephone to someone (Ms Daulizio) who described herself as a friend of Miss Tennent and who asked Dr Pang if he would be a witness to the signing of Miss Tennent’s will. Ms Daulizio told Dr Pang that she was bringing in a new will on that day. I am satisfied that Ms Daulizio probably asked Dr Pang, in substance, whether Miss Tennent was in a fit state to execute a will. Dr Pang told Ms Daulizio that Miss Tennent’s health had deteriorated overnight and that hospital staff were concerned about her. Dr Pang testified that Ms Daulizio expressed shock at this information.

At some time shortly after this telephone conversation, Dr Pang examined Miss Tennent. He noted that she was sweaty and short of breath and that she was drowsy but fully responsive. Dr Pang’s opinion was that Miss Tennent had not suffered a stroke, but that her chest infection had worsened.

Mr Ryan drove Ms Daulizio to the hospital. Ms Daulizio was asked whether on the drive to the hospital she had any discussions with Mr Ryan “in relation to the way this will would be executed,” and she answered, “I don’t think I did discuss it with him at all”. In cross-examination by Mr Southall QC, Ms Daulizio reiterated that “we didn’t really talk…I don’t remember talking to him that much, if at all. I was just emotionally upset.” She reiterated in cross-examination by Mr Southall QC, “I don’t remember much conversation at all if there was any…[I was too upset]…I honestly do not remember much about those two days”. On the other hand, Mr Ryan thought that it probably would have been in the car on the way to the hospital that Ms Daulizio had made him aware that there were two major changes in the proposed new will which she had prepared, namely, bequests to Mrs Fensham and to Ms Daulizio herself (and the amounts of the gifts).

I consider that Ms Daulizio, although she could not remember having done so, probably informed Mr Ryan as he drove her to the hospital of a number of matters concerning Miss Tennent and the contents of the will, including that she and the late Miss Ewart had wished to set up a charitable trust (to which Miss Ewart had left approximately $400,000) and of the bequests to Mrs Fensham and Ms Daulizio and the arrangement in relation to a gift of $50,000 to a pensioner friend of Miss Tennent’s (identified at some stage to him as Alice Byers), and that the residue was to go to the charitable trust and also as to the value of the estate.

Not long after Dr Pang’s examination of Miss Tennent, Ms Daulizio arrived at the Austin Hospital with Mr Ryan, whom she introduced to Dr Pang as her employer.

Mrs Fensham saw Ms Daulizio and Mr Ryan arrive and deduced, although she was not told, that certain papers which she saw were probably a will. At about this stage, Ms Daulizio introduced Mr Ryan to Miss Tennent as her boss, Warwick Ryan. Mr Ryan and Dr Pang then remained in Miss Tennent’s room by themselves.

Dr Pang was not sure whether he was asked by Ms Daulizio or by Mr Ryan to make an assessment whether Miss Tennent was in a fit state to make a new will. Mr Ryan testified that it was he who asked Dr Pang to examine Miss Tennent to determine if he thought she was OK to make a will. In any event, with that intent, Dr Pang in the presence of Mr Ryan conducted what he described as a partial mini-mental state examination. Miss Tennent was sitting up in bed, probably receiving oxygen through an oxygen mask. Dr Pang recorded that in answer to his questions, Miss Tennent knew the day and date but said that it was August rather than September and gave the year as 1987; she knew where she was; she repeated three words and recalled them one minute later; and she counted backwards from twenty to one by ones. Mr Ryan observed this procedure and testified that Miss Tennent’s voice was clear but low and weak. Dr Pang then told Mr Ryan that he believed Miss Tennent was able to determine where she was, was able to understand and was in a fit state to make a will.

Mr Ryan asked Miss Tennent whether she wanted to make a will and whether she understood that he and Dr Pang were there to witness it. He told her that he was going to read the will out to her. Mr Ryan then proceeded to read the will to Miss Tennent in the presence of Dr Pang. I am satisfied on the basis of the evidence of Dr Pang and Mr Ryan that Mr Ryan read out each item in the will, asked Miss Tennent whether she understood the contents of the various items and that Miss Tennent signified her understanding by a nod of the head in each case and also that the main items in the will, namely the large legacies and the charitable gift, were repeated to Miss Tennent. I accept Dr Pang’s evidence that Mr Ryan was careful to ensure that Miss Tennent heard and understood each item in the will and that in his (Dr Pang’s) opinion her hearing was satisfactory and that Miss Tennent interacted and showed comprehension of what was said to her.

Dr Pang deposed that he recalled that “Cathy and the cousin were to inherit a large sum of money” and that “approximately half of Miss Tennent’s estate was being left to a particular charity”. Dr Pang further recalled that “[a]t the end of the will reading Cathy’s employer informed Miss Tennent that he understood her estate to be in the order of $2 million.” Dr Pang deposed that Miss Tennent “was unable to articulate any words during the will reading. She was nodding only”. In oral testimony he added that Miss Tennent did not say anything. Mr Ryan’s testimony confirmed that Miss Tennent communicated her assent to each provision of the will only by nodding, but he qualified this by saying that Miss Tennent “…must have asked the value of the estate. She was able to speak, she did speak, but generally she was nodding”. Mr Ryan added that Miss Tennent asked how much would be left for the charitable trust.[10]
[10]The joint statement (see later below) records that Mr Ryan’s response to this question was that she would be leaving in excess of $1M (ie, to the charitable trust).

Mr Ryan testified that when it came to reading the clause containing a gift to Mrs Fensham, after reading the clause to her, he asked Miss Tennent whether that was a change that she wished to make to her previous will, to which she nodded, and whether she definitely wanted that change, to which she also nodded. Mr Ryan said that when he came to clause 9 containing the gift to Ms Daulizio, and after he had read it to her, he said to her that it was a bequest of $450,000 which was different to the $400,000 bequest to Libby Fensham and that he understood the reason for the difference was that $50,000 was to be held in Trust for Mrs Byers, and he asked Miss Tennent to confirm that that was a change she wished to make from her previous will, to which Miss Tennent responded by nodding “to each of those as we went, as I confirmed each part of it”.

Mr Ryan testified that Ms Daulizio had told him prior to going into the room with Dr Pang that Miss Tennent’s estate had a value in excess of $2M. Although Mr Ryan was in his evidence unsure whether he mentioned that fact to Miss Tennent on that day, I am satisfied on the basis of Dr Pang’s evidence that he did so.

Mr Ryan and Dr Pang both testified that Miss Tennent did not have the strength to sign the will. She managed to sign the first page only, but was too weak to sign the last page.

In the meantime, Ms Daulizio had told Mrs Fensham, while they were waiting outside, that Grizelda wanted some changes to her will, and that they were really important, but she did not tell Mrs Fensham what they were.

Mr Ryan came out of Miss Tennent’s room and said to Ms Daulizio and Mrs Fensham that she was too weak to sign the will. Ms Daulizio and Mrs Fensham went into the room. Upon entry, Mrs Fensham saw Miss Tennent “practising signing her will on a piece of paper, pretty well gasping” but saying in substance “I’ve got to get this right”. Ms Daulizio confirmed that Miss Tennent was still trying to sign the will when she entered. Dr Pang deposed that “Cathy was encouraging Miss Tennent to sign the will, she said words to the effect of “come on, see how you go, it’s very important””. Ms Daulizio said she said “Please, Grizelda, try – it’s really important”. In cross-examination Ms Daulizio said that she was not sure that Miss Tennent was trying to sign when she came in, however, I am satisfied that Mrs Fensham’s evidence is more likely to be correct.

Mrs Fensham said that the name written at the top of Miss Tennent’s bed was “Mrs Tennent” and that Dr Pang constantly called her “Mrs Tennent” (as did other nursing staff), despite attempts by Miss Tennent to correct them. This probably explains the references to “Mrs Tennent” by Dr Pang and Mr Ryan in documents described below.

Mr Ryan then left Miss Tennent’s room and, on his own initiative, attempted to telephone a solicitor. Mr Ryan eventually got some advice from a solicitor that he should document and detail the circumstances of what had happened in the room that day.

Dr Pang and Mr Ryan then spent approximately an hour together preparing a joint statement, which they signed.

The joint statement recorded that after Dr Pang had examined Miss Tennent, he had advised Mr Ryan that his examination indicated that Miss Tennent was of mental competency to enable her to execute her will. The joint statement further recorded in relation to the gifts of $400,000 and $450,000 to Mrs Fensham and Ms Daulizio respectively, that Miss Tennent had confirmed that the differential of $50,000 was to enable Cathy to hold $50,000 in trust “to be applied for the benefit of her pensioner friend Alice, whose name was previously unknown to the witnesses, Messrs Ryan and Pang”. The joint statement recorded the reading over of each dispositive clause of the will and Miss Tennent’s confirmation of each clause. The joint statement went on to record that in the course of this process, Mr Ryan had advised Miss Tennent that he understood the estate to be worth in excess of $2M “and this was acknowledged by Mrs[11] Tennent. She was subsequently advised by Mr Ryan in response to her query that she would be leaving in excess of $1M for the establishment of the charitable trust, which Mrs Tennent duly acknowledged.”
[11]Miss Tennent was referred to as “Mrs” Tennent throughout the joint statement.

The joint statement went on to record that Miss Tennent “willingly attempted to execute page one of the will as is evidenced by the signature on the left hand side of page one, owing to weakness she was unable to write her regular signature and subsequently she was requested to execute page five of the will but was also unable to sign same in her regular manner…”.

The joint statement concluded by recording that Dr Pang was proposing to certify Miss Tennent’s mental competency on the will but decided to do that in a separate document, and finally the statement noted that when Miss Tennent attempted to sign page five of her will, Mrs Fensham and Ms Daulizio were present in the room.

After obtaining advice, Dr Pang also prepared his own statement which he signed at 1:45 pm on that day (half an hour after signing the joint statement). Dr Pang gave the document containing his statement to Mr Ryan. His statement read as follows:

“I…was asked at approximately 10:30 am on Sept 1 2000 by Mr Warwick Ryan and Ms Cathy Daulizio to assess whether Mrs Edith Grizelda Tennent was mentally competent to sign her last will and testament.
Mrs Tennent was very tired at the time and experiencing breathing difficulties related to her underlying medical condition, but was alert and obeying commands.
I asked her first whether she was willing to execute her new will and testament and she stated that she was.
I then proceeded to perform a cognitive examination with a view to determining her testamentary capacity.
Mrs Tennent was able to tell me where she was (hospital, suburb, city, state) and knew the day and month but incorrectly told me the year (she said 1987). She had 3/3 registration and 3/3 recall, and was successfully able to count backward in threes from twenty. She scored 2/2 on recognition. Drawing, copying and writing ability were not assessed.
Overall I found Mrs Tennent to be tired but fully conscious at the time and there was some evidence of cognitive impairment but I considered her at the time to be of sufficient mental capacity and competence to execute her will.
She appeared to understand and acknowledge the clauses of her will as read out to her; the nature of which I have described in a joint statement with Mr Ryan. She was unable to sign the document with her usual signature which I believe was due to fatigue.
I believe that, at the time, Mrs Tennent was willing and attempting to execute her will via signature, and that that process commenced with her writing on page one of the will. I note again, as in the previous document that, in addition to Mr Ryan and myself, Ms Cathy Daulizio and Ms Elizabeth Fensham were present in the room.”

Dr Pang also recorded in the medical notes that Miss Tennent “was competent to make a decision (ie, had testamentary capacity) and understood the terms of her will as read out to her”. I accept, of course, the submission that Dr Pang’s observations do not constitute expert evidence in relation to testamentary capacity, but they indicate that there was no obvious cognitive impairment. I accept the evidence of Dr Pang and Mr Ryan as to what occurred on 1 September 2000.

Dr Pang noted in relation to Miss Tennent as at 5:15 pm on 1 September 2000: “dramatic recovery…mental state improved but still significant cardiac failure, chest infection”. The dramatic recovery by Miss Tennent observed by Dr Pang in early evening of 1 September 2000 remained evident, as will be seen, to those who attended the following morning.

Mr Ryan left, taking with him the partially executed will and the two statements. Ms Daulizio stayed with Miss Tennent. She stayed for the night in the chair in the room. Mrs Fensham slept on the lounge outside. Mr Ryan also called in that night.

In the morning of 2 September, Miss Tennent had taken a turn for the better, and seemed to be a lot brighter. She was able to talk to Ms Daulizio and Mrs Fensham and did not seem as weak as the day before. In cross-examination, Ms Daulizio said “she’d picked up remarkably”. Indeed, Mrs Fensham testified that “in the morning it was the Sleeping Beauty, it was like she’d never been ill. It was…completely Grizelda come back crystal clear”. Allowing for some poetic licence by Mrs Fensham, I accept the tenor of her evidence as to Miss Tennent’s condition on the morning of 2 September.

I note also that Ms Judith Rutherford, a registered nurse employed at the Austin Hospital, deposed that she made an assessment in respect of Miss Tennent on 2 September 2000 in which she recorded, inter alia, that Miss Tennent’s hearing was within normal limits, meaning that the patient followed her conversation and responded appropriately.

One of the first things that Miss Tennent said to Ms Daulizio that morning was “Has the deed been done?” or words to that effect, to which Ms Daulizio replied “No, I am sorry, you were too weak to sign it”. Miss Tennent then said “Get your boss back in here, I want to do it properly”, or something to that effect. Ms Daulizio was vague about who had copies of the will on the second day, but she must have had spare copies with her from the day before (in a folder or case).

After the events of the previous day, Mr Ryan had indicated to Ms Daulizio that he was willing to return if his services were required as a witness. At about 9 am on 2 September, Ms Daulizio telephoned Mr Ryan from the hospital. Ms Daulizio told Mr Ryan that Miss Tennent was better and requested him to come to the hospital that morning and witness the will and he agreed to do so. At the time, Mr Ryan was travelling in his car with Jennifer Box, a financial planner who was employed on a part-time basis by Mr Ryan and who was going with him to interview a prospective employee that morning. Mr Ryan had already told Ms Box that morning of the events of the previous day involving an elderly lady, a friend of Ms Daulizio, who was in hospital and of his attendance to witness her will which she was unable to sign. He asked Ms Box to be a witness to the will and she agreed.

Mr Ryan arrived at the hospital at about 11 am, accompanied by Ms Box. Ms Daulizio had known Ms Box for about six months as a work colleague, but had not been expecting her to attend the hospital.

After getting Ms Daulizio and Mrs Fensham something to eat, Mr Ryan and Ms Box accompanied them into Miss Tennent’s room. Miss Tennent was sitting up without any oxygen mask on and seemed to Mr Ryan to be much improved and her voice was much stronger and clearer. Miss Tennent told Mr Ryan that she was feeling much better. Mr Ryan said to Miss Tennent that he had come back to witness her will again. Mr Ryan then asked Ms Daulizio and Mrs Fensham to leave. Mr Ryan and Ms Box remained in Miss Tennent’s room for some time. I am satisfied that Mr Ryan had been provided with further unexecuted copies of the will by Ms Daulizio.

Mr Ryan commenced by asking Miss Tennent where she was, to which she replied that she was in the Austin Hospital, Heidelberg. He asked her what was today’s day and date, and she replied that it was Saturday the 2^nd of September 2000. Mr Ryan then asked her to count backwards from twenty to ten by twos and ten to one in ones, which she did. Mr Ryan asked Miss Tennent if she remembered him attending the previous day and that she had been unable to execute her will, and she said “yes” and that she wanted to execute the will again. Mr Ryan testified that he then asked Miss Tennent if she remembered when her friend Nancy Ewart had passed away, to which Miss Tennent replied in substance “five years ago”. Mr Ryan testified that he based the foregoing procedure on what he had seen Dr Pang go through the day before in order to determine whether Miss Tennent was OK to make a will.

Mr Ryan then told Miss Tennent that he was going to read the will to her, and that he wished her to confirm the contents as true and correct. He said to her that each part of the will was important and he wanted her to tell him whether she was happy with each part or, if not, what her wishes were. He then read the will to Miss Tennent clause by clause. The procedure adopted by Mr Ryan was subsequently recorded by himself and Ms Box in a document signed by them dated 2 September 2000 (“the Ryan-Box notes”). I am satisfied on the basis of the evidence of Mr Ryan and Ms Box as a whole and, in particular, having regard to what was recorded in the Ryan-Box notes, that what then transpired was, in substance, as follows.

Mr Ryan obtained Miss Tennent’s oral confirmation that she was aware that this will would revoke all prior wills, and that the trustee was to be Trust Company. Mr Ryan commenced to read each of the dispositions in the will to Miss Tennent and also asked her to provide details of the history of the items mentioned in cl. 3.

Mr Ryan separately read each sub-clause of cl. 3 and cl. 4 of the will to Miss Tennent, and she responded to each clause as follows:

·     Cl. 3.01: she said that the “sketch” was currently hanging in her bedroom (ie, at Balwyn Manor).
·     Cl. 3.02: she said yes to each of the items listed in that sub-clause and, when the single diamond gold ring with diamond shoulders was mentioned, she pointed out to Mr Ryan and Ms Box that it was on her hand.
·     Cl. 3.03: she said that the three hand-painted cups were painted by a specified maternal ancestor (she specified the precise relationship but it was subsequently noted by Mr Ryan simply as being a “distant grandmother”).
·     Cl. 3.04: she described the shape, size and design of the blue and gold cups, and said that the set had been broken in the course of many moves by the family over the years.
·     Cl. 3.05: she confirmed this gift.
·     Cl. 3.06: she said that the footstool was located under a table in her unit in Balwyn Manor.
·     Cl. 3.07: she confirmed this gift.
·     Cl. 3.08: she asked Mr Ryan if he thought it (ie, the sum of $400,000) was enough, to which he replied that it was not for him to comment, but he asked her to confirm that this was a change from her previous wills and that she was happy with that change, and according to the Ryan-Box notes, this clause was “reconfirmed three times” by Miss Tennent, who also herself stated that the balance of her possessions were to be distributed by Libby (Mrs Fensham) at her discretion to members of the family.
·     Cl. 3.09: this clause was “reconfirmed twice” by Miss Tennent, who then said that both Libby Fensham and Cathy Daulizio had supported her for some years and, according to the Ryan-Box notes, “she spoke about them with clear affection and gratitude”. Mr Ryan also testified, and I accept, that at some stage on 2 September, Miss Tennent said to him that Mrs Fensham had been good to her. Mr Ryan referred to the $50,000 difference between the gifts to Mrs Fensham and Ms Daulizio, at which time Miss Tennent said that the additional $50,000 was to be held by Cathy for distribution to her friend Alice Byers. Miss Tennent said that Mrs Byers had been a good friend over many years and often purchased sundry effects and groceries for her. She said that Mrs Byers was a fastidious type of person, and a careful manager of money.
·     Cls. 3.10 – 3.15: Miss Tennent confirmed each of these charitable gifts.
·     Cl. 4: Mr Ryan said that the balance of funds were to be utilised to establish The Nancy Ewart and Grizelda Tennent Trust, which was to be a charitable trust to be administered by Trust Company. Miss Tennent asked in substance “well, how much is there after all this?” and “what, sort of, would it do?” Mr Ryan told Miss Tennent that the approximate value of the estate was $2.2 million and the residual of the estate, after specific bequests, was approximately $1.3 million. Mr Ryan told Miss Tennent that when combined with the trust estate of her friend Nancy Ewart, that the total charitable trust would be approximately $1.7 million. Mr Ryan said that the $1.7 million value would be the equivalent of around 3 to 4 homes in Camberwell. Miss Tennent said that this would be a sufficient amount and said that this was to be her wish.

Mr Ryan then asked Miss Tennent to confirm (which she did) that the wishes in her will were her own and that, in particular, she had made the bequests to Ms Daulizio and Mrs Fensham of her own free will.

The will was then signed by Miss Tennent in the presence of Mr Ryan and Ms Box and duly witnessed by them. I am satisfied that the will was read and explained to Miss Tennent in such a way that she understood its contents and was able to confirm her intentions.

In In re Nickson (1916) VLR 274, 281, a’Beckett J followed the decision of the House of Lords in Fulton v Andrew when he said:

“There is one rule which has always been laid down by the courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards to their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus on those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction.”

In Nock v Austin (1918) 25 CLR 519, the trial judge had granted probate of a will which had been prepared by two plaintiffs, one of whom was a solicitor and under which both plaintiffs received large benefits. The High Court held that the trial judge had applied the correct principles and that it was open to him to pronounce in favour of the will on the basis of the large quantity of evidence as to the testator’s capacity and as to his knowledge and approval of the will. Barton and Gavan-Duffy JJ (at 524) said:

“It is unnecessary to discuss a number of the cases cited; but we may as well quote the terse statement of the principle by Sir Samuel Evans in the case of In the Estate of Osment:--“It is well established that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and cause it to be vigilant and jealous in examining the evidence in support of the instructions for the will; it ought not to pronounce for the document unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. That is the principle ... .””

And at 528 Isaacs J said:

“The relevant law is not doubtful. It may be thus stated:--(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v. Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt, at p. 321; Tyrrell v. Painton; Shama Churn Kundu v. Khettromoni Dasi, at p. 16). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v. Batt; Fulton v. Andrew). (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v. Butlin and Fulton v. Andrew; per Lord Shaw in Low v. Guthrie, at p. 284). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v. Guthrie). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v. Butlin). (7) The doctrine that suspicion must be cleared away does not create “a screen” behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn L.C. in Low v. Guthrie).”

I note in passing that the High Court disturbed the order as to costs made below by allowing the unsuccessful defendant his costs out of the residue of the estate (in which the plaintiffs alone were interested). As to the approach taken by the Court as to costs in such a situation, Isaacs J (at 529) said that the doctrine stated in many cases was:

“…that where a party having created suspicion in relation to a will under which he benefits is under the burden of clearing away that suspicion, then, as justice requires him to do so in the presence of any person interested should the suspicion be justified, he must, though eventually successful, ordinarily pay the costs of the person whose presence he has made necessary so far as his benefit extends.”

In Wintle v Nye [1959] 1 WLR 284, as the headnote summarises, an elderly woman, unversed in business, signed a will and subsequently a codicil prepared by her solicitor, who was not an intimate friend. The solicitor was named as sole executor and, after various legacies and gifts, the solicitor was to take the bulk of her large estate as residue. The will was complex and she received no independent advice, nor was given copies of the documents. It was held that the onus was on the solicitor to establish knowledge and approval by the testatrix and that it was the duty of the court to be vigilant and jealous in scrutinising all the circumstances. Arguably pertinent to this case, Lord Reid said at 296:

“In this case, upon the [solicitor]’s own evidence, it was at least possible to doubt whether the testatrix had any real understanding of the magnitude of her estate in spite of the fact that figures had been shown to her…”

It is unnecessary to refer to a number of other authorities which were referred to and which all support the principles of law as expressed in the cases mentioned above.[28]
[28]See Parker v Duncan (1890) 62 LT (NS) 642; Brown v Fisher (1890) 63 LT (NS) 465; In re Breen [1927] VLR 164; McKinnon v Voight [1998] 3 VR 543; Fuller v Strum [2002] 2 All ER 87.

Submissions concerning knowledge and approval of the will

Counsel for the plaintiff submitted that the Court should not be satisfied that Miss Tennent knew and approved of the contents of her will dated 2 September 2000. Counsel stressed the large legacies in favour of Ms Daulizio and Mrs Fensham contrasted with the previous will in which neither of them received any benefit and the lack of involvement of any independent person in taking instructions for preparing and obtaining the execution of the will. Counsel referred to numerous factors, including the following:

·     Ms Daulizio had discouraged Miss Tennent from discussing her will with officers of Trust Company in September 1998;
·     There was no evidence of how Miss Tennent arrived at the amounts for the legacies to Ms Daulizio and Mrs Fensham, and the surrounding circumstances gave rise to a suspicion that the will gave effect to the wishes of Ms Daulizio rather than the wishes of Miss Tennent;
·     Ms Daulizio, despite her experience, prepared and had the will executed without the intervention of a solicitor;
·     Miss Tennent had sought, by her question to Mr Ryan, advice about the size of the two legacies, but had been deprived of the opportunity to obtain any independent advice;
·     Mr Ryan and Ms Box had acted in Ms Daulizio’s interests rather than in the interests of Miss Tennent, and, further, their evidence was “largely conclusory” and “of little weight”; and
·     Ms Daulizio did not leave Miss Tennent a copy of the will, nor seek to have it re-executed after Miss Tennent’s discharge from hospital and did not disclose the existence of the will to Trust Company until shortly before Miss Tennent died.

Notwithstanding the above submissions, Counsel for the plaintiff conceded that “the evidence may support a finding that Miss Tennent intended a gift of up to $50,000 to Ms Daulizio on trust for Alice Byers. However, the Court is not in a position to rewrite the bequest to Ms Daulizio to give effect to that wish.” Counsel for the plaintiff further put the following proposition to the Court, which was explained as being put in the alternative, but which was significantly inconsistent with the plaintiff’s primary submissions:

“In relation to the remainder of the will, the evidence shows that Miss Tennent was read the bequest to Mrs Fensham and approved it. There was nothing suspicious about this gift, which accords with what might have been expected in the circumstances. Mrs Fensham’s evidence regarding the closeness of her relationship with Miss Tennent should be accepted. The standard of proof regarding this gift is considerably lower than that applicable to the bequest to Ms Daulizio. … In these circumstances, the Court should admit to Probate the will dated 2 September 2000 with the bequest to Cathy Daulizio omitted.”

Counsel for the Attorney-General submitted that a heavy onus was cast upon Ms Daulizio to “discharge” the suspicious circumstances, having particular regard to the advanced age of the testatrix, the initial position of trust held by Ms Daulizio, the relative short-term nature of Ms Daulizio’s relationship with Miss Tennent (compared to that of Mrs Fensham), the failure of Ms Daulizio to obtain any independent intervention, the absence of independence evidence of Miss Tennent’s instructions, the association of the witnesses to the will with Ms Daulizio, the failure to give Miss Tennent a copy of the will and the failure of the witnesses to the will to cooperate with Trust Company after Miss Tennent’s death. Counsel criticised Ms Daulizio’s unsatisfactory evidence as to her failure to obtain a solicitor to prepare a will, either before or after Miss Tennent was admitted to hospital, her unconvincing reasons for creating the “trust” for Alice Byers, the unsatisfactory evidence as to the genesis of the size of the two legacies and the dubious evidence of her attempt to persuade Miss Tennent to have her will re-executed after leaving hospital.

Counsel for the Attorney-General further submitted that the evidence was insufficient to demonstrate that Miss Tennent knew and approved of the terms of the “trust” to Alice Byers and therefore the evidence did not show that Miss Tennent properly understood the nature of the legacy to Ms Daulizio. As a result, Counsel submitted that these last matters:

“…do give rise to the possibility that if the Court was otherwise satisfied that the onus has been discharged by Ms Daulizio in relation to the testatrix’s knowledge and approval of the will itself, but is not satisfied that in relation to the secret trust document, the testatrix knew and approved of the contents of that document, the Court could and should admit the September 2000 will to probate, excluding clause 3.09 being the gift to Ms Daulizio and the trust purportedly engrafted thereon.”

Counsel for the Attorney-General concluded (in his written submission) that one factor which seemed to lean in favour of the September 2000 will was that having regard to the evidence of Mrs Fensham, particularly her obvious love and devotion to the testatrix and her unconditional concern for Miss Tennent’s health and welfare, as well as long standing connection and blood relationship with the testatrix, the legacy in Mrs Fensham’s favour, including its magnitude was not surprising. However, Counsel submitted that this did not assist in any way to determine whether Miss Tennent truly knew and approved of the contents of the will as Mrs Fensham’s inclusion as a legatee in the will could just as easily be referable to the intentions of a cunning draftsperson (ie, Ms Daulizio) as it may be to the intentions of a loving relative.

Counsel for the Attorney-General submitted that Mrs Fensham’s evidence about Miss Tennent being upset in hospital on the evening of 30 August 2000 about Ms Daulizio not having brought papers in for her to sign established at very most the possibility that the testatrix intended to change her will in some way, but it provided no evidence as to the changes actually made.

Conclusions

As I have said, a heavy onus lies upon those who seek to uphold the will of 2 September 2000 and it has been necessary for me to scrutinise the totality of the evidence and to subject it to a vigilant, jealous and anxious examination.

There is strong evidence, some of it independent, that at all relevant times Miss Tennent was of sound mind and had all her mental faculties about her. I accept the whole of Mrs Testart’s evidence, and in particular her observation that she had detected no alteration of Miss Tennent’s mental state throughout the period of time that she had known her (both before and after the Austin Hospital admission) and that Miss Tennent never showed any signs of developing short-term memory loss or other mental deterioration. I accept the evidence of Mrs Fensham that Miss Tennent was a highly intelligent woman who kept up to date with current affairs and whose mental state had not observably altered or deteriorated before, during or after that hospital admission.

Notwithstanding that evidence, it is necessary to consider the particular matters which were relied upon in support of the submissions, to which I have referred, that the Court should not be satisfied that Miss Tennent had the ability to comprehend and appreciate the various matters relevant to the making of a valid will. The advanced age of Miss Tennent, while reinforcing the call for careful examination of the evidence, does not of itself detract from a positive conclusion, nor does the poor physical health of Miss Tennent on 1 September 2000. In any event, I accept the evidence, in particular the evidence of Mrs Fensham, Mr Ryan and Ms Box, which indicates that Miss Tennent had experienced a significant recovery by the next day when she executed her will.

It is significant, I think, that Counsel for the plaintiff was prepared to indicate that it was perhaps open on the evidence to conclude that Miss Tennent had the requisite testamentary capacity and that Counsel for the Attorney-General was only prepared to say that Miss Tennent’s testamentary capacity “was not without doubt”.

There are, it seems to me, a number of specific pointers to Miss Tennent’s mental state at the relevant time. The ambulance officer’s recorded observations on 29 August 2000 support the existence of a normal cognitive state. The hospital medical notes on 30 August 2000 record Miss Tennent’s wish that she not be resuscitated in the event of cardiac arrest without any recorded doubt concerning her ability to give that instruction. The nursing notes on that day also record that Miss Tennent was ambulant and that she refused analgesia.

When one comes to the evidence of Miss Tennent’s mental state on 1 September 2000, some questions are raised about her ability on that day to consider the contents of her will, given her weakness and drowsy condition. Nevertheless, I accept Dr Pang’s evidence that Miss Tennent was “fully responsive” and able to determine where she was and to understand what she was doing.

I also accept Mrs Fensham’s evidence that, on the morning of 2 September, Miss Tennent’s condition had improved considerably and I accept the evidence from the nurse, Ms Rutherford, that Miss Tennent’s hearing on that day was within normal limits, signifying that Miss Tennent followed her conversation and responded appropriately. I think that the evidence as a whole of what occurred on 2 September 2000 (which I have set out above but do not here repeat) supports the conclusion, which I reach: not only that Miss Tennent continued to have testamentary capacity on that day, but also that Miss Tennent knew and understood what she was doing on that day. I note that Miss Tennent was apparently able to be very specific about the whereabouts and, in some cases, the history of a number of the chattels disposed of by her will, and, at least, it was not suggested that anything she said about them was inaccurate. I find that Miss Tennent was aware, and that she herself stated that Mrs Fensham was to have the power to distribute the balance of her personal possessions to members of the family. I find that Miss Tennent was also aware that, and said that, the “additional $50,000” in the gift to Ms Daulizio was to be held by Cathy for distribution to Alice Byers, and that she made a number of comments about Mrs Byers and her friendship with her. I am satisfied that Miss Tennent understood the general nature of her estate and had a good understanding of the relatives and friends to whom she might give benefits under her will and their “claims” upon her (such as they were).

The evidence that Miss Tennent asked in relation to the residue of her estate “how much is there after all this?” and “what, sort of, would it do?” indicates that she knew what she was doing and wished to have confirmed to her the value of the residue and to have conveyed to her in broad terms the purchasing power which that value represented (to which Mr Ryan duly responded). I do not think that her questions point to an inability or failure to generally appreciate the nature of her estate, but rather, to the intelligent interest of a lay person in obtaining general confirmation of the size and effect of her charitable gift after the making of the dispositions to Mrs Fensham and Ms Daulizio.

In relation to the dispositions to Mrs Fensham and Ms Daulizio, I consider that her motivation for making them was demonstrated when she said to Mr Ryan and Ms Box that Libby Fensham and Cathy Daulizio had supported her for some years, and when she spoke about them at that time “with clear affection and gratitude”. I am satisfied that Miss Tennent had it in mind to leave an amount to Mrs Fensham which was appropriate to her needs, as perceived by Miss Tennent, and, in that regard, asked Mr Ryan if it (ie, the sum of $400,000) was enough. I do not think that her asking that question of Mr Ryan, a stranger, indicates any lack of understanding or mental incapacity – rather, it was a natural question to voice aloud, indicating what was on her mind.

As Counsel argued, it may be the case, as with some persons of her advanced age, that Miss Tennent did not have a full appreciation of the depleted purchasing power of the dollar over time. If it were necessary in order to obtain probate of a will, in the case of an aged person, to prove that the testator or testatrix had had a clear appreciation of the purchasing power of the dollar, I fear that a large number of wills would thereby be invalidated. However her questions to Mr Ryan show that Miss Tennent was conscious of her limits in that regard. Her questions indicate that she was assessing the appropriateness of the amounts of the two legacies and the relative value of her residuary estate. I am satisfied that she was able to understand, and did understand, Mr Ryan’s statements concerning the value of her estate and of the residue and his explanation of the value of the total charitable trust in terms of the value of residential real estate in Camberwell.

On the basis of the whole of the evidence and in particular the matters to which I have referred above, I am satisfied that Miss Tennent had the capacity required by law to make the will dated 2 September 2000. I am further satisfied that, as a result of Mr Ryan’s reading and explanations, she both knew and approved of the contents of her will which, as the totality of the evidence shows, truly represented her wishes and intentions. In reaching those conclusions, I have not specifically referred to the evidence of Ms Daulizio. However, I think that Ms Daulizio’s evidence does support and, in the view that I take of it, does not detract from the above conclusions.

The evidence suggests that Ms Daulizio was at all times an honest, diligent and conscientious employee with her various employers. In my independent assessment, although clearly astute concerning matters affecting her own interests, Ms Daulizio was also honest in most of the express evidence which she gave, although perhaps not always telling the full story. It is not possible to say to what extent Ms Daulizio exercised her personality and persuasive powers to achieve a large benefit under Miss Tennent’s will. It was not suggested, and there was no evidence to suggest, that she exercised any undue influence over Miss Tennent. It is not invalidating conduct for a person to endear themselves to another with the intent of achieving a large testamentary benefit, so long as the testator or testatrix is fit to make a will and knows and approves of the contents of whatever will is made.[29] It is therefore irrelevant to consider the extent to which Ms Daulizio may have actively positioned herself to obtain testamentary benefits from Miss Tennent, even if she protested at such suggestions, and, in any event, it would be mere speculation to do so. However, I accept Ms Daulizio’s evidence that each had a genuine affection for the other, and that Miss Tennent did express the wish and intent to her, in the months prior to entering the Austin Hospital, to make a will containing benefits both for herself and Mrs Fensham. Whether the amounts of the dispositions to Mrs Fensham and Ms Daulizio were first broached on 31 August 2000 or earlier, and whatever the true nature or degree of Ms Daulizio’s protestations to Miss Tennent about her receiving such a benefit, I do accept Ms Daulizio’s evidence that she received instructions from Miss Tennent in relation to the two amounts on the evening of 31 August 2000. I am satisfied that Ms Daulizio did not invent these instructions and that they were intended by Miss Tennent, who understood what she was about.
[29]Compare Hall v Hall (1868) 31 LR 1 P 481, 482; Parfitt v Lawless (1872) 35 LR 2 P 462, 469 – 70.

Much was made of the size of the legacies to each of Mrs Fensham and Ms Daulizio in circumstances where no provision at all had been made for them in Miss Tennent’s previous will. However, Miss Tennent’s situation had changed markedly since the making of her previous will at which time Nancy Ewart was still alive, the two ladies were living together in the house in Deepdene and Ms Daulizio had only just met Miss Tennent. After the move to Balwyn Manor and the subsequent death of Nancy Ewart, I am satisfied that a very close relationship developed between Miss Tennent and each of Mrs Fensham and Ms Daulizio. In light of the evidence concerning the closeness between Miss Tennent and Mrs Fensham and her family, I do not find it at all remarkable that a legacy of $400,000 was left for Mrs Fensham. Miss Tennent had no closer relatives and saw no other relatives on a regular basis (most of them did not live in Victoria).

Nor do I find it remarkable that some gift was made by Miss Tennent in her will to Ms Daulizio because I am satisfied that they did develop a close relationship and that Ms Daulizio’s expressions in evidence of her fondness for Miss Tennent were sincere, and I am satisfied that that fondness was reciprocated by Miss Tennent. What is remarkable and unusual in the circumstances, I think, is the size of the legacy to Ms Daulizio, a person who was not related to Miss Tennent and with whom Miss Tennent had developed a friendship over a period of not more than about five years, and a close and supporting friendship over a period of about two years. The size of the gift and the circumstances of the preparation and execution of the will give rise to a high degree of suspicion and call for the most cautious and careful examination of the evidence (an examination of the kind referred to in the authorities). In the end, however, the case must be determined on the balance of probabilities, but I have also approached it as requiring the kind of satisfaction referred to in Briginshaw v Briginshaw.[30]
[30](1938) 60 CLR 336, 362- 3; see too Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449 – 450.

The conduct of Ms Daulizio was subjected to sustained attack, both in cross-examination and in submissions, and there can be no doubt that it is her conduct which has substantially brought about this litigation. Her discouraging of Miss Tennent from discussing her will with the officers of Trust Company in September 1998, shows, I think, that Ms Daulizio probably wished to limit Miss Tennent’s sources of advice and support, but I do not infer that there was any more sinister motive. Ms Daulizio’s failure to arrange for the earlier preparation of Miss Tennent’s will, as had been requested of her by Miss Tennent, is also of concern. I accept Mr Ryan’s evidence that Ms Daulizio could be a procrastinator, and it is quite possible that the reason for the procrastination was her embarrassment concerning Miss Tennent’s wish to benefit Ms Daulizio under her will.

I am satisfied that Miss Tennent’s sudden illness did cause a “crisis” which resulted in Ms Daulizio preparing and obtaining execution of the will without the intervention of a solicitor. I am satisfied that Ms Daulizio had an adequate opportunity to urgently obtain a solicitor (and should have done so). Her failure to obtain a solicitor is consistent with panic and lack of thought, and also consistent with a desire to prevent independent advice or outside “interference”. I am unable to conclude what her motivation, conscious or unconscious, probably was, but I am satisfied that, although her conduct can be criticised, it did not lead to the making of a will which was contrary to the intentions of Miss Tennent, or the contents of which were not known and approved by Miss Tennent. As already indicated, I accept the evidence of Ms Daulizio as to the receipt of Miss Tennent’s instructions for the will and the evidence of Mr Ryan and Ms Box as to Miss Tennent’s conscious and willing participation in the process which took place on 2 September 2000.

I view with some scepticism the evidence of Ms Daulizio that, after Miss Tennent’s discharge from the Austin Hospital, she endeavoured to persuade Miss Tennent to re-execute her will, and I note her failure to leave Miss Tennent a copy of the will. It is certainly possible that Ms Daulizio did not wish to afford Miss Tennent an easy opportunity to change her mind, or to take the risk that someone else might persuade her to change her will. Nevertheless, I do not regard those matters as indicating that the will of 2 September 2000 was not fully intended by Miss Tennent or that Ms Daulizio believed that it was not so intended.

I am further satisfied that Miss Tennent did intend Ms Daulizio to administer a gift of up to $50,000 to Alice Byers, although the precise mechanism was devised by Ms Daulizio. Miss Tennent knew that the sum of $450,000 included a sum of $50,000 which Ms Daulizio was to distribute over time to Mrs Byers. Again, one can speculate upon Ms Daulizio’s motives for incorporating in the gift to her an amount to be covered by the “trust” document, but I am satisfied that Miss Tennent generally understood the nature of the document which was shown to her by Ms Daulizio and intended to adopt it.

Each of Counsel for the plaintiff, the Attorney-General and Mrs Fensham advanced alternative submissions in the event that the Court was not satisfied, for one reason or other, that Miss Tennent knew or approved of the gift to Ms Daulizio, but found that Miss Tennent did know and approve of the gift to Mrs Fensham (and of all the other provisions of her will). In that event, it was contended that the Court had the power to grant probate of the will, but excluding the legacy to Ms Daulizio.[31] Indeed I am satisfied that Miss Tennent had every intention to make the dispositions of her chattels, the gifts to charities and to Mrs Fensham, and the residuary gift to the charitable trust, which she made in her will, but I find that she also intended knew and approved of the large gift to Ms Daulizio. If I had been persuaded to the contrary concerning the gift to Ms Daulizio, I would have had some doubt, depending on the grounds for that differentiation, as to the Court’s power to grant probate of the rest of the will, excluding the provision for Ms Daulizio – but the question does not arise.
[31]See for example, what was said by Crockett J in Wackett v Hardiman (Unreported, Supreme Court of Victoria, 12 December 1988).

For the foregoing reasons, the Court will grant probate of the will of Miss Tennent dated 2 September 2000 to Trust Company. I will hear counsel on the question of costs after they have had an opportunity to consider these reasons.

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[2003] VSC 358

26 September 2003