Veall & Anor v Veall

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PROBATE LIST

S PRB 2012 03266

IN THE MATTER of the Will of ARTHUR KEITH VEALL, deceased

ARTHUR ROWLAND VEALL and ALEXIS JANE ROCHE VEALL	Plaintiffs
v
KIM LOUISE VEALL	Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATES OF HEARING:	22, 24‑26, 29‑31 July, 1‑2, 5‑7, 13 August 2013
DATE OF JUDGMENT:	19 February 2014
CASE MAY BE CITED AS:	Veall & Anor v Veall
MEDIUM NEUTRAL CITATION:	[2014] VSC 38

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WILL – Elderly testator with cognitive impairment – Whether lack of testamentary capacity – Change of bequests from previous wills – Rational reason for altering will – Date when will executed – Significance of unchallenged evidence about instructions for and execution of will - Whether testator knew of and approved the contents of the will.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S M Anderson SC and Mr A Sandbach (22 July 2013) and Mr T Dowling ( 25 July 2013 and thereafter)	Katherine Moorhouse-Perks
For the Defendant	Mr R B Phillips	McNab, McNab & Starke

TABLE OF CONTENTS

The will dated 10 December 2011

The Veall family

Rowland Veall’s relationship with his father

Kim Veall’s relationship with her father

The focus of the evidence at trial

Legal principles relating to the first issue of testamentary capacity

The parties’ cases

Keith Veall’s previous wills

The September 2010 will

The making of the September 2010 will

Mr Hone’s instructions from Keith Veall

The making of the will dated 10 December 2011

Mr Nelson’s instructions for the will dated 10 December 2011

Ms Moorhouse-Perk’s involvement

The execution of the will

The Deed of Agreement and Declaration

Was the will executed on 10 December 2010?

Finding as to the date the will was executed

Keith Veall’s gifts to his children

The Kim Veall Trust

The Auspine shares

Evidence about the trust assets

The Keith and Beryl Veall Trust

The vesting of the Kim Veall Trust

Keith Veall’s attempts to obtain information concerning his assets

Rowland and Keith Veall engage lawyers

Events in 2010

The Family Court proceedings

Keith Veall’s affidavit

Beryl Veall’s affidavit

Medical evidence concerning the testamentary capacity of Keith Veall

Dr Kevin Rose
Professor Michael Woodward

Concurrent evidence

Conclusion concerning medical evidence

Evidence of Keith Veall’s mental condition from non-medical witnesses

The Plaintiffs’ evidence

Rowland Veall

Rowland Veall’s opinion of his father’s capacity – emails to Hymans solicitors

Jane Veall

Kim Veall’s and Lorraine Pennefather’s evidence about Keith Veall’s condition

Kim Veall
Lorraine Pennefather

Evidence of lawyers who had contact with Keith Veall

Mr Hone
Mr Frederick
Mr Sharp and Mr Weil
Mark Parker

Evidence of the carers

Mr Stephen Hallett
Mr Adrian Hughes
Ms Robyn Hannon

Evidence of friends of Keith Veall

William Hailes
Mr Adrianus De Bruin
Joy Bullmore

Consideration of legal submissions

Did Keith Veall have testamentary capacity on 10 December 2010?
Conclusion on the first ground: lack of testamentary capacity
Ground 2: Want of knowledge and authority
The applicable legal principles
The grounds of suspicion
Submissions relevant to the suspicions
Conclusion on the second ground: the testator did not know and approve the contents of the will

Conclusion

HIS HONOUR:

Mr Arthur Keith Veall (“Keith Veall”) died on 13 October 2011, aged 91 years.

The question is whether his will dated 10 December 2011 should be admitted to probate. The plaintiffs, who are Keith Veall’s son and daughter-in-law, are the executors of the will and they seek its admission to probate. They contend it was executed on 10 December 2010 and that the date of execution recorded in the will was incorrect.

The deceased’s daughter, Ms Kim Veall, objects to probate being granted of the will. The grounds contained in her caveat, which were pursued at trial, were that:

1.The Deceased lacked testamentary capacity during the period shortly before and at the time of the execution of the will.
2.The Deceased did not know and approve the contents of the will.[1]

[1]These grounds, numbered one and two, were numbered two and three in the caveat, but in this judgment I shall refer to them as the first and second ground of objection.

For the reasons given below, I dismiss the first ground of objection, but uphold the second ground of objection.

The will dated 10 December 2011

By the will dated 10 December 2011, Keith Veall appointed his son Mr Rowland Veall and daughter‑in‑law Ms Jane Veall as his joint executors. He gave his fine art oil painting by Anton Fischer and his two Perazzi shotguns to Rowland. He gave his Golden Stambecco shooting trophy to Denise Lodder, his eldest daughter. He bequeathed to his trustees his collections of silver and gold shooting trophies, pocket watches and silver and gold shooting medals to distribute fairly and equally between his children, Denise and Rowland.

He gave his residuary estate, including his “Auspine shares” upon trust for his children, Denise and Rowland, as tenants in common in equal shares.

The will provided for Rowland and Jane to each be paid five per cent of his gross estate as executor’s commission.

The will made no provision for Kim Veall.

The Veall family

Keith Veall married Beryl Kathleen Veall in 1962. She died six months after him on 15 May 2012. They had both been previously married.

Keith Veall was the father of three children, the first and second are children of his first marriage. The eldest was Denise Suzette Lodder born in 1948. The second child is the first plaintiff, Arthur Rowland Veall (“Rowland Veall”), born in 1951. The third child is Kim Louise Veall (“Kim Veall”), born in 1968, who is the defendant and who is Keith Veall’s daughter by his second wife, Beryl Veall.

Ms Lodder was not represented at the trial and not called to give evidence. She was present in Court during the trial and expressed concern that findings might be made concerning her actions without her having the opportunity of giving her account of events. I explained to her that the Court must make findings on all of the evidence, regardless of whether a particular person mentioned in it has been represented or has given evidence. However, it is appropriate that I record the concern that Ms Lodder expressed.

Rowland Veall is married to the second plaintiff, Alexis Jane Roache Veall (“Jane Veall”), who was also appointed as executor of the will dated 10 December 2011.

Beryl Veall was the mother of two daughters: Lorraine Pennefather, the daughter of her first marriage, and Kim Veall, the defendant.

Kim Veall is married and has two sons.

In the course of this judgment, I will, on occasion, refer to members of the Veall family by their first names in order to avoid unnecessary repetition.

Keith and Beryl lived their last years in an apartment in Wallace Avenue, Toorak. They moved to Toorak in 1962, soon after they married, and lived at properties in Edzell Avenue and later in Maple Grove.

Keith Veall’s father, Arthur James Veall, was a wealthy man. When he died in 1983 he left Keith shares valued at approximately $10 million.

Keith Veall lost much of this money in overseas business ventures, particularly in the United States, in the mid‑1980s. However, shares that he acquired in Auspine Pty Ltd (“Auspine”) became very valuable assets. As appears below, the question of the beneficial ownership of those shares became an issue.

There was much evidence that Keith Veall wished to leave his wealth equally to his three children.

Rowland Veall’s relationship with his father

Rowland Veall, upon leaving school worked in his father’s business, Sales Boards Pty Ltd, between 1967 and 1980.[2] That business made punchboards. The Sales Boards business became his business and was extremely profitable.[3] At least some of the expenses of the Veall family were paid from its income. His father sold it while he and Rowland were overseas and took the proceeds off-shore[4] as part of tax minimisation activities.[5]
[2]Transcript (‘T’) 608.
[3]T 608–9.
[4]Ibid.
[5]T 824.

Rowland also worked at Veall Galleries, which was the largest picture framing business in Australia. He performed this work effectively with no direct payment. Veall Galleries was sold in about 1980 or 1981. Rowland was promised one third of the sale price obtained but he did not receive it and the sale price was directed into investment activities overseas.

Rowland had been a majority shareholder in Modern Maintenance Pty Ltd which was the owner of the Edzell Avenue property.[6] When that property was sold, Keith took the sale proceeds off-shore.[7]
[6]T 614, 868.
[7]T 868.

While Keith and Rowland were living in the United States, Keith established The Rowland Veall Trust for his benefit. Shares which were the property of the Trust were sold for a substantial windfall, but Rowland did not receive any of the sale proceeds.[8]
[8]T 612.

Rowland and his wife Jane separated for about five months in 2005–2006. Keith was reluctant to give Rowland property absolutely in case he and Jane divorced and the property went to Jane.

Rowland described his relationship with his father as extremely close. While on occasions it could be volatile, he phoned his father every weekday and they met for lunch most weeks.

Rowland described his relationship with Beryl Veall as originally loving but said that later it became toxic.[9]
[9]T 640.

Kim Veall’s relationship with her father

Kim Veall gave evidence that she had an extremely close relationship with her parents and visited them almost daily and went out to dinner with them on average twice a week. She was with her father when he died.

She said that her two children were extremely close to their grandparents, Keith and Beryl.

Commencing in 1987 and over the next twenty years, Ms Veall worked in advertising and marketing, reaching senior positions. She left work for a time in 2001 after her mother’s car accident and helped care for her father while she was in hospital. She later became a director of Bethal Nominees Pty Ltd, as is described below.

The focus of the evidence at trial

The evidence in the proceeding concerned three issues: first, did Keith Veall have testamentary capacity on 10 December 2010 to make the will of which probate is sought, assuming that to be the date of the will. Secondly, did he know of and approve the contents of that will.

The third issue was whether Keith Veall had a rational reason for making a will in the terms of the will dated 10 December 2011, which departed from the terms of his September 2010 will. This issue was said to be relevant to whether Keith Veall had testamentary capacity to make the will dated 10 December 2011. Much of the evidence was directed to this third issue.

Legal principles relating to the first issue of testamentary capacity

Testamentary capacity is present if, as Dixon J stated in Timbury v Coffee[10], referring to Hood J’s judgment in In the Will of Wilson:[11]

… at the time of making [the will] the testator had sufficient mental capacity to comprehend the nature of what he was doing and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him.

[10](1941) 66 CLR 277, 283.

[11](1897) 23 VLR 197, 199.

In Kantor v Vosahlo,[12] Ormiston JA referred to the judgment of Williams, Fullagar and Kitto JJ in Boreham v Prince Henry Hospital[13] “who first repeated the general proposition that a will made in ‘advanced age’ is always carefully scrutinised by the court” and stated:

The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.[14]

[12][2004] VSCA 235, [12] (Emphasis in the judgment of Ormiston JA).

[13](1955) 29 ALJ 179.

[14]Ibid, 180.

It is sufficient that the testator had capacity at the time of giving instructions for the making of the will.[15]
[15]See the tests set out in Parker v Felgate (1883) LR 8 PD 171,173-174 and cf Vukotic v Vukotic [2013] VSC 718.

The plaintiffs relied on the proposition that, although it needed to be shown that the testator understood that he was executing a will and the practical effect of the central clauses in it, it was not necessary that he understood the legal effect of every clause.[16]
[16]See the authorities discussed in Nicholson v Knaggs [2009] VSC 64, [97].

The parties’ cases

The plaintiffs’ case was that Keith Veall possessed testamentary capacity when he made his will dated 10 December 2011 and he knew and approved its contents. The will was actually executed on 10 December 2010. He excluded Kim Veall from that will because she had already received a substantial share of his assets, which he was now unable to distribute equally between his three children. In particular, she had received a substantial portion of the proceeds of sale of the Auspine shares. He was also concerned that his wife, Beryl, had obtained control of assets which should have belonged to him, including a share of the Wallace Avenue apartment.

Keith Veall had established a new trust, the Keith and Beryl Veall Trust, in 2008 to ensure that his assets were fairly distributed between his children. However, unbeknown to him, under its terms, Rowland and Denise were excluded as capital beneficiaries. When, in 2010, Keith discovered this, he realised that his wish to correct the imbalance in the distribution of his wealth between his three children had been ignored and that the new trust made matters worse. He had always intended that the Auspine shares should be distributed equally between his three children.

The plaintiffs contend that Beryl and Kim took steps to ensure that the capital in The Kim Veall Trust, which was substantially the proceeds of the Auspine shares, was put beyond the reach of Rowland and Denise. They created the Keith and Beryl Veall Trust with Kim as the appointor after her father’s death.

Kim Veall’s case is that, if the will was made on 10 December 2010, her father lacked testamentary capacity and did not know and approve its contents. Her counsel submitted that Keith Veall was not able to weigh matters up, had lost control and insight, and was very fragile mentally. He was incapable of undertaking the task of making a will in December 2010.

Each of the three children had received a share of their father’s wealth. The Auspine shares had been gifted to Kim Veall’s trust in the 1980s.

Kim Veall contends that her father’s estate has been understated in the inventory of assets for probate and was in fact valued at about $2.8 million.

Keith Veall’s previous wills

Keith Veall had made six previous wills, the first in 1976. Each of those wills, other than the first, left at least part of his residuary estate to each of his three children. The 1976 will excluded Denise Lodder and stated that Keith Veall was satisfied that he had adequately provided for her during his lifetime.

The September 2010 will

Keith Veall’s penultimate will of 9 September 2010 is significant because it was made three months before the date when the plaintiffs contend his last will was made. Under the terms of the September will, Keith Veall appointed Denise and Rowland to be his executors and trustees, left his shotguns to Kim’s sons and his residuary estate equally between Rowland, Denise and Kim.

The September 2010 will differed in a few matters from the previous will made on 28 October 2009, which appointed Denise and Rowland as executors, left the Kilsyth South property and a painting to Rowland, left the shotguns to Kim Veall’s sons and divided the residuary estate between his three children.

The September 2010 will had a backsheet bearing Mr Darroll Nelson’s name and address. He was a solicitor, whose involvement with the September and December wills is discussed below.

Keith Veall swore an affidavit dated 8 September 2010, the day before his penultimate will was executed, in connection with contemplated court proceedings. He ultimately commenced proceedings against his wife, Beryl, in the Family Court in December 2010. He sought an adjustment of their interests in the Wallace Avenue apartment. He stated that he was concerned to ensure that each of his three natural children received a fair and proper share of his wealth. Neither Denise nor Rowland had received anything near a third share each. He was unable to understand why the Keith and Beryl Veall Trust excluded them from receiving any benefit.

It was contrary to his understanding, belief and intention that the family homes that he and Beryl had shared had been placed in her name. It was appropriate that he should hold fifty per cent of the Wallace Avenue family home as tenant in common so that his share would pass to Denise and Rowland. He considered that Beryl would provide for Kim in her will. He stated that he had previously established a trust for Kim and had allotted a large parcel of shares that he owned in Auspine to it. He wanted Rowland and Jane to care for him and they had always stood by him and assisted him financially. To enable them to care for him, he required his share of the proceeds of sale of the Wallace Avenue home. He regretted that legal proceedings would be required to obtain the necessary property adjustments to achieve his wishes.

The defendant pointed to errors in Keith Veall’s affidavit, eg Keith’s statements that he had established a trust for Kim and allotted the Auspine shares to it before going offshore. However, I do not consider that these matters are critical in determining whether Keith had testamentary capacity as at 10 December 2010.

Rowland Veall gave evidence that he located a solicitor to provide legal assistance, Rino Di Donato of Hymans solicitors, from the phone book. His office was close to Rowland Veall’s home. In about July 2010, he took his father to see Mr Di Donato, and the next month, his father gave instructions to Mr Di Donato to draw an Enduring Power of Attorney appointing Rowland as his Attorney.

Rowland said that his father had got himself “into one hell of a lot of trouble by signing anything that was put underneath his nose by the people whom he trusted“, including Kim Veall.[17]
[17]T 702-703.

Mr Di Donato referred Mr Veall to Mr Ian Hone, who was a consultant to Hymans, to take steps to try to discover what had happened to his wealth and to institute Family Court proceedings to recover his share of it.

Mr Hone, who is a legal practitioner, practises as a consultant to several legal practices, including Hymans Solicitors and Mr Darroll Nelson’s. He assists small firms by supplying his legal services when they have too much work in progress or when it is of a nature with which they are unfamiliar.

Mr Hone first met Keith Veall around August or September 2010 in Orita’s restaurant in Toorak. Keith often ate at, and held meetings in, Orita’s. Keith wished to ensure that the Kilsyth property, which he had purchased and in which Rowland and Jane lived was transferred into Rowland’s name and that his wealth was equally distributed amongst his family.

Mr Hone said that he met Keith Veall at least six times and that Keith, and no one else, gave him his instructions. By way of emphasising that point, Mr Hone described how on a number of occasions he told Rowland to shut up while he was speaking.

Mr Darroll Nelson was admitted to practice in 1958 and has prepared hundreds of wills. He said that he first met Keith Veall in September 2010 at Mr Hone’s request. He had undertaken work for Mr Hone previously. Mr Hone described their relationship as reciprocal, in that they did work for each other.

The making of the September 2010 will

Mr Nelson said that the only role that he played in connection with the September 2010 will was to witness Keith Veall’s signature after Mr Hone had requested that he attend its execution. This occurred at a table outside Orita’s restaurant in an open mezzanine area at the Tok H Centre in Toorak. Mr Nelson asked a woman who was present in the building to act as the second witness.[18] The process took 20 minutes. Mr Hone, and probably Rowland Veall, were present. Mr Nelson explained the presence of his name and address on the backsheet of the will as being due to him agreeing to be a party to the execution of the will.[19] He presumably meant by this statement that he had played a role in its execution.
[18]T 113-114.
[19]T 114.

Mr Nelson’s evidence about the September 2010 will differed from Mr Hone’s. Mr Hone said that he intended Mr Nelson to draw a will for Keith Veall and he did not give Mr Nelson instructions about its contents. He said that he introduced Keith Veall and Darroll Nelson at the Tok H Centre and then left.[20]
[20]T 162-163.

Rowland Veall’s evidence about the September 2010 will also differed from Mr Nelson’s. He denied that he took his father to sign the will and said that he had no involvement with it. He was quite sure that he never met Mr Nelson in September 2010. He said:

… I think there was some mention of a will being made. But I was out of the loop. My father wanted to do his own thing at the advice of Mr Nelson, as I vaguely recall the situation.[21]
[21]T 739.

Mr Hone’s instructions from Keith Veall

By October 2010, Keith Veall had informed Mr Hone that he had always intended to share his fortune equally amongst his children and that his daughter Kim was not co-operating to enable him to do that. He thought he would have owned half of the Wallace Avenue property and did not realize that he had lost control of the distribution of his wealth. He said that in 2007 or 2008 he had mistakenly placed trust in Kim, believing that she would “do the right thing” upon his death and ensure that his children shared equally in his wealth. He said that the Auspine shares were transferred to Bethal Nominees Pty Ltd, the trustee of The Kim Veall Trust, following verbal assurances given by its directors[22] that it would hold them upon a de facto trust for his three children in equal shares.
[22]Plaintiffs’ Court Book (‘CB’) 206.

Mr Hone gave evidence that in conferences he held with Keith Veall in October and November 2010, he was adamant that his marriage to Beryl was over and that she had managed to take control of his assets and pass control of them to Kim. Mr Hone described Keith as clear and lucid at all times and confirmed his instructions to institute proceedings in the Family Court to seek orders that Beryl’s assets, including the Wallace Avenue apartment, be redistributed equally between them. He said that Keith Veall would tire towards the end of a conference, but “he was well aware that he wanted to get his legal proceedings going in order to correct the imbalance he was now aware of.”[23]
[23]CB 209.

Mr Hone described Keith as distraught and quietly furious when he discovered that Rowland and Denise stood to be excluded from the new Keith and Beryl Veall Trust and also that it was effectively up to Kim to determine whatever income they might receive.

Mr Hone served the Family Court papers on Beryl Veall on 19 January 2011. The Family Court proceeding sought an adjustment of the property rights in the Wallace Avenue property.

The making of the will dated 10 December 2011

Mr Hone gave evidence that Mr Di Donato told him that Keith Veall wanted to make a new will. He knew that Keith Veall wanted to redress the lack of family assets that Rowland and Denise were likely to receive on his death.

Mr Hone and Mr Di Donato agreed that Hymans and Mr Hone should not prepare the will, because they were also acting for Rowland in his pursuit of a greater share of his father’s property. They were also preparing to issue Keith Veall’s Family Court proceedings. They did not want it thought that Rowland had influenced the contents of the new will.

They approached Hardy Erhardt, solicitors, to make the will, as their Toorak office was close to Keith Veall’s home. That firm was unable to attend to the making of the new will promptly, but made their office available for conferences that Hymans might arrange with Keith Veall.

Mr Hone therefore arranged for Mr Nelson to prepare the will.

Mr Nelson’s instructions for the will dated 10 December 2011

On 22 July 2013, the first day of the trial, the plaintiffs sought leave to file affidavits by Mr Nelson and Mr Denis Sholl about the execution of the will and, in the case of Mr Nelson, about obtaining instructions for the will. Mr Nelson’s affidavit had already been prepared, but not Mr Sholl’s. Mr Sholl was a witness to Keith Veall signing the will. Mr Nelson and Mr Sholl had been approached to make affidavits a few days previously, that was some two years and seven months after the will was signed. They had previously sworn affidavits of due execution of the will, which stated that the will was incorrectly dated 10 December 2011, but was in fact executed on 10 December 2010.

Over the objection of the defendant, I gave leave for the affidavits to be filed and relied on.

Mr Nelson said that his affidavit was absolutely true. He stated that Mr Hone asked him to draw up and attend to the execution of a new will for Keith Veall. In early December 2010, he attended Keith Veall to take instructions for a new will. They met at the Tok H Centre. Mr Nelson said that Rowland was also present.[24] He was pretty sure that Mr Sholl was also present,[25] but Mr Sholl did not give evidence that he was. He said that he spent approximately 20 minutes speaking with and receiving instructions for the new will from Keith Veall.
[24]T 116.
[25]T 96.

Mr Nelson stated that Keith Veall wished to leave two shotguns and an oil painting to Rowland, his Golden Stambecco shooting trophy to Denise, and his other shooting trophies and medals and his collection of pocket watches to be divided equally between Rowland and Denise. He wished to take his daughter Kim out of his will. She was thwarting his wishes for an equal division of his assets between his children. He had generated considerable wealth, but did not know how much Beryl and Kim had taken from him. Rowland had looked after him well and he and Denise were in greater need of his financial assistance than Kim. He wanted to change his will so that the small number of assets still under his control would go to them.

Mr Nelson said that he warned Keith Veall that cutting Kim from his will could lead to it being contested. Keith replied that he did not care about that and that Mr Nelson was to do as he had told him.

Mr Nelson said that he was well aware of his obligation to satisfy himself that Keith Veall was competent to give instructions. He observed him closely throughout that meeting and their other meetings. They discussed matters of mutual interest, such as the football and mutual acquaintances as well as matters directly related to the drafting of the will. Mr Nelson had initially mistaken Keith Veall for his brother, for whom he had acted many years previously and so they discussed the relative successes of the two brothers. All Keith Veall’s observations and remarks were clear, coherent, rational and well-expressed. Mr Nelson was left in no doubt that he was a very strong minded person who expected that his wishes would be carried out without demur. He clearly understood the nature of the will and insisted that Mr Nelson follow his instructions precisely in drawing it.[26] During the 20 minutes in which he obtained instructions, he formed the view that Keith Veall “totally had his marbles”[27] and he had no doubt about his capacity to provide proper instructions.
[26]T 96.
[27]T 99.

Mr Nelson did not open a file, but gave evidence that he presumed that he had made a note of Keith Veall’s instructions. He threw the note into the rubbish bin after the will was made. This was at a time, when on his own evidence, he knew that the will might be contested. Mr Nelson said that Keith Veall was not his client in a true sense and that he was not being paid for the preparation of the will.[28] He did not explain why he acted in the matter, if he was not acting as a solicitor or being paid.
[28]T 118.

Ms Moorhouse-Perk’s involvement

After obtaining instructions, Darroll Nelson approached Ms Katherine Moorhouse‑Perks, the present solicitor for the plaintiffs, to type the will. He did so because he could not use a word processor and she had assisted him in other matters. He apparently did not have any staff to assist him.

Ms Moorhouse-Perks gave evidence that over a number of years she had assisted Mr Nelson, sometimes just with typing. He often came to her office in Black Rock twice a week and would give her verbal instructions about documents that he needed typed, while sitting across the desk from her. She did not open a file in such circumstances. She thought that she had typed the will in the pre-Christmas period when she was “ridiculously busy”.[29] But she had nothing to do with the will from the time Mr Nelson left her office.
[29]T 93.

Ms Moorhouse-Perks commenced to act for Rowland Veall after he approached her in February 2012 to apply for probate of the will. She said that she only realised for certain that she had typed the will for which probate was sought when Mr Nelson swore his affidavit on 22 July 2013. She thought that if Mr Nelson believed that it was “my will and it does look like my will then it must be the will that I typed up.”[30]
[30]T 91.

She said that the provision in clause 6 for payment of five per cent executors’ commission to each executor from the gross estate was taken from her will precedent that she gave to clients as an optional clause to insert into their wills. She would have received instructions from Mr Nelson to leave it in Keith Veall’s will.[31]
[31]T 85-86.

Mr Nelson gave evidence that he collected the will a few days after his initial contact with Ms Moorhouse-Perks. He then arranged to meet Keith Veall so that he could sign it. Rowland’s evidence suggests that he arranged that meeting with Mr Nelson.[32]
[32]T 742

The execution of the will

Rowland Veall said that on 10 December 2010, his father informed him that he was going to the Tok H Centre to make a will, although he did not tell him what it was going to contain. He told his father that he left it, presumably meaning his decision to make a new will, up to him. At his father’s request, he drove him to the Tok H Centre, where Rowland met Mr Nelson for the first time.[33]
[33]T 656, 741.

Rowland said that his father was fully aware of why he was being picked up, where he was going and what he was doing. He described his father as very determined to right the wrongs that had taken place over decades and to make sure that at least something could be left to Denise and him.

In addition to Keith Veall, those present, at least initially, included Rowland, Darroll Nelson, Denis Sholl, who was a friend of Mr Nelson’s and had driven him to the Centre, Ian Hone and Ian Hone’s daughter.

Keith Veall signed the will on a table outside Orita’s restaurant in the Tok H Centre. At Mr Hone’s suggestion, he and Rowland moved a distance away from that location for a period of 10 to 15 minutes to avoid any suggestion that he had influenced his father to sign it.[34]
[34]T 657.

Rowland said that he then returned to the table where the will had been signed. He gave evidence that he then signed a Deed of Agreement and Declaration, which is discussed later in this judgment.

Mr Nelson’s evidence was that on 10 December 2010, his friend, Denis Sholl, drove him to the Tok H Centre. They met Keith Veall at a table outside a restaurant. He gave the will to him to read. Mr Nelson went through specific provisions of the will with him and, in particular, the provision that the residue of his estate be divided equally between Denise and Rowland. He explained the parts of the will to Keith Veall in fairly plain English. He said that he did not think that he raised again the fact that he had excluded Kim from the residue of the estate.[35] In oral evidence he said that he “read it from start to finish”.[36] He confirmed with Keith Veall that the will as drawn reflected his wishes and asked him to confirm that the will contained what he wanted done and that it correctly named the gun trophy that was to be bequeathed. Keith Veall also confirmed that the will correctly named the piece of art that he wished to leave. Keith Veall read the will and signed it.[37]
[35]Ibid.
[36]T 103.
[37]T 103-104.

Mr Nelson then remarked on the clarity of Keith Veall’s handwriting describing it as much clearer than his own. Keith replied that he had been well taught and that he had written up his own books throughout his working lifetime. Mr Nelson said that he spent approximately 15 minutes with Keith. He had no doubt that he clearly understood that he was signing a will, was disposing of his assets and the terms of the dispositions that he was making. He appeared excellent and very lucid and he was not left in any doubt as to his capacity to give instructions or to execute a will.[38]
[38]T 105-106.

Denis Sholl gave evidence that he drove Mr Nelson to the Tok H Centre on 10 December 2010. He said that he had not expected to be a witness to the will and was “an innocent bystander”.[39] He said that Keith Veall was brought to the meeting by a man, who left the location where Keith Veall met Mr Nelson. This presumably was Rowland Veall. He said that Mr Nelson gave the will to Keith Veall and he read it. Mr Nelson discussed specific provisions of the will with him, including that the residue of his estate was to be divided equally between two of his children. Keith Veall said that the will as drawn reflected his wishes and then signed it in front of Mr Nelson and him. They then signed it as witnesses. Mr Nelson then said that his handwriting was very clear and compared it favourably with his own handwriting.
[39]T 229.

Mr Sholl described Keith Veall as obviously physically frail, but mentally alert. His speech and expression were clear and at times forceful. He was articulate, rational and lucid in his observations. He appeared to have no difficulty in understanding the terms of the will and said that it accurately reflected his wishes. The process of explanation and signing of the will took approximately 15 minutes. They then spoke with Keith Veall about general social matters and were in his company for 25 to 30 minutes in total.

Rowland Veall said that after the will was signed, he and his father had a light lunch. The signing of the will and the lunch took about an hour. He then took his father home.

Kim Veall said that she did not see her father on Friday 10 December 2010, but did see him on the following Saturday and Sunday and he was in a “poor” way.[40] She did not learn about the December will until long after her father died and Rowland did not tell her about it, when they met a few weeks after their father’s death.[41]
[40]T 963.
[41]T 963.

The Deed of Agreement and Declaration

Keith Veall also signed a Deed of Agreement and Declaration dated 10 January 2011.[42] The document recited that he desired to provide for his future care and had determined to realise his investment in the Wallace Avenue property and to settle his interest in its sale proceeds upon Rowland, to hold on trust for the discharge of his future health and assisted accommodation costs. The Deed then contained a declaration by Rowland that he would hold the property on trust for his father, invest it, exercise fiduciary care in the management of the investment and income and apply the income for the advancement and care of his father. The Deed then provided that in consideration of the services referred to:

The trust fund shall vest in ARTHUR ROWLAND VEALL upon the decease of ARTHUR KEITH VEALL.

[42]Exhibit (‘Ex’) C.

Rowland signed the Deed next to the inscription “DECLARED A TRUST BY ROWLAND VEALL”. That latter inscription initially bore the year 2010 in printed form, but was altered in handwriting to “2011”.

The source of the instructions for this Deed was not fully explained in the evidence.

Rowland said that his father signed the Deed on the same day that he signed the will. No other witness gave evidence that this had occurred.

Mr Nelson said that he thought that Ms Moorhouse‑Perks had advised that the document was necessary to implement Keith Veall’s wishes fully.[43] He said that he first took instructions for the document over the Christmas period when he met with Keith Veall again at the Tok H Centre. He was “pretty sure” that Denis Sholl was present,[44] although Mr Sholl gave no evidence about the issue. He was unsure who arranged that meeting. He thought that he had told Rowland Veall that he needed to see his father again with a further document and asked him to set up the meeting.[45] He informed him that Ms Moorhouse‑Perks had advised of the need for a further document to be used in conjunction with the will.[46] Ms Moorhouse‑Perks was not then acting as solicitor for Rowland or Keith Veall. He had not given her any instructions to prepare the Deed and she had done so unsolicited.
[43]T 121.
[44]T 96.
[45]T 127.
[46]T 128.

Mr Nelson said that neither Keith nor Rowland Veall had given him any instructions for the preparation of the Deed. But he did say that Keith Veall was most anxious that all his affairs be handled by Rowland and that he was adequately provided for.[47] He could not identify the handwriting on the document. He said that he met with Keith and Rowland Veall and explained the document to them and that Keith Veall knew its tenor. At that time, Keith’s condition was undiminished: he was “cogent, coherent, firm and understanding”.[48]
[47]T 96.
[48]T 108.

Mr Nelson’s evidence concerning the creation of the Deed was unclear and inconsistent. He appeared uncertain as to how the document came into existence, whether he met Keith Veall to gain instructions about it and when it was executed.

Ms Moorhouse-Perks said that she did not have a specific recollection of the document, although it did appear to be prepared on paper that she was using in December 2010 and January 2011. She said that it was probably typed in the same conference in which Mr Nelson asked her to type a will. She had used a precedent Deed of Trust, which contained references to a property at Frankston. She gave the Deed to Mr Nelson and that was the last she saw of it.

Was the will executed on 10 December 2010?

An issue of potential importance arose about the date that the will was in fact executed. The plaintiffs’ case is that Keith Veall executed it on 10 December 2010, but it is incorrectly dated 10 December 2011. The backsheet of the will bore the date January 2011. The attestation clause has the year 2011 and December typed in. The defendant submitted that these features suggested that the will had been prepared to be, and was in fact, signed in January 2011. It was likely that Ms Moorhouse-Perks had prepared the Deed after her meeting with Mr Nelson and he had then collected both documents and had them executed in January 2011.

A number of the plaintiffs’ witnesses, including Rowland Veall, Mr Nelson and Mr Sholl swore that it was signed on 10 December 2010. Mr Nelson said that it was all over the Christmas period and then said that it was in early or mid-December.[49] Ms Moorhouse-Perks said that the meeting with Mr Nelson at which she typed the will and Deed was “in the busy period of Christmas”.[50]
[49]T 95, 97, 122.
[50]T 67

The defendant contended that another event of significance occurred on 10 December 2010, and that therefore the will could not have been signed on that day. That other event was that Rowland and Jane Veall attended the Wallace Avenue apartment and, after some angry words with Beryl, removed personal items from a display cabinet.

Rowland gave evidence that Keith told him to go and take some “trinkets” from the display cabinet. But he said that this did not occur on the same day as the will was signed and, although he was not sure, he thought it had occurred on a day prior to that event.[51] Rowland and Jane prepared and signed a list of the items that they intended to take from the display cabinet. The document is headed “The list of my possessions I want Rowland to collect”.[52] It bears Keith Veall’s signature and the date 10/12/2010. It contains eight categories of items each with Keith’s initials placed in a column, which is headed “Approved by Keith Veall.”
[51]T 754-755.
[52]Defendant’s Court Book (‘DCB’) 112.

Beryl Veall’s diary contains an entry for Friday 10 December 2010 at 1pm stating:

Rowland, Jane, Steph & Isabelle
11am to 1pm.
R.V.– Removed gold medals 6 to 8
Denise 2 Statute (sic), Large & small Stambeca.[53]

[53]Ex 21.

Jane Veall disputed that items were collected on Friday 10 December 2010. She said that both her children were present when the items were collected and they would have been at school on 10 December 2010. In addition, Stephen Hallett, who cared for Keith on Tuesdays and Thursdays was present.[54] Ms Robyn Hannon, who was a carer for the Vealls on Fridays, was not present.
[54]CB 1604.

Kim Veall gave evidence that her mother told her on 10 December 2010 about this incident. When she rang her mother, she could not talk because Rowland and his family were there. Later in the day, her mother told her that it was a ”shocking event”.[55]
[55]CB 31.

Finding as to the date the will was executed

I find that the will was executed on 10 December 2010, but erroneously recorded the year as 2011. Everyone who attended the Tok H Centre in connection with the signing of the will, who gave evidence said that the date was 10 December 2010, although in oral evidence, some of them were more certain about the date than others.

Kim Veall said that her mother told her that Rowland and Jane’s removal of items from the display cabinet occurred on 10 December 2010 and Beryl’s diary entry is to that effect. However, there are three reasons to accept that the will was executed on 10 December 2010. First, as stated above, there is the evidence of a number of witnesses that the will was executed that day. Secondly, the carer Robyn Hannon said that the event probably occurred on one of her rostered days on at Wallace Avenue, which were Tuesday, Thursday and Sunday.[56] Thirdly, Rowland and Jane’s daughters were present and, in the ordinary course, they would have been at school on a Friday.
[56]T 1027, L17-18.

In any event, as counsel conceded, the issue of the date of the will, whether it be 10 December 2010, or perhaps the date of the Deed, which was 10 January 2011, did not have a direct bearing on the issue of Keith Veall’s testamentary capacity.[57] There was no suggestion that it varied in that period. The issue went more to whether the Court should accept the evidence of witnesses, who said that the will was executed on 10 December 2010.
[57]T 1190, 1235.

Keith Veall’s gifts to his children

The plaintiffs’ explanation for Keith Veall making a new will in December 2010 was that he considered that Kim had received a disproportionate share of his wealth and that Rowland and Denise had not received an equal share of them. Much of the evidence at the trial concerned this issue and the related issue of the steps that the plaintiffs contend that Keith Veall took to attempt to regain control of his assets. The consideration of this detailed evidence occupies a substantial part of this judgment.

The first aspect of this evidence is the share of Keith’s wealth that Kim, Rowland and Denise received. This requires consideration of two trusts.

The Kim Veall Trust

In November 1980, Keith Veall created the Kim Veall Trust, with Bethal Nominees Pty Ltd (“Bethal Nominees”) as its trustee and Kim Veall as its primary beneficiary. Keith and Beryl were discretionary beneficiaries, but Denise and Rowland were not beneficiaries.[58]
[58]CB 1250, 1266.

Mr Gary Martin and Mr John Woods, who were directors of Bethal Nominees, gave evidence as part of the defendant’s case. Other directors included Keith Veall and Lorraine Pennefather. Beryl was a director until 1985.

Mr Martin was appointed a director of Bethal Nominees in 2008. He first met Keith Veall in the early 1980s and became his accountant. He was a partner in the accounting firm UHY Haines Norton in Melbourne.

Mr Woods was appointed a director of Bethal Nominees in 1999. He had worked in stockbroking and banking. Mr Woods considered himself to be Keith Veall’s long‑term trusted advisor and friend and, at one point, held his financial power of attorney.

Mr Woods and Mr Martin were executors of Keith Veall’s will made on 4 July 2007.

The Kim Veall Trust owned real estate, including the Henley Farm in the Yarra Valley of about 29 hectares and property in Werribee. It also owned shares, including a significant shareholding in SEAS Sapfor, later renamed Auspine Pty Ltd. Auspine was an ASX listed forestry and timber company with large pine plantations and sawmill processing facilities in several states. Keith Veall became a director of Auspine in 1980 and was its second largest shareholder. He was introduced to Auspine by Mr Adrianus De Bruin, who was its largest shareholder.

The plaintiffs contend that Keith Veall transferred the Auspine shares to Bethal Nominees because he had creditors chasing him following his financial predicaments in the 1980s. The shares were only “parked” in Bethal Nominees, ie transferred to it for a limited time. He intended that the shares would remain his property and would benefit all his family.

In the mid-1980s, Keith and Rowland moved to the United States to pursue investment opportunities and because Keith feared that the Australian Government would introduce a wealth tax. Keith moved many of his assets off-shore. They lived in the United States, particularly in Texas, between 1985 and 1988. Beryl and Kim Veall visited them.

During this period, Keith lost most of his fortune and incurred considerable debt. He and Rowland returned to Australia in the late 1980s. Assets of the Kim Veall Trust, including the Henley farm, were sold to help pay the debt, and dividends paid by Auspine were used to pay bills.

Beryl obtained a loan to purchase an apartment in Maple Grove, Toorak, in which she and Keith lived.

In 2001, Beryl was seriously injured in a motor vehicle accident and was in hospital for months.

In 2002, Kim Veall and her husband sold their home in East Hawthorn and together with Beryl, purchased a home in Kooyongkoot Road, Hawthorn. Beryl purchased a half share of the property using funds from the sale of the Maple Grove apartment and money that she received from a Transport Accident Commission claim arising from her motor vehicle accident. Beryl and Keith moved into a bungalow on that property. That arrangement was intended to be temporary, while Kim and her family provided Beryl with care and support.

In this period, Keith also stayed a few nights a week at a rented property at Devon Meadows, where he was able to pursue his passion for pigeon racing.

In 2008, Beryl suffered a heart attack and underwent life-threatening surgery. On 23 July 2008, she transferred her half-share in the Kooyongkoot property to Kim. Kim said that this was because her mother thought she was going to die and that Keith was aware of the transfer.

The Auspine shares

In 2007, Gunns Limited made a takeover offer for Auspine. Bethal Nominees accepted the offer and received approximately $36 to $37 million for its Auspine shares. That sum was paid to The Kim Veall Trust and invested in four National Australia Bank term deposits.

Kim Veall had been employed in the advertising industry. On 21 June 2007, she was appointed a director of Bethal Nominees and ceased that employment. She received about $8,800 per year in director’s fees.

Evidence about the trust assets

The plaintiffs’ case was that the Auspine shares were settled on Bethal Nominees as trustee for The Kim Veall Trust on the understanding that the shares were to be for the benefit of the Veall family.

However, Kim Veall’s evidence was that the Auspine shares were always intended to be an asset of The Kim Veall Trust. She said there was no suggestion that they were to be “parked” in the Trust. She first learned of that suggestion when she read of it in her father’s Family Court affidavit.

Occasionally, both Keith and Beryl Veall obtained distributions from The Kim Veall Trust to pay for bills.

In June 2007, the directors of Bethal Nominees agreed to make a capital distribution to Keith of $2 million from The Kim Veall Trust. He used about $1.4 million of that sum to purchase a property at Kilsyth South to provide a home for Rowland and his family. The transfer of that property to Rowland was signed in August 2010, but it was not registered until 2011 after $81,000 in stamp duty was paid.

Keith Veall used the balance of the $2 million to pay the deposit on an apartment in East Melbourne, which Denise Lodder had contracted to purchase for $4 million.[59] Bethal Nominees ultimately became the purchaser of that apartment and it is an asset of the Keith and Beryl Veall Trust. Kim Veall’s company, Acorn Pty Ltd, is a mortgagee of the apartment.
[59]DCB 12 [32].

In December 2007, Keith received a capital distribution of $200,000 from The Kim Veall Trust and he gave $75,000 each to Denise and Rowland and kept $50,000 for his personal use.

In mid‑2008, Bethal Nominees made a capital distribution to Keith of $3 million from The Kim Veall Trust. Keith used part of that distribution to purchase a property for Denise in Balwyn for approximately $1.5 million.[60]
[60]DCB 14 [37], 20 [60].

In May 2008, the directors of Bethal Nominees approved a capital distribution of $3.5 million to Beryl Veall from The Kim Veall Trust. She used that sum to purchase the Wallace Avenue apartment, in which she and Keith spent most of the rest of their lives.

Keith sometimes gave his children cheques for $20,000, $50,000 and $75,000. In one year he gave them each $120,000.[61]
[61]DCB 16-17 [49].

The Keith and Beryl Veall Trust

On 5 February 2008, the Keith and Beryl Veall Trust was created, with Bethal Nominees the trustee. Patrick Sweeney of Donaldson Trumble solicitors was the settlor. The Trust Deed was drawn by Harwood Andrews solicitors on Mr Sweeney’s instructions.[62]
[62]CB 1210.

The primary beneficiaries of the Trust were Keith and Beryl Veall and it was intended, at least initially, to provide for their care. The General Beneficiaries were the Primary Beneficiaries and other classes including:

The parents, grandparents, brothers, sisters, spouses, widows, widowers, children and grandchildren of the Primary Beneficiaries and the spouses, widows, widowers, children and grandchildren of such parents, grandparents, brothers, sisters, spouses, children and grandchildren.

Upon Keith’s death, Kim Veall would become the appointor under the terms of the Trust.

Keith and Beryl Veall received living expenses of $15,000 each month from the Keith and Beryl Veall Trust. Their expenses were high, as they dined out most days and regularly travelled on holidays.

The Trust contained a class of Excluded Beneficiaries, who were defined as follows:

Excluded General Beneficiaries (Capital)
Excluded General Beneficiaries (Capital) who are General Beneficiaries except that Excluded General Beneficiaries (Capital) are excluded from and are not eligible for distributions of capital of the Trust Fund under clause 6.

Rowland and Denise were excluded as general beneficiaries of the capital of the Trust, but they were income beneficiaries. There was debate at the trial as to why they were excluded as capital beneficiaries. The plaintiffs submitted that the directors of Bethal Nominees took steps to ensure that the trust was drawn so that the capital in The Kim Veall Trust was preserved and put beyond the reach of Rowland and Denise. Kim Veall denied this was the case and said that the exclusion was made on her father’s instructions. She said that her father believed that Rowland and Denise did not manage money well.[63]
[63]T 884.

Kim Veall’s evidence was that her father and Mr Martin went to see Mr Sweeney at Donaldson Trumble Lawyers about the new trust. She said that she did not attend the meeting, but did say that she appeared to have attended a meeting on 17 September 2007.[64] Mr Martin said that she did not attend the relevant meeting. Mr Sweeney was not called to give evidence.
[64]T 1006.

Mr Martin agreed that the Board discussed the exclusion of Rowland and Denise as general beneficiaries so that they would have no claim on the Trust capital.

On 27 September 2007, Mr Sweeney wrote to Kim Veall and Gary Martin, but not to the other Bethal Nominees’ directors, setting out the proposed terms of the Keith and Beryl Veall Trust and enclosing a draft deed of trust, which excluded Rowland and Denise as capital beneficiaries. His letter stated in part:

Please peruse the deed and in particular the class of general beneficiaries so that we can discuss any requirements you might have to limit this class. However, in my opinion if the control of the trust through the trustee and appointor is restricted, then it would be very difficult, if not impossible, for a person who is merely eligible as a member of the class general beneficiary to make a claim on the capital or income of the trust.[65]
[65]Ex X.

The vesting of the Kim Veall Trust

On 17 July 2008, ie some five months after the creation of the Kim and Beryl Veall Trust, the directors of Bethal Nominees resolved to wind up The Kim Veall Trust. They resolved that Bethal Nominees as trustee would vest the trust fund of The Kim Veall Trust and that it would be divided into three parts or shares and paid or applied as to one‑third part or share of the capital and income to Keith Veall and as to two‑third parts or shares to Kim Veall.[66]
[66]CB 1167–71.

The Trust vested and Kim Veall received at least $10-12 million with the remaining one‑third of approximately $5 million being paid to Keith and Beryl. That sum of $5 million provided the funding for the Keith and Beryl Veall Trust.

There was some evidence that Kim Veall had previously received $5.0 million from the sale of the Auspine shares.[67] Her evidence suggested that she paid that sum into her investment company, Akorn Nominees Pty Ltd,[68] which in turn provided part of the funds to purchase the East Melbourne apartment previously referred to.
[67]CB 1164. Counsel for the defendant disputed that any additional $5 million was paid to Kim Veall T 1211.
[68]T 984-986.

Kim Veall’s evidence[69] when read with estimates of Mr Woods, made in 2008,[70] suggest that the Auspine funds were distributed as follows:
[69]T 934-936, 978.
[70]CB 1164.

(a) Over $6.6 million was paid in tax by Bethal Nominees;
(b)$2 million was used to pay tax owing by Keith and Beryl. In addition they each received the sum of $2.5 million ie a total of $5 million;
(c)Another $800,000 to $900,000 was used to pay expenditure incurred by Keith. For example, he spent $250,000 in only 20 days during a holiday in Thailand, including to purchase two cars, one to use in the north of the country and another in the south;
(d)Kim received approximately $10 million on 17 July 2008[71] and a further sum of approximately $2.9 million[72] (there was cross-examination suggesting that she received more).
(e)Lorraine Pennefather received $500,000;
(f)Mr Woods was paid a success fee of $500,000 as a professional adviser for his role in securing the sale of the Auspine shares.

[71]T977.

[72]$800,000 -$900,000 of this amount was the repayment of a loan: T 935-936, 978 -979.

There were also the capital distributions from The Kim Veall Trust and property transactions referred to previously. These included the $1.5 million used to purchase the Kilsyth South property for Rowland. Beryl Veall had transferred her half-share in Kooyongkoot Road, worth approximately $2 million, to Kim. The Wallace Avenue property, which was worth approximately $3.3 million, was purchased solely in Beryl Veall’s name with funds that she received from a capital distribution from The Kim Veall Trust.

Keith Veall paid some school fees for both Kim’s and Rowland’s children, but probably greater sums for Kim’s children.

The evidence that I have discussed supports a finding that Kim Veall received considerably more of her father’s wealth than Rowland and Denise did. It is unnecessary to attempt to be exact, but it appears that she received at least $10 million more than Rowland and Denise.

However, no child was overlooked by Keith. He told his friend, Mr Adrian De Bruin, after the sale of the Auspine shares, that “each of his kids now had a new home of their own and that the balance of the proceeds would be divided equally between them”.[73]
[73]CB 251–2 [19].

Keith Veall’s attempts to obtain information concerning his assets

The plaintiffs relied on Keith’s attempts between 2007 and 2010 to obtain information concerning the location of his assets and to regain property held by Beryl and Kim, to explain why he made the new will in December 2010.

They contended that from mid-2007, Keith Veall came to understand that much of his property was beyond his reach, including the proceeds of the sale of the Auspine shares, the Wallace Avenue apartment and the half share in Kooyongkoot Road. The Keith and Beryl Veall Trust excluded Denise and Rowland from distributions of capital. He intended his will made on 10 December 2010 to correct the imbalance in the distribution of his wealth.

Rowland Veall gave evidence of a meeting in 2008 where his father told Mr Martin and Mr Woods that the Auspine shares had been “parked” in The Kim Veall Trust. This statement may have been made at the meeting held on 28 February 2008 in the boardroom of UHY Norton accountants. Denise and Rowland’s accountant also attended that meeting. According to Rowland, Mr Martin and Mr Woods told Keith that he was not “getting anything out of the Auspine proceedings.” His father said: “I want the money out. I want it opened up.” In as many words, he said: “It’s my money. Hand it over.”[74]
[74]T 620.

Rowland and Keith Veall engage lawyers

In the second half of 2008, Rowland and Keith contacted Mr Ronald Frederick, who then worked as a solicitor with Holt & McDonald. Mr Frederick, who is an accredited estate specialist and has many years’ experience of preparing wills, gave evidence that he was asked by Rowland to assist his father. Whilst Keith Veall indicated some concern to discover what had happened to his wealth, his primary concern at that point was to ensure that the Kilsyth property, in which Rowland and Jane lived, would be Rowland’s after his death and that any other assets would be shared equally by his three children. Mr Frederick considered that it was commercially beneficial to wait to transfer the Kilsyth property to Rowland until after Keith Veall’s death because stamp duty was not payable on a transfer from an estate to a beneficiary.

On 16 September 2008, Keith Veall together with Mr Woods and Mr Martin, wrote a letter to Denise and Rowland under the heading of The Kim Veall Trust, stating:

Your father, Keith Veall, has pointed out that you both continue to make demands on him for financial support, seemingly on the basis that the money will be forthcoming from The Kim Veall Trust.
In this regard, you are reminded of the conference of 28 February 2008 at Gary Martin’s office where it was clearly pointed out that neither of you are beneficiaries of The Kim Veall Trust and cannot benefit under the terms of the deed of that trust. Legal opinion confirm that this is so.
Consequently, distributions from The Kim Veall Trust cannot be made to either of you even if Keith Veall was to request that the trustee make such distributions to you.
Please therefore take note that distributions will not and cannot be made to you from The Kim Veall Trust.[75]

[75]CB 707.

Rowland said that when he showed this letter to his father he was appalled.[76]
[76]T 691.

On 12 June 2008, John Woods informed Kim Veall that:

Keith had spoken to both Gary and I before the Board meeting of his determination to leave 1/3rd each of the Trust to each of Kim, Denise and Rowland.[77]

[77]CB 1165.

On 7 October 2008, John Woods and Gary Martin wrote to Rowland Veall requesting that he return personal papers that he had taken from the Wallace Avenue apartment while Beryl Veall was in hospital. Rowland Veall replied that he had acted at his father’s request, but he agreed to, and did, return the papers.[78]
[78]CB 1580.

On 13 October 2008, Mr Frederick provided Rowland with a copy of the Keith and Beryl Veall Trust Deed and he then learned that he and Denise were excluded as capital beneficiaries. He said that his father was riled when he told him of this provision.

Mr Frederick prepared and witnessed Keith Veall’s will dated 20 October 2008. It appointed Denise and Rowland as executors. It left the Kilsyth South property to Rowland, the shotguns to Kim’s sons and the residue of his estate to be divided equally between his three children.

He asked Keith Veall why there was no provision for Beryl in that will and Keith said that the primary purpose of it was to ensure that his son received the Kilsyth property.

Mr Frederick said that his practice, when taking instructions from a new client, was to first obtain an understanding of the family tree and to see if there were any special circumstances pertaining to any of those family members. He would send out draft copies of the will within two weeks of instruction and he would keep notes of his instructions.[79]
[79]T 318.

Mr Frederick said that his practice at the execution of the will was to read the will through to the client paraphrasing the major dispositions, but not reading the administration clauses unless the client had a query. His note said that he read through the will fairly slowly and carefully to Keith. This may have been because he regarded him as an elderly gentleman and he wanted to make certain that he understood the will fully.[80]
[80]T 322-323.

Thereafter, Mr Frederick’s engagement extended to discovering what had happened to Keith Veall’s wealth, particularly to the proceeds of the sale of the Auspine shares, and why the new trust effectively made Kim Veall the sole beneficiary of the capital assets. His instructions primarily came from Rowland, who had Keith’s authority for that purpose.

On 3 April 2009, Keith executed a codicil to his will of 28 October 2008, providing for a bequest of a painting to Rowland and otherwise confirming that will. At their meeting that day, Keith informed Mr Frederick that he believed that “Beryl is putting her daughters ahead of Rowland and Denise”.[81]
[81]CB 730.

On 26 October 2009, Mr Frederick made a file note that:

Rowland rang on the morning of 26 October 2009 saying his father is confused and people are putting pieces of paper under his nose and they want him to re-sign his will.

Mr Frederick could not say who “they” were, but he assumed it was other members of the family.[82]
[82]T 324.

Mr Frederick met with Keith Veall on 28 October 2009 and his file note records that he told Keith that Rowland was concerned that people may have slipped a new will in front of Keith for signing and that he may have made a will that he did not understand or approve.

So Mr Frederick prepared what he said was a “boots and braces” confirmatory will dated 28 October 2009 which repeated the terms of the 2008 will and codicil.[83]
[83]T 330; CB 1408.

Events in 2010

In 2010, the Board of Bethal Nominees discussed the concerns that Rowland and his lawyers had expressed about the distribution of Keith’s property.

The Bethal Nominees Board met on 18 February 2010. The minutes record under the heading “General Business”, Keith Veall’s statement that Rowland and Denise had concerns regarding their entitlements under the Trust Deed and wanted money “now”. They were questioning him over why they weren’t receiving any substantial funds from the Trust (in addition to the personal gifts he had been giving them). He reported to the Board that Rowland was quite “savage” over not having access to the Trust Funds and that in his mind, he “was being cheated”. Keith expressed concern that Rowland was seeing a solicitor and calling him every day over the matter. The minutes record:

Most alarmingly, [Keith Veall] alerted the Board to the fact that he did not know the lengths Rowland might go to (to get money) and that his anger was targeted towards the Directors. In particular, [Keith Veall] confirmed the various discussions he had with [Kim], whereby he alerted her to the fact that both her life and that of her ‘boys’ … were under threat (due to Rowland’s misconceptions). This caused great concern and alarm amongst the Directors and it was agreed that Rowland and Denise needed to be made clearly aware of the Trust’s obligations and the purpose once again.
The other Directors reminded [Keith Veall] of previous discussions the Board had on the matter at past meetings, whereby it was confirmed on numerous occasions that both Rowland and Denise were discretionary beneficiaries of the trust, as per [Keith Veall’s] instructions to Donaldson Trumble Lawyers.
It was further explained that the Trust currently generated an income of $250k, even though there was a need for more than $400k to meet the needs of [Keith Veall] & [Beryl Veall’s] lifestyle expenses and tax payments. Therefore, making any further income distributions to other beneficiaries at this time, [was] difficult.
It was agreed, in line with previous meetings, that the first obligation of the Trust was to meet the personal requirements of both Keith and Beryl, ahead of anyone else.
[Gary Martin] & [John Woods] offered to speak to Rowland and Denise to assist [Keith Veall] in explaining the situation and to hopefully clarify it once again. [Keith Veall] advised the meeting that he would speak to Rowland and Denise regarding the Trust and the need for both he and [Beryl Veall] to come first, but declined the offer of support from [Gary Martin] & [John Woods] to be in attendance.[84]

[84]CB 1272.

On 16 April 2010, Mr Frederick wrote to Mr Martin and Mr Woods enclosing Keith Veall’s authority to obtain a copy of his current Trust Deed and a brief summary of the current financial position of the Trust.

On 26 May 2010, Mr Martin replied on behalf of Bethal Nominees indicating that a copy of the Trust Deed would be provided, agreeing to a meeting and stating that the new Trust had had very little activity in the period to 30 June 2008.

On 10 June 2010, Mr Martin and Mr Woods met with Keith Veall and Mr Frederick and discussed how the assets from The Kim Veall Trust were distributed and why the Keith and Beryl Veall Trust was established. Mr Frederick explained that Rowland Veall was aggrieved that he had no capital entitlement under the terms of the new Trust.

Mr Frederick’s note of that meeting stated that Keith Veall wished to meet the two Trustees and Rowland, so that Rowland could be told the present situation.[85] Keith was not happy about the information flow from Bethal Nominees.
[85]CB 218–9.

The Bethal Nominees Board met again on 17 June 2010 and discussed a letter received from Holt & McDonald. The minutes record that, when asked whether he wanted to talk to the letter, Keith Veall appeared uncertain and unclear as to its contents and did not wish to comment on it.[86]
[86]CB 1275.

In August 2010, Keith Veall appointed Rowland as his attorney pursuant to an Enduring Power of Attorney. He obtained the Power of Attorney because he considered that his father would sign anything that people put in front of him.[87]
[87]T722-723.

At about this time, Hymans solicitors commenced to act for Keith and Rowland Veall in place of Holt and McDonald. Mr Frederick said that he ceased to act because he did not have the time to investigate the Trust.[88]
[88]T 330.

On 18 August 2010, Hymans solicitors wrote to Kim Veall and the directors of Bethal Nominees, stating that Keith desired, and intended, to effect a distribution of the family fortune between his three children. They wrote, in essence, that unless the assets formerly in The Kim Veall Trust were made available for distribution between the three children, Keith’s intentions could not be achieved. They sought a favourable reply to avoid the need for litigation.

On 1 September 2010, Rowland Veall emailed Hymans stating, inter alia:

Dad again said today that Jane and I are going down the wrong path and keeps saying that everything will be all right but in saying this he cannot produce any documentation or other proof that this is the case.[89]

[89]Ex 20.

On 6 September 2010, Beryl received a letter from Hymans, who were acting for Keith, stating that the Wallace Avenue property was to be sold and a caveat was to be placed on the property on Keith’s behalf.[90]
[90]CB 316, 418.

On 7 September 2010, Mr David Sharp of counsel met Keith, Rowland and Ian Hone for lunch at Orita’s restaurant to obtain instructions, with a view to acting for Rowland.[91]
[91]T 420.

On 8 September 2010, Beryl executed a new will.[92]
[92]CB 650.

On 9 September 2010, Hymans wrote to Mr Sweeney of Donaldson Trumble, requesting copies of Financial Statements, Books of Accounts and all other financial records of the Keith and Beryl Veall Trust.

On 9 September 2010, Keith executed a new will, his penultimate will, the terms of which have been described previously.

Between 10 September and 1 October 2010, Keith and Beryl holidayed in Noosa.

On 15 September 2010, Hymans lodged a caveat on the title of Wallace Avenue on Keith’s behalf. Beryl learned of the caveat upon her return from Noosa.

On 7 October 2010, Hymans solicitors repeated its request contained in its letter of 9 September 2010 and stated that they had been instructed to issue legal proceedings to enable inspection of the documents requested.

Donaldson Trumble replied on 29 October 2010, stating that the assets of The Kim Veall Trust were intended for Kim Veall as principal beneficiary and disputed that Keith had been denied access to the requested financial documents.

In the meantime, Keith Veall signed a letter dated 15 October 2010 addressed to Gary Martin and John Woods, which stated:

As Trustees of the Keith and Beryl Veall Trust I am writing to you to request the amount of $100,000 to be paid into my National Bank cheque account by Friday 22^nd October to cover legal and accounting expenses.
Please direct any correspondence to my Attorney, Rowland Veall...[93]

[93]CB 552.

On 20 October 2010, Gary Martin and John Woods met Keith Veall for lunch at the RACV Club. They read him the letter of 15 October 2010, but he said that he had neither signed nor sent it. Mr Martin was concerned about Keith’s inability to understand matters and so, that afternoon, he wrote to him about the letter of 15 October 2010 stating:

You advised me that you had not sent John and me a letter and that we should not do anything at this stage. Further, we agreed that we would arrange a meeting of directors of Bethal Nominees as soon as possible, and tentatively noted 4 November 2010, subject to the availability of Kim and Lorrie.
I indicated to you that the Trust was not generating income at a level to provide $100,000 to you at this time as quarterly tax commitments are due on 28 October 2010 for you and Beryl. I will arrange for these tax payments to be made on your behalf by the due date.
Although your letter indicated that we should communicate with Rowland, I thought it was appropriate to address this letter to you as you had no recollection of signing the letter to John and me of 15 October 2010.[94]

[94]CB 557.

Mr Hone stated in his affidavit that he and Mr Di Donato attended at least part of this meeting, but it is likely that he was mistaken and that he had in mind another meeting at the Tok H Centre that occurred on 23 November 2010.[95]
[95]T 177, 386.

Mr Hone gave evidence that Keith was surprised that he could not direct the operations of the Keith and Beryl Veall Trust. He was distraught to discover that the Trust had been drawn so that Rowland and Denise stood to be excluded from any distribution and that it was effectively up to Kim to determine whether they received any distribution of income from the Trust.

On 5 November 2010, Keith Veall met with Mr Richard Weil of counsel in connection with Family Court proceedings.

The Bethal Nominees Board met again on 11 November 2010. Correspondence from Hymans Solicitors of 8 September and 29 October 2010, and replies from Donaldson Trumble, were tabled.[96] Hymans’ letter stated that it was acting for Keith and Rowland and had instructions to sue Bethal Nominees to obtain orders for the matters that they demanded. The Board members sought to involve Keith in discussions, but he did not contribute to the decision‑making process and went along with resolutions adopted by the remainder of the Board.
[96]DCB 459.

Mr Woods and Mr Martin raised the fact that Keith had signed a letter seeking payment of $100,000 to Rowland. Keith repeated that he did not recall the letter and said that “Rowland brings me things to sign”.[97]
[97]CB 1279.

On 23 November 2010, Keith, Rowland, Mr Hone, Mr Sweeney and Mr Garry Martin met at the Tok H Corporate Centre and discussed aspects of the Keith and Beryl Veall Trust and Veall family financial matters.[98]
[98]Ex 10.

After the meeting, Hymans wrote to Donaldson Trumble, and confirmed their client’s instructions to request:

That Arthur Rowland Veall and Denise Suzzette Lodder to be included as Capital Beneficiaries and Joint Appointors together with Kim Veall under the Arthur Keith Veall and Beryl Kathleen Veall Trust.[99]

The letter also sought financial documents and information.

[99]CB 574.

The Bethal Nominees Board met again on 1 December 2010. The minutes record that:

Patrick Sweeney attended the meeting to give advice to the Board in relation to a letter received from Hyman’s dated 23^rd November, 2010, following a meeting with AKV, Rowland Veall and Hyman’s Solicitors.
The Hyman’s letter of 23 November, 2010 was tabled.
Patrick recommended that AKV should not be part of the Board meeting, due to his conflict of interest, as AKV was supposedly the instigator of legal action as well as being a Director.
The Board decided to continue with AKV present.
It was agreed that Donaldson Trumble would respond on behalf of the Bethal Board to Hyman’s Solicitors.
AKV expressed his desire to “get rid of Rowland and Denise”, so he could go to the undertaker with peace of mind.
AKV stated that he would prefer BKV to have her own account and trust.[100]

[100]DCB 484.

The Board considered the draft accounts for the 2008/2009 year and resolved that Keith Veall and Gary Martin sign the Directors’ Report and Trustees’ Declaration. Mr Martin said that Keith’s contribution to the discussion was limited to agreeing once the other board members decided to accept the statements and approve the documents. There was evidence that the directors involved Keith in that resolution as a matter of courtesy so that he would feel included.

On 3 December 2010, Keith swore his affidavit in connection with the anticipated Family Court proceedings.

On 10 December 2010, Donaldson Trumble responded to Hymans’ letter of 23 November 2010 by stating that the inclusion of Rowland and Denise as capital beneficiaries and joint appointors was not in the sole discretion of the Trustee. It would require prior consultation with, and consent of, the other general beneficiaries and would give rise to a resettlement of the Trust attracting an unacceptable stamp duty burden. The letter also responded to the request for financial information and documents.[101]
[101]DCB 488.

The Family Court proceedings

On 13 December 2010, ie three days after the his final will was executed, Keith commenced proceedings in the Family Court against Beryl. He sought orders that the Wallace Avenue property be sold and the proceeds divided equally between them. The application was served on Beryl on 19 January 2011.

Keith and Beryl both swore affidavits that were filed in the proceeding. Those affidavits are at least probative of their state of mind at the time they were sworn, so I will next set out the principal matters contained in them.

Keith Veall’s affidavit

Mr Weil of counsel settled the affidavit and it was filed by Hymans.

Keith Veall stated that upon his return from the United States in 1988, he was under pressure from creditors and decided to divest himself of all property. He transferred the Auspine shares into The Kim Veall Trust on the express understanding, with Kim, that they were to be held for the benefit of the family generally — ie, Beryl, Denise, Rowland, Kim and himself. He understood that the Maple Grove property was registered in the name of Bethal Nominees. He did not know that Beryl had transferred her share in Kooyongkoot Road to Kim. Nor did he know that Beryl was the sole registered proprietor of Wallace Avenue, as he had asked that it be put in both their names.

He purchased the Kilsyth South home for Rowland in July 2007 in appreciation and partial payment for his 13 years of hard work on a reduced salary in the family businesses of Veall Galleries and Sales Boards. The household expenses of Edzell Avenue, where he and Beryl had previously lived, were largely paid out of income derived from Rowland’s businesses. Those amounts were never repaid to Rowland.

He was unaware that the shareholding of Bethal Nominees was altered on 4 July 2007 with Kim and Gary Martin each receiving one share, or that The Kim Veall Trust was wound up and the Keith and Beryl Veall Trust established.

He did not know what assets had been placed in the Keith and Beryl Veall Trust and he was not given notice of directors’ meetings or provided with financial documents.

At all times, he had desired that Rowland, Denise and Kim share equally in the Veall family wealth. He wanted Wallace Avenue and all other assets to be sold and the proceeds divided equally. He wished to move into assisted accommodation near Rowland’s home.

Beryl Veall’s affidavit

On 4 March 2011, Beryl Veall swore an affidavit in response to Keith’s affidavit. She opposed his property application. Her affidavit included the following matters.

In around 1976, Keith purchased a house for Denise at Lower Templestowe for approximately $60,000. In 1984, Keith purchased a property for Rowland at Vermont South in the name of one of his companies, Modern Maintenance Pty Ltd. Beryl understood that Rowland arranged for Keith to transfer ownership of Modern Maintenance to him in December 2007.

Upon Keith and Rowland’s return from the United States, The Kim Veall Trust took over their debts and its assets were used as security for a bank loan to help pay the debts. The Henley farm was sold in 1993 and the Werribee land had been previously sold.

Rowland Veall’s evidence about his father’s condition is weakened by the contents of his emails to Hymans solicitors about his father’s condition. They show that he was very concerned about his father’s mental condition.

Keith Veall behaved erratically in his last years. Examples of this behaviour are the Honolulu conversations, sleeping with an iron bar near his bed, the occasions when he went missing, his statements that he and Beryl were to be evicted from their apartment, and his denials that he had signed documents that he had, in fact, signed.

Mr Veall tended to sign whatever was put in front of him. Rowland Veall obtained Power of Attorney in August 2010 for that reason. Both sides were concerned that Keith Veall might sign anything that was put in front of him. However, that factor by itself does not establish a lack of testamentary capacity. It is more relevant to the second objection to the grant of probate that I have to consider.

Both parties put that the other had not called relevant witnesses and that inferences should be drawn that the evidence of the particular witnesses would not have assisted the party’s case.[138] The plaintiffs had not called Mr Di Donato and the defendant had not called Mr Sweeney. In view of the findings that I have reached on the other evidence available, I do not consider that the evidence that either Mr Di Donato or Mr Sweeney was likely to have given, would have been critical to the determination of this case.
[138]Jones v Dunkel (1959) 101 CLR 298.

A factor that affects the weight to be given to the evidence of the plaintiffs’ witnesses is that the defendant did not require some of them, including Mr Parker and Ms Bullmore, to attend to be cross-examined. Other plaintiffs’ witnesses, including Mr Sharp, Mr Weil, Mr Nelson and Mr Sholl, were not cross-examined on their evidence of Keith Veall’s mental competency.

Counsel for the defendant submitted that the evidence of Mr Hone and Mr Nelson should be treated very carefully, because “the staggering absence of file notes and their selective recollection must temper the substance of the evidence that they have given.”

The defendant, in essence, submitted that Mr Nelson’s evidence could not be given much weight because, in a number of areas, it was contradicted by the evidence of other witnesses. He was unable to explain how he came to play a role in the making of the will of September 2010 and Mr Hone disputed his evidence that he asked him to do so. He was not acting as Keith Veall’s solicitor and he had not kept any notes. He said that Ms Moorhouse-Perks gave him advice about the need for the Declaration of Trust, but she denied that she had. He was not asked to prepare an affidavit until the weekend before the trial.

The defendant further submitted that Mr Hone, Mr Nelson and Ms Moorhouse-Perks did not want to put anything on the record indicating their involvement in the making of the will or the Trust Declaration. Mr Nelson and Ms Moorhouse-Perks did not put before the Court evidence about the circumstances in which the Will was made.

However, during cross-examination, it was not put to Mr Nelson, that, when Keith Veall executed the will on 10 December 2010, he lacked the mental capacity to understand what he was doing or, that he did not understand the significance of making a will, the persons who may have a claim on his estate or that he lacked testamentary capacity.

Mr Hone’s evidence did not directly concern the execution of the will dated 10 December 2011, but in any event, I saw no evidence that he was engaging in selective recollection, nor was such a proposition put to him. Mr Moorhouse-Perks’ evidence also did not concern the making of the will. She never met Keith Veall.

The plaintiffs submitted that because of these matters the Court should decline to reach a conclusion based on any inference which contradicted the direct evidence of witnesses who were not cross-examined on relevant matters.

Witnesses gave their principal evidence-in-chief by affidavit, supplemented in some instances by oral evidence. In most instances, the affidavits had been served many months before the trial. Exceptions to this position were Mr Nelson’s second affidavit, which he only swore on the first day of the trial and Mr Sholl’s second affidavit, which was sworn on 23 July 2013 ie, the day after the commencement of the trial. Some witnesses supplemented their affidavits by additional oral evidence-in-chief. The fact that the parties were generally on notice of each other’s case can be relevant to determining whether the rule in Browne v Dunn[139] has been observed.[140]
[139](1893) 6 R 67.
[140]Bird v Bird (No 4) [2012] NSWSC 648.

On this question, the plaintiffs relied on the Victorian Court of Appeal decision in Curwen v Vanbreck Pty Ltd,[141] where after referring to the judgment in Rees v Bailey Aluminium Products Pty Ltd,[142] the Court, in considering the effect of notice being given of a challenge to the other side’s evidence, stated:

If the appellants’ submission is accepted without qualification, the fact that the party calling the witness is on notice that it is intended to challenge the witness’s evidence or impugn the witness or party’s conduct in a particular way means that compliance with the rule in that circumstance is no longer obligatory. But whatever the effect of “notice”, the burden of persuasion as to that fact does not shift. It remains upon the party who seeks to establish the allegation. The cross-examiner who because of “notice“ refrains from “putting” the allegations to the witness embarks upon a potentially dangerous forensic course. The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue. That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross-examined.

[141](2009) 26 VR 335, 349 [27].

[142](2008) 21 VR 478.

Witnesses, who gave evidence of their own experiences of Keith Veall’s competency, were often giving subjective assessments or opinions. The defendant would not necessarily have been able to dispute the experiences and assessments of those witnesses. Also of relevance, is the reality previously mentioned, that an elderly person’s mental cognition can vary considerably and create different impressions in the people who meet them and deal with them.

However, counsel for the defendant took a different approach by submitting that the instructions given to Messrs Nelson, Hone, Sharp and Weil were wrong and that there was little point cross-examining them about factually wrong instructions.[143] He submitted that the affidavits that the barristers prepared contained factual errors, because Keith Veall, due to his cognitive impairment, had given them incorrect instructions.
[143]T 1259-1262.

I do not accept this submission, as the evidence of the relevant witnesses went to the key issue of Keith Veall’s testamentary capacity.

The rule in Browne v Dunn[144] has at least two aspects: first, it is a rule of procedural fairness and, secondly, a rule relating to the weight or cogency of evidence not challenged by cross-examination.[145] I consider that the failure to cross-examine Mr Parker and Ms Bullmore, at all, and to cross-examine other witnesses, including Messrs Nelson, Hone, Sharp and Weil about their assessment of Keith Veall’s competency adds to the weight that the Court should give to those witnesses’ evidence on that issue.

Conclusion on the first ground: lack of testamentary capacity

[144](1893) 6 R 67.

[145]Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 587.

I have considered all this varied evidence and, in particular, I have given careful consideration to the medical evidence. However, despite that evidence, I consider the most compelling evidence to be that of the independent witnesses, to which I have referred, including the evidence of Messrs Parker, Hallett, Hughes, Sharp, Weil Hailes, Bullmore and De Bruin.

Applying the principles stated in Timbury v Coffee,[146] I conclude that the plaintiffs have established, on the balance of probabilities, that Keith Veall possessed testamentary capacity shortly before and on 10 December 2010.
[146](1941) 66 CLR 277,283.

I add that the parties made limited separate submissions concerning Keith Veall’s capacity to realise the extent and character of his property and to weigh the claims which ought naturally to have weighed on him. The reasons that I have given above in considering his testamentary capacity support the finding that he understood the nature of the assets, that he considered were his and was well aware of the claims that he should consider. The concern that motivated him to pursue the return of his property demonstrates that he had a good idea of the assets that he possessed or considered that he was entitled to possess. His desire to divide his wealth equally between his children indicates that he had considered the claims that ought naturally to have weighed upon him.

My finding that the first ground of objection has not been established does not resolve the second ground of objection. The fact that Keith Veall had testamentary capacity does not establish that he knew of, and approved, the contents of the will dated 10 December 2011.

I will next consider the second ground.

Ground 2: Want of knowledge and authority

The second ground of objection to the grant of probate is that Keith Veall did not have knowledge of, and approve, the contents of the will dated 10 December 2011. The parties gave this ground of objection much less direct attention than the first ground of objection. The evidence that is relevant to the second ground was discussed by the parties, mostly in making submissions about the first ground of objection. But the defendant made it clear during the trial that it relied on the second ground.[147]
[147]T 43–4, 1153-1155.

The applicable legal principles

The legal principles applicable to the lack of knowledge and approval ground were described by Isaacs J in Nock v Austin[148] in the following terms:

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 Moo PCC at p 484; Fulton v Andrew LR 7 HL 448). (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 2 Moo PCC 317 at p 321; Tyrrell v Painton (1894) P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind. App., 10 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 2 Moo PCC at p 320; Fulton v Andrew LR 7 HL 448). (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 2 Moo PCCC 480 and Fulton v Andrew LR 7 HL 448); per Lord Shaw in Low v Guthrie (1909) AC 278 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 (1909) AC at pp 282-283). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v Butlin 2 Moo PCCC at p 484). (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 (1909) AC at pp 281-282).

[148](1918) 25 CLR 519, 528.

The due execution of a will creates a presumption that the testator knew and approved its contents. But the existence of suspicious circumstances suggesting that the testator may not have known of and approved its contents will rebut that presumption and cast the onus on the propounder of the will to remove the suspicion.[149]
[149]Nicholson v Knaggs [2009] VSC 64, [155].

The authorities suggest that the suspicion must be concerned with the will’s contents rather than with circumstances surrounding the process by which the intention expressed in the will was formed.[150]
[150]Tobin v Ezekiel [2012] NSWCA 285.

The best evidence of the testator’s knowledge and approval of a will are circumstances that show that he or she provided instructions, that those instructions were recorded in written form, and that the will subsequently drafted was read to, or by, the testator.[151] However, there is no rule that such evidence must be available in every case to establish the testator’s knowledge and approval.
[151]Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089; Re Fenwick [1972] VR 646.

Tadgell JA stated in Robertson v Smith:[152]

The essential feature of the principle, where it applies, is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testator executed it in the presence of witnesses after it had been read to or by him.[153]

[152][1998] 4 VR 165.

[153]Ibid 174.

In Nicholson v Knaggs,[154] Vickery J upheld a want of knowledge and approval objection in the case of an elderly testatrix. His Honour stated:

It is one thing to read out clauses in a will, and even explain their meaning to an elderly client. It is quite another thing to ensure that the elderly client has understood both the clauses and their explanations, and therefore fully comprehends the effect of what is being done.[155]

[154][2009] VSC 64, [675]-[690].

[155]Ibid [684].

The testator does not need to comprehend fully the legal effect of the words used in the will.[156]
[156]Rhodes v Rhodes (1882) LR 7 App Cas 192, 199–200.

The grounds of suspicion

In my opinion, there are grounds for suspicion that Keith Veall did not know of and approve the contents of the will dated 10 December 2011. The suspicion arises from the terms of the will and the changes that it contained from Keith Veall’s long established testamentary intentions, including those most recently stated in his will dated 9 September 2010.

A significant change was the departure from the previous provisions for Keith Veall’s residuary estate to be divided between his three children, to a provision that it be divided between Rowland and Denise. As I have previously found, there was a rational explanation for this alteration, as Keith Veall considered that Rowland and Denise had received a smaller share of his wealth than Kim had. But, it is noteworthy that he had not made such a change in his September 2010 will. In any event, the question remains whether, accepting there was a rational reason for Keith Veall to alter his will, he knew of and approved of the particular contents of the December will, that he signed.

There were other provisions of the will dated 10 December 2011, which give rise to a relevant suspicion. There was the change in the bequest of Keith Veall’s two prized shotguns. These were no ordinary shotguns, but were valuable and unique. The evidence, and, particularly, that of William Hailes and Jane Veall, establishes that Keith Veall had long intended to leave the guns to Kim’s sons. He hoped that they would follow in his footsteps and become accomplished shooters.

A further change giving rise to suspicion was the high rate of commission of five per cent of his gross estate that both his executors would receive under the 10 December 2011 will. That rate is considerably higher than the usual range of commission awarded.[157] There was no such rate of commission provided for in the previous wills. Jane Veall had not been appointed an executor in Keith Veall’s previous wills and there was some evidence, which she disputed, that he did not get on with her.
[157]Cf s 65 (1) of the Administration and Probate Act 1958 and cf the discussion of the percentage of commission awarded by the Court in Richard Boaden (ed), LexisNexis Butterworths, Wills Probate and Administration Service Victoria (at Service 55) [50,150].

The next matter is that Keith Veall included his Auspine shares in the bequest of his residuary estate, although those shares had been sold three years previously. The parties did not make submissions about the significance of this bequest. It may be that Keith Veall had forgotten that the shares had been sold, or that the bequest reflected his opinion that they had been his property.

The will also suggested that the Golden Stambecco Shooting Trophy might be in Kim’s possession at the time of Keith’s death, when there was no evidence of how that might occur, or that Keith had a basis for considering that it might.

The defendant also referred to other features of the will that suggested that Keith Veall may not have known and approved its contents. I consider these other matters to be of less importance than those to which I have previously referred. They are in the main, drafting matters, as the plaintiffs contended. They included the ultimate proviso in the residuary bequest clause (Clause 6), which left open the possibility, that in some circumstances, Keith Veall’s residuary estate might still go to Kim Veall or her children. I give less weight to this factor as it turns on one possible operation of a complex clause, and it would be no surprise if Keith Veall had not appreciated its effect in all the different circumstance that might arise.

Other matters, to which the defendant referred, but to which I give less weight, included that the will dated 10 December 2011 contained a reference to “substituted executor” when there was no provision for one, the bequest of the Golden Stambecco Shooting Trophy to Denise in clause 4, when clause 5 provided for Keith’s collection of gold shooting trophies to be distributed fairly and equally between Denise and Rowland and the reference to step-children in clause 6, when there were no step-children in the context of Keith’s estate.

I consider that the features of the December will, particularly those to which I have referred in paragraphs 406 to 409, give rise to a suspicion that Keith Veall did not know and approve its contents. Therefore, the plaintiffs, as propounders of the will, must remove that suspicion by proving affirmatively, by clear and satisfactory proof on the balance of probabilities, that Keith Veall knew and approved of the contents of that will.[158]
[158]Cf McKinnon v Voigt [1998] 3 VR 543, 551.

Submissions relevant to the suspicions

Although the parties made few submissions directly related to the second ground of objection, some of their submissions made in respect of the first ground appear relevant to the second ground. Those submissions include the following.

The plaintiffs rely on the evidence of Mr Nelson about Keith Veall giving him instructions for the will and of Mr Nelson and Mr Sholl as to the circumstances of the signing of the will. Mr Nelson carried out those instructions and arranged for a will containing them to be prepared. The plaintiffs contend that the evidence of neither witness was challenged in cross-examination and that the Court could not make findings contrary to their evidence.

The defendant raised a number of matters, which although principally directed to the first ground of objection, also have relevance to the second ground of objection.

The defendant submitted that the circumstances surrounding the making of the September 2010 will were “mysterious”. The making of the September 2010 will was a significant event and raised questions that were not answered by the evidence. Mr Nelson witnessed that will and it contained his backsheet, but he denied that he prepared it. It provided for Keith Veall’s three children to share his residuary estate and for the shotguns to be left to Kim’s children. Keith Veall was aware in September 2010 that his substantial wealth was now controlled by Kim and Beryl, yet in the will that he made that month, he still left a third of his residuary estate to Kim and the shotguns to her sons. The plaintiffs’ case did not explain why the September will was executed or why Keith Veall decided to alter it after only three months had passed.

The defendant made submissions concerning the actions of those involved in the process by which the December will was made. That process was in essence as follows. Hymans were instructed to prepare a new will. They engaged Mr Hone, who was a consultant to the firm, who in turn engaged Mr Nelson to prepare the will. Mr Nelson, in turn, engaged Ms Moorhouse-Perks to type the will, and, on Mr Nelson’s evidence, to provide advice. Ms Moorhouse-Perks denied that she played any role in the execution of the will other than typing it. This was a convoluted and unusual way of preparing a will. The conferences held with Keith Veall were brief. Mr Nelson did not take the usual step of keeping detailed notes of Keith Veall’s instructions. He did not regard himself as acting as Keith Veall’s solicitor and he did not open a file.

I have previously summarised the defendant’s attack on the evidence of Mr Hone, Mr Nelson and Ms Moorhouse-Perks in dealing with the first ground of objection.

Conclusion on the second ground: the testator did not know and approve the contents of the will

I take into account that Mr Nelson, Mr Sholl and Mr Hone were not cross-examined on their evidence, that is relevant to determining whether Keith Veall knew of and approved the contents of the will dated 10 December 2011.

I do not consider that to be a conclusive consideration because the Court, in the exercise of its probate jurisdiction, where a relevant suspicion exists, has to be able to find that the propounders of the will have proved that it does contain the real intention of the testator, in order to grant probate of it.

As previously stated, one aspect of the rule in Browne v Dunn[159] is of procedural fairness, that notice be given of an attack on a witnesses’ evidence, when that attack would otherwise not be apparent to the witness, or the party calling the witness. The plaintiffs’ counsel submitted that Mr Nelson’s evidence on the central issues was not challenged in cross-examination and that it would be unfair to entertain any such challenge in submissions.
[159](1893) 6 R 67.

I do not consider that the defendant’s counsel breached requirements of fairness in any significant sense in his submissions that are relevant to the second ground of objection. I state again that the parties did not develop any detailed separate submission in respect of that second ground. But as I understood it, in essence, the defendant’s case was that the evidence of Mr Nelson and Mr Sholl about Keith Veall’s instructions for, and execution of, the will were not capable of satisfying the Court that he knew and approved of its contents. This approach involved no direct attack on Mr Nelson’s or Mr Sholl’s evidence. Rather, as I understood it, the defendant took the plaintiffs’ evidence, including the inconsistencies between Mr Nelson’s evidence and that of other witnesses called by the plaintiffs, and submitted that, in its totality, it did not establish that Keith Veall knew of and approved the contents of the will.

In the exercise of its probate jurisdiction, the Court, where relevant suspicions exist, has to decide on the evidence, be it challenged or unchallenged, whether the propounders of the will have established on the balance of probabilities that it does contain the real intention of the testator. As part of that determination, the Court has to decide whether it is persuaded by the evidence that the testator knew of and approved its contents.[160]
[160]Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).

I am not so persuaded because of the combination of the following matters.

Keith Veall, who was aged 90 years, was suffering from significant cognitive impairment and had impaired eyesight and hearing. He was likely to sign any document that was put in front of him. Mr Nelson was unaware of these matters and considered that Keith Veall was in good mental condition. Mr Nelson’s evidence was that, in the course of a 20 minute meeting, Keith gave instructions, referring to specific bequests such as the names of trophies, and was advised about the risk of challenge to a will drawn in accordance with his instructions. Mr Nelson did not keep any notes of the meeting in which Keith Veall gave him those instructions and did not give evidence of the date when that meeting took place.

I take into account that Mr Nelson had prepared wills for many years and that his evidence was that Keith Veall provided him with instructions for the will. However, Mr Nelson and Mr Sholl were not requested to give a written account of their involvement in the making of the will dated 10 December 2011 until two-and-a-half years had passed. As is common experience, “human memory of what was said in a conversation is fallible for a variety of reasons”.[161] In addition, as I have set out above, a number of aspects of Mr Nelson’s evidence, particularly in respect of his involvement in the making of the September 2010 will and the making of the Deed of Declaration and Agreement were contradicted by other witnesses called by the plaintiffs. That consideration leaves an uncertainty as to whether he had an accurate recollection of relevant events. It was not suggested that Mr Nelson’s evidence and, in the case of 10 December 2010, Mr Sholl’s evidence, were a verbatim account of what was said in the meetings with Keith Veall.
[161]Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).

The evidence of the execution of the will on 10 December 2010, which occurred at least a few days after the instructions were given, was that again, Mr Nelson’s conference with Keith Veall was very short, lasting about 15 minutes, and again Mr Nelson kept no notes, although he knew that Kim Veall might challenge the will. Mr Nelson’s evidence was that he read through the will, checked that it correctly named the gun trophy and a piece of art and confirmed that it contained Keith Veall’s instructions and what he wanted done. He gave no further explanation of its contents. Keith Veall asked no questions.

Mr Nelson’s evidence was that the will, as drawn, gave effect to Keith Veall’s instructions. In many instances, evidence of that character might be sufficient to establish that the testator knew of and approved the contents of the will. But, I do not consider that to be so in this case, where there was an elderly testator with impaired cognition, who was likely to sign anything put in front of him. I refer again to the statement of Vickery J in Nicholson v Knaggs,[162] which I have set out above. Some further explanation was required to ensure that Keith Veall understood the clauses of the new will. Such explanation was particularly required, because, accepting Mr Nelson’s recollection of events, it was not the case that all the provisions of the December will were based on Keith Veall’s instructions. The provision for the very high rate of executors’ commission derived from Ms Moorhouse-Perks’ precedent. There is no evidence that the significance of that provision was specifically explained to Keith Veall. Mr Nelson’s evidence, that he read through the will, explained its parts to Keith, and asked if it contained his instructions, does not suggest that he explained to him the significance of the commission rate. Again, it is relevant to note, that Jane Veall was being named as an executor for the first time and, as an executor, was entitled to a high rate of commission.
[162][2009] VSC 64 [684].

Mr Sholl’s evidence concerned the meeting at which the will was signed. He could recall that the bequests to Denise and Rowland were mentioned. However, he did not expect to be a witness and it appears that he did not have a copy of the will in front of him, when Mr Nelson read it to Keith Veall.

I am not satisfied that the procedures that Mr Nelson adopted to obtain Keith Veall’s instructions and to explain the contents of the will before he signed it establish that he knew of and approved its contents. I do not suggest that Mr Nelson was deliberately giving false evidence. However, Keith Veall had cognitive impairment and impaired eyesight and hearing. Mr Nelson needed to ensure that he fully comprehended the effect of the December will.

As I have stated, Mr Nelson had no doubt about Keith Veall’s mental capacity. He therefore had no reason to take additional steps to ensure that Keith Veall understood and approved the contents of the will.

I am not persuaded that, even accepting all of Mr Nelson’s evidence, that the plaintiffs have established that Keith Veall knew of, and approved of, the contents of the will dated 10 December 2011.

Conclusion

I consider that the plaintiffs have not proved that Keith Veall knew of and approved the contents of the will dated 10 December 2011.

I therefore uphold that ground of objection to the grant of probate of the will dated 10 December 2011.

I will hear the parties about the orders that I should make as a result of my conclusion.

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[2014] VSC 38

19 February 2014