Veall v Veall

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0055

ARTHUR ROWLAND VEALL & ALEXIS JANE ROCHE VEALL	Appellants
v
KIM LOUISE VEALL	Respondent

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JUDGES:	SANTAMARIA, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2014
DATE OF JUDGMENT:	16 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 60
JUDGMENT APPEALED FROM:	Veall & Anor v Veall [2014] VSC 38 (Ginnane J)

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WILL – Testamentary capacity – Test – Whether circumstances arousing suspicion – Onus on propounder of will – Elderly testator with cognitive impairment – Change of bequests from previous wills – Whether testator was capable of evaluating claims on his bounty – Significance of unchallenged evidence about instructions for and execution of will.

WILL – Validity – Testator’s knowledge and approval – Suspicious circumstances – Application of principles – Instructions given to solicitor about contents of will – Failure by solicitor to retain any file or notes of instructions – Preparation of wills by solicitors – Duties generally.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr SM Anderson QC with Mr TM Dowling	Katherine Moorhouse-Perks
For the Respondent	Mr DG Collins QC with Mr RB Phillips	McNab McNab & Starke Solicitors

SANTAMARIA JA:

Procedural background

On 13 March 2012, the appellants filed an originating motion for grant of probate of the testator’s will dated ‘10 December 2011’ (‘the December will’).[1] On 30 March 2012, the respondent lodged a caveat in that proceeding in which she objected to a grant of probate to the appellants. The two grounds of objection pursued at trial were that the testator:

(a) lacked testamentary capacity shortly before and at the time that he executed the will; and

(b) did not know and approve the contents of his will.
[1]The will bore the date ‘10 December 2011’. However, it was executed in December 2010.

On 19 February 2014, the trial judge delivered a judgment in which he refused to admit the will to probate[2] and, on 30 April 2014, he dismissed the proceeding.[3] Notwithstanding that the testator suffered from impaired cognition, the judge was satisfied that the testator did have testamentary capacity before and at the time that he executed his will. Notwithstanding that he had testamentary capacity and that the December will was drawn by a solicitor and read by him to the testator, the trial judge was not satisfied that the testator knew and approved its contents.
[2]Veall & Anor v Veall [2014] VSC 38 (‘Reasons’).
[3]Veall & Anor v Veall (No. 2) [2014] VSC 99 (‘Costs Reasons’).
The appellants filed a notice of appeal on 12 May 2014 in which they sought to appeal against the trial judge’s finding on knowledge and approval. The respondent filed a notice of contention on 30 May 2014 in which she sought that the orders dismissing the proceeding be affirmed and contended that the trial judge erred in finding that the testator had testamentary capacity.
The December will departed significantly from several previous wills executed by the testator. In those wills, the testator had appointed his two eldest children as his executors, he had made a limited number of specific legacies (including his prized shotguns) and he had divided his residuary estate equally between his three natural children. In the December will, he had appointed his eldest son and his daughter-in-law as his executors, redirected the specific legacies away from the previous intended beneficiaries, and divided his residuary estate equally between his two eldest children to the exclusion of his youngest daughter. Finally, in providing for his residuary estate, he made express reference to some shares that had been far and away his largest asset. However, those shares had always been held in a trust and had been disposed of several years previously.
The circumstances in which the testator made these changes, together with evidence of his physical and mental health in or about December 2010, were the basis for the contention that he lacked testamentary capacity and did not know and approve the contents of the December will. In order to assess these contentions, it is necessary to examine the facts and circumstances of the testator’s life for several years before the execution of the will in December 2010. However, the focus of the inquiry must be his capacity and his knowledge when he executed the will. That inquiry terminates in the facts and circumstances attending the preparation and execution of that will. However, the greater part of the evidence relates to circumstances that were said to have meant that ‘suspicious circumstances’ surrounded the making of the will.
For the reasons that follow, I would uphold the notice of contention on the basis that the appellants did not affirmatively establish that, when he executed the December will, the testator was still able to evaluate the claims which naturally ought to press upon him and, thus, lacked testamentary capacity. In the event that I am wrong in upholding the notice of contention, I would also dismiss the appeal on the basis that I am not persuaded that the trial judge was in error in holding that he could not be affirmatively satisfied that the testator knew and approved the contents of the December will.
Witnesses at trial
At trial, evidence was given by members of the testator’s family and by several groups of people who were acquainted with the testator in the last years of his life. Apart from family members, John Woods (‘Woods’) and Gary Martin (‘Martin’) gave evidence. There were personal carers: Robyn Rae Hannon (‘Hannon’), Adrian Hughes (‘Hughes’) and Stephen George Hallett (‘Hallett’). There were solicitors: Ronald Frederick of Holt and McDonald (‘Frederick’) and Rino Di Donato (‘Di Donato’) of Hymans Solicitors (‘Hymans’). Hymans also retained Ian George Hone (‘Hone’) as a consultant solicitor; Hone gave evidence. Hymans retained two barristers: David Benjamin Sharp (‘Sharp’) and Richard Weil (‘Weil’); both gave evidence. The preparation and execution of the December will were attended to by Darroll Nelson (‘Nelson’), a solicitor. It was witnessed by Denis Floyd Sholl (‘Sholl’), a friend of Nelson’s; both Nelson and Sholl gave evidence. Nelson sought typing assistance from Katherine Moorhouse-Perks (‘Moorhouse-Perks‘), a solicitor; she gave evidence. Evidence was also given by friends of the testator including Adrianus De Bruin (‘De Bruin’), William Hailes (‘Hailes’) and Joy Bullmore (‘Bullmore’). Finally, evidence was given by several medical practitioners: Dr Kevin Rose, who was the testator’s general practitioner, Dr Michael Rose and Associate Professor Woodward, consultant geriatricians. Evidence was also given by Mark Parker (‘Parker’) who, on 14 June 2011, was appointed by the Family Court as the testator’s case guardian in respect of proceedings in the Family Court.
The testator
The testator, Arthur Keith Veall (‘Keith’), died on 13 October 2011 aged 91 years.
Keith had three children. He had two children from his first marriage: Denise Suzette Lodder (‘Denise’), born in 1948, and Arthur Rowland Veall (‘Rowland’), born in 1951. Keith remarried in 1962. His second wife was Beryl Veall (‘Beryl’). He had one child from his second marriage, Kim Louise Veall (‘Kim’), who was born in 1968. Lorraine Pennefather (‘Lorraine’) was his step child, being the daughter of Beryl from her first marriage. Rowland is married to Alexis Jane Roche Veall (‘Jane’). Beryl died on 15 March 2012.[4]
[4]It will be convenient to refer to the principal participants in the case as Denise, Rowland, Jane, Kim and Lorraine.
Keith received significant wealth from his father, but over his lifetime he also managed businesses and made numerous investments and his wealth fluctuated accordingly. Keith lost much of his money in overseas business ventures, particularly in the United States in the mid-1980s. However, shares that were acquired in Auspine Pty Ltd (formerly SEAS Sapfor) (‘Auspine’) became very valuable assets.
Bethal Nominees Pty Ltd (‘Bethal Nominees’) was the trustee of several trusts associated with Keith. The directors of Bethal Nominees included Keith, Kim, Lorraine, Martin and Woods. Martin had been Keith’s accountant since the early 1980s. He became a director of Bethal Nominees in 2008. Woods considered himself to be Keith’s long-term trusted advisor and friend. He had been a manager at A C Goode until 1982 and, then, became Deputy Chief Manager at the State Bank Victoria. Keith had been one of the private clients of the Bank. Woods became a director of Bethal Nominees in 1999. Kim was a director of Bethal Nominees from 21 June 2007. Rowland had been a director from September 1980, but ceased to be in September 1985. Beryl was a director until 1985. Denise has never been a director of Bethal Nominees.
The Kim Veall Trust
In November 1980, Keith established the ‘Kim Veall Trust’, with Bethal Nominees as its trustee. The Kim Veall Trust acquired a significant shareholding in Auspine in the 1980s.[5]
[5]Kim did not know whether the trust had acquired the shares itself or whether they had been transferred to it by Keith. Martin thought that the trust had purchased the shares in the first place.
Rowland was never a beneficiary of the Kim Veall Trust.[6]
[6]Reasons [110].
The Auspine shares held by the Kim Veall Trust increased in value under the control of Bethal Nominees. In 2007, Gunns Limited made a takeover bid for Auspine. Bethal Nominees accepted the offer and received approximately $36 to $37 million for the Auspine shares. The amount was paid to the Kim Veall Trust and invested in four National Australia Bank term deposits.
After the receipt of the proceeds of the Auspine shares, Bethal Nominees engaged in various transactions in relation to the funds in the Kim Veall Trust, which included:

(a) the payment of tax;

(b) the making of capital distributions to Keith, part of which Keith used to purchase real estate for each of Denise and Rowland;

(c) the making of a capital distribution to Beryl of $3.5 million in May 2008. Beryl used these funds to purchase solely in her name an apartment at Wallace Avenue, Toorak;

(d) the payment of expenditure incurred by Keith; and

(e) the payment of at least $10 to $12 million to Kim and approximately $5 million to Keith and Beryl on the vesting of the Kim Veall Trust.

The Kim Veall Trust was vested (wound up) on 17 July 2008. The decision to vest the Kim Veall Trust, and the distribution of the balance of the proceeds of sale of the Auspine shares as to one third to Keith and two thirds to Kim, are recorded in the minutes of the Board of Bethal Nominees.

The July 2007 will

Keith made a will on 4 July 2007. He appointed Martin and Woods as his executors and trustees. In it, he left a life interest in a property at 9 Coverlea Drive, Kilsyth South to Rowland, with a gift over to Rowland’s daughter, Isabelle. He left a life interest in an apartment under construction at 150 Clarendon Street, East Melbourne to Denise, with a gift over to Kim’s sons, Oliver and Nicholas. He left his residuary estate equally to Denise, Rowland and Kim. The will also contained a provision explaining why it contained no legacy for Beryl: ‘she has independent assets and will be the beneficiary of a family trust …’.
The Keith and Beryl Veall Trust
In the first week of February 2008, a new trust called the ‘Keith and Beryl Veall Trust’ was established. Bethal Nominees was the trustee. Keith instructed Donaldson Trumble, solicitors, (Patrick Sweeney) to prepare the relevant documentation. The sum of approximately $5 million that was paid to Keith and Beryl on the vesting of the Kim Veall Trust provided the funding for the Keith and Beryl Veall Trust. One of the objects of the Trust was to provide for Keith and Beryl. Keith and Beryl were the primary beneficiaries of the Keith and Beryl Veall Trust and they received living expenses each month from the trust. The Keith and Beryl Veall Trust named Kim to become appointor of the trust upon Keith’s death. Denise and Rowland were excluded as general beneficiaries of the capital of the trust, but they were discretionary income beneficiaries.[7]
[7]Ibid [135]–[143].
Keith and Beryl Veall in 2009-2010
In 2001, Beryl suffered life-threatening injuries in a car accident. As a result, rearrangements were made in the domestic circumstances of Keith and Beryl. Kim
and her husband sold their house and purchased another in Kooyongkoot Road in Hawthorn. Beryl sold her apartment in Maple Grove, Toorak where she had been living with Keith. Beryl and Keith moved in to a flat at the rear of the property at Kooyongkoot Road. In 2008, Keith and Beryl took up residence in an apartment in Wallace Avenue, Toorak. By 2009, Keith had ceased to be very active and his days followed a regular routine. He rose late; he was assisted in his dressing by Beryl; his breakfast was prepared for him by a female carer; he was taken out by male carers to be shaved; he attended lunch with companions in a few preferred restaurants; he slept in the afternoon, and went out most evenings with Beryl to a restaurant for dinner.
After September 2008, Malvern Care engaged Hannon, a personal carer, to look after Keith and Beryl. Hannon remained in that position until Beryl died on 15 March 2012. Hannon slept at Wallace Avenue three nights a week; other female carers would stay there on the other nights of the week. Hannon would provide companionship for Keith and Beryl during the evening and prepare breakfast for them in the morning. They would normally have breakfast together. Hannon accepted that Keith ‘was a fairly strong-minded individual … [he was] very independent’. Hannon said that sometimes Keith would fly into a rage if she had not made his bed as he wanted. She also said that sometimes Keith would become disoriented. On occasions, Keith urinated on the carpet during the night because he could not find the toilet. Hannon also described instances of confusion and irrational behaviour on the part of Keith. In 2010, Hannon discussed with Beryl the need for Keith to have a specialist geriatric assessment due to his sometimes bizarre behaviour. Beryl and Keith saw Keith’s general practitioner and an appointment was made for him to see a specialist. Over time, Beryl became concerned that her health was declining and her ability to care for Keith was restricted.
In late 2009, Malvern Care engaged Hughes and, in April 2010, Hallett, both aged care workers, to provide personal assistance to Keith. Hughes attended on three days a week. He took Keith out to restaurants for lunch, for haircuts and shaves and to his medical appointments. Hallet did much the same thing. Both provided this care until August 2011 when Keith was admitted to the Darnlea Aged Care Facility (‘Darnlea’).
Hughes and Hallet both described Keith as physically frail and suffering from pain associated with polymyalgia rheumatica. But both considered him to be mentally alert and his conversations to be lucid and ordered. He would read the newspaper and magazines devoted to his interests in guns and pigeons. Neither saw any signs of dementia or any serious signs of continual confusion. Hallet rejected the idea that Keith suffered from ‘short term memory problems’. Beryl managed the money; she would prepare cheques for Keith’s signature. He would ask her what they were for before he signed them.
Hughes observed the relationship between Keith and Beryl. He perceived it as a ‘loving relationship’ and affectionate, although Keith would sometimes speak badly of Beryl when he was away from her. He would refer to her as ‘manipulative’; but Keith did not supply details. Hallet described Beryl as devoted to Keith and similarly defined their relationship as affectionate. He could not recall Keith ever speaking critically of Beryl. Hannon denied that she had ever heard Keith call Beryl ‘manipulative’. Hannon agreed that there was ‘certainly tension’ around the time that the Family Court proceedings were served on Beryl.
Evidence of Keith’s friends
Several other witnesses gave evidence about Keith. Hailes was a long standing friend of Keith’s. He observed Keith sign cheques and credit cards right up until he entered Darnlea. He was sometimes present when Keith gave instructions to Hymans in 2010. He did not think that Keith showed any signs of dementia in late 2010. He described Beryl as being devoted to Keith. He said: ‘I think they had a pretty good marriage for people of that era. They seemed to care for each other in a lot of different ways’. De Bruin had known Keith since 1984. De Bruin and Keith had become closely associated when De Bruin made a takeover for shares Bethal Nominees owned in a company called ‘Triton Paints’. Those shares were replaced by shares in Auspine. De Bruin said that there were no signs that Keith was suffering from dyslexia or dementia in 2010 or 2011. Bullmore gave evidence that she and her husband had known Keith for 28 years. Bullmore said that Keith was sad, depressed and angry, but at no time did he appear to ‘lose his wits’. She said that until their last dinner in mid to late 2011, Keith was an excellent conversationalist and had an excellent memory.
The Perazzi shotguns
Keith had been an expert marksman and a champion shot. He trained Kim’s sons, Nicholas and Oliver, in the use of shotguns. He purchased shotguns for them. He took pleasure in their growing proficiency with them. Kim gave evidence that her father had presented his two Perazzi shotguns to Nicholas and Oliver, and, while retaining possession of them, had marked them accordingly. Eventually, they were stored with Hailes for safe keeping. None of this evidence was challenged. On the contrary, in his cross-examination, Rowland accepted that his father had always intended that the Perazzi shotguns should go to Nicholas and Oliver: ‘it has never been my contention for that to be otherwise’.[8]
[8]Hailes gave the same evidence.
Rowland
Much of the evidence in the case related to Rowland’s strong sense of grievance at the way in which Kim and Beryl had received a disproportionate share of Keith’s very considerable assets. Rowland said that it was not until about 2008 that he and his father discovered that Keith had been manipulated to favour Kim at the expense of Rowland and Denise. He said that he had himself been ‘kept out of the loop’. He had not himself been involved in the Kim Veall Trust and the decision to vest it. But, in ‘something like 2007, 2008 from rough memory’, he had conducted a search and learnt that Beryl was the sole proprietor of the apartment at Wallace Avenue.[9] He said that he told his father of this, who then enlisted his assistance to locate and recover his assets. He said that Keith had believed that he was a half owner of Wallace Avenue. He also said that his father had lost control of his day to day business activities; Beryl had coaxed Woods and Martin to help them control his assets. ‘Beryl … was the architect and the engineer of this whole very, very sad story’. Rowland accepted that, in 2007, his father had purchased a property in Kilsyth South for him and his wife to live in and a property in Balwyn for Denise. Rowland was not himself privy to the circumstances of the establishment in February 2008 of the Keith and Beryl Veall Trust: ‘once again, I was kept out of the loop, I wasn’t privy’.
[9]The evidence was that the Wallace Avenue apartment was not acquired until at least May 2008 and that Keith and Beryl did not move into it until mid-2008. In his affidavit sworn on 18 May 2012, Rowland said that he did not learn of the ownership of Wallace Avenue until late June 2010. He accepted he was mistaken about this.
Rowland’s evidence of his father’s health

Rowland’s estimation of his father’s health and capacities in 2010 was in evidence. Part of the evidence was contained in Rowland’s communications with Hymans, the solicitors who had been retained in mid-2010. Part of the evidence was given by Rowland during the trial.
Rowland’s evidence about his father’s mental health was contradictory. When he addressed the subject as a general matter, he insisted that his father was alert and mentally acute. His father never appeared to be disoriented and his memory was ‘incredibly good in detail’. ‘He was very determined to endeavour to right the wrongs that had taken place over literally decades, thanks to his wife and complicit daughters … His mental capacity was of determination to make sure that at least something could be left for my sister Denise and myself, just something’.
In cross-examination, Rowland accepted that, when his father had purchased the house in Kilsyth South for him and his wife and the house in Balwyn for Denise, he understood what he was doing: ‘very much so’. Keith decided to put the house in Kilsyth South into his own name as there had been matrimonial difficulties between Rowland and his wife and even though they had been cleared up, ‘my father was still on safety mode’. However, when he set up the Keith and Beryl Veall Trust in February 2008, and excluded Rowland and Denise as capital beneficiaries, it was not something he knew or intended.
In one of his affidavits, Rowland said that his father was ‘hard of hearing’ and that ‘his eyesight was failing’. His father was ‘profoundly deaf’; expensive hearing aids did not work for him.[10] There were times that things had to be repeated and explained to him as he did not understand what had been said. He was trusting of his wife and Kim, but that changed. ‘What was put under my father’s nose and my father signed, God only knows but when I became my father’s power of attorney, all of those signatures on any document were stopped forthwith because so much damage had been done up to that point in time and I emphasise, considerable damage’. Keith was physically frail: ‘He was in immense pain, this poly dah dah dah rheumatica[11] (sic) he had caused him incredible pain, every movement virtually from his toes to his shoulders, elbows, wrists and fingertips, every movement literally sent him up through the roof.’
[10]On the power of attorney see [49] below.
[11]Polymyalgia rheumatica.
The retainer of Holt and McDonald

On 28 February 2008, Rowland had attended a meeting at Martin’s office. At that meeting, he was told that, as he was not a beneficiary of the Kim Veall Trust, he could not receive a benefit from the trust.[12]
[12]The meeting is referred to in letters dated 16 September 2008 discussed below.

In the second half of 2008, Rowland and Keith engaged Frederick who was a principal of Holt and McDonald, solicitors. On 13 October 2008, Frederick met Keith for the first time. His instructions were to prepare a will. Frederick gave evidence that, after interviewing Keith, he had no concerns about his testamentary capacity.The primary purpose of the new will was to ensure that Rowland received the property at Kilsyth South.

On 16 September 2008, Keith, together with Woods and Martin, signed a letter on behalf of Bethal Nominees. In that letter, reference was made to: (a) the fact that Keith had said that Denise and Rowland were making continual demands for money from Keith; (b) that neither was a beneficiary under the Kim Veall Trust; and that, as a consequence (c) distributions from that trust could not be made to them.[13]
[13]On the same day, Keith signed a similar letter to both Denise and Rowland. In the letter, he referred to: (a) their continual demands for money; (b) the fact that he had bought each of them properties; (c) the fact that he had made ‘significant gifts of money’ to each of them; (d) the fact that he was no longer able to provide for them (‘[A]t the age of 88, my circumstances are that funds are not available from me to provide you with further financial support’); and (e) provision had been made in his will for each of his three children. In cross-examination, Rowland denied ever seeing that letter.

During his cross-examination, Rowland said that he had never received the first letter. He did receive the second letter and showed it to Keith as they were travelling out to meet Frederick. Rowland said that Keith denied that he had signed the letter from Bethal Nominees: ‘No way did I sign that or agree to it’. Rowland accepted that he did not reply to the letter; but, he said that he had not been making demands for money.

The October 2008 will

Frederick prepared and witnessed a will for Keith on 20 October 2008 (‘the October 2008 will’). Under the October 2008 will, Keith:

(a) appointed Denise and Rowland as his trustees;

(b) left the property at Kilsyth South in which Rowland resided ‘absolutely’ to Rowland (the previous will had left only a life estate to Rowland);[14]
[14]Frederick gave evidence that ‘that was really the primary purpose of this will … to ensure that [Rowland] received [Cloverlea Drive]. He had already benefited the other children’.

(c) left his shotguns to the sons of Kim; and

(d) left his residue to be divided equally between his children.

In the October 2008 will, he made no reference to Auspine. The will contained no provision for the payment of executor’s commission.

The will made no provision for Beryl. (It will be recalled that the apartment at Wallace Avenue was purchased in early 2008, and that Keith and Beryl moved into it in mid-2008.) During his cross-examination, Frederick said that he had sought specific instructions from Keith about Beryl. (He did so in the absence of Rowland.) Keith told him that Beryl was a person of independent means. Keith had said: ’Beryl is okay as she has the house at Wallace Avenue’.[15] Keith also told him that Kim’s sons were to have the shotguns. Frederick was also instructed that Keith and Beryl were being provided for out of the Keith and Beryl Veall Trust.[16]
[15]The instruction appears in Frederick’s notes. In Keith’s Family Court affidavit, it is said that the Wallace Avenue apartment was registered in Beryl’s name on 5 May 2008.
[16]In his cross-examination, Rowland conceded that, in October 2008, Keith knew he was not on the title for Wallace Avenue and that it was owned only by Beryl.
On 3 April 2009, Frederick met Keith and Rowland. At that meeting, Keith told Frederick that: ‘Beryl has the house in Toorak’. On that occasion, Keith executed a codicil to the October 2008 will. In that codicil, he left his ‘oil painting of a nude woman swimming’ to Rowland.[17]
[17]The codicil was prepared by Frederick. Again, Frederick’s file note shows that he asked Keith about provision for Beryl.
The October 2009 will
On 26 October 2009, Rowland rang Frederick. Frederick took a note of their conversation: Rowland said that his father was confused and people were putting pieces of paper under his nose and they wanted him to re-sign his will.[18] Frederick said that he doubted, given the formalities involved in the execution of a will, Keith would have been unaware of the fact that he was signing his will. However, as Rowland was agitating the fact that a will might have been signed, Frederick agreed that it was prudent to get Keith to make a further will in the same terms as the previous will, but incorporating the codicil.
[18]Frederick said that Rowland had rung him on 26 October 2009 expressing concern that ‘his father [was] confused and people are putting pieces of paper under his nose and they want him to re-sign his will’. Rowland gave the same evidence during the hearing: ‘What was put under my father’s nose and my father signed, God only knows.’
It was in these circumstances that Frederick prepared and witnessed a further will for Keith on 28 October 2009 (‘the October 2009 will’). Under the October 2009 will, Keith:

(a) appointed Denise and Rowland as his trustees;

(b) left the property at Kilsyth South in which Rowland resided to Rowland;

(c) left the oil painting of a ‘nude woman swimming’ to Rowland;

(d) left his prized shotguns to the sons of Kim; and

(e) left his residue to be divided equally between his children.

In the October 2009 will, he made no reference to Auspine. The will contained no provision for the payment of executor’s commission.

In 2010, Rowland wanted Frederick to investigate the Keith and Beryl Veall Trust. Frederick and Bethal Nominees engaged in correspondence to do with the whereabouts and treatment of assets controlled by Bethal Nominees. Rowland learnt that he and Denise were excluded as capital beneficiaries of the Keith and Beryl Veall Trust. In investigating Keith’s wealth, Frederick’s instructions primarily came from Rowland, who had Keith’s authority for that purpose.
On 18 February 2010, there was a meeting of the board of Bethal Nominees. The minutes of that meeting record Keith as saying that Rowland and Denise had raised concerns regarding their entitlements under the trust deed and wanted their entitlements now. He said that they had been asking him why they were not receiving substantial funds from the trust now. Keith said that Rowland was ‘savage’ over not having access to the trust funds and that, in his mind, he was being cheated. The minutes record that Keith ‘expressed concern over the fact that Rowland was seeing a Solicitor and calls [Keith] every day over the matter’.
On 16 April 2010, Frederick wrote to Martin and Woods. In that letter, he said that Keith ‘appears confused about his financial situation, particularly the new Trust’. On 26 May 2010, Martin replied to Frederick and told him that all the main investment activities had been conducted in the Kim Veall Trust and that that trust (which was due to vest in October 2010) had already been vested in July 2008. He said that the new trust (the ’Keith and Beryl Veall Trust’) had had ‘very little activity in the period to 30 June 2008’. He provided Frederick with a copy of the trust deed for the new trust.
On 10 June 2010, a meeting took place between Keith, Woods, Martin and Frederick. Keith expressed disappointment that his family was fighting over money. Frederick asked, and was told, how it was that the assets of the Kim Veall Trust were distributed. He also asked why the new Keith and Beryl Veall Trust was established. He said that Rowland was aggrieved as to why he had no capital entitlement under the terms of the latter trust. Frederick’s note of the meeting refers to a proposal that there be a further meeting at which the trustees could explain things to Rowland. It seems that it had been suggested (probably by Keith, Martin and Woods) that Frederick write to Rowland to explain that Keith had given instructions to his solicitors to prepare the trust in the way it was because he had been concerned over the unstable marital status of Rowland[19] and that he wanted to ensure that the capital was protected and preserved to produce income. Frederick said that he did not want to write this way to Rowland as he believed it would incite him further.
[19]This was a regular theme. It explains the legacy of Rowland’s house in the earlier wills.
On 17 June 2010, there was a meeting of the board of Bethal Nominees. Keith was asked whether he wanted to talk to the letter from ‘Holt McDonald P/L Lawyers’. The minutes record Keith as appearing ‘uncertain and unclear as to the contents of the letter from his solicitors … He did not wish to make any comment in relation to it.’
It was about this time that the retainer of Frederick was terminated.
The retainer of Hymans and Ian Hone
In July 2010, Keith and Rowland retained Di Donato, who was the principal of Hymans.[20] Rowland said that Di Donato had given advice that the property at Kilsyth South should be put into Rowland’s name. All of the correspondence was sent to Rowland’s address as he ‘certainly wouldn’t want them to go to Wallace Avenue’ (where Beryl and Keith lived).[21]
[20]Rowland said that his father alone had retained Hymans.
[21]Rowland said: ‘we made it a very strict policy between my wife and myself and Mr Di Donato that no correspondence goes to his home because my father was a prisoner in his own home. Every single piece of letters and correspondence was looked through, made disappear, listened into conversations, the whole lot’.
On 19 July 2010, Rowland wrote to Di Donato describing the matters that needed to be discussed between Hymans and Keith and Rowland. Rowland added ‘he is getting older by the day and needs our assistance to get the ball rolling and instigate proceedings to achieve what he wants before his death. Rino, this is of the greatest importance to get things moving as if this mess is not sorted out before my father’s death then I imagine it will be all the more difficult to achieve his wishes after his death’.
Di Donato referred them to Ian Hone, a solicitor, who provided consulting services to Hymans. Hone said that he had been asked by Di Donato to take over the litigation component of Keith’s file and conduct appropriate litigation as Hymans’s consultant. He said that he met Keith and Rowland around August/September 2010 at a Japanese restaurant. At that meeting, Keith had said that he wanted ‘a property he had purchased around 2008 [for Rowland to be] transferred into Rowland’s name promptly as he foresaw that if this was not done then somehow that land would probably also end up with Kim Veall …’. Hone had a further meeting with Keith in late October 2012. At that meeting, Keith had said that it was his intention to share his fortune equally amongst his children but that he was not receiving the necessary co-operation from Kim. Hone ‘also took instructions from Rowland Veall’. Hone said that at all times Keith gave lucid instructions. He satisfied himself that Keith was competent to instruct lawyers as to his wishes, knew his responsibilities and had a correct view of his assets available for distribution upon his death.
On 6 August 2010, Rowland secured a power of attorney on behalf of his father. Rowland gave evidence of the background to this. He said: ‘my father was profoundly deaf, his eyesight left a lot to be desired and anything that people on the other side of the family put underneath his nose … he would sign because he trusted them ... my father was a very, very trusting person of literally anyone that came within coo-ee of him ’.[22] It had become necessary to prevent his father from signing documents ‘[u]nless I deemed it … appropriate.’
[22]Rowland said: ‘my father got himself into one hell of a lot of trouble by signing anything that was put under his nose by the people whom he trusted …’.
Rowland said that Keith gave instructions to Hymans to commence Family Court proceedings against Beryl: ‘to go for half the house, half of everything that my stepmother had decided to squirrel away.’
Hone also said that Keith gave instructions to institute proceedings in the Family Court to seek a redistribution of assets between him and Beryl. Those instructions were confirmed in late November 2010. Eventually (as appears below), Hone served the Family Court papers on Beryl personally.
David Sharp
During August 2010, Di Donato and Hone retained Sharp, a barrister. Sharp gave evidence that he had been retained by Rowland ‘to act on his behalf in seeking some form of legal redress for his situation’.[23] Sharp had several conferences with Keith. He said that, while Keith was quite fragile physically, ‘[m]entally however, he was very impressive, clear, dominating and in control of the conversation and its subject matters’. He said that he had no doubt that ’Keith was competent and capable of giving me ... instructions’. Sharp took instructions from Keith and also from Rowland. Rowland, he said, was ‘motivated by a concern that he was not going to get anything from what he regarded as his share of the family assets’. Sharp met Keith and Rowland on two occasions at a restaurant and once at Hymans, when an affidavit was sworn. However, Keith did not wish to commence proceedings: he expected that his wife and daughter would agree to some form of appropriate division of property. Rowland, on the other hand, ‘wanted to go straight away to court and proceed’. Sharp had understood that ‘Rowland and his wife were going to be looking after Keith, which was one of the reasons why Keith thought it appropriate that he should formally separate and divorce Beryl’.
[23]That Sharp was retained by Rowland was ‘sorted out at the first luncheon. But Keith and Rowland were of a similar mind, but I was concerned to be a little bit more precise as to who I was actually going to be representing and formally taking instructions from and it was agreed that it would be Rowland’.
On 16 August 2010, Rowland wrote to Di Donato. In that email he wrote:
Rino, my father has constantly quizzed me ever since I engaged your services as to how I was going to pay for your professional services. In stating this I would like to say that by the age of 70+, all people would have their worldly affairs soundly in order. But Dad has always been a person who loves to have the upper hand and control everyone around him, and has used false promises to keep Denise and myself under his control. The only people he has not been able to control are Kim, Beryl and Lorraine because they have been in control of the cheque book and all other monies and therefore had the freedom and power to move the money where ever they wish.
Nothing has been done and my father is 90.

Later in the same email, Rowland asked Di Donato: ‘can Keith’s inadequate mental state at the time of signing be used to void the trust?’ He also pressed the solicitor on having his father’s ‘Deposition’ ready for signing at lunch tomorrow. He wrote ‘I feel this is an important task to cover before the letters are sent out as those women have an agenda and are very clever in convincing him and manipulating him into doing what they want’.

On 17 August 2010, Rowland reminded ‘Rino and Ian’ of the need to have ‘Dad’s deposition’ finalised. He said ‘I feel this is a matter of urgency as Dad is declining by the day’.
On 18 August 2010, Hymans wrote to Kim Veall saying that they acted on behalf of both Keith and Rowland. In that letter, they said they were instructed that Keith had always intended to effect a distribution of the family fortune equally between Kim, Rowland and Denise. They were instructed that the Keith and Beryl Veall Trust had been established in such a way that Keith’s only managerial control was ‘as one of five directors of the corporate trustee of the Trust, effectively precluding him from unilateral control of the assets of that Trust, a situation, which it was never his intent or conscious action to create’. The letter said that litigation was contemplated.
On 23 August 2010, Rowland sent an email to Di Donato regarding the Keith and Beryl Veall Trust. Again, he stressed the urgency of having his father sign the ‘Deposition’. He wrote, ‘without that it is worth nothing and I have wasted $8,000’.
On 1 September 2010, Rowland sent an email to Di Donato in which he said that he had spoken to Keith on the phone and that Keith had said that ‘he had a very positive outcome from the discussions he had with Beryl and he expressed a 90% positive discussion had taken place’. However, a few days later Rowland had quizzed his father ‘to list a few positive points which resulted from the discussion [and] he could not name one’. In that email, Rowland wrote:
On closing Dad again said today that Jane and I are going down the wrong path and keeps saying that everything will be alright but in saying this he cannot produce any documentation or other proof that this is the case. I think Dad just wants not to be bothered with having his days disturbed by my total dissatisfaction with the current status of the family wealth and imbalance of those assets amongst the family members.
Dad is still refusing to contribute towards your fees. He receives $15,000 every month for his living expenses. My suggestion is that he contributes $5,000 of that $15,000 towards those fees that he should be paying completely by himself as he has let the situation go on for so long without organising his affairs earlier. Since when do other people have to pay their father’s legal fees to gain their inheritance.[24]
[24]Rowland used his father’s power of attorney to open bank accounts in his name. He used this account to make out cash cheques and used the proceeds to pay some of Hymans’s invoices.

Rowland was asked about this email in cross-examination. He said: ‘all of my father’s attempts were in vain on each and every occasion. No matter who he spoke to on the other side of the family, they just fed him lies, innuendos, just anything to put him off the track … My father was just made a fool of in the end by the rest of the family … They led him down the garden path.’
In an undated note which Rowland accepted was either prepared by or for him, Di Donato was told: ‘Dad is becoming more irrational by the day in very recent times and is very difficult to deal with. Rowland is the only person in the family other than his father who has contributed to the family wealth. Kim has only ever been a consumer’.
Rowland was present at the meetings that Keith had with Sharp. In cross-examination, he was asked whether he told Sharp that he had concerns about Keith’s mental state? He said: ‘Not that I recall.’
The ‘deposition’
On 8 September 2010, Keith swore an affidavit that had been prepared for him by Sharp. That affidavit[25] contained the following:
[25]In several emails, Rowland referred to this affidavit as ‘the deposition’. Although the document (exhibit 12 at trial) is headed ‘Affidavit of Arthur Keith Veall’, it has no court heading, and was not prepared for filing in any existing proceeding.
…
It is, and has always been my intention, that my three natural children should all be treated fairly and equally by me, whilst at the same time providing appropriate consideration and support for my said wife Beryl, and my step daughter Lorraine.
…
I had previously started to establish a trust for my daughter Kim and to such effect, had allotted to it a large parcel of shares which I owned in Auspine. At that stage, such shares were of relatively small value, although as hereafter referred to, they eventually became very valuable and sold for approximately $38 million dollars. The money flowed, I believe, into the trust that I had caused to be set up for Kim namely the Kim Veall Trust.
…

My son Rowland in particular has expressed concern, given the promises that have been made to him by me over the years, that he should not be left in effect with little, if anything upon my death.
…
It would also appear that the family homes which I and Beryl have shared over the years have been held in the name of my wife Beryl alone. This was contrary to my understanding, belief and intention [Keith then described several properties in which he and Beryl had resided] … We then moved to our present residence of Wallace Avenue. It has been pointed out to me that apparently Maple Grove and Wallace Avenue were or are registered as being in the sole proprietorship of my wife Beryl. This is not and has never been my intention as to what should have occurred I always being aware (sic) that as the family home it should be held by Beryl and me in equal shares.
…

It will be noticed that, while in 2008 and 2009, Keith did not make provision for Beryl in his will(s) on account of her owning the Wallace Avenue property, by September 2010, he was saying that he was unaware how it was that Wallace Avenue was registered solely in Beryl’s name.
The September 2010 will
On 9 September 2010, Keith executed a new will (‘the September 2010 will’). This was his penultimate will. Under the September 2010 will, Keith:

(a) appointed Denise and Rowland as his trustees;

(b) made no reference to the property at Kilsyth South in which Rowland resided;

(c) made no reference to the particular oil painting which in his previous will (and earlier codicil) he had left to Rowland;

(d) left his prized shotguns to the sons of Kim; and

(e) left the residue to be divided equally between his children.

In the September 2010 will, he made no reference to Auspine. The will contained no provision for the payment of executor’s commission.

It is also to be noted that, although Keith was giving instructions to Sharp at the time about the need to recover his estate in order to make fair provision for Rowland and Denise, no change was made in the September 2010 will in respect of the residue of his estate: it was to be shared equally by his three natural children.
The making of the September 2010 will
It is necessary to examine the evidence of the making of the September 2010 will as it is a matter taken into account by the trial judge in his finding that the evidence of Nelson was unreliable.[26]
[26]See Reasons [56]–[58].
The September 2010 will had a backsheet. It bore Nelson’s name, address, phone and fax numbers, indicating that it had been prepared by Nelson.
Nelson gave evidence about the making of the September 2010 will.[27] Nelson said that he met Keith for the first time when the September 2010 will was executed. He gave the following evidence:
[27]Nelson swore an affidavit of due execution of the December will on 7 March 2012. He swore it jointly with Sholl. In his second affidavit, affirmed 22 July 2013, he made no reference to his having any involvement in either the September 2010 will or the Deed of Agreement and Declaration dated 10 January 2011. In his examination-in-chief, Nelson said that he met Keith for the first time in September. He said: ‘I had been asked by another colleague if I would meet Mr Veall and witness the execution of his will’. He identified that colleague as Ian Hone.
Counsel:        What was the purpose of this meeting?
Nelson:          To execute a will.
Counsel:        Is that what happened at that meeting?
Nelson:I said I needed another independent witness to his will and a young lady who was in a conference centre there, she kindly agreed to do that.
Counsel:So I have got this clear, Mr Nelson, this meeting at Tok H Centre in September 2010 was for the purpose of you executing a will for Mr Veall, is that right?
Nelson:          That’s correct.
Counsel:Do I take it then that you did not prepare the will that was executed in September 2010?
Nelson:          No, I did not.
Counsel:You had no instructions given to you about what this will was to provide for?
Nelson:          No.
Counsel:Your presence there on that day was simply to witness Mr Veall making the will?
Nelson:          Correct.
Counsel:        Do you recall how long the meeting lasted?
Nelson:20 minutes, half an hour. As I said on another occasion, it wasn’t – about 20 minutes, half an hour.
Counsel:Can I show you a copy of this document please. Mr Nelson, is that the will that you witnessed for Mr Veall on 9 September 2010?
Nelson:          Yes, it is.
Counsel:This is the will that was witnessed by you in the Tok H open area?
Nelson:          Yes, it is.
Counsel:You say you had no involvement whatsoever in the making of that will?
Nelson:          No, I did not.
Counsel:Can you explain how your name and address appears on the back sheet to that will?
Nelson:Well, I had already agreed that I would be a party to the execution of the will.
Counsel:Did you or someone in your office type up the will beforehand?
Nelson:          No.
Counsel:        Do you know who did?
Nelson:          No.
Nelson said that he could not say what had happened to the will after he had witnessed its execution. He said that he presumed that he had given it to Hone, but that he was ‘not going to swear either way’.
Nelson also gave evidence that Rowland was ‘probably’ at this meeting.
The best evidence of the circumstances in which the September 2010 will was made is found in the evidence of Hone. Hone swore an affidavit in which he described how he had been retained by Di Donato as a consultant ‘to take over the litigation component of Keith Veall’s file and prepare and conduct litigation as Hymans’s consultant’. Hone met Keith around ‘August/September 2010’. In his affidavit, he describes his involvement in that process including meeting Keith and Rowland and taking instructions from them, retaining Sharp, and meeting Woods and Martin. At the end of his affidavit under the heading ‘The Last Will’, he describes his involvement in the preparation of the ‘Last Will’. He said that Keith wanted to change his will to achieve a more equitable distribution of his assets. Di Donato and Hone decided that, given their involvement in the Family Court proceedings, it would not be appropriate for them to be involved in the preparation of the will. Hone secured the services of Nelson, and limited his own involvement to making sure that, when the ‘Last Will’ was executed, Rowland was not present. As Hone put it:
My involvement was limited to making absolutely sure Rowland and Jane Veall were not present at the place and time Arthur Keith Veall signed his will. Given the contentious inclination of the family of Arthur Keith Veall, Mr Di Donato and I felt it would be prudent to have a witness to the whereabouts of Rowland Veall when his father executed his last Will so that if it was ever asserted that Rowland put pressure on his father to execute his last Will or was present when it was signed, I could be a witness to the fact Rowland was not present when his father executed his last Will.
In his cross-examination, a more complete story emerged. Hone contradicted the evidence of Nelson. Hone recollected that Keith had executed a will in September 2010. He accepted that he had contacted Nelson in September with a view to his taking instructions from Keith about the contents of the will. Hone said that he introduced Keith to Nelson. He was not certain when that had occurred but ‘judging from the fact that the will is dated 9 September 2010 I would have expected that it would be on that day or only a couple of days before, if it wasn’t signed on that day’. Hone said that the reason that he was not instructed in the preparation of the will was not so much that he was acting in the Family Court proceedings: ‘it was more the fact that Hymans had also acted for Rowland Veall and the potential that it might be agitated that Rowland was having an influence on the content of the will’.
Hone said that he ‘never took instructions from Mr Veall or anyone about the contents of a will for Mr Veall.’ Hone presumed that the September 2010 will was the product of instructions given by Keith to Nelson.
The transcript of cross-examination is as follows:
Counsel: ... This is what Mr Nelson said this morning: that he had a phone call from you in September 2010 to go and witness the execution of a will which was a will made by Keith Veall, at this place in Toorak Road, South Yarra, and when he got there the document had already been prepared. He simply witnessed Mr Veall’s signature to that document and he had no involvement at all in the instructions giving rise to the making of that will. Can you make any comment about that?
Hone:I introduced Mr Veall to Mr Nelson and left them to it. As to what transpired there I don’t know. My intention introducing the two of them was for Mr Nelson to draw a will.
Counsel: When did you first see the executed will that Keith Veall had made on 9 September 2010?
Hone: I couldn’t tell you.
Counsel: Would it have been later in September 2010?
Hone:Possibly. I have a recollection of seeing it later in 2010, certainly.
Hone confirmed that the September 2010 will had not been prepared by Hymans.
Rowland also gave evidence about the making of the September 2010 will. He said that he had had no involvement in the September 2010 will. He said that he did not meet Nelson until December. About September, 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.[28]
[28]He said that he was absolutely sure that he did not meet Nelson in September.

Despite the fact that, by now, he was his father’s power of attorney, he said he had no discussions with Keith about the terms of his will: ‘No, it was my father’s own business of how he made out his will’.
The caveat and the letter requesting $100,000

On 15 September 2010, Hymans lodged a caveat on Keith’s behalf on the title to the Wallace Avenue apartment.[29]
[29]Reasons [188].
Keith signed a letter dated 15 October 2010 addressed to Martin and Woods (directors of Bethal Nominees), requesting the payment of $100,000 ‘to cover legal and accounting expenses’.[30] Keith met Martin and Woods for lunch on 20 October 2010 and said that he had neither signed nor sent the letter dated 15 October 2010.[31]
[30]The exhibit is unsigned; however in his affidavit sworn 26 June 2013, Martin says that the original was ‘signed by Keith’.
[31]The testator’s comment is recorded in a memorandum of the meeting held 20 October 2010. The minutes record as follows: ‘Keith responded that he had not sent the letter to me requesting this money and that he had not signed the letter. I [Martin] would have believed that he had signed the letter’. The minutes of the board meeting held 11 November 2010 record: ‘Concerns were raised over the fact that [Keith] stated that: Rowland Veall brings things to [Keith] to sign. [Keith] did not recall signing the letter or it’s (sic) contents …’. Woods also said that Keith ‘denied signing the letter and didn’t know anything about it’ when it was raised at a board meeting and Keith said ‘that it had nothing to do with him and he didn’t want the money … He said that he didn’t sign it and he said it was his son’s doing and to just forget about it’.
Email from Dr Kevin Rose to Rowland: 1 November 2010
On 1 November 2010, Rowland made a telephone call to Dr Kevin Rose. Dr Kevin Rose was Keith’s general practitioner from 2007 until Keith died. Rowland told Dr Kevin Rose that he wanted a letter for Family Court purposes ‘concerning Mr Veall’s health so that the case could be heard more quickly’. On 1 November 2010, Dr Kevin Rose provided an email to Rowland which read as follows:
As you are aware I have treated your father for the last three years. Over that time I have noticed his decline both physically and mentally. All systems in his body are now not functioning as previously and he is now only capable of limited periods out of bed. Much of [his] time is now spent resting in a chair.
His prognosis is for a further decline in his bodily function. At any time it would not be unexpected for him to suffer a sudden death from a cardiac or cerebral event.
Rowland said that he disagreed with what Dr Kevin Rose had said about his father’s mental decline. He said that he had no need to make further enquiries about Keith’s mental state.
On 5 November 2010, Keith met with Weil, another barrister, to provide instructions in relation to a Family Court proceeding to be issued in order to seek a redistribution of the assets in his marriage to Beryl. Weil’s evidence is discussed at [88] below.
Board meetings of Bethal Nominees
On 11 November 2010, Keith attended a board meeting of Bethal Nominees.[32] Woods and Martin again asked him about the letter dated 15 October 2010. He said he did not recall the letter and said ‘Rowland brings me things to sign’.
[32]The meeting is described by Martin in his affidavit sworn 26 June 2013.
On 23 November 2010, Keith attended a meeting that included Hone and Sweeney (Donaldson Trumble). Later that day, Hymans wrote to Donaldson Trumble and confirmed their instructions that ‘Arthur Rowland Veall and Denise Suzzette Lodder [are] to be included as Capital Beneficiaries and Joint Appointers together with Kim Veall under the Arthur Keith Veall and Beryl Kathleen Veall Trust’.
On 1 December 2010, Keith attended a meeting of the board of Bethal Nominees at which the letter dated 23 November 2010 was tabled. The minutes record Keith being present and expressing ‘his desire to “get rid of Rowland and Denise”, so he could go to the undertaker with peace of mind.’
On 1 December 2010, Keith signed the 2009 financial reports for Bethal Nominees.
Keith and the divisions in his family
It is not necessary to make any findings on the nature of the relationship between Keith and Beryl. It is true that Keith was saying to Hone and the barristers that the marriage was over. But, the elderly couple continued to live, to dine and to holiday together as they had for the previous 50 years.[33] Their carers gave evidence that, invariably, each night they would dine together. It may be accepted that, by 2010, Keith had been persuaded that his wish that his three natural children share equally in his assets might not be achieved. But it is not possible to determine what he understood his estate to contain. The evidence of Frederick makes it plain that, in 2008 and 2009, Keith approved of the fact that the apartment at Wallace Avenue was solely in Beryl’s name. Yet, in September 2010, he swore an ‘affidavit’[34] in which he deposed that it had never been his intention that the Wallace Avenue property should be registered solely in Beryl’s name. In December 2010, he swore a further affidavit in which he deposed that Beryl had thwarted his explicit instruction that the property ‘must be registered in joint names’.[35]
[33]Rowland said that it was his understanding that Beryl helped Keith shower each morning and would help dress him and that that situation continued until Keith was admitted to Darnlea in the middle of 2011.
[34]The ‘deposition’.
[35]Rowland said of Wallace Avenue: ‘I can’t call it his house … He didn’t own it, and he doesn’t to this day. It was his wife’s house, and it’s been suggested that my father was damn lucky to have that roof over his head towards the end of his life’.
Despite the fact that Keith and Beryl were living together in what appeared to be a manner affectionate and conventional for an elderly couple and that they were attended by personal carers at home and when they went out, Keith also deposed in August 2010 that he had ‘reached a stage in life where I consider it appropriate and necessary for me to be cared for in a way that Beryl herself would not be able to manage’. He continued:
My son Rowland and his wife Jane have offered to care for me in an appropriate situation near to where they live. I think it would be best at this stage if this were to occur, but I need the proceeds of the domestic home in order for this to happen, as there will be necessary expenses involved. I believe at this stage it would be better for Beryl and myself, for Wallace Avenue to be sold, and the proceeds divided accordingly. Beryl will then also be able to be more appropriately cared for.[36]
[36]‘Deposition’.
By any measure, Keith had provided generously for his three children. However, they did not agree on whether they had been treated equally. Rowland certainly thought he had been treated unfairly.
During 2010, Keith was distressed by the division within his family as to their respective entitlements to the wealth he had created. When giving instructions to Hone and the barristers, he expressed the view that his desire that his assets be fairly divided between his children had been frustrated by Beryl and Kim to the detriment of Rowland and Denise. When he was in the presence of Woods and Martin, he expressed anger at what Rowland was doing. While he gave Hone instructions to commence proceedings in the Family Court to secure a redistribution of the assets of his marriage with Beryl, when the proceedings were served upon her (as will appear below), he told her to ignore them. There was ill feeling between Rowland, on the one hand, and Beryl and Kim on the other. In the circumstances, it could hardly be otherwise. It is unnecessary and would be fruitless to determine where the merits lay. The issues in the present case are confined to the questions of testamentary capacity and knowledge and approval of the contents of the December will.
These are all matters of background to the execution of the December will. But, as the authorities that are discussed below make plain, where ‘suspicious circumstances’ surround the preparation and making of a will, the burden is on the propounders to satisfy the Court affirmatively that the testator had testamentary capacity and knew and approved of the contents of the will.
The Family Court affidavits

On 3 December 2010, Keith swore an affidavit in connection with the anticipated Family Court proceedings.[37]
[37]When the sworn version is compared with the draft annotated by Rowland, it is plain that several portions of the sworn affidavit arose on the instructions given from Rowland.
A draft of the affidavit (which differed from the version that was sworn) was settled by Weil. He attended one conference with Keith; it was at a restaurant in Toorak, at which Hone, Di Donato and Rowland were present. The conference lasted about an hour. Weil considered that Keith ‘spoke reasonably, logically, recalled facts chronologically, and consistently’. He was satisfied that Keith ’despite appearing ‘very frail’, was ‘lucid and giving rational instructions’. Weil believed that the draft he settled was based upon the earlier affidavit sworn by Keith on 8 September 2010. Weil had not been told that there were any concerns about Keith’s physical and mental state; but he said he was ‘there to have a conference with Mr Veall and I didn’t want people trying to influence what he was saying to me or influence my understanding of what he was saying to me’.
The affidavit contained a statement of financial position by Keith which disclosed net assets of $70,000. The statement made no reference to shares held in Auspine. In that affidavit, Keith swore:
At or about the time of my return from the USA, by reason of pressure from creditors it was determined that I should divest myself of all property and rights to property. As part of this exercise I transferred significant shareholdings (‘the Auspine Shares’) onto the Kim Veall Trust on the express understanding with Kim that they were in fact to be held for the benefit of my family generally (ie myself, Beryl, Denise, Rowland and Kim)(‘the whole family’).
…
In or about 2007 Auspine Pty Ltd was subject to a take-over and the shares which had been ‘parked’ in the Kim Veall Trust were sold for about $38 million. Those shares were always held for the benefit of the whole family and accordingly so also the proceeds of sale of same.
…
Beryl and I have reached an age where we cannot care for each other any longer. Our marriage has been soured for some time and is now over. I have told Beryl that I believe it would be for the best if Wallace Avenue and all our other assets were sold and the proceeds divided equally. There is an opportunity for me to obtain assisted accommodation near to Rowland. This would be at a cost of approximately $1,000.00 per week. In addition I would require a live in carer at a further cost of approximately $700.00 per week. Similarly Beryl will be able to obtain accommodation near or possibly with Lorraine or Kim.
On 8 December 2010, Hone swore an affidavit in support of an application that Keith be released from his pre-issue mediation obligation. He attached to that affidavit the email from Dr Kevin Rose to Rowland dated 1 November 2010.
Kim’s evidence of her father’s health
Kim said that, when Beryl had a heart attack and open heart surgery in mid-2008, Keith became stressed. He believed that people were attempting to enter into his apartment at night: he slept with an iron bar by his bed. In 2008, despite his having a regular general practitioner in Hawthorn (Dr Kevin Rose), Rowland took Keith to a general practitioner in the city. Kim gave evidence that, in this period, Keith told her that he was angry with Rowland and Denise as they were always demanding money from him. At Christmas 2009, Keith had a fall and injured his head. He told Kim that her life and those of her sons was threatened by Rowland. Beryl told Kim that this was just one of the delusions from which Keith suffered. In 2010, Keith became agitated and confused. He told Kim that Rowland and Denise did not have any money. Kim reminded her father of the amounts that he had provided to them. He had lost track of the way in which he had distributed his bounty. By October 2010, he was beginning to panic if he could not find Beryl. Kim suggested that he needed the care of a specialist geriatrician. Appointments were made for him to see Dr Michael Rose in October 2010; but, these were cancelled because Beryl was too stressed to take him. Kim said that Hymans had written a letter to Beryl demanding that she sell the apartment in Wallace Avenue.[38] Kim asked Keith ‘what he was doing and who Hymans lawyers were and he said “They are not MY lawyers, they are Rowland’s”’.[39] Keith would say to Kim: ‘that Rowland was getting him to sign things and that he did not know what they were’. When Kim showed Keith a letter to Woods and Martin, as directors of Bethal Nominees, which he had signed and which demanded that they transfer $100,000 into his account ‘to meet his legal and accounting expenses’, Keith said: ‘Show me that! I don’t remember signing this. Just ignore it.’
[38]This letter does not seem to be in evidence.
[39]Emphasis in original affidavit.
Late in 2010, Kim met her father after he had returned from inspecting ‘homes’ with Rowland. (The ‘homes’ were plainly aged-care establishments.) Kim asked Keith whether he wanted to live in a ‘home’. He said ’No’. Kim gave evidence of the distressed condition in which she found Beryl, in December 2010, after Rowland and Jane had arrived at the Wallace Avenue apartment with a list of articles that they claimed Keith had given them permission to take from it.[40] Keith was present but in ‘a bit of a daze during it all’. Beryl told Kim that Rowland and Jane took Keith out for lunch afterwards and that Keith had asked Beryl to join them, but as she was extremely distressed over the whole event, she declined. When Beryl came home later in the day, she found him sound asleep. In January 2011, Keith woke Beryl during the night and said ’that she had “better wake up because Rowland had arranged for the Police to evict her from the apartment at 9.30am”’. In this period, Keith would tell Kim that he was not to sign anything unless Rowland was present. On one occasion, Keith was given a cheque for the school fees of one of Rowland’s children. He said: ‘No. I can’t sign anything unless Rowland is here. Rowland has told me that I am not to sign anything unless he says so.’[41]
[40]See [139] below.
[41]Kim’s evidence about her father’s health and what was said to her in 2010 was not impeached in cross-examination. Rather, her cross-examination was directed to establishing that she and her mother had contrived to divert all Keith’s assets to themselves.
Lorraine’s evidence of Keith’s health
Lorraine gave evidence that she overheard the conversation between Keith and Kim at Christmas 2009 about the threat to Kim’s children. Lorraine said Keith rang Lorraine on 18 November 2010 confused about the date of Beryl’s birthday. On 4 January 2011, Beryl told Lorraine that Keith had woken her at about 8.00 am to say that Rowland had organised the police to evict her from the apartment. Keith could not recall this episode when she spoke to him later.
The December 2010 will
At about the same time that he swore his affidavit on 3 December 2010, Keith met Nelson again.[42] They met at the Tok H Centre in Toorak. Nelson said that Keith gave him instructions for the preparation of what became the December will.
[42]Nelson said that they met in early December.
The terms of the December will in relevant part are as follows:
…
2.I APPOINT my son ARTHUR ROWLAND VEALL and my daughter in law ALEXIS JANE ROCHE VEALL to be the joint Executors and Trustees of this my will…
3.I GIVE AND BEQUEATH my fine art oil painting by Anton Fischer and my two Perazzi shotguns to my son ARTHUR ROWLAND VEALL.
4.I GIVE AND BEQUEATH my Golden Stambecco Shooting Trophy to my daughter DENISE SUZZETTE LODDER AND I DIRECT my trustees to collect the said Golden Stambecco Shooting Trophy in the event it is in the possession of KIM LOUISE BIGGINS as at the date of my decease.
5.I GIVE AND BEQUEATH to my Trustees to distribute fairly and equally between my children DENISE SUZZETTE LODDER and ARTHUR ROWLAND VEALL my collection of silver and gold shooting trophies, my collection of pocket watches and my collection of gold shooting medals.
6.I GIVE DEVISE AND BEQUEATH the residual of all my property, real and personal, after the gifts in 3 to 5 hereof, wheresoever and whatsoever, including my shares in Auspine to my TRUSTEES UPON TRUST to pay thereof all my just debts, including the payment of five percent of my gross estate to each of my executors as executor commission, any funeral and testamentary expenses and all death duties payable or by reason of my death payable on the whole of my estate both actual and notional and to hold the balance UPON TRUST for my children DENISE SUZZETTE LODDER and ARTHUR ROWLAND VEALL as tenants in common in equal shares PROVIDED THAT in the event DENISE SUZZETTE LODDER or ARTHUR ROWLAND VEALL predeceasing me or failing to survive me by thirty days leaving any child or children who shall survive me by thirty days THEN such grandchild or grandchildren shall stand in the place of my deceased child or step-child and if more than one such grandchild, shall take as tenants in common the share their parent would have taken if he or she had lived to attain a vested interest PROVIDED THAT my Trustees shall hold the residue of my estate UPON TRUST for any beneficiary who takes under this clause who has not attained the age of eighteen years until the person attains such age, subject always to the provisions of clause 7 hereunder AND PROVIDED FURTHER THAT IF any of the gifts above fail for want of a child of my child or step-child then the gift that child, step-child or grandchild would have taken had they lived to attain a vested interest shall fall into residue to be distributed in equal shares to the surviving child or children of mine or if there is no surviving child, then any grandchild or grandchildren of mine, or if more than one, then in equal shares.
…
On 10 December 2010, Keith met with Nelson, again at the Tok H Centre in Toorak to execute his last will. In addition to the alteration from his previous wills referred to above, the trial judge found as follows:

(a) this will included the Auspine shares previously held by the Kim Veall Trust in the gift of his residuary estate, even though those shares had been sold by the trust three years previously;

(b) it left his two prized shotguns to Rowland instead of to Kim’s sons;

(c) it left the residue to Rowland and Denise, to the exclusion of Kim;

(d) it included a high rate of executor’s commission of five per cent of Keith’s gross estate for each of the two executors (Rowland and Jane). There was no such rate of commission provided for in the previous wills.[43]

[43]Reasons [407].

Nelson asked Moorhouse-Perks, the present solicitor for Rowland, to type the will for him. Moorhouse-Perks gave evidence that Nelson would have instructed her to include the commission clause and that the drafting was taken from one of her will precedents.[44]
[44]The trial judge made reference to the unusually generous size of the commission.
Reasons [77].
It will be noticed that, in his Family Court affidavit, Keith was disavowing ownership of the ‘Auspine shares’, whereas at the same time, according to Nelson, they were treated as part of his residuary estate in the December 2010 will.
The making of the December 2010 will
On 22 July 2013, Nelson affirmed a second affidavit[45] in which he described the circumstances in which the December will came to be drawn up and was executed. In his second affidavit he deposed:
[45]His first affidavit was a joint affidavit with Sholl made 7 March 2012 in which they deposed to due execution of the December will.
1.I am a barrister and solicitor of this Honourable Court. I depose to the contents of this affidavit from my own knowledge.
2.I was admitted to practise in 1958. In the course of my professional practise I have prepared hundreds of wills. The preparation of wills has always been part of my practise.
3.I attended Arthur Keith Veall (’Keith Veall’) to take instructions for a new will for him in early December 2010. I met him for that purpose at the Tok H building in Toorak Road, Toorak. There was no one else present at that meeting apart from him and me. I had earlier been asked by Ian Hone, solicitor, to draw up and attend to the execution of a new will for Keith Veall.
4.I spent approximately 20 minutes with Keith Veall taking instructions for the new will he wanted to make. He told me that he wished to leave two particular shotguns and a particular oil painting to his son Rowland. He also told me that he wished to leave his Golden Stambecco shooting trophy to his daughter Denise and that his other shooting trophies and medals and his collection of pocket watches were to be divided equally between his son Rowland and his daughter Denise. He instructed me that he wished to take his daughter Kim out of his will. I asked him why he wished to do so. He told me that Kim was thwarting his wishes that the assets he had generated be divided equally between his children. He told me that he had generated considerable wealth over his lifetime (he also told me light heartedly that his brother had generated even more) but that he didn’t know how much his wife, Beryl, and his daughter Kim had taken from him over the years. He also said that his son, Rowland, had looked after him well and that he and his daughter Denise were in greater need of his financial assistance than Kim. I warned him that cutting out one of his children could lead to his will being contested. He responded that he didn’t care about that and that I was to do what he had told me in drawing up his will.
5.In taking instructions from Keith Veall for his will I was well aware of my obligation to satisfy myself that he was competent to give me such instructions. I observed him closely throughout our meeting and the several meetings that I had had with him in the few months before December 2010. In the course of those meeting we discussed a number of matters of mutual interest as well as matters directly related to the drafting of his will. In particular, we discussed the football and the relative fortunes of our respective teams as well as mutual acquaintances. On each occasion all his observations and remarks were clear, coherent, rational and well expressed. I 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 a will and insisted that I follow his instructions precisely in drawing up his will.
6.At that time — December 2010 — I did not have a regular typist or secretarial staff. After receiving Keith Veall’s instructions I asked Katherine Moorhouse-Perks to type up a will for me in accordance with the instructions I had received from Keith. She agreed to do so and a few days later I collected the typing from her, namely the will which comprises exhibit ‘A’ to my affidavit sworn 7^th March 2012 herein to me. I then arranged to meet Keith Veall again for him to execute same.
7.On 10^th December 2010 I again met Keith Veall at the Toc (sic) H building in Toorak Road, Toorak. I was driven to the meeting by my friend Denis Sholl who also attended to witness Keith Veall’s execution of his will. There was no one else present at that meeting.
8.I gave the will described in paragraph 5 & 6 hereof to Keith Veall to read through. He did so in front of me and I went through specific provisions of the will with him and in particular the provision that the residue of his estate be divided equally between his daughter Denise and his son Rowland. He confirmed that the will as drawn reflected his wishes. After he had signed the will I remarked on the clarity of his hand writing and said that it was much clearer than my own. He replied that he had been well taught and that he had written up his own books throughout his working lifetime. I spent approximately 15 minutes with Keith Veall on 10^th December 2010 and have no doubt that he clearly understood that he was signing a will disposing of his assets and that he clearly understood the terms of the dispositions that he was making.
Efforts to locate Nelson’s instructions
The respondent had filed her grounds of objection on 30 March 2012. In them, she had objected to the grant of probate on the grounds of capacity and lack of knowledge and approval of the contents of the will. Nelson’s second affidavit was filed on the first day of the trial.[46] Sholl’s was supplied the following day. At the hearing of the appeal, reference was made to the efforts made by Mark Albert Maier (‘Maier’), the solicitor for the respondent, to find out about the circumstances in which instructions were taken for the December will and those in which it was executed. Maier had described those efforts in two affidavits which had been filed at the interlocutory stage.[47] During the hearing of the appeal, reference was made to those affidavits. The Court asked for copies and was supplied with affidavits sworn 11 July 2012, 11 September 2012 and 6 June 2013. The appellants raised no objection to our reading them.
[46]The respondent’s notice of objection to the grant of probate was made 30 March 2012.
[47]The transcript reveals that Maier was to be called for cross-examination. In the event, it appears that his affidavits were not read at trial.
Since 15 March 2012, Maier had been engaged in correspondence with Moorhouse-Perks about the circumstances described above. In that correspondence, he repeatedly reminded the appellants and their legal representatives that, as the validity of the will had been put into question, it was the duty of the appellants to put in evidence surrounding the making of the will. For example, on 17 April 2012, Maier wrote to Moorhouse-Perks as follows:
Because of a Will’s importance the burden for establishing its validity falls on the propounders of the Will. When this is (sic) validity is called into doubt, which is done by the filing of the Notice of Grounds, the propounders need to put into evidence before the Court the circumstances surrounding the making of the Will. It is to this evidence that order 5 relates – its (sic) is evidence in addition to that already filed in the probate application that supports the general validity of the Will. Once those circumstances are deposed to the objectors file affidavit material, which is in effect the main affidavit material impugning the Will and the propounders deal with the specifics of the opposition by way of reply. In the meantime the discovery process, and this is by both propounders and objectors, is completed at a time prior to the propounder’s evidence in regard to the circumstances of the making of the Will.
Maier also communicated with Nelson and Sholl. Eventually, Nelson spoke to Maier; Sholl never responded to him. A subpoena to produce documents was served on Nelson; nothing was produced. On 30 May 2012, Maier telephoned Nelson. Nelson told Maier that he did not have any documents and he had ‘retained nothing whatsoever’. Maier swore:
I then said to Mr Nelson that I needed to talk to him about the events regarding the making of the Will. I gave some examples of such events [he referred to some matters that Rowland had disclosed about the making of the will] and he said that he would not talk to me. He said that he would get advice from ’Kathy’, being a reference to [Moorhouse-Perks], and another person whom he did not identify. By this stage Mr Nelson was clearly trying to terminate the conversation and that was where it finished.

Lord Cranworth’s example discloses an important distinction: a testator may yet know and approve the contents of his or her will, even though the will does not reflect his or her true intention because its preparation is tainted by coercion or fraud. Approval, in this context, concerns whether the testator has given his assent to the contents of the will, of which he has a full appreciation. Approval does not entail that the testator’s will was not overborne; nor does it entail that his approval was not procured by fraud. Hence a testator cannot be said to have not approved the contents of his or her will where he or she would not have approved its contents in the absence of coercion or fraud.
Consistently with the distinction between the law of knowledge and approval, and that of coercion and fraud a caveator is not to be permitted to use an allegation of ‘suspicious circumstances’ as ‘an opportunity to litigate an allegation of fraud, or of undue influence, by another means or on flimsy or incomplete evidence’.[141] However,
Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator’s knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the court … that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt … However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie …; Nock v Austin …; Vout v Hay … At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye …[142]
[141]Vukotic v Vukotic [2013] VSC 718, [132] (McMillan J), citing Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J). See also Low v Guthrie [1909] AC 278, 281–282 (Lord Loreburn LC).
[142]Tobin v Ezekiel (2012) 83 NSWLR 757, 772–773 [51] (citations omitted) (emphasis in original); Fulton v Andrew [1875] LR 7 HL 448, 472; Vukotic v Vukotic [2013] VSC 718, [25].
The suspicious circumstances
In the present case, there were many circumstances giving rise to a suspicion either that Keith did not possess testamentary capacity when he executed the will on 10 December 2010 or that, even if he had that capacity, he did not know and approve its contents:
(1)When he executed the December will, Keith was aged and infirm. Rowland had expressed concern for some time that Keith was signing whatever was put in front of him. There was other evidence that Keith would disavow that he had signed documents that bore his signature. A few weeks before he executed the will, Rowland had secured from Keith’s general practitioner (Dr Kevin Rose) a note that said that Keith had been declining ‘both physically and mentally’. Keith was also very hard of hearing and refused to wear hearing aids.
(2)The contents of the December will departed radically from all Keith’s previous wills including one executed two months previously. There was a change of executors, the removal of specific legacies in favour of his grandsons, the exclusion of his daughter Kim from his residuary estate, the specific reference to ‘Auspine shares’ in the residuary estate and the inclusion of a provision for executor’s commission in an amount totalling 10 per cent of the gross value of the estate.[143]
(3)The December will provided that the prized shotguns were to go to Rowland. However, there was repeated and consistent evidence from Keith’s family and friends that he always intended those shotguns to be left to his grandsons.
(4)The contents of the December will reflected a version of Keith’s estate which was inconsistent with another version of his estate expressed by him at the same time. In the affidavit that he made on 3 December 2010 for filing in the Family Court proceedings, Keith deposed that the shares in Auspine had been placed into a trust and had been sold ‘in or about 2007’. In the December will, those shares are described as a part of his residuary estate.
(5)The December will conferred particular benefits upon Rowland to the exclusion of Kim. Although Rowland was kept away from the actual execution of the December will, that will was itself created within a matrix of sustained activity that was designed to increase Rowland’s participation in Keith’s estate.
(6)The evidence reveals that Keith had a degree of confusion about his entitlement to assets. In 2008 and 2009, he had given clear and repeated instructions to a solicitor (who had taken notes of those instructions) that the reason he had made no provision in his wills for his wife was that his wife owned the apartment at Wallace Avenue. In 2010, he was instructing new solicitors (and swearing an affidavit) that he was unaware that the Wallace Avenue apartment was registered solely in his wife’s name.
(7)The evidence reveals that Keith was ambivalent and sometimes unsure about the project of changing the distribution of his assets amongst his children. In a series of conferences which were organised and attended by Rowland, he gave instructions to solicitors to commence proceedings in the Family Court for a redistribution of his assets and those of his wife. When he attended meetings with other trusted advisers, he expressed dissatisfaction with what Rowland was doing. He denied that letters appearing to bear his signature were signed by him: he said that Rowland brought him things to sign. When his Family Court proceedings were served on his wife, he told her to ignore them.
(8)The December will was prepared by a solicitor who had been asked to perform the task by the solicitors who were attending to the Family Court proceedings. The will was prepared in early December 2010. Despite the efforts of the respondent’s solicitor to have him describe the circumstances in which the December will was prepared and executed, the solicitor who prepared the will first prepared an affidavit explaining the circumstances of its preparation in July 2013. That solicitor had not retained any notes of any attendance of Keith notwithstanding that he knew that the December will would probably be the subject of controversy amongst the children of Keith.
(9)In early December 2010, the solicitor who was preparing the Family Court proceedings had exhibited to an affidavit the opinion of the general practitioner described in (1) above. That solicitor (Hone) did not draw the general practitioner’s opinion to the attention of the solicitor who was preparing the will (Nelson) at the very time as the affidavit was sworn.
(10)Although Nelson gave evidence as to the instructions he had received from Keith for the preparation of the December will and to the circumstances of its execution, he denied that he had played any part in the preparation of the September will, despite the evidence that he had done so. Further, at about the same time that the December will had been executed, Nelson had provided to Keith the deed of agreement and declaration, a document the purpose of which was to increase Rowland’s entitlement to family assets. However, Nelson was not able to give any satisfactory explanation of the provenance of that document.
(11)It was submitted that the departure of the December will from previous wills was explained by Keith having realised that his wish that his estate be divided equally between his three natural children would be frustrated. However, the basis for any such realisation would have been present to the testator in 2009 and, certainly, in September 2010 when he executed his penultimate will.
[143]No previous will had provided for executor’s commission. The provision of such commission ‘is a bounty in the nature of a legacy’; see Astridge v Pepper [1970] 1 NSWR 542, 551 (Helsham J). As the trial judge said (at Reasons [407]): the rate was ‘considerably higher than the usual range of commission awarded.’ He referred to s 65(1) of the Administration and Probate Act1958 and to the discussion of the percentage of commission awarded by the court, in Richard Boaden (ed), Wills Probate and Administration Service Victoria, LexisNexis Butterworths, (at Service 55) [50,150].
Testamentary capacity
In my opinion, the trial judge erred in finding that the appellants had discharged their onus of establishing that the testator had testamentary capacity when he executed the will of 10 December 2010.
After considering the evidence of Dr Kevin Rose, Dr Michael Rose and Associate Professor Woodward, the judge said: ‘The medical evidence suggests that KeithVeallsuffered significant cognitive impairment as at 10 December 2010 and that his condition was deteriorating’.[144] He then turned to the evidence of the non-medical witnesses and concluded that the testator did have capacity at the relevant time. In reaching that conclusion he said: ‘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.’[145].
[144]Reasons [260].
[145]Reasons [391].
It is necessary to return to the basic principles that are to be applied in determining testamentary capacity. The onus is upon the propounder to establish testamentary capacity. Where a will is rational on its face and is proved to have been duly executed, it is presumed that the testator was mentally competent. That presumption is displaced where there are circumstances that raise a suspicion about the testator’s capacity. Where there is a doubt that the testator was of ‘sound and disposing mind’, ‘[t]hat requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator’.[146]
[146]Tobin v Ezekiel (2012) 83 NSWLR 757, 771 [47] (Meagher JA).
As Ashley J said in Norris v Tuppen,[147] a testatrix must ‘be aware of those who might reasonably be thought to have claims upon her bounty; and the basis for and nature of those claims’ and ‘have the ability to evaluate and discriminate between the respective strengths of those claims’.[148] In my opinion, as at 10 December 2010, Keith was well aware of those who might reasonably have claims upon his bounty; that group was confined to his three natural children. The trial judge said: ‘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’.[149] However, in my opinion, his confusion at the time meant that he had lost the ability to evaluate and discriminate between the respective strengths of those claims.
[147][1999] VSC 228.
[148]Ibid [330]. This echoes the words of Hood J in In the Will of Wilson (1897) 23 VLR 197, 199 adopted by Dixon J in Timbury v Coffee (1941) 66 CLR 277, 283: ‘and to weigh the claims which naturally ought to press upon him.’
[149]Reasons [393].
The capacity of Keith in December 2010 can be compared with his capacities a few years earlier. When he met Frederick to prepare his October 2008 will and the codicil in April 2009, he was able to give clear instructions as to why he was making no provision in his will for his wife of almost 50 years. By 2010, he had become quite confused as to the respective entitlements of his wife and the claims of his children. The evidence is that he wanted his natural children to share equally in his bounty. Rowland had reached the conclusion that he had not received his fair share of his father’s bounty and that, when he died, he might not share equally in his assets, broadly conceived. Accordingly, he set out to persuade his father that that was the case and, with the assistance of lawyers, to take the steps necessary to remedy the situation. Family Court proceedings were prepared and commenced against Keith’s wife, and new wills were prepared.
But, consideration must be given to the evidence of what Keith was doing and saying when he was not in the presence of Rowland and the lawyers.
In August 2010, Rowland secured a power of attorney because he considered that ‘anything people on the other side of the family put underneath his nose … he would sign because he trusted them’. In fact, Rowland thought that when Keith had established the Keith and Beryl Veall Trust his mental state had been ‘inadequate’. Rowland told his solicitors that Keith was ‘declining by the day’. He was ‘becoming more irrational by the day in very recent times and is very difficult to deal with’. Rowland used his power of attorney to authorise Keith’s general practitioner to issue an opinion that Keith was declining ‘physically and mentally’. Rowland himself reported that his father said that he ‘was going down the wrong path and keeps saying that everything will be alright but in saying that he cannot produce any documentation that this is the case’.
Away from the solicitors retained by Rowland, Keith was presenting a quite different picture. In June 2010, he was asked about a letter from his solicitors that was seeking information about his financial circumstances. But, he appeared ‘uncertain and unclear as to the contents of the letter … He did not wish to make any comment in relation to it’. When asked about a letter signed by him in which he sought the payment of $100,000 to pay the legal fees of Hymans, he said, on the first occasion, that he had neither signed nor sent the letter and, on the second occasion, that ‘Rowland brings me these things to sign’. He would not pay the fees of the lawyers who were preparing his Family Court proceedings, insisting that they were not his lawyers.
Keith himself was complaining about the demands that were being made of him; away from the solicitors, he said that he just wished to be left alone so ‘he could go to the undertaker with peace of mind’. At the very time that he was describing his assets in his affidavits, he was giving a different description of them in his will. He signed a list of the items of property which Rowland was entitled to take from the Wallace Avenue apartment. When Rowland his wife attended the apartment to collect the items, a furious row broke out between Rowland and Keith’s wife, Beryl. Keith himself remained docile; unable or unwilling to intervene in circumstances in which his word would have been decisive. He lived in Toorak, comfortably close to restaurants that he attended each day for lunch and dinner with family and companions. In addition to professional carers, he was cared for by his wife, who showered and dressed him each morning, and dined with him each evening. Yet, he swore an affidavit in the Family Court proceedings saying that his marriage was ’over’ and that he wished to go into assisted accommodation. When asked by Kim if he wished to go into a home, he said that he did not. After the Family Court proceedings had been issued, but before they were served, he told his wife that Rowland had arranged for the police to evict her from the apartment in which they lived together. Despite all the efforts made to prepare the Family Court proceedings, when they were served on his wife, Keith told her to ignore them. When Keith saw the geriatrician in February 2011, he had no idea that he had commenced proceeding against his wife. He was aware of but did not take part in the disputes within the family going on about him. As the carer Hughes said: ‘this was not through being oblivious to it but more likely from wanting it not to happen at all’.
The present issue is one of capacity. The fact that a testator has chosen to exclude one or more persons who have a natural claim on his bounty does not by itself establish that he lacked testamentary capacity. As Gleeson CJ said in Easter v Griffith,[150] ‘[t]he power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.’[151] It may be that (and this point does not require determination) Keith’s long intended wish that his bounty be divided equally between his natural children was not going to be achieved. But, by December 2010, he had lost the stamina necessary to evaluate those who had claims upon his bounty and, thus, the capacity to make any rational determination whether his plans would be fulfilled and the ability to remedy the situation if they were not. In my opinion, Rowland probably summed up the situation accurately in his email to Di Donato on 1 September 2010: ‘Dad just wants not to be bothered with having his days disturbed by my total dissatisfaction with the current status of the family wealth and imbalance of those assets amongst the family members.’
[150](1995) 217 ALR 284.
[151]Ibid 290.
The solicitors and the barristers involved gave strong evidence in support of the conclusion that Keith had testamentary capacity. This is powerful evidence which cannot be lightly disregarded. However, the Court has had available to it more evidence than was ever available to them; and, it must consider all of the evidence. Keith was a very old man, used to dealing with strangers and professionals throughout his life. The evidence of the lawyers that Keith gave the appearance of a thoroughly rational person determined to take the steps necessary to remedy a situation that had developed may be accepted. There is evidence, however, that, at the very time that Keith was giving instructions to Nelson about the December will, (which is the relevant time for the purposes of the present inquiry) Hone was using in the Family Court proceedings the opinion of Dr Kevin Rose that Keith was declining ‘both physically and mentally’. Hone justified not providing this information to Nelson on the basis that ‘this was a matter for Mr Nelson to deal with’ and that Hone was convinced of Keith’s mental capacity. Rowland attended all the meetings that Keith had with Sharp; but he did not tell Sharp of his concerns about Keith’s mental state. Weil attended one conference with Keith that was also attended by Hone, Di Donato and Rowland. He settled a version of Keith’s Family Court affidavit. He was not told that there were any concerns over Keith’s mental state. It is to be borne in mind that the onus is upon the propounders of the will to establish affirmatively the capacity of the testator. There is no evidence that the clear concerns about Keith’s mental capacity were ever communicated to the barristers or to Nelson; in fact, they were probably not communicated to them. In the circumstances, the assessment in Ashkettle v Gwinnett,[152] is apt: ‘Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and ... the terms of the will may themselves suggest that the solicitor’s assessment was not soundly based’.[153]
[152][2013] EWHC 2125 (Ch).
[153]Ibid [43].

In reaching the conclusion that Keith lacked testamentary capacity, it is also necessary to consider the evidence of his friends and carers, which the trial judge accurately described as ‘independent’. The evidence is highly relevant and it was open to the judge to consider it ‘most compelling’. But, despite its independence, it should not have been treated as decisive. By 2010, Keith was living a much reduced life; each day followed an established pattern. In my view, the evidence of his carers and friends establishes that Keith continued to be able to maintain the rhythms and habits of his life; he could respond to the care of others and enjoy their company. All this, during the period in which efforts were being made to alter the disposition of his bounty among those who had a claim upon it. In early December 2010, Keith possessed several capacities. The question was whether the propounders of the will had established that, at that time, he possessed testamentary capacity. The test for testamentary capacity is, with respect, more exacting than that applied by the trial judge. As indicated above, it must be established that the testator could still evaluate the claims on his bounty. That was not established. In fact, the better view is that, although strenuous efforts were being made to have him address that issue, by the time he made his December will, he had lost the capacity to do so.
In the event, when the whole of the evidence is taken into account, the trial judge erred in concluding that Keith was competent when he executed the will on 10 December 2010. The notice of contention should be upheld.
Knowledge and approval
The holding that the propounders of the will have not affirmatively established that Keith had testamentary capacity makes it unnecessary to determine whether they have affirmatively established that Keith knew and approved the contents of the December will. However, in case I am wrong on the question of capacity, it is desirable that I consider the latter question. The trial judge decided that the appellants had not discharged the onus on them of affirmatively establishing that the testator did know and approve the contents of the will. I think that he was right to do so.
For the reasons given above, the appellants’ ‘primary’ contention that there was no basis in the evidence for a finding that suspicious circumstances existed must be rejected.
The effect of the finding that there were suspicious circumstances attending the execution of the will should be restated. The onus of proof lay upon the appellants to satisfy the Court that the December will was the last will of a ‘free and capable’ testator. To do that, they had to show that Keith knew and approved its contents at the time it was executed so that it can be said that he comprehended the effect of what he was doing. Once the appellants established testamentary capacity and due execution, a presumption arose that Keith knew and approved of the contents of the will at the time of its execution. However, that presumption was displaced once the trial judge found that there were suspicious circumstances attending the execution of the will. Without the benefit of the presumption, the onus was on the appellants to establish affirmatively that Keith knew the contents of the December will and appreciated the effect of what he was doing so that it can be said that it contains his real intention and reflects his true will.
In providing such proof, the standard requires no more than the satisfaction of the conventional civil standard of proof. The authorities emphasise that ‘the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters’.[154] Evidence that a will was prepared on the testator’s instructions and was read by or to him or her before it was executed has been described as ‘the most satisfactory evidence’. But, it is not conclusive evidence. In the end, the Court must be satisfied that the testator knew and approved the contents of the will sought to be admitted to probate.
[154]Tobin v Ezekiel (2012) 83 NSWLR 757, 772 [48] (Meagher JA).
The appellants have several complaints with the way in which the trial judge dealt with the second ground of objection. First, they said that the respondent had not provided any particulars of the basis upon which she would be contending that Keith did not know and approve the contents of the will. Next, they contended that they were not notified of the specific attacks on their case either before trial or during cross-examination; in effect, there was a denial of procedural fairness. Finally, they say that there was unchallenged evidence of high quality from an independent witness.
The contention that the appellants were denied procedural fairness can be disposed of shortly. In her caveat, the respondent had said that ‘the [d]eceased did not know and approve the contents of the will’. No particulars were provided of that allegation. On 20 April 2012, the respondent was added as a defendant to the proceeding. On 9 July 2012, she swore an affidavit which was filed in the proceeding. In that affidavit, she referred to her grounds of objection including her objection that her ‘father did not know and approve of the contents of the Will’. It might be thought that the appellants should have asked for particulars of her objection. It can hardly be doubted that there was a basis for the allegation: the testator was 90 years old, and the fact that he had cognitive impairment was known to those close to him. As it happened, the respondent and her solicitors were ignorant of the circumstances in which the December will was prepared and executed. For over a year before the commencement of the trial, the solicitor for the respondent had been persistently seeking information as to the preparation and execution of the will from both the solicitor for the appellants and Nelson. No information was supplied.
The affidavit of Nelson dealing with those circumstances was filed, by leave, on the first day of the trial; the affidavit of Sholl on the second day. Until those affidavits were filed, the respondent and her solicitors were ignorant of the particular circumstances in which the December will had been prepared and executed. In the circumstances, there was no unfairness in the respondent not supplying particulars. The risk that submissions and findings would be made on issues that were adverse to the appellants were risks that, to use the words of McHugh J in Re Refugee Review Tribunal; Ex parte Aala, ‘necessarily inhere[d] in the issues to be decided’.[155]
[155](2000) 204 CLR 82, 121 [101].
The onus was on the appellants to satisfy the Court of knowledge and approval. In seeking to discharge that onus, they relied upon the evidence of Nelson and Sholl.
The evidence of Sholl was of very little weight. In his cross-examination, he described himself as an innocent bystander. In the circumstances, as did the trial judge, I think that little, if any, weight should be given to the evidence of Sholl on the second ground of objection.
The appellants contended that the trial judge failed to apply correctly the rule in Browne v Dunn.[156] It will be recalled that they said that Nelson and Sholl were not cross-examined in relation to what Keith instructed Nelson regarding the content, and his knowledge of the content of the will. Nelson said that he had a good recollection of the meeting, that he had read the will to Keith, that Keith had read it and that he knew what he was doing when he signed the will.[157] Thus, they said that it was not open for the trial judge thereafter to find contrary to the evidence of Nelson and Sholl that Keith did not understand the contents of the will.
[156](1893) 6 R 67.
[157]On the Browne v Dunn issue, the evidence upon which the appellants particularly relied is extracted in [115] above.
In support of their contention that the trial judge failed to apply correctly the rule in Browne v Dunn, the appellants referred to many cases on the meaning and proper application of the rule.[158]
[158]Bulstrode v Trimble [1970] VR 840, 846 (Newton J); Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 22 (Hunt J); Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, 488 (Ashley and Redlich JJA and Coghlan AJA); Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, [13]–[14], [50] (Redlich JA and Beach AJA); A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189, 202 (Redlich JA and Beach AJA); Baulch v Lyndoch Warnambool Inc (2010) 27 VR 1, 6 (Bongiorno JA and Byrne AJA, with whom Neave JA agreed); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 371 (Gibbs J, with whom Stephen and Murphy JJ agreed); Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509, 531–532 [79] (Nettle and Redlich JJA and Beach AJA); Lord Buddha Pty Ltd v Harpur [2013] VSCA 101, [208] (Vickery AJA, with whom Weinberg and Tate JJA agreed).
In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation,[159] Hunt J said (of rule in Browne v Dunn):
I remain of the opinion that, unless notice has already clearly been given of the cross-examiner’s intention to rely on such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.[160]
[159][1983] 1 NSWLR 1.
[160]Ibid 26.
The present case was not an instance of a party not putting the other party on notice of what was to be said in final addresses; it was not a case of the Court being asked to disbelieve a witness in circumstances in which he or she (or the party relying upon his or her evidence) was given no notice or deprived of an opportunity to address the facts and circumstances relied upon to show why he or she should be disbelieved. As already indicated, in the present case, issues of testamentary capacity and knowledge and approval had been raised at the very outset. Moreover, unlike some controverted issue of evidence, each was a matter for the Court to determine; the fact that a witness was of the opinion that a testator had capacity and understanding cannot be conclusive. The authorities require the Court to consider all the evidence. It may not be doubted that, in the limited contact Nelson had with Keith, he was of the opinion that Keith understood their discussions and knew that he was making a will.[161] However, the trial judge had available to him (as this Court has had available to it) considerable evidence about the capacities and understanding of Keith that was not communicated to Nelson and, even if it had been, his opinion as to its significance could not be decisive. Finally, this was not a case in which there was a challenge to the truth of the evidence of Nelson or to his credit as a witness. There was, however, a challenge to his reliability. And, he was given every opportunity to deal with that.
[161]As the trial judge said at [432]: ‘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’ (emphasis added).
When the December will was prepared and executed, Keith was physically and mentally infirm. He was very deaf and would not use his hearing aids. Hone was the solicitor with whom he seems to have had the greatest contact in the latter part of 2010. Hone swore an affidavit for filing in the Family Court to which he annexed a report from Keith’s general practitioner (a report solicited by Rowland) that said that Keith was declining ‘physically and mentally’. Keith was distressed by the divisions amongst the members of his family over their respective entitlements to the wealth he had built up. He did not himself have the stamina to be involved. Actions which on their face suggested the existence of a firm and independent mind such as the making of lists, the signing of letters and the commencement of legal proceedings proved to be highly ambiguous when the whole of the evidence is considered. When the dispute occurred in Keith’s presence over the list of family valuables, he was not able to involve himself to resolve the matter when his word would have been decisive. He disavowed letters he had signed; he told his wife to ignore the Family Court proceedings he had commenced against her. To strangers such as Nelson, Keith remained able to appear intelligent and engaged. But, when all the evidence is considered, Nelson’s estimate of him, ‘nothing infirm about him … perfectly okay‘, cannot be accepted, even though sincerely held.
In addition, there were several aspects of the evidence of Nelson that made it unreliable:
(1)Nelson’s evidence was contradictory and contradicted by other witnesses. It was contradictory, for example, with respect to (a) the number of times he had met Keith, (b) the circumstances in which he took instructions in relation to the deed of agreement and declaration and (c) whether he expected the will to be challenged. It was contradicted, for example, with respect to the nature of his involvement in the preparation and execution of the September will and in respect of the circumstances surrounding the deed just mentioned.
(2)Nelson kept no file and no notes of his attendances on Keith. He explained that Keith was not a client and that he was not being paid for his services. He claims to have taken notes of his instructions from Keith for the preparation of the December will. He says he took those notes to Moorhouse-Perks when he asked her to type up the will. He said that he took those notes with him when he left despite the fact that she was yet to type the will. He said he took no notes of his attendance upon Keith when he came to have the will executed.
(3)It is true that, in his affidavit, Nelson gives a fulsome account of the instructions he received from Keith that explain the drafting of the December will. However, he prepared that affidavit almost three years after the events in question. In doing so, he had no notes. In the circumstances, I cannot be satisfied that the detail that he says formed part of his instructions was not itself drawn from his reading of the will and that his affidavit is no better than a ‘reverse engineering’ of the completed document to what must have been the instructions.
(4)While Nelson’s evidence that he had been involved in the preparation of hundreds of wills was not challenged, his failure to keep notes or a file in circumstances in which he anticipated that the will would be challenged was unexplained and, simply, inexplicable. As indicated above, his evidence on the question whether he anticipated the will would be challenged was contradictory. His suggestion that he did not anticipate ‘some acrimonious will proceedings’ because Keith had told him that Kim ‘was very well provided for and that Rowland and he were the ones that had most to do with one another’ cannot be accepted.
For the sake of completeness, I refer again to the provision in the December will that the two Perazzi shotguns were to go to Rowland. There was overwhelming evidence that Keith always intended these shotguns to go to the sons of Kim. Keith was perfectly entitled to change his mind about that. But, there is simply no evidence that helps make sense of a decision to do so.

As indicated above, in my opinion, Keith Veall did not have testamentary

capacity when he made the December will. If he did have capacity, then it is to be recalled that he gave instructions for that will on or about the very day that he swore his Family Court affidavit. In that affidavit, he swore that the Auspine shares had been held by a trust and had been sold some years previously. Yet, his December will expressly includes them as part of the residuary estate. If he did have capacity, this inconsistency strengthens the conclusion that he must not have understood the contents of the will.

As Tadgell JA said in McKinnon v Voigt,[162] where suspicious circumstances exist, the Court must give the evidence ‘vigilant and jealous scrutiny’.[163] Applying that test, in all the circumstances, I cannot be affirmatively satisfied that Keith Veall knew and approved of the contents of the December will.
[162][1998] 3 VR 543.
[163]Ibid 554.
In my opinion, the appeal should be dismissed.

BEACH JA:

I agree with Santamaria JA.

KYROU JA:

I agree with Santamaria JA.
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[2015] VSCA 60

16 April 2015