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[2009] WASC 193
Supreme Court of WA
2009-07-17
Mr P, Dr P, Simmonds J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : KAY -v- FISHER [2009] WASC 193
Wills - Proof of will in solemn form - Presumption of due execution - Presumptions from due execution - Whether presumption of due execution rebutted - Whether presumption of knowledge and approval of will rebutted by suspicious circumstances - Deceased elderly, frail and required magnifying glass to read, and there was a beneficiary under will prepared for testator by beneficiary's spouse - Whether suspicion dispelled and burden of proof discharged
Wills Act 1970 (WA), s 8
Plaintiff's claim for proof of will in solemn form allowed
Astridge v Pepper [1970] 1 NSWR 542
Gould v Lakes (1880) 6 PD 1
Grainger v Williams [2009] WASCA 60
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
In the Estate of Hassan [2008] SASC 14
In the Goods of Gilliland [1940] NI 125
In the will of Foley [1879] VicLawRp 249; (1879) 5 VLR (IP&M) 95
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Nicholas v Penn [2004] WASC 227
Nock v Austin [1918] HCA 73; (1918) 25 CLR 519
Public Trustee (in and for the State of Western Australia) v Anglican Homes Inc [2007] WASC 204
R v Bonython (1984) 38 SASR 45
Re Barker [1995] VicRp 64; [1995] 2 VR 439
Re Bladen [1952] VicLawRp 14; [1952] VLR 82
Re Gramp, Deceased; Finck v Gramp [1952] SASR 12
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Re Spicer; Executor Trustee and Agency Co of South Australia Ltd v Morris [1929] SASR 28
Roebuck v Smoje [2000] WASC 312
Sugden v Lord St Leonards (1876) 1 PD 154
1 This is the judgment in an action to propound a will in solemn form. The plaintiff is the remaining executor of the will and the defendants are the beneficiaries under it. The action raises issues of the due execution of the will and of the testator's knowledge and approval of the will.
2 I begin this judgment by reviewing the background to the will, before turning to the circumstances of its execution that are common ground, and to its terms. I then describe these proceedings, and the applicable legal principles, before turning to consider the two issues of due execution and knowledge and approval of the will.
3 The matters I canvass in this section of my reasons are not in contest.
4 Arthur John Fisher (the deceased, also referred to in some of the evidence as Jack Fisher) was born on 20 May 1912. At the date of his death, on 15 October 2005, his death certificate states his occupation as 'orchardist'.
5 At the date of his death the deceased was the sole registered proprietor of lands in Bindoon the subject of three certificates of title.
6 Two pieces of land were 'portion of Swan Location 1285 including Lot 2 on [D]iagram 15522' and being the whole of the lands comprised in Certificate of Title Volume 1138 Folio 280.
7 One of the pieces of land as shown in Certificate of Title Volume 1138 Folio 280 has an area of 3 acres 3 roods 7 perches and is shown as Lot 2 on Diagram 15522. This piece of land is bounded to the west by Great Northern Highway. It is bounded to the south by Learners Way. It is bounded to the east by Fishers Road (or Fishers Way). That eastern boundary is shown as Fishers Road on the copy of the Diagram of Swan Location 1285 that is attached to the affidavit of the first defendant sworn 9 November 2007 (exhibit 19). The eastern boundary is shown as Fishers Way on the copy of the Certificate of Title Volume 1138 Folio 280 attached both to the affidavit of the plaintiff sworn 1 August 2007 (exhibit 3) and to exhibit 19. However, the southern and eastern boundaries are not shown as named roads in at least one of the copies of the Certificate of Title Volume 1138 Folio 280 produced in the trial.
8 I will call this first piece of land comprised in Certificate of Title Volume 1138 Folio 280 the front orchard. It was used, over the time the deceased was its registered proprietor, with the other piece of land comprised in that Certificate of Title, first in the growing of grapes on grape vines and then in the production of oranges from orange trees. It is of particular significance in this action.
9 The other piece of land comprised in Certificate of Title Volume 1138 Folio 280 is to the east of the front orchard and divided from it by the Bindoon Primary School. This piece of land is shown as having an area of 1 acre 3 roods 35.5 perches and has as its northern boundary Fishers Road or Fishers Way, as that road turns to run from west to east.
10 I will call this other piece of land comprised in Certificate of Title Volume 1138 Folio 280 the back orchard.
11 I will call the lands comprised in Certificate of Title Volume 1138 Folio 280 together the front and back orchards.
12 The deceased was also the registered proprietor of that piece of land in Bindoon being Lot 1 on Diagram 9344 and being the whole of the land comprised in Certificate of Title Volume 1033 Folio 455. This was known as 38 Fishers Road, Bindoon. I will call this land the home property. The house in which the deceased lived, with his son (the first defendant) and his wife, until she went to Northam Hospital as I will indicate, was located on this property. The home property was in part used as an orchard.
13 Finally, the deceased was also the registered proprietor of that piece of land in Bindoon being Lot 77 the subject of Diagram 19783 and being the whole of the land comprised in Certificate of Title Volume 1204 Folio 765. This is the property know as 130 Kay Road in Bindoon. It lies to the north and east of the home property, but does not share any boundary with the home property. I will call this remaining piece of land in Bindoon the back block. This property was also used as an orchard as to about two-thirds, with the remainder used for the first defendant's collection of farm machinery.
14 The deceased was also the registered proprietor, with his wife, as joint tenants, of a piece of land in Como. That piece of land is portion of Canning Location 37 being Lot 3 on Diagram 21642 and all of the land comprised in Certificate of Title Volume 1477 Folio 501. This is the house and land known as 22 Paterson Street in Como. I will call it the Como Property.
15 The deceased and the deceased's wife, Kate Elizabeth Fisher (Kate or Mrs Fisher), had one child, the first defendant, who was born on 19 June 1945. Mrs Fisher died on 2 August 2005.
16 In 1951 the deceased acquired the front and back orchards. In 1960, the first defendant left school to work on the Bindoon properties, including picking grapes and packing fruit from the front orchard. Between 1977 and 1980 the first defendant pulled out the grape vines on the front orchard and replanted that area with orange trees, and between about 1981 and 1982 he erected fencing around the front orchard, and installed a bore and then a water pump there. The first defendant paid for the pump, bore and irrigation for the front and back orchards himself. As the deceased got older he would still assist the first defendant on the front orchard as well as do some other manual chores around the Bindoon properties.
17 In a document dated 26 July 1983 the deceased purported to make a will (the 1983 will) which contained the following dispositions:
I give devise and bequeath:
All that part of my Real Estate which is situated in Bindoon, West Australia, together with any fittings and equipment thereon, to my son, David John Fisher.
I bequeath all the balance of my estate, both Real and Personal, and including the land and house and contents situated in Paterson [S]treet, Como, West Australia, to my wife, Kate Elizabeth Fisher.
18 It may be noted that the document bears no sign that it was prepared with professional assistance, and includes a section, at the end, headed 'Hints on Making a Will'.
19 It may also be noted that at all material times until the date of death of Mrs Fisher, the deceased and Mrs Fisher held the Como property as joint tenants.
20 In 1984 the second defendant married the plaintiff. The second defendant had been raised by his grandparents on an orchard in the area. By 2007 he had worked as a gardener at Bindoon Primary School for a period of approximately 18 years. He had known of the deceased before becoming a gardener at the school, but got to know the deceased after starting at the school. The second defendant had first worked for the deceased and the first defendant pruning their grape vines during the school holidays.
21 While he was working as a gardener at the Bindoon Primary School, the second defendant started to speak with the deceased around the shed area of the school, as that area was adjacent to the orchard where the deceased worked. The deceased and the second defendant talked about matters relating to orchards and the second defendant's hydroponics business.
22 The deceased continued to work on the Bindoon properties at least until approximately 1999, when he was 87 years old. In or around 2000 the deceased had a hip replacement. From about or not long after that time Mrs Joy Lefroy of Bindoon as an employee of the Silver Chain nursing service began to attend on the deceased every Wednesday and occasionally on Fridays, continuing until his death.
23 From about 2001 or 2002 the second defendant began to provide wood for the stove in the house of the deceased and Mrs Fisher. The second defendant also began to check up on the deceased and Mrs Fisher, and would from time to time provide transport for the deceased and pick up and deliver food and medicine for him.
24 Beginning in approximately 2004 Ms Jenny Treasure, another employee of Silver Chain, provided care for the deceased and Mrs Fisher until her death, and then continued to provide care for the deceased. Ms Treasure last saw him about three or four weeks before his death.
25 A friend of the deceased and Mrs Fisher for many years, Mrs Dawn Carlinne Thompson of Bullsbrook, also spent time with the deceased and Mrs Fisher doing some of their washing and housework and keeping them company, and saw the deceased during the last years of his life.
26 In or about October 2004 the plaintiff prepared a lease agreement for the front orchard which the deceased executed as a document dated 20 October 2004 (the lease). The lessee was the second defendant. The deceased had expressed an interest in leasing the front orchard to the second defendant over the two years before the lease was executed. Prior to its execution the deceased had shown the lease to the first defendant, who had read it and told the deceased it was 'alright'.
27 The operative terms of the lease were as follows:
I Mr Arthur John Fisher of Fisher Road, Bindoon hereby agree to lease Lot 2 Fisher Road to Mr John Michael Kay of Great Northern Highway, Bindoon for a minimum period of 5 years with the option of another 5-year period effective 1 November 2004.
This lease agreement includes the use of tractor and plant and the bore on Lot 2 Fisher Road.
Mr John Michael Kay will be responsible for Shire land rates, annual water service charges and 50% of the electricity charges for Lot 2 Fisher Road.
Mr John Michael Kay agrees to pay 25% of the income derived from the sale of produce from Lot 2 Fisher Road to Mr Arthur John Fisher.
28 On 10 May 2005 long term hospital care for Mrs Fisher was arranged at Northam Hospital by Aged Care Assessment Team (exhibit 18, [14]). By this time Mrs Fisher had been suffering from congestive cardiac failure (CCF) and had for many years been suffering from ongoing and worsening dementia. In June 2005 Dr Alan Richard Foster Newnham, who had since approximately 1995 been the sole general practitioner in Bindoon, who had seen Mrs Fisher as a patient over the period November 2004 to May 2005, and who had also seen the deceased as a patient in 2005 on a number of occasions, began to visit the home of the deceased and Mrs Fisher to manage her CCF and dementia. It was Dr Newnham's opinion at that time that Mrs Fisher was in need of long term hospital care; although she may not actually have been taken to Northam Hospital until a few weeks after 10 May 2005.
29 By July 2005 the deceased's eyesight had significantly deteriorated. While the extent of the deterioration by that time is in some contest, there does not appear to be any contest that by July 2005 the deceased was at least frequently reading with the aid of a magnifying glass. There was also evidence from Dr Newnham that the deceased suffered from macular degeneration and that would be associated with difficulty with his eyesight for reading, to which evidence no objection was taken, although the qualifications of Dr Newnham as a general practitioner to express those opinions were not explored in the proceedings before me.
30 Further, by July 2005 I find that the deceased was physically frail, although he was still capable of walking, and getting into and out of a car.
31 It is common ground that on 8 July 2005 the deceased executed a document purporting to be a will (the 2005 will), which also bears the signatures, as subscribing witnesses, of Mr Walter Zemunik and his wife, Mrs Ida Zemunik. The deceased executed the will outside the home of the Zemuniks in Bindoon, to which the plaintiff had driven the deceased shortly before that execution. The 2005 will was prepared by the plaintiff in circumstances which are the subject of sharp contest, as are the circumstances of the execution and attesting of the 2005 will, to which I will return to make the findings set out below.
32 For now I describe or set out the operative provisions of the 2005 will.
33 By the 2005 will all previous wills and testamentary documents are revoked, and the plaintiff and Ms Margaret Jane Righton are appointed as the executors.
34 Under the heading 'Special bequests', the 2005 will provides two bequests. One is to the second defendant, and is of, 'free of all costs', the
Property known as Lot 2D15522
Fisher Road
Bindoon WA
35 The other special bequest is to the third defendant, and is of, 'free of all costs', the 'sum of two thousand dollars'.
36 Under the heading 'Residual Estate', the 2005 will provides that
I hereby leave the residue of my estate, both personal and real, subject to other provisions in this Will and after payment of my debts, funeral and administrative associated with this will
To my son, David John Fisher
Of Fisher Road
BINDOON
In the State of Western Australia
37 There is also under the heading 'Additional Requests', the provision 'I wish to be buried at the Bindoon Cemetery at Gray Road, Bindoon'.
38 The first defendant was not involved in the preparation or the execution of the 2005 will, and indeed first learnt of it on or about 24 October 2005, after the death of the deceased.
39 It is the 2005 will that the plaintiff seeks to have propounded.
40 On 1 May 2007 the writ of summons with statement of claim was filed. The plaintiff pleads the due execution of the 2005 will, that the deceased knew and approved of its contents and that the will appointed the plaintiff as executor. The plaintiff's claim is principally that the court pronounce the force and validity of the 2005 will, that the court direct the probate registrar to issue a grant of probate in solemn form in favour of the plaintiff and that the costs of the application be paid from the estate.
41 The defence, filed by the first defendant, as amended (the defence) does not admit the due execution or knowledge or approval pleaded by the plaintiff. In respect of the pleaded appointment of the plaintiff as executor, the defence says the document in question purports to appoint the plaintiff and Ms Righton as executors of the deceased's estate, but otherwise does not admit the allegations. The defence also pleads that if the document in question had been executed as pleaded by the plaintiff, it was executed in 'suspicious circumstances' in the respects specified, and the defence puts the plaintiff to the proof that the deceased executed the document at a time when he was aware of and approved the contents of the document. I will elaborate upon this aspect of the defence below.
42 At the trial before me evidence was given for the plaintiff by herself; Ms Treasure; Mrs Lefroy; Mrs Thompson; Mr Zemunik; Mrs Zemunik; Mr Alan Arthur Moore, a licensed valuer, whose evidence was as to the value of the front orchard as at July 2005; and by Dr Newnham. Evidence was given for the second defendant by himself. Evidence was given for the first defendant by himself; by Mr Alexander Martin Stanley, the principal of a business providing computer services, who gave evidence as to a compact disk on to which the file for the 2005 will had been copied; and Ms Louella Morgan McFarlane, a solicitor in the firm of solicitors then acting for the first defendant, who gave evidence as to telephone conversations she had had with Mr Zemunik. In addition evidence was given by the third defendant.
43 Pursuant to the orders for the trial, I permitted evidence-in-chief to be given by the affidavits of each witness, which were tendered into evidence. This was with the exception of Ms McFarlane, whose affidavit was tendered into evidence only for particular pages in it, and whose evidence otherwise was given orally.
44 The principles I will describe in this section of my reasons were not in dispute, as I understood them. However, I will indicate that I do not accept one of the principles put forward.
45 If a will regular on its face bears the signatures of a testator and two witnesses, there is a presumption of due execution: Re Gramp, Deceased; Finck v Gramp [1952] SASR 12.
46 The due execution of a will requires (an acknowledgement of a signature aside) the testator's signature of the will in the presence of two witnesses, who then attest and subscribe their signatures, in the presence of the testator: Wills Act 1970 (WA) s 8.
47 The first defendant's written opening submissions also state that both witnesses must be in each other's presence when each signs the will, and cite Nicholas v Penn [2004] WASC 227 [107] (Roberts-Smith J) for that proposition. However, I do not read Nicholas to support that statement of principle, and indeed an authority cited with approval in Nicholas [105] (albeit in another connection), Re Bladen [1952] VicLawRp 14; [1952] VLR 82, 83 (Sholl J), states 'it has been decided that the witnesses need not sign in the presence of each other'. Bladen cites In the will of Foley [1879] VicLawRp 249; (1879) 5 VLR (IP&M) 95 for that principle.
48 The presumptions from due execution are three. One is of testamentary intention: In the Estate of Hassan [2008] SASC 14 [9] (Gray J). Another is of testamentary capacity: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J). The third is of knowledge and approval of the contents of the will: Hodges 706.
49 It is not suggested, in respect of the presumption of testamentary intention, that on the evidence in this case the evidentiary onus of proof in rebuttal of that presumption (see Hassan [10]) has been discharged. Indeed in my view on the evidence as a whole I conclude that testamentary intention should be found without the aid of the presumption.
50 Nor is it suggested - and indeed on his pleaded defence it was not open to the first defendant to allege (Rules of the Supreme Court 1971 (WA) O 73 r 16(2)) - that there is evidence sufficient to cast doubt on the testamentary capacity of the deceased, as to which capacity see Public Trustee (in and for the State of Western Australia) v Anglican Homes Inc [2007] WASC 204 [19] (Beech J).
51 However, in conformity with O 73 r 16(2), it is contended for the first defendant that there is evidence in this case sufficient to cast doubt on the question of knowledge and approval of the 2005 will, evidence which would prevent the presumption of knowledge and approval arising. That evidence is of circumstances giving rise to a suspicion that the 'terms of the Will do not accord with the intention of the testator': Roebuck v Smoje [2000] WASC 312 [94] (Hasluck J). In Roebuck his Honour added:
The suspicion of the Court will always be aroused where the testator was blind, illiterate or mentally or physically enfeebled or the Will had been prepared by a person who, or whose child, benefited under it [94].
52 The first defendant's defence [5] pleads that:
(a) at the time the [2005 will] was executed the Deceased:
(i) was 93 years of age;
(ii) was in frail health;
(iii) was not able to read save with the aid of a magnifying glass;
(b) the document nominates the Second Defendant as a testamentary beneficiary of the Deceased;
(c) the document was prepared by the Plaintiff who is the wife of the Second Defendant.
53 If there is evidence which would prevent the presumption of knowledge and approval arising, then the court will not admit the will to probate 'unless the propounder removes the suspicion and affirmatively proves that the contents of the Will were known to and approved by the testator': Roebuck [94]; see also Nock v Austin [1918] HCA 73; (1918) 25 CLR 519.
55 I am not convinced that the presumption of due execution has been rebutted. Unlike Gramp there is no testimony from either of the subscribing witnesses contrary to any of the requirements for due execution.
56 In any event due execution is established without the aid of the presumption.
57 For the first defendant, there was substantial reliance on the evidence of Ms McFarlane that over the course of three telephone conversations she had with Mr Zemunik, two on 2 March 2006 and one on 8 March 2006, Mr Zemunik gave varying accounts of what happened on 8 July 2005 and what he could recall of those events.
58 There is evidence from Ms McFarlane that in the first conversation, the result of her call to Mr Zemunik, he said that the plaintiff had asked him to witness a will; he said that he knew the plaintiff and the other executor; and Ms McFarlane asked who was present when the 2005 will was executed and about the circumstances of the execution. Ms McFarlane testified that there was a lot of information provided in this conversation, but she did not take 'really good notes' as it was 'basically a preliminary inquiry' (ts 194). Ms McFarlane did not believe she put in her notes that the deceased stayed in the car but that was her 'impression' of what Mr Zemunik said (ts 194). Ms McFarlane also gave evidence that Mr Zemunik remembered the deceased signing the 2005 will but that he was not quite sure whether his wife was present at the time. Ms McFarlane did not think she asked Mr Zemunik if the deceased had glasses or a magnifying glass, but she thought Mr Zemunik said the deceased did not have glasses; and she asked whether Mr Zemunik was aware of whether the deceased was aware of the contents of the 2005 will, and Mr Zemunik replied along the lines that he could not say one way or the other.
59 In the second conversation, the result of a call by Mr Zemunik, there is evidence from Ms McFarlane that Mr Zemunik said he called to say his memory had been refreshed by his wife; that his wife had also been at the execution of the 2005 will; and that he and his wife signed the 2005 will on the bonnet of the car. Ms McFarlane also gave evidence that Mr Zemunik said he had no reason to believe the deceased did not know what he was doing; but that Mr Zemunik would not allow Ms McFarlane to speak to Mrs Zemunik.
60 In the third conversation, the result of a call made by Ms McFarlane who wished to speak to Mrs Zemunik, Ms McFarlane's evidence is that Mr Zemunik said his wife did not want to speak with Ms McFarlane; that Ms McFarlane then asked Mr Zemunik the same questions again; that his memory 'seemed to be a little either refreshed or whatever' (ts 201); that Ms McFarlane got a more positive assertion from him about whether he knew whether the deceased knew the contents of the 2005 will; that Mr Zemunik said something about the document not taking long to read, but he also said that the deceased did not have a magnifying glass, although Ms McFarlane qualified this later in her examination-in-chief when she said that Mr Zemunik said he did not recall if the deceased had glasses or a magnifying glass at the time (ts 203); and that Mr Zemunik said that the deceased signed the 2005 will in the car, but he and Mrs Zemunik signed the 2005 will on the bonnet of the car.
61 As I understood the submissions of counsel for the first defendant, I should disbelieve the evidence of Mr Zemunik, on the basis that his recollection of events or at least some of them have been shown to be at best uncertain.
62 I consider there is reason from Ms McFarlane's evidence to conclude that Mr Zemunik's recollection of events may not have been altogether reliable. However, that conclusion would at most simply remove his testimony; it would not establish the contrary, so as to rebut the presumption of due execution: see Re Spicer; Executor Trustee and Agency Co of South Australia Ltd v Morris [1929] SASR 28, 33 (Richards J), quoted with approval in Gramp 42 - 43 (Abbott J).
63 In any event I do not need to reach a conclusion on whether or not I should disbelieve all of the evidence of Mr Zemunik. That is because of the evidence of the other subscribing witness, Mrs Zemunik, which was not seriously challenged, and which I do accept, in its entirety. In my estimation she was a forthright and careful witness whose recollection of the matters to which she testified was clear and reliable.
64 Her evidence was that when she approached the car in which the deceased was sitting he appeared to be reading a document with a magnifying glass (exhibit 14 [4]). Mr Zemunik asked the deceased if he understood the document, to which the deceased responded that he did (exhibit 14 [5]). The deceased then got out of the car with that document (ts 128) and 'everybody' signed the 2005 will on the bonnet of the car (ts 126), being the deceased (exhibit 14 [7]), Mr Zemunik, in whose presence Mrs Zemunik was when he signed the 2005 will (ts 126) and herself (exhibit 14 [6]). I consider that the evidence does not indicate, and it was not contended it should be taken to indicate, that either of the subscribing witnesses signed the will before the testator signed it: on the order of signatures, see Bladen (83).
65 I consider this evidence establishes, and I find, due execution of the 2005 will.
66 The plaintiff does not appear to have more than faintly contended before me that there were no suspicious circumstances and that the burden was not on the plaintiff to remove suspicion and affirmatively prove that the contents of the 2005 will were known to and approved by the deceased. Those suspicious circumstances lie it seems to me in the matters the first defendant's defence pleads in [5(a)(i)], [5(a)(ii)], [5(a)(iii)], [5(b)] and [5(c)].
67 In determining whether or not the burden as to knowledge and approval has been discharged, counsel for the first defendant contended, as I understood him, that it was appropriate to consider the dispositions that the 2005 will did not make for Mrs Fisher. He put to me this was a suspicious circumstance, albeit, I would note, one not pleaded in the defence [5]. I return to whether or not it was a suspicious circumstance, and whether or not any suspicion in respect of it has been dispelled. However, in my view in determining whether or not the deceased knew and approved of the contents of the 2005 will it is appropriate to consider the dispositions it makes and does not make, to persons having a natural claim on the deceased, as well as the simplicity or complexity of the provisions of the document. See Roebuck [91], on the relevance of these factors to the matter of testamentary capacity. In my view, to the extent the document in question is simple in its terms, and makes provisions which on the evidence the testator might be expected to have made, evidence as to the deceased having read the document before executing it and then having indicated he approved of its contents, or that he understood them, and then having signed the document, may more readily be accepted as evidence that the deceased knew and approved of the document.
68 Counsel for the first defendant also referred me to evidence from the third defendant of two conversations she and the deceased had had with the second defendant in which she asked for a copy of the 2004 lease. In the first conversation the second defendant denied there was any lease document and said that he did not know what the third defendant was talking about (exhibit 20 [26]), while in the second conversation the deceased told the second defendant to give her a copy 'to keep [her] quiet', although the second defendant never did give her a copy (exhibit 20 [27]). The third defendant was not cross-examined by counsel for the plaintiff on this evidence; however, the second defendant's evidence was that the third defendant never asked for the 2004 lease nor had they had the conversations she claimed (exhibit 17 [14] - [16]; ts 143 - 144).
69 As I understood the first defendant's submission, it was put to me that I should find that the two conversations took place as testified to by the third defendant and that the second defendant's position with respect to the 2004 lease cast doubt on the deceased's knowledge and approval of the 2005 will. There was no express reliance by counsel for the first defendant on the rule in Browne v Dunn (1893) 6 R 67 (HL). In any event, in view of the evidence of the second defendant to which I have referred, and of which the witness statement (which became exhibit 17) would have given the parties notice, I have difficulty in seeing how the rule applies to prevent me considering whether or not I should find there were conversations to the effect of the third defendant's evidence: see LexisNexis, Cross on Evidence (at 29 June 2009) [17455].
70 I do not find that there were conversations to that effect. True it is that the third defendant had been involved in the deceased's affairs including his financial affairs at about the time of the 2005 will, both on the evidence of the first defendant (exhibit 19 [32]) and that of the third defendant herself (exhibit 20, [5] - [7], [19], [31] - [33]), which would have made a request for the 2004 lease not implausible. However, I found the evidence of the second defendant to have been given, in respect of the matter of these conversations and of other matters, in a clear, forthright and credible manner. In addition, there was no evidence that the deceased had asked the third defendant to take an interest in the 2004 lease. The burden was on the first defendant to prove that the circumstance existed, and I do not consider that burden was discharged.
71 In any event, if there were conversations to the effect claimed, I do not consider any suspicion arises from them that the 2005 will did not accord with the intentions of the deceased. That is because in my view the character of the exchanges that that evidence points to is one of strained relations between the second and third defendants, not a reason to consider that the 2005 will did not accord with the deceased's intentions.
72 The plaintiff's case for dispelling suspicion from the circumstances relied upon by the first defendant and for finding the deceased's knowledge and approval of the 2005 will, as I understood that case, rested on the contention that I should find that the plaintiff had, prior to driving the deceased to the Zemuniks, read the 2005 will aloud to the deceased, who had then read it with a magnifying glass and confirmed he was 'happy' with it; that the deceased had read it again in the car at the Zemuniks and confirmed there that he understood it; that the deceased suffered from no lack of capacity to know and approve of the 2005 will; and that the 2005 will was a rational one, including its failure to provide for Mrs Fisher and its disposition of the front orchard in favour of the second defendant. I deal with each part of that case in turn, and in so doing I will deal with the first defendant's case.
Whether the plaintiff had, prior to driving the deceased to the Zemuniks, read the 2005 will aloud to the deceased, who had then read it with a magnifying glass and confirmed he understood it
73 The evidence of the plaintiff in her examination-in-chief about reading the 2005 will aloud to the deceased and his reading it and indicating he was 'happy' with it was that, on 8 July 2005, prior to driving the deceased to the Zemuniks, she had brought the deceased to her home. There the plaintiff had printed out the 2005 will from the computer at her home. The plaintiff 'read it in full to Jack' and then 'handed it to Jack and he read it, using his magnifying glass' (exhibit 3 [39]). Then, '[o]nce he had finished reading it, I asked him whether he was happy with the Will, and he said that he was' [40]. In cross-examination by counsel for the first defendant, the plaintiff testified to substantially the same effect, as follows:
Could you tell his Honour what happened when you and Jack Fisher got back to your home on 8 July 2005?---I believe I had the will. I read the will out to Jack and said, 'This is what's in it,' and asked him if that sounded like what he wanted. He agreed and I said to him, 'Well, here you are.' I handed him the will and he proceeded to read it with his magnifying glass.
When you say you read the will out to him, did you read out the whole of the will, every word of it?---I don't recall.
Well, let's go to the will which is annexed to your affidavit of scripts.
...
Have a look at page 4. I've taken you to the right one this time?---Page 4, yes.
Yes, that's the first page of the will; page 5 is the second page. You say you read the will out to Jack Fisher; what parts of it did you read out?---I believe I read it word for word.
Well, you just said a moment ago that you can't remember whether you read out the whole of the will?---Well, looking at the document now in front of me, I had that same document in front of me and I read that as it says, word for word.
So you've changed your mind; you now say you read it word for word?---With this presented in front of me, I know that I read it to him.
You say that Jack Fisher then read the will himself?---He did.
How long did he take to do that?---I don't recall, but it wasn't very long, because after I asked him if he had read it and he was happy with it and he said he was, we went straight over to Wally's house.
So it was quite a short time?---It would have been a couple of minutes.
That's all you said to Jack Fisher that morning?---From memory, yes (ts 76 - 77).
74 However, as counsel for the first defendant pointed out, there were some substantial variations in the plaintiff's evidence between her examination-in-chief and that cross-examination as to the background of this exchange with the deceased on 8 July 2005. There were also other aspects of her evidence to which counsel for the first defendant pointed as inconsistencies. Together, counsel said, those variations and inconsistencies should cause me to find that her evidence as to the reading of the 2005 will, and in other respects, was unreliable.
75 In her examination-in-chief, the background of the exchange with the deceased on 8 July 2005 is described as follows:
A few days after this conversation, John brought Jack to my home, and then left.
I asked Jack words to the effect of, 'What is this all about?'
Jack told me that he wanted me to help him draw up a new will, and wanted me to be the executor of that will.
I told him that I had no idea how to draft a legal will, and I would not have any idea of where to start.
Jack laughed and said words to the effect of, 'You work in an office. You will be able to work out what to do'.
I replied with words to the effect of, 'I will find out what I need to do and let you know'.
Jack also asked how much it would cost to transfer the Orchard directly to John whilst Jack was still alive. I told him that I did not know, but that I would do my best to find out.
A few days later, I noticed that there was a will kit available to examine at my place of employment (the Chittering Shire). I took the will kit home and read it, and also copied the precedent will ('the Precedent Will') which was contained in the kit on to a file on my computer.
I also telephoned the Department of Land Administration ('DOLA') and asked them how much it would cost to transfer a property such as the Orchard to John whilst Jack was still alive. DOLA provided me with an estimated cost, including stamp duty, transfer fees etc, which cost I cannot now recall.
On 8 July 2005, I picked up Jack from the Farm and brought him back to my home.
I asked Jack whether he had a previous will, to which he replied that he did. I asked whether he wanted to check it to see whether there was anything in the previous will that he wanted to include in the new will. Jack said 'no', and then told me that:
(a) his previous will gave everything to Kate;
(b) he wasn't sure what the position was now that Kate had died;
(c) he presumed his entire estate went to David, but he wasn't sure;
(d) he wanted to make sure that when he died, John (who he referred to as 'Johnny') was given the Orchard and that Kim Baker (the third defendant) also received some money.
I told Jack what DOLA had told me about the cost of transferring the Orchard while he was still alive. Jack laughed and said there was no way he was going to pay that amount to transfer the Orchard.
I said words to the effect that, 'John and I could pay it if that was the only issue'. Jack replied with words to the effect of, 'No way, I am not going to make Johnny pay that amount. If I leave it to him, he won't have to pay anything.'
I told Jack that I didn't feel comfortable drawing up the will, because I didn't really know what I was doing and I had no legal training.
I offered to drive Jack to a lawyer to have the will drawn up. Jack refused, saying that he refused to pay someone any amount of money for what he considered a simple document.
I suggested to Jack that it would be better if there was another executor as well as myself. I asked whether he could think of anyone he might like to have as another executor.
Jack thought about it for a while, and then suggested Margaret Jane Righton ('Jane', the fourth defendant), who is a home carer who had been helping Jack for some time, and whom he said that he trusted.
I phoned Jane and explained that Jack wanted me to draft him a new will, and wanted me to be an executor. I asked her whether she would be prepared to be a joint executor, and she agreed.
After this phone call, Jack confirmed to me that he wanted to give the Orchard to John, $2,000 to Kim Baker and the rest of his estate to David.
I asked Jack what he thought David would think of him leaving the Orchard to John. Jack replied with words to the effect of, 'What would he care? All he cares about is the junk he collects. He has the rest of the land to do what he likes with.'
I went to my computer and amended the Precedent Will, so that it was in the form that was eventually signed (exhibit 3, [18] - [38]).
76 Earlier, the plaintiff had said that Mrs Fisher 'died in approximately April 2005' (exhibit 3 [16]), while in one of her earlier affidavits she had said that the deceased had told her in late June or early July 2005 that he had a will, current at that time, 'which bequeathed the entire estate to his wife, Kate, who had died in approximately April 2005' (exhibit 2 [2(b)]).
77 When she gave her evidence-in-chief, she corrected two matters in exhibit 3 (ts 19). In her cross-examination, she was taken to those corrections, in the course of which she changed her evidence as to when she took instructions from the deceased, as follows:
So we've got one mistake that you knew Kate Fisher had died in August 2005 but you put into your affidavit at paragraph 16 evidence that she dies in approximately April 2005. You're saying that was a mistake?---It was.
If we go to the second portion of this at paragraph 28(b) exhibit 3 you say Jack Fisher told you he wasn't sure what the position was now that Kate had died. Why did you include that in your instructions to your solicitors and your affidavit, exhibit 3?---I don't know.
Was it the case that as of 1 August 2007 you were certain that that is what he had told you?---Sorry?
As of August 2007 you were quite clear that on 8 August 2005 Jack Fisher told you that he wasn't sure what the position was now that Kate had died?---I'm not sure why I put that in there. It was a mistake. I don't know why I had said that because we clearly were aware of the situation because he talked about it and he knew that her name was on one of the titles which I believe was the Como property.
So you're saying that Jack Fisher told you something different from he wasn't sure of the position now that Kate had died?---Not so much as told me but we did discuss it at the time and he knew that she would be taken care of.
When you say you discussed it, what was it?---We discussed the fact that he knew that if something happened to him that she would be taken care of.
When you say you discussed it at the time, this was on which occasion?---This would have been when he told me what contents he wanted in the will.
Well, when was that?---The week before the will was executed.
So Jack Fisher told you the week before the will was executed what he wanted in the will?---Correct.
This was all in your home, was it?---Correct.
So when you say in your affidavit, exhibit 3, at paragraphs 28 onwards that Jack told you on 8 July 2005 what he wanted in the will, that's not correct, in fact he told you all of that - gave you that information the week before?---I am aware of the events that happened and I know exactly when he told me what he wanted in the will. I thought that he had told me and I typed the will up on the same day but I remember distinctly that we had a meeting the week before and at that meeting he told me what he wanted in the will.
So your affidavit, exhibit 3, is not correct when it includes evidence that Jack Fisher gave you instructions for the will on 8 July 2005?---I thought at the time that it was all done on the same day.
But you realise now that you were wrong?---I know that we discussed on the 2nd and as to the exact times and the dates that I typed it up, it was within that time frame but I can't be specific with the exact date.
So just let me get this straight then, Ms Kay, your evidence now is that you had a meeting with Jack Fisher on 2 July 2005. Is that right?---Yes (ts 52 - 53).
78 Further, in her cross-examination by counsel for the first defendant, the plaintiff changed her evidence in examination-in-chief as to whether the deceased was present when she typed in the detail in the 2005 will in accordance with his instructions, testifying she could not recall whether or not he was present when she did this (ts 54, 62) - although as will be seen, she later testified in her cross-examination that the deceased may have been present at her house, if not the room in which she was typing, at that time (ts 62).
79 Further, as to her evidence about what the deceased had said to her in late June or early July 2005 about his then current will and his wife (exhibit 2 [2(b)]), there was the following exchange in her cross-examination by counsel for the first defendant:
If we just take things in order. As I understand your evidence now, you are not in a position to say whether Jack Fisher at any time prior to 8 July 2005 told you he, prior to the execution of this will, had a will that bequeathed his entire estate to his wife Kate?---He did advise me he did have a will, yes.
Yes, but you are not in a position to say that he told you that that existing will left his entire estate to his wife Kate?---I thought at the time that he did say that he had left it to Kate.
But your evidence now is that you are not in a position on oath to say that he did tell you that?---No. I suppose not, no.
So why did you include it in that affidavit of scripts, exhibit 2?---Because at the time when I asked Jack if he had a current will, I thought at the time that he had said that Katie had been left everything in the will. I hadn't seen the will so I was not to question otherwise.
But 'at the time', you mean at the time you swore this affidavit exhibit 2?---Basically, yes.
You thought that he had said that to you?---From memory I thought that's what he had said, yes.
But now you say that you cannot say on oath that he did say that to you?---I thought at the time that that's what he had said.
Just answer the question please. You can't say now on oath that he did say that to you?---No.
Just take the second part of paragraph 2(b) of exhibit 2. Jack Fisher told you in late June or early July 2005 that his wife Kate had died in approximately April 2005. He didn't tell you that, did he?---Well, as I've already said, I don't know why that's in there. I made a mistake.
But it appears in exhibit 2 and it appears in exhibit 3 also, doesn't it?---I believe so.
So you swore to that twice, didn't you?---Without checking, the actual month that she died, yes.
You're not very careful with what you put on oath, are you, Ms Kay?---I believe that I am. That was an honest - I admitted I made an honest mistake. I said August. I should have said April. I had no reason to check what month that she had actually died.
You've corrected your earlier evidence in your affidavits about when Kate Fisher died. That's one thing. You've corrected whether Jack Fisher told you on 8 July 2005 that his wife was dead. You've corrected that Jack Fisher told you on 8 July 2005 that his existing will left his entire estate to his wife. You've corrected all of those three things, have you not?---Yes (ts 60 - 62).
80 Counsel for the first defendant also drew to my attention what he said was the plaintiff recanting her evidence in relation to the deceased bringing her certificates of title, one of which was for the front and back orchards. Her evidence-in chief was as follows, referring to what became at the trial exhibit 3:
At the meeting with Jack in approximately June 2005 (as per paragraphs 17 to 24 of My Previous Affidavit), or possibly some time shortly before, Jack brought to my home the original Certificates of Title ('the CTs') for each of the properties described at paragraph 6 of My Previous Affidavit (exhibit 1, [8]).
81 However, there was no reference to the plaintiff having received the certificates of title from the deceased in any of her other affidavits (exhibits 2 and 3).
82 In her cross-examination by counsel for the first defendant the plaintiff testified as follows:
When did he bring the certificates of title to your home?---He either brought the certificate of titles the first meeting that I had with him in regards to drafting of the will or on a previous occasion when he had come down to visit.
You can't remember?---I know it wasn't on the day that he signed the will because I had them prior to that.
If it was on an occasion prior to the time that your husband brought him down did he tell you why he was giving the certificates of title to you?---Yes, he did.
What did he say?---He wanted me to look after them and keep them safe.
He didn't mention anything about a will?---Not at that stage, I believe not.
So as I understand your evidence, and tell me if this is right, some time before your husband brought Jack Fisher to your home in mid-June 2005 Jack Fisher visited your home, gave you the certificates of title and asked you to keep them?---Jack may have brought the certificate of titles down on the day John brought him down. I don't recall which occasion he brought the certificate of titles down.
You don't recall when he asked you to keep them?---No, but it was on one of the occasions he visited my house.
You then kept all four certificates of title?---That's correct (ts 30 - 31).
83 Counsel for the first defendant put to me that the plaintiff had testified in her examination-in-chief that the certificates of title were brought to her in the context of the plaintiff drawing a fresh will for the deceased. However, I consider her evidence-in-chief is not in fact clear on that point, and it was not put to her in cross-examination that that is what she had said. Therefore I put this suggested variation aside.
84 Counsel for the first defendant also drew my attention to the plaintiff's evidence in cross-examination in which for the first time in her testimony she testified that she had written down the instructions she had received from the deceased on a sheet of paper, which she had then thrown away (ts 53, 58, 59, 63), and that she had not previously informed her solicitors she had had such a document (ts 59).
85 However, I do not take anything of significance from this testimony, notwithstanding that there appears to have been no discovery of the sheet of paper. That is because on her testimony she did not have the sheet of paper for a long period of time, as she typed the details of the accused's instructions into the computer either on 2 July 2005 not long after receiving them, or at the latest 8 July 2005.
86 Counsel for the first defendant also drew to my attention the terms in which the plaintiff testified in her examination-in-chief and in her cross-examination about the description of the disposition in the 2005 will in favour of the second defendant.
87 That description in the 2005 will, it will be recalled, was 'Property known as Lot 2D15522 Fisher Road Bindoon WA'.
88 In the plaintiff's affidavit of 1 August 2007, she says:
The deceased, whom I knew as 'Jack', was the registered proprietor of the following properties:
(a) Portion of Swan Location 1285 including Lot 2 on Diagram 15522 being the whole of the land in Certificate of Title Volume 1138 Folio 280 ('the Orchard') (exhibit 3, [6(a)]).
89 In the plaintiff's later affidavit of 5 December 2007, she says:
At the time of swearing My Previous Affidavit, I did not notice that at paragraph 6(a), the affidavit incorrectly described the whole of Certificate of Title Volume 1138 Folio 280 as 'the Orchard' - that is, it included both the orchard on the corner of Great Northern Highway and Learners Way, referred to as 'the Front Orchard' in the First Defendant's affidavit sworn 9 November 2007, and also the portion of land further to the east, referred to as 'the Back Orchard' in the First Defendant's affidavit sworn 9 November 2007.
At all times, Jack stated clearly his wish to bequeath only the Front Orchard to John, the Second Defendant. At no stage did he say anything which could have been interpreted as wishing to bequeath anything more than that to John.
At the meeting with Jack in approximately June 2005 (as per paragraphs 17 to 24 of My Previous Affidavit), or possible some time shortly before, Jack brought to my home the original Certificates of Title ('the CTs') for each of the properties described at paragraph 6 of My Previous Affidavit.
When I prepared Jack's will, I described the property to be bequeathed to John as 'Property known as Lot 2D15522 Fisher Road Bindoon'. Lot 2 on Diagram 15522 is the description of the Front Orchard, and does not include the Back Orchard.
I do not now recall if Jack told me he wanted to bequeath 'Lot 2', or 'the Orchard', or whether he described it in some other way. In any case, I understood him to be referring only to the Front Orchard and drafted his will accordingly.
I do not specifically recall whether Jack and I looked at the CTs at any time, or whether I looked at them when I prepared Jack's will. I do know, however, that I would not have known the Diagram number for the Front Orchard from memory, so either Jack must have told it to me, or I must have looked at the CTs to obtain that information (exhibit 1, [6] - [11]).
90 In the plaintiff's cross-examination by counsel for the first defendant, there was the following exchange as to how the front orchard came to be described in the 2005 will:
In drawing the will - I withdraw that. You said a moment ago that you didn't need to get out the copy of the lease because Jack Fisher had given you the CTs?---He had.
So you looked at the CTs, did you?---At some stage, yes. I did.
Are you quite certain of that?---Positive.
What did you derive from your looking at the CTs?---I was aware that lot 2, as we call it, the front orchard, is a portion of land that's on one of the titles and doesn't include actually the back part of the orchard because of the school and the way it's situated, and the diagram - how it's described on the actual title.
So you've got the description of the land that was in issue from the CTs?---For the will, yes.
You're quite sure of that?---Yes. I am.
If I can show you a copy of exhibit 1 and, your Honour, if I can just provide a copy of this. Perhaps not. Exhibit 1.
SIMMONDS J: Yes.
MacMILLAN, DR: There are no deletions from it.
SIMMONDS J: So we'll need to give the witness a copy of exhibit 1, exhibit 1 itself, and we're drawing the attention of the witness to
MacMILLAN, DR: If you could have a look at page 3 of exhibit 1, Ms Kay. You have that?---Yes.
If you look at paragraph 11 you depose there, and your evidence is, 'I do not specifically recall whether Jack and I looked at the CTs at any time or whether I looked at them when I prepared Jack's will.' You said a moment ago in your evidence that you are quite certain that you looked at the CTs and you derived the description of the property - that's the description in the will of the property - from the CTs. Do you remember saying that?---I do.
Do you agree with me that your evidence today is different from your evidence as it appears in paragraph 11 of exhibit 1?---But in paragraph 11 I
Just answer the question, please?---I do.
Can you explain why your evidence is different?---Because at the time I didn't recall whether I did look at the CTs but I do know now that I did.
Just correct me if I am wrong. You swore exhibit 1 on 1 December 2007. Correct? The date is on the front page if you want to check it?---Yes, that's correct.
You swore an earlier affidavit which as I recall is exhibit 3 on 1 August 2007. Do you remember that affidavit?---I assume so. I don't have that affidavit in front of me.
It's been before you this morning?---Yes.
You saw it this morning only moments ago. Correct?---Yes, correct.
Now, when you swore exhibit 1 on 5 December 07 you corrected a number of mistakes in exhibit 3, your affidavit of 1 August that year. Correct?---Correct.
You added specifically your evidence in paragraph 11 about whether you looked at the CTs or not. Is that right?
---I believe so.
Now, when you swore these affidavits or when these affidavits were drawn for you and prior to your swearing them did your solicitors explain to you the significance of an affidavit?---Yes, they did.
Did they tell you that you ought to be most careful prior to swearing the affidavit to ensure that its contents were as was put to you today true and correct?---Yes, they did.
They told you that, did they?---Yes.
They told you that before you swore the affidavit on 1 August, that's exhibit 3?---Yes.
They told you that before you swore the affidavit on 5 December, that's exhibit 1?---Yes.
So you were very careful with exhibit 1 to ensure that its contents were correct, weren't you?---At the time, yes.
At the time you swore that affidavit you were absolutely clear that you had not looked at the CTs or obtained the description of the property from the CTs?---Like I say, I don't recall.
You were clear when you swore this affidavit?---When I swore the affidavit, yes.
You swore that on oath?---Yes.
Your evidence now on oath is different?---No, it's not.
Well, it is, Ms Kay, your evidence now is that you did look at the CTs and you did derive the description of the property in the will from the CTs?---But point 11 says, 'I do not specifically recall whether I looked at it,' but then it says, 'I must have looked at the CTs to obtain the information.' So the first part of the paragraph says that I didn't but then the second part says, 'I don't know how I found out, Jack either told me or I must have looked at the CTs.' So I'm not denying in point 11 that I didn't look at the CTs.
You're saying that when you swore exhibit 1 you couldn't remember whether you looked at the CTs and you're now saying that you can remember?---But it says here I must have looked at the CTs and I do remember having the CTs with me (ts 25- 28).
91 Subsequently in her cross-examination, the plaintiff added the following detail:
Just coming back to Ms Kay, the description that you've put into Jack Fisher's will of this property was lot 2D, 15522 Fisher Road, Bindoon, WA. Correct?---Correct.
That description is one which you formulated yourself after looking at the certificate of title, exhibit 4?---In part, yes.
When you say in part, could you explain that please?
---Well, the lot 2 diagram, 15522, yes, I did obtain from the title. I know exactly where the piece of land is situated. I have previously worked as a rates clerk at the Shire of Chittering so I am very conversant with how to read titles and when you put their description down and I also am very conversant with the fact that lot 2 is a corner block which actually is abutted by Great Northern Highway, Learners Way and Fishers Road. So depending on what entrance you want to look at for the property, Fishers Road is the property that runs south-north along the eastern side of the property and then continues up to the part 1285, which is another portion of land on the same title. So it was probably something on my site that I thought, 'Well, if one portion of the lot is on Fishers Road and the lot 2 is put down as Learners Way, it would be very confusing to know which of the lots it, sort of, talked about,' so I upon myself put in Fishers Road.
So you looked at the certificate of title, you drew on your own knowledge from your work as a shire clerk and your knowledge of Jack Fisher's properties and you formulated the description you've put into the will?---Only the Fisher's Road bit (ts 38 - 39).
92 Still later in the plaintiff's cross-examination, there was this exchange as to whether or not in the preparation of the 2005 will the deceased and the plaintiff together looked at the relevant certificate of title in respect of the front orchard:
You said a moment ago that Jack Fisher told you that he wanted to leave the front orchard to your husband John Kay?---Correct.
He didn't actually use the term, did he?---I don't know what term he used.
In your affidavit, exhibit 3, your evidence is as to the land in question that Jack Fisher referred to the orchard. That's what you say in your affidavit, exhibit 3?---I knew what land he was referring to
No, please could you just answer the question?---Sorry, rephrase the question.
You say in your affidavit, exhibit 3, that Jack Fisher referred to the orchard when he spoke to you?---I believe so.
But you're not sure?---Well, we always talked about the orchard. I knew the orchard concerned because I had done the lease for him for the same orchard.
No, I'm not asking you what you knew, Ms Kay, I am asking you what Jack Fisher said to you?---I can't remember explicitly what he said.
So he could have referred to the land in question as far as your husband was concerned - the legacy to your husband - he could have referred to that land as the orchard?---Possibly.
You don't know?---I don't recall one hundred per cent, no.
You're not telling his Honour that Jack Fisher referred to the land by the lot number, that's lot 2 D15522 - - - ?
---I wouldn't have thought so, no.
So your evidence is that he did not refer to it by the lot number?---I would assume not, no.
So he referred to the land in some way or other and you can't actually remember what the terms were that he used? ---No.
So the best that you can say about your meeting with Jack Fisher on 2 July 2005 is that he told you that he wanted a new will drawn?---Correct.
He told you that he wanted to leave some land to your husband?---Correct.
You can't remember how he described the land?---Not exactly, no (ts 54 - 55).
93 The plaintiff maintained in her cross-examination that she had a clear recollection of the events that led up to the making of the will, at least as to what she did and how she did it, if not dates and times, although in the following exchange in her cross-examination she qualified this in a number of respects:
Do you have a clear recollection of the events in June and July 2005 that led up to the execution of this will?---The actual preparing of the will? Yes.
You've told his Honour that you prepared the will perhaps between 2 July and 8 July that year, whereas in exhibit 3 you swore that you prepared it in front of Jack Fisher on 8 July, didn't you?---I believed at the time that - like I say, I'm not 100 per cent with the dates, but I know the events that happened and
The point is, Ms Kay, that when you swore exhibit 3, you went on oath that that was the case and now you're saying that that's not the case?---No, I believed at the time that that's what - I did the will on that day.
So wouldn't it be fair to say that you don't have a clear recollection of the events that led up to the execution of this will?---The events, yes. The days and the times, no.
So you have a clear recollection of the events, do you?
---I have a clear recollection of what I did and how I did it, yes.
Then presumably you have a clear recollection of whether Jack Fisher was present when you composed that will or not?---I took the details off him. He may not have been - he wouldn't have been present in the room because my computer is not in the same room. He could very well have been present in the lounge room where he was seated, but he wouldn't have - there's definitely no way he would have been present when I actually typed the will.
So he wasn't actually in the room. Was he in the house?
---Yes, he was.
You've said earlier that you weren't sure whether you composed this will on your own somewhere between 2 July and 8 July or whether you composed it on 2 July?---That's correct. I don't know whether I did it on the - I thought at the time I did it on the 8th when he was there, but obviously I did it on the 2nd after he had given me the details of what he wanted.
You said earlier in your evidence that perhaps you'd composed the will sometime between 2 and 8 July?---It was on one of the days that he visited. I believe a Saturday.
So are you saying that he paid you yet a further visit between the 2nd and the 8th - - - ?---No, I'm not.
Is your evidence earlier that this will could have been composed between 7 and 8 July are wrong?---Is wrong, did you say? Excuse me. Can you repeat the question?
Your evidence earlier was that you may have composed the will on your own between 2 and 8 July. You couldn't say when?---I wouldn't say between. It either had to be the 2nd or the 8th. They are both Saturdays, I believe, and it was either on the first Saturday, the 2nd, or the second Saturday, the 8th. I thought at the time it was the 8th, but it was definitely on one of those Saturdays.
So your evidence now is that Jack Fisher was in your home at the time you composed the will?---The time I composed it, as in writing it down? Yes.
The time you - - - ?---Physically typed it? Physically typed it, he may have been in the lounge room. I don't recall.
Let's just get this straight. You say that he was in your home when you wrote it down, that is when you took the notes on the piece of paper?---Correct.
But the occasion when you typed the will into the computer, you can't say whether Jack Fisher was in your home at that time or not?---Correct.
So you don't have a clear recollection of the events either, do you?---No (ts 62 - 63).
94 It will also be recalled that the plaintiff testified (ts 54 - 55, above) that she could not recall the terms the deceased used to describe the property he wished to bequeath to the second defendant.
95 Finally, counsel for the first defendant drew to my attention what he said was an inconsistency in the plaintiff's evidence about her position while she worked for the Shire of Chittering. At first, in her cross-examination by counsel for the first defendant, the plaintiff referred to herself as 'the debtors clerk' adding shortly thereafter 'or creditors clerk' (ts 21), then she referred to herself as 'the creditors/debtors clerk' (ts 22). However, later in that cross-examination she referred to herself as a 'rates clerk' (ts 39).
96 At the same time, the plaintiff was not questioned about this inconsistency. In the absence of an opportunity for the plaintiff to address the matter, I am not convinced that there was not an explanation for the variations in description of her position. In particular, it is not clear to me that the nature of the duties of a person occupying the position of rates clerk in a shire would not extend to working with creditors.
97 In my view of the plaintiff, she was a witness who endeavoured throughout to tell the truth, but whose recollection of the events leading up to the execution of the 2005 will could not always be trusted. This was particularly in respect of dates.
98 I note in this regard the matter of when she took instructions from the deceased. I find that indeed she took instructions from him prior to 8 July 2005. I so find by reference to her evidence in cross-examination, and the evidence of the 2005 will itself in the form of the Word file from the computer at her home.
99 The file was in evidence as exhibit 11. The file's 'Statistics' tab under 'Properties' indicates that the file was 'Created' on Saturday 2 July 2005 at 11.18 am; it was 'Printed' on that day at 12.07 pm; it was 'Saved' on 4 July 2005 at 8.27 am; it was 'Modified' on 4 July 2005 at 8.27.06 am; its 'Revision number' was 5; and its 'Total editing time' was 42 minutes.
100 There was evidence from Mr Stanley as to the significance of these computer statistics (ts 181, 183, 184, 186 - 188). That evidence included that the information indicated that total amendments took 42 minutes, although the time taken by any particular amendment or revision was not indicated; that a document could be saved automatically by Word which would be reflected in 'Saved'; that a modification of a 'Saved' document could be any kind, including a space, and could be reflected in the label 'Modified'; and that 'Total editing time' included preparation of the document. Mr Stanley also testified that it was possible for a person to go into a document, look at it and then close it without saving it, while it was also possible that a print of a Word document might be made after the 'Print' date (ts 185 - 186).
101 Mr Stanley further testified that in his experience a computer's clock, from which the dates and times were taken for the purposes of the 'Statistics' tab, were 'very, very rarely' not 'synchronised' and he was not aware of viruses that could interfere with computer clocks - although in his experience clocks had been adjusted for daylight saving time and to extend licence periods for software, and he could say nothing about the computer at the plaintiff's home (ts 181 - 182).
102 As to that computer, there was evidence that shortly before 8 July 2005 the plaintiff paid for repair work done on that computer (exhibit 7; ts 83 - 86). There was also evidence from the plaintiff that the computer was old, that it had been infected with viruses at about that time and that she did not consider its clock very accurate and did not take notice of it (ts 83).
103 I reserved the question of the admissibility of the evidence of Mr Stanley, to which counsel for the plaintiff objected.
104 In support of his objection, counsel for the plaintiff submitted that the extraction of information from the file appearing under the 'Statistics' tab was a matter which had not been shown to require expertise, and indeed the contrary was shown, when Mr Stanley conceded that a 'seven-year-old' could find that information (ts 187).
105 I do not consider that evidence of what appears under the 'Statistics' tab is capable of being expert evidence: see R v Bonython (1984) 38 SASR 45, 46 - 47 (King CJ); Cross on Evidence [29050].
106 I have also concluded that the evidence of Mr Stanley as to the significance of what appears under the 'Statistics' tab or the accuracy of computer clocks has not been shown to me to be admissible as expert evidence, as it has not been shown that in respect of that evidence 'there is a field of "specialised knowledge''', let alone that there is 'an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert': Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85] (Heydon JA), quoted in Grainger v Williams [2009] WASCA 60 [53] (Martin CJ). Mr Stanley's curriculum vitae (exhibit 21, attachment AS1) is the only evidence about the fields of Mr Stanley's expertise, and does not, it seems to me, condescend to the level of detail that is required in these two respects.
107 However, it seems to me that I can consider the information under the 'Statistics' tab as tending to indicate that the 2005 will was completed and printed before 8 July 2005. At the same time, the weight of that evidence is in my view reduced by the evidence of the plaintiff about her computer and the invoice for repairs (exhibit 7).
108 In respect of whether the plaintiff read out the 2005 will to the deceased, I find that she did, on the basis of the plaintiff's evidence. I so find because of the consistency of her evidence on those points, and notwithstanding her uncertainty at one point in her evidence as to whether or not she recalled reading out the 2005 will 'word for word' (ts 76), until she was shown a copy of it. It seems to me from the cross-examiner's initial question and her response, that the plaintiff understood the question to relate to the entirety of the contents of the document (without signatures), and that recognising it as the document she had in front of her on 8 July 2005 had the effect of refreshing her memory. Further, when I have regard to the simplicity, and shortness, of the 2005 will, I consider it is not implausible she read the document out to the deceased word for word.
109 In respect of whether the deceased then examined the 2005 will with a magnifying glass and said words to the effect that he was happy with it, I also find that he did, on the basis of the plaintiff's evidence. Again, her evidence on this was consistent. Nor was there any qualification of it to which my attention was drawn or which I found.
110 However, I consider, as counsel for the first defendant contended, that evidence of an examination of a document and assent to its contents may not be sufficient to show that the document was in fact read and its contents approved of. The document so examined might not have been read because the examiner's eyesight was not sufficient for the task. The assent might not be a true assent, as where the examiner was reluctant to admit to a difficulty in reading, or to a difficulty understanding at least a part of what was examined. Counsel for the first defendant submitted that in this case the deceased's eyesight was not sufficient for the task of reading the 2005 will, and, even if it were sufficient, the deceased should not be taken to have understood its terms, in particular in respect of the disposition to the second defendant. I turn to those submissions.
111 As to the deceased's eyesight, there is the evidence of Dr Newnham, that even with the assistance of 'some sort of glasses' his reading 'may not be good' (ts 152).
112 There is also the evidence of the first defendant in his examination-in-chief, as follows:
My father continued to seek medical attention for his eyesight from Dr Graham Barrett at the Lions Eye Institute and then as an outpatient at the Eye Clinic with the Sir Charles Gairdner Hospital.
In the last years of his life as his eyesight deteriorated he was able to read large print books. Then as his eyesight got worse when he needed to read at home he would use a magnifying glass.
When he travelled to Perth my father would take his magnifying glass with him but otherwise, if he was only going for short trips around Bindoon, he rarely took his magnifying glass with him.
My father generally did not tell people that his eyesight was poor. Instead he relied on me or on certain other people to help him when it came to dealing with his paperwork and his financial affairs (exhibit 19 [26] - [29]).
113 There is also the evidence of the third defendant in her examination-in-chief, as follows:
Based on my work experience and my close friendship with Jack over many years, it appeared to me, particularly over the last few years prior to his death, that Jack struggled with reading and comprehension. If I tried to read something to Jack to bring it to his attention, he appeared to get frustrated if it was too complex.
I was aware that Jack's eyesight was poor and that he had to use a magnifying glass to read documents (exhibit 20 [11], [12]).
114 I also note the exchange in the cross-examination of the third defendant by counsel for the second defendant, as follows:
What did you form the view about, what form, if any, view, if any, about Jack's reading and comprehension over different times?---Jack's reading and comprehension was limited with unfamiliar paperwork. He read novels, quite extensive novels, but he read the same novels over and over again because he was already aware of the meaning and enjoyed that concept of reading and western cowboy stories, et cetera. As for any other paperwork, he found that very difficult to understand and comprehend and often ignored the paperwork than to attend to it.
So he would ignore paperwork that he didn't easily comprehend?---That's correct.
The position was, was it not, that he read extensively?---He read extensively before his eyesight started to deteriorate, and then he would read the same novels over again.
In fact, there was no problem with Jack's reading and comprehension, was there?---Jack found it very hard to understand putting together continuation of sentence structure and their meaning. He'd lose the understanding of what was required of him. He wasn't a visual learner, if that's what you're asking.
Did you hear my question, sorry, I asked - the question I put originally?
SIMMONDS J: Perhaps you would repeat the question, Mr Taylor.
TAYLOR, MR: I might repeat the question, your Honour.
He had no problem with reading and comprehension, did he?
---Yes, he did (ts 170).
115 However, I also note the evidence of the plaintiff (exhibit 3, [39]; ts 75, 76, 80); Mrs Lefroy (exhibit 9, [5]); Mrs Thompson (exhibit 10, [3]); and Ms Treasure (exhibit 8, [9]), as to the deceased's use of a magnifying glass for reading.
116 In my view taken at its highest, the evidence of the first and third defendants, considered with that of Dr Newnham, is not of an incapacity to read but rather of the need at 8 July 2005 to read with a magnifying glass, which the deceased used to examine the 2005 will at the plaintiff's house, on her evidence (exhibit 3, [39]).
117 On the third defendant's evidence, the deceased at that time had special difficulty reading unfamiliar paperwork.
118 In the case of the 2005 will, it seems to me that the material in it would not be unfamiliar to the deceased, if it is accepted that the deceased gave the plaintiff the instructions that the plaintiff testified he did, and the plaintiff read the document aloud to him before he read it with a magnifying glass.
119 I have already indicated that I find the plaintiff did so read the document to the deceased.
120 In relation to the defendant having given instructions to the plaintiff as she testified he did, I consider it was more likely than not he did give her instructions, and that they were to the effect described in her evidence.
121 As to the deceased giving the plaintiff instructions to draft a will for him, there is both the evidence that he had her prepare the 2004 lease for him and the evidence, from the plaintiff (exhibit 3 [32]; ts 86) and from the first defendant (ts 161), that the deceased was reluctant to pay for professional services in drafting a will.
122 As to the instructions being to the effect of her evidence, there is before me the rationality of the 2005 will's provisions and the evidence of the deceased's intentions and reasons for at least the provisions as to the front orchard.
123 As to the rationality of the 2005 will's provisions, while there was evidence from Mr Moore, that the value of the front orchard was $175,000 (exhibit 15, attachment AAM2), which I accept was a not insignificant sum for the plaintiff and the second defendant, there were other substantial land assets in the deceased's estate which were bequeathed to the first defendant.
124 True it is, as counsel for the first defendant submitted, there was evidence that the water needs of the back orchard and the home block were met from the bore on the front orchard (exhibit 19, [74]; ts 159) and that there was difficulty in using a source other than the bore on the front orchard (ts 165).
125 There was also evidence from the first defendant that the deceased had told him that the income under the 2004 lease would be paid to the first defendant (exhibit 19, [44]).
126 However, that evidence is insufficient to satisfy me either that the value of the remainder of the deceased's estate was other than significant or that it would have been irrational to leave the front orchard to some one other than the person to whom the back orchard and the home block were left and who had enjoyed the income from the front block. There was in particular no evidence that it would have been impossible to find other feasible water sources or to arrive at a suitable arrangement with the holder of the front orchard. In that last respect I note that under the 2004 lease the second defendant had been given the use of the bore, the water from which was, on the evidence of the second defendant, 'equally shared' with the back orchard and the home property (ts 136). Further, there is evidence from witnesses other than the plaintiff as to the deceased's intention to leave the front orchard to the second defendant and the motives underlying that intention which I reach shortly.
127 As counsel for the first defendant emphasised, there was also the matter of the deceased's failure to provide for Mrs Fisher in the 2005 will, where there had been provision for her in the 1983 will. However, I do not consider the lack of that provision irrational or a reason to doubt the deceased gave instructions to the plaintiff in the terms to which she testified.
128 First, it may be noted that the provision in the 1983 will had particularly mentioned the Como property, which of course was held in joint tenancy.
129 Further, at about the time of the instructions for the 2005 will, it would have been reasonable for the deceased to believe it was likely Mrs Fisher would pre-decease him. On the evidence of Dr Newnham to which I referred earlier, he had been visiting the deceased's home to manage Mrs Fisher's CCF and dementia; he had formed the opinion that she was in need of long term hospital care; and it appears she was moved into that care at most 'a few weeks' after her assessment on 10 May 2005 by the Aged Care Assessment Team (exhibit 18, [13],[14]).
130 I also note in respect of the movement of Mrs Fisher into long term hospital care the evidence of the third defendant (exhibit 20, [18]):
After Kate was admitted to hospital in 2005 the nurse sat down with Jack and me, and explained that Kate was dying. The nurse said words to the effect that Kate would not be coming home and that Jack would need to make arrangements.
131 While that evidence does not indicate that Mrs Fisher's death was imminent, it does in my view support the view that at or about the time she went into hospital the likelihood apparent to the deceased was that she would not outlive him, where he was still living at his home.
132 Finally, while I have noted the evidence of the first defendant that the deceased 'generally did not tell people that his eyesight was poor' (exhibit 19, [29]), I consider it only slight evidence that he would have indicated his assent to a document he could not read. This view is based on the evidence of witnesses other than the plaintiff, witnesses who testified about what the deceased wanted by the 2005 will to leave to the second defendant, and the terms in which that wish was put, evidence which I consider below, in the context of whether the deceased understood the disposition to the second defendant in the 2005 will. I also hold this view because, as I have indicated, there was no evidence that the deceased lacked testamentary capacity. I consider that the evidence of those witnesses, in the absence of any evidence of lack of testamentary capacity, clearly points to a testator who would not have hesitated to indicate he believed the document he had read was not in accordance with his wishes if that were the case.
133 However, the matter is less clear if the deceased simply had difficulty with the way the terms of the 2005 will were expressed, such that he was uncertain whether or not they were to the effect he intended. This goes to the matter of the deceased's understanding of the terms of the 2005 will, and in particular its disposition to the second defendant.
134 As to the deceased's understanding of the 2005 will, counsel for the first defendant put considerable emphasis on the plaintiff's uncertainty as to the terms in which the deceased had instructed her with respect to the property to be left to the second defendant. Counsel also put emphasis on the description of that property used in the 2005 will. That description, it will be recalled, included a reference to the Diagram number ('D15522') from the relevant certificate of title. The plaintiff testified that she thought the deceased would not have given instructions in terms of that detail (ts 55).
135 However, there was the evidence of the use of part of the description in the 2004 lease ('Lot 2 Fisher Road') which the deceased had sought for some years and which he had executed 10 months previously. There was also evidence from Ms Treasure, Mrs Thompson and Mrs Lefroy, as well as the second defendant, as to the deceased's intention to leave property to the second defendant, and the terms in which that intention was expressed. In my view that evidence establishes that the deceased intended at the relevant time to leave the property the subject of the 2004 lease to the second defendant, and why that was his intention, which in my view helps to establish that he instructed the plaintiff to draw a will to that effect, as the plaintiff testified. Given the elements in common between the description of the property leased to the second defendant by the 2004 lease and the property left to the second defendant by the 2005 will, I am satisfied it is more likely than not that the deceased was not uncertain as to what, by the 2005 will, he was leaving to the second defendant.
136 The evidence of Ms Treasure was as follows. In her affidavit evidence, there is the following:
During the course of our long conversations, Jack would refer to the orchard as 'Johnny's'. I knew him to be referring to John Kay, because Jack spoke regularly of him.
I recall Jack saying on several occasions words to the effect, 'That orchard is Johnny's, and if David is not careful, he will lose the lot (exhibit 8, [11] - 12]).
137 In the re-examination of Ms Treasure, there was the following exchange:
You mentioned that you would drive him around. As I understand your evidence there were drives to Sir Charles Gairdner Hospital. How often would you drive him around?---What, around town? Sometimes we'd go down the street, he'd want to go down the street. We mainly used to sit on the front - the back verandah and just play the mouth organ together and, you know. He always wanted me to take him places but I used to say, 'I can't, Jack.'
How often would you say you saw him?---Sometimes I'd see him often and then sometimes I wouldn't see him for a while, you know. Like just before he died I didn't see him for about three weeks and I never saw him again because we went away.
You say he always said the orchard was Johnny's?---He always referred to the one in the front. He never said the ones around. He just used to say as we'd drive past when I used to take him down the road from the school, he'd say, 'Well, that's Johnny's orchard there.' I think he was leasing it or something as well (ts 92 - 93).
138 The evidence of Mrs Thompson was as follows. In Mrs Thompson's examination-in-chief, there was the following:
For up to a year before his death, Jack told me on several occasions that he wanted to leave something to John Kay ('John'), who he referred to as 'Johnny'). Jack said that he wanted to leave the block of land between Fisher Road and the Highway to John when he died (exhibit 10, [5]).
139 In the cross-examination of Mrs Thompson by counsel for the first defendant, there was the following exchange:
Do you remember how many times he said this to you?---No, I don't. Only that it was several.
You say more than twice but you can't remember how many?---No.
Do you remember roughly when it was that he made these remarks to you?---Well, it was in the last year of his life.
You say that Jack said that he wanted to leave the block of land between Fisher Road and the highway to John. Is that right?---I understand that was what he wanted to do.
That was your understanding of what Jack Fisher said. Is that right?---Yes.
Do you remember what it was that Jack Fisher actually said to you?---I couldn't quote him at this distance of time, but that was the meaning of it.
What you've given up in your affidavit, the block of land between Fisher Road [and] the highway, is your understanding of what Jack Fisher said to you?---It's an approximation of what he said as well as I can remember it at this distance.
So it's your understanding of what he said to you?---Well, I suppose it's my understanding of it.
As I've asked you already, you can't recall what it was that he did say?---I can't remember the exact words, but that was the meaning of it.
On your understanding?---Yes (ts 101).
140 The evidence of Mrs Lefroy was as follows. In Mrs Lefroy's evidence-in-chief there was the following:
Jack often said that he was leaving the orchard to 'Johnny' when he died. I was aware through my conversations with Jack that he was referring to John Kay. Jack would say that David was not at all interested in the orchard, and 'Johnny' was.
Jack would also say that David's got enough, that he doesn't want the orchard, but that 'Johnny' does (exhibit 9, [6] - [7]).
141 In the cross-examination of Mrs Lefroy by counsel for the second defendant, there was the following exchange:
Did he ever refer to John Kay in any of his discussions with you?---John?
Kay?---He used to call Johnny, Johnny Kay. That's how he always referred to John and he was very fond of him because he used to help him a lot.
Do you recall what he said of him at all?---Yes. He always used to - John would - 'Johnny did this and Johnny did that.' He was very good to both the old Fishers and he always said that he would like to leave the - one of the orchards, or the one that John was - used to help him with. He was going to leave it to Johnny when he died but that was, you know, we'd just be talking about the orchard and that's what he'd say (ts 95).
142 In the cross-examination of Mrs Lefroy by counsel for the first defendant, there was the following exchange:
You have said in your affidavit, 'He often said he was leaving the orchard for Johnny when he died.' Is that correct?---Yes.
How many conversations or how often did Jack Fisher make a remark like that to you?---I saw them, I visited for four years every Wednesday. So I really wouldn't be able to say with any honesty how many times he did - we'd either - he'd either bring me an orange - no, he'd give me a couple of oranges as I was leaving and he'd tell me what they were doing in the orchard.
So you can't say how many times or how often you had that particular conversation with - - - ?---Not with any - no, not within - but I know he [said it] a few times.
You can't say when those conversations took place either, presumably?---I think it would be when he was working in the orchard and he
So was that 2003?---He died in five. I couldn't with any certainty say a date. I just knew he had said it many times.
So it could have been 2003 say?---Yes. Could have been, but I don't know (ts 96 - 97).
143 In the re-examination of Mrs Lefroy there was the following exchange:
I think you were - you said that it may have been in 2003 that he mentioned about leaving the orchard to Johnny. Can you say about - whether 2004 or 2005 he might have said that, or did say it?---It could have been any of those times. I just knew that that was what he had planned, and if he said it on a six-monthly basis or if he - if he was working in the orchard and he wanted help he would say, 'David's not interested. I'm going to leave this to Johnny,' and that's - that's how it would come out. It was just - it wasn't a statement of fact; it was just in conversation (ts 97 - 98).
144 The evidence of the second defendant was as follows. In his evidence in chief, the second defendant said:
I assisted the deceased more and more in the last couple of years of his life as his wife died in 2005 and David was away more.
The deceased told me over the last 5 years of his life that he wanted to leave me the orchard I have been left under the will.
The deceased asked me to promise that the orchard was not going to be covered in scrap rubbish as that had happened to his other orchards. I agreed.
In 2004 I was asked by Jack if I wanted to lease the orchard.
I subsequently leased the orchard from the deceased for a 5 year term commencing on 1 November 2004. The deceased often came down and worked on the orchard with me after the lease commenced (exhibit 16, [19] - 23]).
145 In the cross-examination of the second defendant by counsel for the plaintiff, there was the following exchange:
In your affidavit you make mention that the deceased asked you to promise that the orchard was not going to be covered in scrap - rubbish?---Correct.
In what context was that promise made?---Just the fact that Jack was - the rest of the farm was covered in scrap and rubbish and the front orchard was the only part that was untouched with any piece of scrap and he was very worried that it was going to covered in scrap because the rest of the place was full so that was the context.
You made that promise, did you?---Yes (ts 136).
146 In the cross-examination of the second defendant by counsel for the first defendant, there was the following exchange:
You say Jack Fisher told you he intended leaving you the orchard 'I have been left under the will'. Well, obviously Jack Fisher didn't use those words to you, did he?---I can't recall the exact words that Jack used. It's four - three or four years ago.
Right. Perhaps you can try to remember. What did Jack Fisher say to you about land he intended leaving to you?---Jack had told me on several occasions that he wished to leave me the orchard below the school.
Those were the words that he used?---Yes.
Are you quite certain about that?---Yes, positive.
You just said a moment ago that you can't remember precisely what he said to you?---I can't - what I said is I can't remember that he said exactly what you read out.
Are you now saying that you can remember exactly what Jack Fisher said to you about this?---I can remember Jack telling me on several occasions that he wished to leave me the block below the school.
Or did he put it in some other way?---No, that's the way that he said it.
He didn't talk about the front orchard?---No, we knew exactly - well, Jack and myself knew exactly
No. I'm just asking you what he said to you, not what you knew. Did he perhaps use the words 'the front orchard'?
---No, 'the orchard below the school'.
Did he use the words 'the orchard'?---Yes.
So what he said to you was that he intended leaving you the orchard?---The orchard below the school.
You specifically remember those words 'below the school'?
---Yes (ts 141 - 142).
147 Counsel for the first defendant drew to my attention, as qualifying the evidence of the second defendant in the respects just quoted, the following exchange in counsel's further cross-examination of the second defendant:
These occasions that you say that Jack Fisher said to you that he wants to leave you the orchard below the school, can you remember how often he said that to you?---No.
Can you remember when he said that to you? I don't need a precise date, just the year?---Just in conversation. I honestly used to think it was just mucking around, you know?
Did he say it once?---No, he said it more than once.
But you can't say how many times?---No.
You aren't able to say even in what year he said it?---No (ts 144).
148 I took it counsel for the first defendant laid particular emphasis on 'it was just mucking around', from which I should infer the second defendant's evidence was that the deceased's references to leaving the front orchard to the second defendant were not as seriously meant as the second defendant's earlier evidence might indicate.
149 However, I did not so understand the second defendant's evidence just quoted. I took the second defendant to be explaining why he could not give a date or dates for the references. They occurred in conversations devoted to other topics as well, rather than on any special occasion. It seems unlikely to me that the second defendant meant to indicate that the deceased's references to leaving the orchard, which I took to have been seriously made on the second defendant's earlier evidence, should not in fact be so viewed.
150 Counsel for the first defendant put to me that, while he could not object to the admission of this evidence, in view of the ruling to be referred to shortly, its weight in relation to the issue of what the deceased intended, and might have understood the disposition to the second defendant in the 2005 will to mean, should be slight.
151 Counsel for the first defendant indicated to me that there had been a previous ruling as to admissibility by Master Sanderson, in which he ruled on applications to strike out parts of affidavits in this action, a ruling which in counsel's view was not supported by the relevant authority.
152 However, in counsel's submission that authority could be taken into account in assessing the weight to be assigned to the evidence.
153 The relevant authority to which counsel for the first defendant referred me was Johnson v Lyford (1868) LR 1 P & D 546, followed in In the Goods of Gilliland [1940] NI 125 and Sugden v Lord St Leonards (1876) 1 PD 154, 227. I was also referred to Cross on Evidence (7th Aust ed, 2004) [37115], Gould v Lakes (1880) 6 PD 1 and Re Barker [1995] VicRp 64; [1995] 2 VR 439, 446 - 454. Taken together, counsel submitted, these authorities show that pre-testamentary statements of intention by a deceased are not admissible as evidence of whether a deceased knew of or approved the contents of a will. Rather those statements are admissible only in two classes of case, neither of which fits the evidence in this case. One class is of lost wills, where the pre-testamentary statements of intention are admissible to corroborate other evidence about the contents of the will, or admissible on their own because they are roughly contemporaneous with the execution of the will. The other class is to establish whether or not particular paper formed part of the will of the testator, or to throw light on the intention with which a testator included a general revocation clause in a later will.
154 Counsel put it to me that that restriction on admissibility might be put on the basis that a pre-testamentary intention might always be changed, and on the basis that a pre-testamentary intention is inadmissible as to the construction of a will. Those bases would in counsel's submission commend giving little weight to pre-testamentary statements in relation to whether or not a deceased approved of the contents of a will.
155 However, I disagree that the pre-testamentary statements in this case should be seen to be of little weight. In my view, the authorities cited to me by counsel for the first defendant do not relate to the matter of concern to me, as to whether or not to believe the plaintiff's evidence about the instructions the deceased gave her for the 2005 will, in particular in respect of what, if anything, was to be left to the second defendant. The plaintiff's evidence is the only direct evidence of those instructions. The matter of whether or not to believe her evidence might be analogised to that of whether or not there is evidence to corroborate other evidence about the contents of a lost will.
156 Further, it seems to me that Astridge v Pepper [1970] 1 NSWR 542 supports the view that, where it is necessary to find what instructions the deceased gave for a will, resort may be had to evidence of declarations by the deceased to support the direct evidence of those instructions. See Astridge 548 - 550 (Helsham J).
157 I have noted that there is authority, commended to me by counsel for the second defendant, that in suitable cases evidence of the testamentary intention of a deceased may be relevant to show whether or not a document said to be the deceased's will was indeed that will: see Hassan [45] and [77] (where, however, there were also post-testamentary statements of the deceased about the document); and see also Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 137 (Barwick CJ), 149 (Gibbs J) (although in that case there was no dispute about the provisions of the will, and there were post-testamentary statements by the deceased about the will).
158 In sum, it seems to me that the authorities cited to me by counsel for the first defendant do not prevent the admission of the evidence I have canvassed for the purpose I have described. Nor do those authorities prevent me giving that evidence significant weight for that purpose.
159 Thus I find that the plaintiff had, prior to driving the deceased to the Zemuniks, read the 2005 will aloud to the deceased, who had then read it with a magnifying glass and confirmed he was happy with it. That sentiment of his, on that finding, extended to the provision for the disposition of the front orchard to the second defendant.
Whether the deceased read the 2005 will again in the car at the Zemuniks and confirmed there that he understood it
160 I have already referred to the evidence on the basis of which I have found due execution of the 2005 will. In particular, I relied on the evidence of Mrs Zemunik. As I indicated her evidence was that when she approached the car in which the deceased was sitting, he appeared to be reading a document with a magnifying glass (exhibit 14 [4]), and that Mr Zemunik asked the deceased if he understood the document, to which the deceased responded that he did (exhibit 14 [5]). I found on the basis of the whole of her evidence that that document was the 2005 will.
161 Thus, I find that the deceased read the 2005 will again in the car at the Zemuniks and confirmed there that he understood that document. That understanding on that finding, when taken with the finding in the previous section of these reasons, extended to the provision for the disposition of the front orchard to the second defendant.
Whether the deceased suffered from any lack of capacity to know and approve of the 2005 will
162 I have already considered this matter, in the context of the evidence of the third defendant about what she testified to as the deceased's special difficulty with reading unfamiliar paperwork. For the reasons given there, I do not consider that difficulty was relevant to the 2005 will. Indeed, that view is strengthened by my previous finding, that the deceased read the 2005 will again in the car at the Zemuniks and confirmed there that he understood it.
Whether the 2005 will was a rational one, including its failure to provide for Mrs Fisher and its disposition of the front orchard to the second defendant
163 I have already considered these matters, in the context of my consideration of the 2005 will's failure to provide for Mrs Fisher where she had been provided for in the 1983 will, and in the context of the disposition of the front orchard to the second defendant. For the reasons given in those contexts, I conclude that the plaintiff has made out its case that the 2005 will was a rational one, notwithstanding its failure to provide for Mrs Fisher or its disposition of the front orchard in favour of the second defendant.
164 It follows that I have found the plaintiff's case made out as indicated. On that case, I consider that any suspicion arising from the circumstances listed in the first defendant's defence [5] has been dispelled and the burden of proving that the deceased knew of and approved the 2005 will has been discharged.
165 On those findings no question arises in this case of an order being made of the kind in Astridge (550) (Helsham J), to which counsel for the first defendant directed my attention. That is, any recognition of the 2005 will as having been proved to set forth the testamentary disposition of the deceased should not stop short of recognising the disposition of the front orchard to the second defendant.
166 It follows that there should be orders pronouncing the force and validity of the 2005 will and orders for the grant of probate in solemn form.
167 I will hear from the parties as to the precise terms of the orders to be made, including any further orders.
Astridge
Pepper
(1979) 143 CLR 134
(2001) 52 NSWLR 705
(1918) 25 CLR 519
(1984) 38 SASR 45
(1988) 14 NSWLR 698