Succession - Wills, probate and administration - The making of a will - Testamentary instruments - Knowledge and approval of contents - Generally - Circumstances raising suspicion - Will witnessed by husband of sole beneficiary - Application for order that section invalidating gift does not apply.

McKinnon v Voigt [1998] 3 VR 543; Vernon v Watson [2002] NSWSC 600, referred to.

Judgment Number: [2004] TASSC 152

1 The plaintiff/applicant has brought these two proceedings concerning the will of her mother, Ida Mabel Smith, who died on 17 August 2002. The will was executed on 18 January 2002. It was a simple will, by which the deceased gave the whole of her estate to the plaintiff, and appointed her as her sole executrix. The two attesting witnesses were the solicitor who prepared the will and the plaintiff's husband. As a result of her husband having witnessed the will, and subsequent events relating to him having witnessed it, it has become necessary for the plaintiff to bring an action seeking a grant of probate in solemn form, and to make an application under the Wills Act 1992, s45(1), for an order that she is to be entitled under the will as if s44 of that Act, which invalidates gifts to the spouses of attesting witnesses, did not apply to her. Those proceedings have been heard together.

2 The deceased was a widow. She bore two children. One of them is the plaintiff. The other, Alan Owen Smith, died in February 1978. He was survived by three sons, who are the defendants and respondents in these proceedings. By the previous will of the deceased, made in December 1978 and not revoked prior to 18 January 2002, they were each to receive a percentage of the residuary estate of the deceased. If the effect of the will of 18 January 2002 was to revoke the 1978 will without the gift of the whole estate to the plaintiff taking effect, they would each be entitled to one sixth of the estate as the result of an intestacy.

3 In the probate action, the defendants pleaded that the deceased did not know and approve the contents of the will. They pleaded that (a) the deceased did not give instructions for the will; (b) the instructions were given by the plaintiff; (c) the will was not read over by or to the deceased sufficiently or at all before she signed it; (d) the deceased did not know what document she was signing; and (e) the deceased could not sign her name unassisted since suffering a stroke in 1992.

4 The authorities as to the approach that should be taken in a probate action when it is contended that the will was made in suspicious circumstances were reviewed thoroughly by Burchett AJ in Vernon v Watson [2002] NSWSC 600. The propounder of a will bears the onus of dispelling any suspicions surrounding it. See, for example, McKinnon v Voigt [1998] 3 VR 543. However one must approach such cases sensibly, remembering that the degree of suspicion varies with the circumstances: Re Emanuel deceased [1981] VicRp 12; [1981] VR 113 at 119; Miller v Miller [2000] NSWSC 767; (2000) 50 NSWLR 81 at 86.

5 The deceased was 87 years old when she made the will, and when she died. She lived alone in a home unit at Sandy Bay. The solicitor who drew the will was acquainted with her, but had not previously acted for her. He gave unchallenged evidence as to the following matters. On 18 January 2002, he received a phone call from the plaintiff. She asked if he could prepare a will for her mother. She asked if he would call at the home unit to arrange it. He called in on his way home from work at the end of the day. The deceased, the plaintiff, and her husband were present. The solicitor took instructions for the will from the deceased, not from the plaintiff. The plaintiff and her husband sat at a distance, around a corner, while he did so. Before taking instructions, the solicitor had a short chat with the deceased. He had no difficulty understanding her. His practice is to seek the opinion of a medical practitioner if he has any doubts about a client's mental capacity, but he saw no reason to take that course in this case. The deceased told the solicitor that she wanted to leave the whole of her estate to "Susie", obviously referring to the plaintiff. She said words to the effect that the plaintiff "had been looking after her". The solicitor believes, to the best of his recollection, that he suggested that the plaintiff be named as the executrix, and the deceased agreed. The solicitor had brought a typed will form with him. He wrote in clauses as to the appointment of the plaintiff as executrix and trustee, and as to the whole of the estate being left to her. He told the deceased what, in substance, the document provided for, and confirmed that she knew and approved of its contents. He did not advert to s44. He asked the plaintiff's husband to join him in witnessing the will. It did not occur to him to knock on someone else's door in the units where the deceased lived for the purpose of finding another witness. The deceased signed the will in the presence of the solicitor and the plaintiff's husband, who then signed it as witnesses. The solicitor was not aware of any fraud, duress or undue influence in relation to the making of the will.

6 The solicitor's evidence that the instructions for the will came from the deceased was corroborated by both the plaintiff and her husband. The plaintiff said that she was in earshot at the time. Her husband said that he could hear parts of the conversation, but that he was not talking with his wife, and that the television was not on. In an affidavit, when describing a telephone conversation that he had with the solicitor following the death of the deceased, the first defendant said that the solicitor "confirmed" to him that he received his instructions from the plaintiff. The solicitor was asked in cross-examination whether he had said words to the effect that he had received instructions from the plaintiff in relation to the will. He said that he may have said he received a request from the plaintiff to go and see her mother to prepare a will. He was not pressed for a more responsive answer. A solicitor would need to be extraordinarily unprofessional and extraordinarily stupid to tell the grandson of a deceased client that he had received his instructions for the will from the sole beneficiary. Apart from the oversight in relation to the witnessing of the will, my impression is that the solicitor was diligent, honourable and sensible. I simply do not believe that he told the first defendant that he received his instructions from the plaintiff.

7 In an affidavit, the solicitor said it was not his practice to read a will word for word, but to read the critical parts of the will in such a way as to ensure the testator or testatrix understands it. He said it was clear to him from the words the deceased said and her reaction and demeanour that she understood what he said, and that she knew and approved the contents of the will. The plaintiff said in an affidavit that she heard the solicitor read out the new will; that he asked "Is this what you want to happen?"; and that the deceased replied, "Yes, all to Susie". Her husband said in an affidavit that the solicitor recited the words of the will aloud to the deceased; that he asked her "Is this what you want to happen?"; and that the deceased replied, "Yes, all to Susie".

8 The solicitor and the plaintiff's husband both said in affidavits that they saw the deceased sign the will, and that she did so without any assistance. The plaintiff did not claim to have seen her sign the document.

9 The mother of the defendants, Mrs Lorraine Smith, swore an affidavit and was cross-examined on it. She is the widow of the deceased's son, who died in 1978. In her affidavit she said that, following the deceased's first stroke in or about 1991, communication with her became almost impossible because her speech was confused and the right words would not come out. She said that on occasions she would visit the deceased at her unit to check on her. She said she visited the deceased at the Hobart Private Hospital on 21 January 2002. That, of course, was three days after the signing of the will to which these proceedings relate. She said that the deceased was visibly very upset, and told her that Sue and Tony (the plaintiff and her husband) had taken everything, and that a man was there as well. She said that, as a result of that conversation, she contacted the first defendant, one of her sons.

10 He also swore an affidavit and was cross-examined. He said he went to see the deceased in hospital after receiving a call from his mother, and that he observed the deceased to be the most upset he had ever seen her. He said the deceased told him that "They told me I had to sign something"; that a strange man had visited her; that "they" had taken everything; that it was her unit, not "theirs"; and that he had to stop "them", but not to make Tony (the plaintiff's husband) angry again. The first defendant is a bank manager. He said that, as a result of that conversation, he twice searched the title to the deceased's property, but found no transfers or unregistered dealings. Like his mother, he said that the deceased had a problem with her speech following the 1991 stroke. He said that she was lucid at the time of his visit to her on 21 January 2002, but he also said that she was not able to tell him what had gone on.

11 The plaintiff was cross-examined as to the circumstances that led to the deceased being in hospital on 21 January 2002, three days after the making of the will. She said that, after the will was made, she and her husband were driving with the deceased from Sandy Bay to their home at Melton Mowbray when the deceased had a seizure, as a result of which they turned around, drove back to Hobart, and arranged for her to be admitted to hospital, where she remained until February. I have no reason to doubt the truth of the accounts given by the first defendant and his mother as to their conversations with the deceased in the hospital Their evidence is consistent with the deceased having been of sound mind, memory and understanding at the time the will was signed, but suffering from some sort of impairment of her memory and understanding three days later as a result of the "seizure" that occurred on the way to Melton Mowbray.

12 The evidence of the solicitor, the plaintiff and her husband suggesting that the deceased had full testamentary capacity at the time the will was signed is corroborated by a report of her general practitioner, Dr Bailey, that was tendered as an exhibit. He said his professional opinion was that she was likely to have been capable of making an informed decision regarding her will on 18 January 2002. Further corroboration is to be found in the evidence of a friend of the deceased, Mrs Harris, who swore an affidavit and was cross-examined. She said she visited the deceased several times per week on average in the last few years of her life, and that she did not notice any deterioration in her mental faculties or her speech until about a week before she died. Under cross-examination, she said that the deceased "had a mind of her own". The evidence of Mrs Harris is inconsistent with the report of Dr Bailey, to the extent that the report suggests a somewhat earlier deterioration in the deceased's mental faculties. However it still provides corroboration of the evidence of those present when the will was signed as to the general lucidity of the deceased.

13 The plaintiff was a somewhat unreliable witness. Under cross-examination, but not in her affidavits, she said her husband asked the solicitor whether it was all right for him to sign the will as a witness, saying that he did not feel comfortable signing it, and that the solicitor said that it was all right. In fact she gave evidence to that effect twice during her cross-examination. I do not accept that evidence. The fact that the spouse of a beneficiary should not witness a will is so well known within the legal profession that only the most inexperienced and incompetent solicitors would allow a beneficiary's husband to witness a will after the appropriateness of him doing so had been queried. The solicitor in question appears to me to be an experienced and sensible practitioner. When cross-examined as to this point, the plaintiff's husband initially said that he did not recall saying that he felt uncomfortable about signing the will, then said that he may have asked whether it was all right for him to sign and been told by the solicitor that it was, then said that he could not honestly recall whether he had asked whether it was all right for him to sign, and then said that he did not believe he questioned the solicitor at that stage. In the course of her cross-examination, the plaintiff also gave evidence to the effect that, prior to the solicitor discussing the contents of the will, he asked her and her husband not to have any eye contact or involvement with the deceased. Her husband gave evidence that the solicitor did not suggest that they were to avoid all eye contact. Despite these matters, I have no reason to think that the plaintiff or her husband might have been dishonest in giving their evidence. I think it most likely that the plaintiff's memory is inaccurate, and that to some degree she has inaccurately reconstructed the events of the afternoon in question.

14 The first defendant said in an affidavit that, following the death of the deceased, he telephoned a trustee company, was told of the existence of the 1978 will, and was told that there was a new will held by the solicitor's firm. He said he phoned the solicitor, asked whether he was a beneficiary named in that will, was told that he was not, asked for a copy of the will, and was told that that was up to "the Trustee". That was obviously a reference to the plaintiff. Since the first defendant was neither a beneficiary nor an executor nor a trustee under the will, it would have been improper for the solicitor to have given him a copy of it without the permission of the plaintiff. Under cross-examination, the solicitor said that he may have reported to the plaintiff that he had had a call from the first defendant, but that she did not give him authority to provide the first defendant with a copy of the will. Under cross-examination, the plaintiff confirmed that she had been phoned by the solicitor, and that he had told her the first defendant had wanted to know if he was a beneficiary and had asked for a copy of the will. She said that she knew the solicitor had not given him a copy of the will, that she did not recall whether the solicitor said that it was up to her to say whether or not he could have a copy of it, and that she did not tell the solicitor not to give a copy to him. The evidence as to the first defendant's enquiries concerning the will and the plaintiff's response, or lack thereof, in relation to those enquiries indicates to me that the plaintiff and the first defendant were far from close. However the evidence falls short of suggesting that the plaintiff had any sinister reason to be secretive about the will or the circumstances in which it was signed.

15 In my view, the evidence as to the condition of the deceased three days after signing the will does not lend any support to the allegations pleaded by the defendants in the probate action. The evidence as to a copy of the will not being made available does not lend any support to those allegations either. There is no other evidence that could be regarded as supporting those allegations. The solicitor's explanation as to his oversight is a convincing one. I am satisfied on the balance of probabilities that the deceased gave the instructions for the will herself; that those instructions were not given by the plaintiff; that the solicitor sufficiently acquainted the deceased with the contents of the will before she signed it; that she knew what document she was signing; that she signed the will without assistance; and that she knew and approved its contents. I make those findings on the basis of the evidence that I have referred to from the plaintiff and her witnesses, and on the basis of the doctor's report.

16 In the application under the Wills Act, the respondent put the plaintiff to proof of the matters specified in s46(1), which reads as follows:

"46 - (1) Where the Court is satisfied that the entitlement of the applicant under the will was known to and approved by the testator and was not included in the will as the result of fraud, duress or the exercise of undue influence by any person, the Court may, by order, declare that section 44 does not apply in relation to the applicant in respect of the will in respect of which the application was made."

17 I have already made findings to the effect that the plaintiff's entitlement under the will was "known to and approved by the testator". Because of the provisions of s46, the plaintiff must also prove that the gift to her "was not included in the will as the result of fraud, duress or the exercise of undue influence by any person".

18 The question whether the deceased had any reasonable motive to leave the whole of her estate to the plaintiff is a relevant one. The plaintiff was the only surviving child of the deceased. The evidence does not suggest that the second and third defendants had much to do with the deceased at all. The first defendant and his mother both gave evidence that they visited the deceased frequently, and that they did not ever see the plaintiff at her home. However, it is quite possible that they simply visited at different times. The plaintiff gave evidence that she used to visit the deceased five or six times per week, do her washing, do her ironing, take her to the supermarket every week, take her to the hairdresser, take her to the doctor and optometrist when necessary, pay her accounts for her, and lodge Medicare claims for her. The deceased had given her a power of attorney. There was no suggestion that anyone else did any of these things for the deceased. Mrs Harris, the only independent witness, said she observed that the plaintiff and her husband constantly helped the deceased; that she observed a close and caring relationship between the husband and the deceased; that the deceased commented in relation to the plaintiff and her husband that she (the deceased) was "blessed". On the basis of the uncontradicted evidence as to the relationship between the plaintiff and the deceased, I am satisfied that the deceased had a very strong motive to leave all her estate to the plaintiff.

19 Despite their shortcomings as witnesses, the plaintiff and her husband struck me as honest and responsible people. Both gave evidence that they were unaware of any fraud, duress or undue influence in relation to the will of the deceased.

20 In my view the evidence of the solicitor as to the selection of the plaintiff's husband as a witness for the will, his other evidence as to the circumstances surrounding the making of the will, the corroboration of his evidence by the plaintiff, her husband, Mrs Harris and the doctor's report, and the evidence as to the existence of a motive for the deceased to give all of her estate to the plaintiff, together dispel the suspicions that one should begin with in relation to the making of this will. Those suspicions having been dispelled, it involves only a small step to accept the evidence of the plaintiff and her husband as to the absence of fraud, duress and undue influence. I accept their evidence to that effect as the evidence of honest witnesses.

21 In the probate action, the Court pronounces for the force and validity of the last will and testament of Ida Mabel Smith dated 18 January 2002. I order that probate thereof be granted to the plaintiff.

22 In application M12/2004, I declare that the Wills Act 1992, s44, does not apply in relation to the applicant in respect of the will of Ida Mabel Smith dated 18 January 2002.