Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell - [2019] NSWSC 583 - NSWSC 2019 case summary — Zoe

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Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell

[2019] NSWSC 583

Supreme Court of NSW|2019-02-21|Before: Hallen J

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Source facts

Court

Supreme Court of NSW

Decision date

2019-02-21

Before

Hallen J

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

Introduction

HIS HONOUR: For hearing, commencing on Monday, 18 February 2019, were six different actions, being, 2016/188756 and 2016/303424 ("the Probate proceedings") and 2017/178792, 2017/179996, 2017/182524 and 2017/182545 ("the family provision proceedings"). All were contested proceedings in which, effectively, a father is pitted against his children in respect of the estate of his wife, who was their mother. There are obvious feelings of disappointment, antagonism, rage, and resentment, between at least three of the children, on the one side, and their father, on the other. The cases also demonstrate, once again, that contentious probate, and family provision, proceedings, reveal the drama of family rifts, which climax on public display, and which lay bare fault lines in the relationships. There can be little doubt that these proceedings have exacerbated family tensions and disharmony. Not for the first time, the Court has witnessed how a family can be irreparably divided on an issue such as inheritance.
As in all probate and family provision disputes, the personality, state of mind, desires, and prejudices of the central person, namely the deceased, her relationship with family members for whom she did, or did not, provide, and the reasons for the change in her testamentary dispositions, are all significant matters that the Court needs to examine, carefully, in order to come to a finding about the validity of the disputed Will. With the death of the deceased, most of these matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, per Poon J, at [51].
After introduction, I shall refer to the parties, who are family members who share the same surname, by his, or her, first name, respectively, in order to avoid confusion. By doing so, I do not mean to convey any disrespect or suggest any undue familiarity. For the sake of economy of expression, I shall refer to the Will made by the deceased in 2015 in this way, whilst recognising that its status is in dispute.

[2]

The Nature of the Proceedings

The focus of the disputes that arise for determination in the Probate proceedings relates, principally, to whether a Will, duly executed on 22 July 2015 ("the 2015 Will") is the last valid Will of Noeline Joan Blendell ("the deceased"). The deceased died on 20 June 2016, leaving property in New South Wales and in Kuala Lumpur, Malaysia. The original 2015 Will is Ex. A in the proceedings. It dealt with the disposition of the deceased's property in Australia.
The Plaintiff in the first of the Probate proceedings is Michael James Blendell, the de jure spouse of the deceased at the time of her death. He commenced the proceedings by Statement of Claim filed on 13 September 2016. On 11 October 2016, the four children of the Plaintiff and the deceased, namely Denise Leanne Blendell, Julian Karl Blendell, Dominic James Blendell, and Nicholas Charles Blendell, filed a Defence disputing the validity of the 2015 Will.
At the date of the hearing, the principal protagonists/Defendants in the Probate proceedings were Julian, Dominic, and Denise. Nicholas filed a submitting appearance on 1 May 2018, in the Probate proceedings (although, at least initially, he was represented by the solicitors who represented, and who continue to represent, his three siblings in those proceedings).
Matthew Edward Byrne ("Mr Byrne"), as the sole executor named in an earlier Will, duly executed by the deceased on 13 June 2007 ("the 2007 Will"), also opposed Michael's claim for Probate. He is described as the deceased's financial adviser, and she is described, in the evidence, as his client. He was introduced to her by Nicholas. The original 2007 Will is Ex. 1 in the proceedings: Tcpt, 18 February 2019, p 3(30-40).
Mr Byrne did not attend the hearing at all, despite the fact that he is a party named in the Probate proceedings (and wrongly named, as the first Defendant, in the family provision proceedings by Denise). At the commencement of the hearing, Mr M W Young SC informed the Court from the Bar table that "[H]e is not here today. He is available by telephone and is intending to attend the proceedings later, but I appear for him": Tcpt, 18 February 2019, p 4(21-22). Subsequently, senior counsel said "He didn't in fact set foot in court, are my instructions": Tcpt, 25 February 2019, p 380(36-42). (I shall, hereafter, refer to Denise, Julian, Dominic and Mr Byrne, collectively, as "the Defendants".)
In early August 2016, a general caveat was lodged, on behalf of all of the children, in the Probate Registry of this Court. The interest claimed in the caveat was as "the deceased's children and we are the beneficiaries of a prior [W]ill of the deceased dated 13 June 2007": Ex. 2/528.
On 13 September 2016, Mr Byrne commenced separate proceedings (2016/302424) seeking a grant of Probate in solemn form of the 2007 Will.
On 17 October 2016, the proceedings commenced by Michael came before Senior Deputy Registrar Brown in the Probate List. The Court made orders for the joinder of Mr Byrne as a Defendant; for service of an amended Statement of Claim naming Mr Byrne as a party/Defendant; directions for the filing and service of an amended Defence; and directions for the service of the evidence of each party.
On 24 October 2016, Michael filed an amended Statement of Claim, joining Mr Byrne as the fifth Defendant. On 31 October 2016, the Defendants filed their amended Defence. By the date of the hearing, the Defendants, who remained opposed to the grant of Probate of the 2015 Will, relied upon the fourth amended Defence to the amended Statement of Cross-Claim, which had been filed on 28 March 2018.
Michael filed his Defence to Mr Byrne's Statement of Claim on 18 November 2016. In substance, he denied that the 2007 Will was the last Will of the deceased and asserted that it had been revoked by the 2015 Will.
It is accepted that if the 2015 Will is found to be the last valid Will of the deceased, then Probate of that Will, in solemn form, should be granted to Michael. It is also agreed that, in those circumstances, Mr Byrne's proceedings must be dismissed. The issue of costs, in either case, is one left to be decided.
Then, for determination in Michael's proceedings, will be the claim, made in an amended Cross-Claim, filed on 28 March 2018, pursuant to leave granted by Emmett AJA, on 23 March 2018, by Denise, Julian and Dominic, seeking a declaration that: "[…the] executor is obliged to hold the property disposed to him as sole beneficiary…on constructive trust for the benefit of the …cross-claimants respectively and to dispose of it in accordance (and only to the extent of) the terms of Clauses 3(a) and 5 of the [2007 Will]."
The Cross-Claimants ask the Court to impose a constructive trust over all of the property of the deceased that Michael will receive pursuant to the 2015 Will on the basis that the gift of the property comprising the deceased's estate to him was procured by undue influence in equity. I shall refer to the amended Cross-Claim as "the equity claim". The Cross-Defendants named are Michael and Nicholas.
There is no dispute that the amended Cross-Claim proceeds to determination only if Probate in solemn form of the 2015 Will is granted, since, only then, would Michael be entitled to receive all of the property of the deceased. Then, the Cross-Claimants would have to prove that Michael had exercised undue influence, in the equitable sense, and that there is a basis for imposing a constructive trust. In this regard, the Cross-Claimants assert that there was actual, rather than presumed, undue influence: Tcpt, 18 February 2019, p 14(49) - p 15(3).
For determination, in the event that Probate in solemn form of the 2015 Will is granted to Michael, and the equity claim is unsuccessful, will be the separate claims for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) ("the Act"), brought by each of Denise, Julian, Dominic and Nicholas in the family provision proceedings. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. It replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person.
Michael is the sole Defendant named in each of the family provision proceedings (other than the proceedings by Denise). He is the necessary, and proper, party, as he is the executor and sole beneficiary named in the 2015 Will. When the family provision proceedings are dealt with and determined, an order for administration will have been made in the Probate proceedings.
If the 2015 Will is not the last valid Will of the deceased, there is no dispute that the 2007 Will is her last valid Will, and that Probate, in solemn form, of that Will should be granted to Mr Byrne, the sole executor named therein. Then, the equity proceedings, and the family provision proceedings, by each of the children will also be dismissed, as none of the children seeks additional provision out of the estate of the deceased than the provision provided in the 2007 Will: Tcpt, 18 February 2019, p 4(50) - p 5(6). Michael has not made an application for a family provision order in that event.
At the hearing, Mr L J Ellison SC, with Mr D Liebhold, appeared for Michael in each of the matters in which Michael is a party. Mr M W Young SC, with Mr S O'Brien, appeared for Mr Byrne and each of the three children in the Probate proceedings, and for Julian and Dominic in his family provision proceedings respectively. Dr S Blount of counsel appeared for Denise in her family provision proceedings. Nicholas appeared, without legal representation, only on the third and fourth days of the hearing. He was a witness whose affidavit was read as part of Michael's case, and he was cross-examined by the different counsel for his siblings.
The parties, well before the commencement of the hearing, had agreed that all of the proceedings would be heard consecutively, with the evidence in one being evidence in the other, so far as material. This was confirmed at the commencement of the hearing: Tcpt, 18 February 2019, p 5(8-33).
In my view, that was a sensible, and appropriate, course, as there are factual, and credit, issues, that are, or that may be, relevant to the different claims; there are some common questions that will arise, particularly in the family provision proceedings; the just, cheap and quick hearing of all of the matters in dispute will be facilitated; and the most efficient and expedient use of resources, for the parties, and, by implication, the Court, will be achieved: Uniform Civil Procedure Rules 2005 (NSW), r 28.5.
Shortly after the commencement of the hearing, with the consent of all parties, and in the exercise of the Court's discretion, I made an order to that effect.
There is a wealth of contemporary documentary material relevant to one, or more, of the present proceedings. At the commencement of the hearing, in accordance with a direction made by the Court, there was tendered (Ex. 2) two folders of paginated documents, the contents of almost all of which were not the subject of objection by any party. There were additional documents tendered by one, or other, party, to which objection was not taken, added to the Exhibit during the course of the hearing. Documents, to which successful objection had been taken, were marked as "rejected" in Ex. 2. As well, during the course of the hearing, other documents were tendered and marked as separate exhibits. I shall refer to a number of these exhibits, also, in these reasons. (In all, over 700 pages of documents formed part of the evidence.)
(I have made extensive references to these documents in the hope that a detailed exploration of what the documents reveal about the deceased, over some years, will assist the members of this unhappy family either to lay to rest their grievances, or at least approach them from a more informed, and perhaps, balanced, perspective.)
Also, I have had the advantage of receiving outlines of submissions that were developed in oral submissions by counsel. I am grateful to the legal representatives for compiling the bundle of documents, as the documents contained therein have been extremely useful in the determination of the proceedings, as have the written submissions that were provided to the Court. I have taken the submissions into account.
All of the matters were listed, together, for 6 days and were completed on the afternoon of the fifth day. This was, at least, in part, because, during the course of the hearing, the family provision matter by each of Nicholas and by Denise was resolved. (It was not possible to make orders then as the orders will only be made after the determination of the Probate proceedings and the equity proceedings.)
The issues in the cases are many, and in part, reasonably complex, but, ultimately, are factual. However, it is impossible to rehearse all of the facts and all of the arguments advanced in these reasons.

[3]

The Wills made by the deceased

There were three Wills, executed by the deceased, in evidence. (There was reference by Michael to a Will made by her at, or about, the time of their marriage, but the original, or a copy, thereof was not produced.)
The first Will in time was the 2007 Will. This Will was professionally drawn, having been prepared by a firm of solicitors, Lodhia Lawyers, in Sydney. It was duly executed by the deceased. The attesting witnesses were Akash Lodhia, a solicitor, and Jackie Quan, an accountant.
Mr Lodhia affirmed an affidavit on 6 December 2016, which affidavit was read, in Mr Byrne's case, confirming that the 2007 Will had been signed by the deceased, in the presence of each of the witnesses, present at the same time, each of whom then attested and subscribed the Will, in the deceased's presence and in the presence of each other. Mr Lodhia was not cross-examined.
A copy of the Will Instruction Form to Lodhia Lawyers, which is undated, is in evidence: Ex. 2/42-44. In this document, there are no instructions explaining the reasons for making the limited provision for Michael in the 2007 Will. The only reference to a spouse is contained in the question "If married, would you like a mirrored Will for your spouse?" with the box "No" ticked.
In that Will, relevantly, the deceased: 1. Revoked all former Wills and testamentary dispositions: Clause 1; 2. Appointed Mr Byrne (in the Will, called Matthew Byrne) as the sole executor and trustee: Clause 2; 3. Gave a number of specific legacies, to Denise, to a granddaughter, Erika Chloe Blendell, who is the daughter of Julian, to her daughter-in-law, Joanne Blendell, the second wife of Julian, and to her friend, Suzanne Bethridge Pollock: Clauses 3(a) to (d); 4. Left a specific bequest of "[a]ll my furniture, clothes and personal effects not otherwise disposed of to my husband…": Clause 3(e); 5. Left a pecuniary legacy of $25,000 to Erika, and one of $5,000, to each of four different charities: Clause 4; 6. Left the residue of her estate, both real and personal, wheresoever and whatsoever, upon trust, after payment of all of her just debts, funeral and testamentary expenses and all duties payable in any place in respect of her estate, or in consequence of her death, to Denise, Julian, Dominic and Nicholas, as survived her, as tenants in common in equal shares: Clause 5; and 7. Declared that any executor or trustee be given the sum of $10,000 "for his role as an executor": Clause 8.
The remaining terms of the 2007 Will are immaterial.
There was no evidence of notice of Mr Byrne's intended application for Probate of the 2007 Will having been published. At the commencement of the hearing, the Court was informed, without objection, that notice of the application had not been published: Tcpt, 18 February 2019, p 5(37-47).
The next Will in time made by the deceased was the 2015 Will. There is no dispute that Michael prepared this Will (although he asserted that he did so at the request of, and upon instructions from, the deceased). There is also no dispute that the deceased did not seek, or obtain, any professional, or other, advice, regarding the terms of the 2015 Will.
The 2015 Will had several effects. First, by revoking "all Wills and other documents of testimonial intent", it undid the gifts made to the specific legatees and the gift of the deceased's residuary estate to her four children equally, so that none of them receive any provision out of the estate of the deceased. Second, it removed Mr Byrne as the executor. Third, it effected the appointment of Michael as the sole executor and made a testamentary gift of the whole of the estate, real and personal, to him. Fourth, it provided that "[E]ach of our four children … and our granddaughter, Erika…may amicably select specific items from said collector's items, ornaments, jewellery and heirlooms for his or her exclusive enjoyment…" subject to Michael's right "to select and keep for his own enjoyment…any of said ornaments, collector's items, or heirlooms". Fifth, the deceased wished her remains to be cremated.
The 2015 Will comprised one page only. The attesting witnesses to the deceased's signature on that Will were Mark Ashley Gallagher and Annabelle Louise Gallagher, both of whom were close friends of the deceased and Michael. Each swore an affidavit on 15 September 2016, which affidavit was read, confirming that the 2015 Will had been signed by the deceased, in the presence of each of the witnesses, present at the same time, each of whom then attested and subscribed the Will, in the deceased's presence and in the presence of each other. Each was cross-examined and it will be necessary to return to his, and her, evidence, respectively, later in these reasons.
Each of the children, other than Nicholas, who gave evidence, and was cross-examined, stated that she, and he, respectively, was not aware of the terms of the 2015 Will until after the death of the deceased. It will be necessary to return to this topic later in these reasons.
Notice of Michael's intended application for Probate of the 2015 Will was published on the New South Wales Online Registry website on 21 June 2016.
The last Will in time is one that is wrongly dated 12 June 2016 ("the 2016 Will"), it having been executed, in fact, by the deceased, on 17 June 2016. It is one made "for the purposes of disposing of all my movables and immovable situated in Malaysia". Michael is the sole executor and sole beneficiary named in this Will.
The deceased did not sign the 2016 Will but placed a cross on the parts of the 2016 Will to evidence her signature. The attesting witnesses to the deceased doing so were Barry Deane Bulfin and Julie Meryl Bulfin, both of whom were neighbours of the deceased. Each swore an affidavit on 24 February 2017, which affidavit was read, confirming that the 2016 Will had been signed by the deceased by placing a cross on the parts of the Will to evidence her signature, in the presence of each of the witnesses, present at the same time, each of whom then attested and subscribed the Will, in the deceased's presence and in the presence of each other. Neither of the attesting witnesses to the 2016 Will was cross-examined.
On 7 May 2018, the High Court of Malaya, at Shah Alam, granted Probate of the 2016 Will to Michael: Ex. 2/642-643.
In the List of Assets attached to the Probate document relating to the 2016 Will, certain real estate in Kuala Lumpur ("the Malaysian property"), to which I shall refer, and monies in banks in Malaysia (RM 5,982) and in the United Kingdom (£32,550), were identified as the property of the deceased.
The original of the 2016 Will was not in evidence, but a copy thereof is: Ex. 2/644-647.
The Act, in s 6, prescribes no particular mode by which a will-maker must sign a Will. As will be read, one purpose of the signature, or other subscription to a will, is to authenticate, or attest, its execution by the will-maker. On the face of the 2016 Will, by placing the cross, as her signature, at different appropriate places designated for her to place her signature, the deceased seemed to have intended to authenticate, and give effect to, the writing on the document as her Will.
Senior counsel for the Defendants confirmed that no proceedings had been brought to challenge the validity of the 2016 Will: Tcpt, 18 February 2019, p 58(16-19). On the third day of the hearing, the Court was informed that his statement did not mean that the three children might not, in the future, seek to challenge the validity of the 2016 Will.
Because I considered it was necessary, principally because Michael needed to know whether he was to be faced with other litigation, in another country, with the consequence that further costs would be incurred, I requested the Defendants to indicate whether they would be making any such application, in the future: Tcpt, 20 February 2019, p 196(20-28).
Following a short adjournment, during which senior counsel sought instructions, the Court was informed (Tcpt, 20 February 2019, p 196(44-45)): "YOUNG: I'm instructed my clients are prepared to eschew any challenge to the [2016] will and to remove the caveat."
In the final orders, there should be a notation to this effect. The agreement of the children to remove the caveat referred to (which caveat, apparently, is lodged on the title to the Malaysian property), should also be noted.
The deceased did not marry after any of the three Wills was made. At all times, she remained married to Michael.

[4]

The Witnesses

It is convenient, next, to identify the witnesses who gave evidence. The Court read, and heard, evidence from a number of the witnesses. There were affidavits read from each of the parties, as well as other persons, to whom the deceased had spoken, or with whom she had communicated, by email, and otherwise, particularly in the last 18 months or so of her life.
Michael was cross-examined for several hours over two days. It was squarely put to him that some of his evidence was intentionally false.
Nicholas affirmed an affidavit on 5 February 2019 that was read in Michael's case. With leave, he gave some additional oral evidence in chief. He was cross-examined by senior counsel for the Defendants.
Mr Byrne swore a formal executor's affidavit but otherwise gave no evidence. Surprisingly, in my view, he did not disclose, in that affidavit, anything about his professional relationship with the deceased either before, or after, 2007, or of any conversations that he may have had with her in, or after, 2014. There were a few copy emails, in Ex. 2, passing between the deceased and him. He was not cross-examined.
Each of Denise, Julian, and Dominic was cross-examined, albeit relatively briefly.
Michael's witnesses were: 1. Mr Gallagher, who, as stated, was one of the attesting witnesses to the deceased's signature on the 2015 Will, and who communicated by email with the deceased after that Will was signed, was cross-examined. 2. Ms Gallagher, the sister of Mr Gallagher, who, as stated, was the other attesting witness to the deceased's signature on the 2015 Will, was also cross-examined. 3. Dianne Mary Gray, who was a friend of the deceased, having met her in 1972, gave evidence by affidavit and was cross-examined. They had kept in contact, reasonably regularly, until the deceased moved houses and Ms Gray moved to Tamworth in about 1980. Thereafter, they remained in infrequent contact until late 2014, when the deceased sent a Christmas card telling Ms Gray that she had been diagnosed with stage 4 lung cancer and tumours in her brain. They spoke regularly, almost weekly, throughout 2015 and 2016, unless the deceased was travelling. 4. Barry Deane Bulfin, a neighbour, who lived in a residence situated directly behind the Cremorne property, gave evidence by affidavit. He was not cross-examined. They met when the deceased moved into the Cremorne property. He knew from what the deceased had told him, that she was married to Michael and that he lived overseas. He kept an eye on the deceased and attended to any chores, or handyman tasks, with which she needed help. He was one of the attesting witnesses to the deceased making her mark on the 2016 Will. 5. Julie Meryl Bulfin, who is the wife of Barry Deane Bulfin, gave evidence by affidavit. She was not cross-examined. She was the other attesting witness to the deceased making her mark on the 2016 Will. 6. Margaret Holmes met the deceased in about 2007. They became friends and after the deceased became ill in November 2014, they continued to remain in regular contact by email, telephone, and in person. A number of the emails passing between them are in evidence. Although the attendance of Ms Holmes was required, for cross-examination, senior counsel for Michael informed counsel for the Defendants, and the Court, on the afternoon of the third day of the hearing, that she was not available. Somewhat faintly, if I may say, senior counsel for the Defendants, submitted that her affidavit should not be used, but acknowledged that, if it was, the Defendants would not be prejudiced, particularly if two minor passages in the affidavit were not read. The two minor passages were not read by Michael, and in those circumstances, the Court "otherwise ordered", pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 35.2(3), that the affidavit could be used. 1. Peter Murphy, Michael's solicitor, gave evidence about the service of notice to adversely affected persons and of Michael's costs of the different proceedings. He was not cross-examined.
For the Defendants, the additional witnesses, whose affidavits were read were: 1. Akash Lodhia, a solicitor, who was one of the attesting witnesses to the deceased's signature on the 2007 Will. He was not cross-examined. 2. Joanne Cheri Blendell, who is Julian's wife. She knew the deceased and Michael from about 2003. She is a conveyancing paralegal at a firm of solicitors carrying on practice at St Leonards. It is this firm of solicitors which, from October 2015, retained, and apparently, still retains, custody of the Certificate of Title for a property that the deceased purchased in Malaysia (to which reference will be made). (Julian provided some evidence about Joanne's financial resources in his affidavits. No objection was taken by Michael to that evidence even though it is hearsay evidence: Tcpt, 18 February 2019, p 60(18-19).) She was not cross-examined. 1. Ms M Cena, the solicitor acting for Julian and for Dominic, gave evidence about the costs and disbursements of each. She was not cross-examined. 2. Mr B Symons, the solicitor acting for Denise, gave evidence about her costs and disbursements. He was not cross-examined.

[5]

Background Facts

In claims such as these, factual context is necessary. It is convenient next to refer to some of the formal, and some of the background, facts, since these provide the context in which the issues in the Probate proceedings and the family provision proceedings arise. All of these facts are taken from the affidavits read in the proceedings, from the documents tendered in Ex. 2, or from the oral, or other, evidence, given during the hearing, most of which are uncontroversial. In relation to any facts that are in dispute, to which I refer, these background facts should be regarded as the findings of the Court.
(Some factual issues were raised by the three children, going, particularly, to Michael's conduct during his marriage to the deceased, which became a focal point for his cross-examination. It is not necessary to resolve the collateral issues unless they are essential for a proper resolution of the main disputes. However, the evidence will be referred to later in these reasons.)
Michael was born in London, England, in November 1944. He is, currently, 74 years of age.
The deceased was born in Palmerston North, New Zealand, in May 1943. She was aged 73 years at the date of her death.
Michael and the deceased met in London in April 1963. They were married in March 1966. They remained married at the time of the deceased's death, over 50 years later. (There is a dispute about the nature of their relationship after their marriage, particularly from about 1992, when the deceased left Hong Kong, where she and Michael had been residing, and returned to live in Australia. It will be necessary to return to this topic later in these reasons.)
At the time of their marriage, neither the deceased, nor Michael, had much by way of assets. Prior to 1966, the deceased had been employed as a private secretary, to an accountant, in London. From about 1966, until her death, she never engaged in paid employment. Michael was the principal breadwinner. (This is not to suggest that the deceased did not, otherwise, make a significant contribution, financial and non-financial, to the matrimonial relationship and no such suggestion had been made by Michael.)
Following their marriage, the deceased and Michael moved to New Zealand to live. Denise was born in Auckland in April 1968, and is now 51 years old. Julian was also born in Auckland, in January 1970, and is now 49 years old.
Following Julian's birth, the deceased and Michael returned to Australia to live. Dominic was born in Sydney, in June 1976, and is now almost 43 years old. Nicholas was born in Sydney, in June 1978, and is now almost 41 years old.
At the end of 1982, Michael moved to Hong Kong to take up an employment opportunity as the financial editor of the South China Morning Post. The deceased followed, with their three sons, in early 1983, and, a year or so later, Denise followed (as she had been attending high school in Sydney).
In November 1985, Denise left Hong Kong, where the rest of the family remained living, to live in Australia. The other members of the family remained living together in Hong Kong until about 1992, when the deceased, Julian and Nicholas returned to Australia, when Nicholas was enrolled at Scots College, in Sydney. Michael and Dominic remained living in Hong Kong, where Dominic finished his secondary schooling.
On 29 October 1998, Michael granted a General Power of Attorney to the deceased, which Power of Attorney was registered on 6 November 1998.
Julian was married to Kimiko on a date not disclosed in the evidence. They divorced in about 2003. Julian then married Joanne in September 2006. However, she had met the deceased and Michael some years before the marriage. There are no children of their marriage, although each has a child, or children, from a former marriage. Julian's daughter, Erika, who was born in September 2000, lives with her mother. Joanne has two children, each of whom is an adult, and neither of whom lives with Joanne and Julian.
On 13 June 2007, the deceased executed a General Power of Attorney, in favour of Julian, which he accepted on the same date. The evidence does not reveal that the Power of Attorney was revoked prior to the deceased's death.
In an email dated 21 October 2015, the deceased wrote to Dominic stating "…Your father went today and I have Jo and Julian looking after me for ten days": Ex. 2/391. (This was a few months after the deceased signed the 2015 Will). Julian, apparently, stayed overnight, with the deceased, in the deceased's home in Cremorne, for a period of some days, then, and again, in December 2015, whilst Michael was overseas. These are matters that are said to demonstrate the close and loving relationship that existed between the deceased and Julian. They also demonstrate, in my view, at least two, different, opportunities that the deceased had, when Michael was not present in Sydney, to make any complaint about having executed the 2015 Will, or to otherwise to complain about Michael's conduct in relation to the creation, or execution, of that Will.
Dominic lived in Hong Kong until he moved to Malaysia in 2002. He married Swe Zin Aung, in April 2013, but they separated in about January 2016. There are no children of their marriage.
On 3 December 2013, the deceased granted a Power of Attorney to Dominic in Malaysia: Ex. 2/70-73.
Dominic did not return to Sydney between February 2015 and November 2015, although, during this period, there was regular email correspondence between him and the deceased. When in Sydney, he was attentive to the needs of the deceased and saw her regularly.
On 19 March 2015, the deceased wrote an email to Dominic confirming that she had appreciated all the work he had done in relation to the purchase of the Malaysian property and acknowledged that it had not been an easy purchase: Ex. 2/232. In an email dated 26 March 2015, she wrote that she had put $1,000 into his "Care Super Account" as a "contribution in appreciation of the work you have done on the flat": Ex. 2/239.
These matters are said to demonstrate the close and loving relationship that existed between the deceased and Dominic. Similarly, in my view, they also demonstrate the opportunities that the deceased had, when Michael was not present, to make any complaint that she had about the 2015 Will, or otherwise complain about Michael's conduct in relation to the creation, or execution, of that Will.
Nicholas, so far as is known, is unmarried. He had been in a relationship with Kirri, but shortly before Christmas, 2015, he told the deceased and Michael, that they were "splitting up". So far as is known that occurred.
Each of the children asserts, and Michael agrees, that she and he, respectively, had a very good relationship with the deceased. Michael, specifically, states that "Noeline's relationship with Denise was fundamentally close and loving" and that "Dominic was a devoted and caring son of Noeline before she died".

[6]

Property Transactions during the deceased's lifetime

The deceased and Michael purchased their first home in Allambie Heights, a suburb of northern Sydney, in December 1973, for $38,400. (This property was sold, in about February 1997, for $301,000. Any debts, secured by mortgage registered on title, had been repaid many years before its sale.) (On 25 November 1996, Michael granted a General Power of Attorney to the deceased, which was registered on 12 December 1996, to be used solely "to execute such documents as are necessary and/or incidental to the sale of [the Allambie Heights property]": Ex. 2/5.)
In September 1992, a home unit, at Manly, a beachside suburb of northern Sydney, was purchased by the deceased as to a 65 per cent share and by Michael as to a 35 per cent share, for $202,500. The purchase was funded, in part, by their savings and in part by moneys borrowed from Hongkong Bank of Australia. The debts secured by the mortgage were repaid by about 1995. This property was sold for $400,000 in about February 1999: Ex. 2/12. Apparently, the deceased retained all of the proceeds of sale.
In July 1997, the deceased and Michael purchased, as joint tenants, a town house at Cranbrook Avenue, Cremorne, in northern Sydney, for $440,000. The purchase price was provided, partly of savings, and partly from the proceeds of sale of the Allambie Heights property.
In June 1999, Michael transferred his interest jointly held with the deceased in the Cranbrook Avenue property, to her for nil consideration. He stated that he did so as part of their "arrangements to separate our personal affairs by removing me from any Australian owned assets and the deceased from our international assets, which included my closing her offshore bank accounts". This property was sold by the deceased in about October 2007 for $840,000. Apparently, the deceased retained all of the net proceeds of sale.
In May 1999, the deceased purchased, in her sole name, a property situated at Yeo Street, Neutral Bay, a suburb of northern Sydney, for $562,000. The purchase price was paid, at least in part, from joint funds, the sale of other assets, and the retained income (by way of rent and interest) that had been received by the deceased. Following its purchase, the deceased moved into this property.
Michael states that when he visited Australia, he and the deceased, together, would entertain guests at the Yeo Street property. The deceased sold this property in April 2007, for $885,000. Apparently, the deceased retained all of the net proceeds of sale.
At the hearing, Michael gave evidence that in March 2002, he purchased in his sole name, a property in Southfields, London. When asked, he could not remember the purchase price. It was the deceased who chose this property. The deceased would stay in this property if she was in London.
The Southfields property was sold, in late April 2017, for £450,000, despite the prompting by the deceased in emails sent at various times in 2014 to Michael, suggesting the property should be sold. He received, and retained, all of the net proceeds of sale.
In December 2002, the deceased purchased, in her sole name, an investment property at Ben Boyd Road, Neutral Bay, for $362,000. The purchase price was paid from borrowings secured by mortgage registered on the title to this property. This property was sold, by the deceased, in March 2013 for $495,000. Apparently, after discharging amounts due under the mortgage, the deceased retained the balance of the net proceeds of sale.
In March 2007, the deceased completed a Nomination of Beneficiaries Form in respect of her Navigator Personal Retirement Plan. She nominated her four children as the equal beneficiaries. Mr Byrne was a second witness to the deceased's signature on this document: Ex. 2/37-40.
In 2010, the deceased purchased, in her sole name, a property situated at Waters Road, Cremorne ("the Cremorne property"), for $1,350,000, in which she lived for the remainder of her life.
Michael acknowledged that the deceased did not consult him on the purchase of the Cremorne property. Denise gave evidence that, at a birthday dinner, Michael had said that he should have been consulted but that the deceased had said she did not have to consult him, as "it was a surprise".
There is evidence that Michael paid some of the expenses incurred on the Cremorne property following its purchase.
The above transactions demonstrate, in my view, the continuing financial inter-relationship of the deceased and Michael, before, and after, 1992, the year in which the Defendants assert that they separated.

[7]

The nature and value of the estate of the deceased

In the Inventory of Property attached to Michael's affidavit of executor sworn 13 September 2016, the property owned solely by the deceased, at the date of her death, in New South Wales, included the Cremorne property (estimated in the Inventory of Property to be $1,750,000), cash in bank ($1,475,200) shares in public companies (estimated in the Inventory of Property to be $116,520), and personal effects and household furniture ($20,000). The estimated value of the estate was disclosed as being $3,361,520. (I shall omit the reference to cents in the amounts to which I shall refer. This will explain any apparent mathematical errors.)
(In an affidavit of executor sworn on 3 October 2016, Mr Byrne estimated the deceased's estate, in New South Wales, to have a value of $3,619,720. The principal differences in value (compared with Michael's affidavit) appear to relate to the Cremorne property, the value of which Mr Byrne estimated to be $2,000,000, and the household items, clothing and personal effects, the value of which he estimated to be $28,000.)
In addition to the property of the deceased in New South Wales, Michael referred to the real estate in Kuala Lumpur, Malaysia (estimated in the Inventory of Property to be $250,000) ("the Malaysian property"). The deceased entered into a contract to purchase this property, in her sole name, in late December 2013. However, the purchase took 18 months to complete.
As stated earlier, the deceased appointed Dominic to be her Attorney to assist her in the completion of the purchase. He assisted her to obtain foreign consent to purchase the Malaysian property and managed the funds that she provided to enable the completion of the purchase. He also assisted in the management of the Malaysian property after it was purchased.
The total gross value of the deceased's estate at the date of her death, in New South Wales, and overseas, was estimated to be $3,611,720.
The liabilities of the deceased, at the date of her death, totalled $1,011 and were for unpaid utilities and unpaid Council rates.
Michael affirmed an affidavit on 29 January 2019 in which he set out the then current nature and value of the deceased's estate. At the hearing, the parties agreed that the deceased's estate comprised the Cremorne property ($1,700,000), cash in different bank accounts ($1,583,887), shares in different public companies ($51,920, $13,100, and $31,700), and personal effects and household furniture ($20,000). In addition, there is the Malaysian property ($300,000). Thus, the gross value of the deceased's estate, at the date of hearing, was agreed to be $3,700,607.
In the affidavit, Michael also stated that between 21 June 2016 and 26 June 2016, he had accessed one of the deceased's bank accounts and had transferred to an account in his name, the amount of $90,000, which he had retained. He also revealed that between 23 June 2016 and 30 August 2016, he had accessed another of the deceased's bank accounts and had withdrawn three amounts, totalling $1,300.
Michael disclosed that he had paid to each of Denise, Dominic and Nicholas the amount of $10,000, and to Julian, the amount of $15,000, out of the estate of the deceased. (The amount was transferred from the deceased's account into Michael's account and then paid to each of them.) Although each of the sums were deducted, initially, from the deceased's estate, Michael does not seek to recover any of the amounts from the recipient and each will be an amount that the child of the deceased has received out of her estate, respectively, following the death of the deceased.
On the second day of the hearing, senior counsel for Michael confirmed that the amounts paid to the children (in total, $45,000) had been paid out of the moneys that Michael had withdrawn from the deceased's bank account. Senior counsel also stated that at least some of the balance ($46,300) had been used on account of his costs of the proceedings.
On the final day of the hearing, the Court was asked to treat the whole of the $46,300 as having been paid on account of Michael's costs of the proceedings even though a part of it may have been used to pay funeral expenses: Tcpt, 25 February 2019, p 414(15-28).
The parties agreed that the estimated costs and expenses of the sale of the Cremorne property will be about $50,000: Tcpt, 19 February 2019, p 102 (45-49).
It follows that for the purposes of the proceedings, the value of the estate of the deceased, excluding any of the costs of the proceedings (other than the amount of $46,300 referred to above), will be $3,650,607.

[8]

The Family Provision Proceedings

Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. It is not in dispute that, as a child of the deceased, each of Julian, Denise, Nicholas and Dominic, is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person").
It is not in dispute that each of the children commenced the family provision proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
As the deceased has dealt with all of her estate, both in New South Wales and elsewhere, there is no scope for the operation of the intestacy rules, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased's estate, but is designated as "notional estate" of the deceased by an order under Part 3.3 of the Act: s 63(5). There is no property that is sought to be designated as notional estate. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.
There was no suggestion that there are any eligible persons, other than Michael and the four adult children of the deceased. Only each of the children of the deceased has made a claim for a family provision order. However, Michael is a beneficiary named in the 2015 Will who has given evidence of the bases of his claim on the bounty of the deceased. As the Defendant named in each Summons, I am satisfied that he is well aware of the family provision proceedings, and of the Court's power to disregard his interests.
Michael is entitled to, and did, elect to remain silent about his financial resources and needs, respectively. He simply looks to the Court to not disregard the deceased's freedom of testamentary disposition and her preferable disposition to him, as a beneficiary, regardless of his financial resources or needs: see Meres v Meres [2017] NSWSC 285, at [85].
The Act specifically provides that his interests, as a beneficiary, cannot be disregarded, even though he has not made a claim: s 61. He is entitled to rely upon the terms of the 2015 Will and his competing claim as a chosen object of the deceased's testamentary bounty.
In Sammut v Kleemann [2012] NSWSC 1030, at [137]-[140], I set out the principles that apply in a case where a beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly: "The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (unreported, Macready M, 5 December 1996 at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant."
Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107, at [23].
Even if the Court may infer that Michael has no competing financial need for provision from the estate of the deceased, and, that, on a comparative basis, he is better off than each of his children, his silence does not mean that his competing claim should not be evaluated. As will be read, what is "proper" requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.
As stated above, the consequences of not disclosing the beneficiary's financial resources and needs simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by each child, the Court will not disregard the competing interest of Michael as a beneficiary who has a claim upon the bounty of the deceased and as a chosen object of the deceased's bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19, per Dixon CJ, at 19.

[9]

Costs of the Proceedings

I shall next refer to the estimated costs of the proceedings. Bearing in mind the contests are essentially between a father and his children, the estimated costs and disbursements of the parties are eye watering.
Michael's costs and disbursements, calculated on the indemnity basis, in the Probate proceedings, are estimated to be $370,000. His costs and disbursements, again calculated on the indemnity basis, of all of the family provision proceedings are estimated to be $90,000.
As stated earlier, the amount of $46,300, from the funds of the deceased, has been used on account of his costs and disbursements in the proceedings. It follows that the balance of Michael's costs and disbursements, of all proceedings, are estimated to be $413,700.
The Defendants' costs and disbursements, calculated on the ordinary basis, in the Probate proceedings, are estimated to be $220,000, inclusive of GST. On the third day of the hearing, senior counsel, without objection, sought, and was granted leave to file in Court, an affidavit sworn on 20 February 2019 by Ms Mena, in which the costs and disbursements of Denise, Julian, Dominic and Mr Byrne, of the Probate proceedings and the equity claim were estimated. Their costs, calculated on the indemnity basis, were estimated to be $270,000.
Ms Mena also disclosed in the affidavit that $161,695 had been paid on account of the costs and disbursements in the Probate proceedings, of which $25,368 had been paid by Nicholas, with the balance being paid equally ($45,442 each) by Denise, Julian and Dominic. However, in relation to Denise, she is said to owe Julian $42,339, whilst Dominic is said to owe Julian $9,266. (In addition, Julian is said to owe $33,440 to Joanne.)
It follows that subject to costs orders being made, Julian is owed about $51,565 by his two siblings on account of their costs in the Probate proceedings which he has paid on their behalf, but he owes Joanne, $33,440 for advances that she has made to him on account of the costs of the proceedings.
Denise's costs and disbursements, calculated on the ordinary basis, of the family provision proceedings, in an affidavit sworn on 19 December 2018, by Mr B F Symons, her solicitor, are estimated to be approximately $78,000 plus GST. The estimate of $85,800 has been used as the total amount of those costs and disbursements, inclusive of GST.
(At the commencement of the hearing, for the first time, the Court was informed, without objection, that Denise had entered into a conditional costs agreement with her solicitors: Tcpt, 18 February 2019, p 11(49) - p 12(15). This had not been disclosed in her solicitor's affidavit as to costs, as it should have been: Anderson v Hill [2017] NSWSC 1149 at [35]-[38], and at [40]-[41]; Oxley v Oxley [2018] NSWSC 91.)
Julian's costs and disbursements, calculated on the indemnity basis, in the family provision proceedings, are estimated by Ms C Mena, to be $40,000 plus GST. At the hearing, senior counsel informed the Court, without objection, that Julian's costs and disbursements, calculated on the ordinary basis, were estimated to be $33,000, inclusive of GST.
Dominic's costs and disbursements, calculated on the indemnity basis, in the family provision proceedings, are estimated by Ms Mena, his solicitor, to be $40,000 plus GST. At the hearing, senior counsel informed the Court, without objection, that Dominic's costs and disbursements, calculated on the ordinary basis, were estimated to be $33,000, inclusive of GST.
Nicholas' costs and disbursements, calculated on the ordinary basis, of the family provision proceedings, are estimated to be $24,000. (However, as stated, he has paid $25,368 on account of the costs and disbursements in the Probate proceedings.)
From the above, the costs and disbursements, if the estimates prove accurate, total $855,800, of which $46,300 has been paid out of the deceased's estate on account of Michael's costs.
It should be distressing to the parties that such amounts have been incurred in what is, ultimately, a dispute between family members. This is not to criticise the lawyers involved, as the parties, themselves, appear to have chosen to conduct the proceedings in an extremely adversarial manner.
Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Chapter 3, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
If all of the costs of the Probate proceedings and of the family provision proceedings were ordered to be paid out of the estate of the deceased, as well as the lump sum payable to Nicholas ($300,000), and the lump sum payable to Denise ($420,000), since they have resolved his, and her, proceedings, respectively, the parties agreed that the value of the balance of the deceased's estate would be approximately $2.17 million. It follows that the value of the estate is reasonably large.
All counsel requested that the Court not deal with the question of the costs of the Probate proceedings and the costs of Julian's and Dominic's family provision proceedings, until after the reasons for judgment have been delivered and considered, as there are, or there may be, documents tendered by one, or more, of the parties, going to how the burden of costs ought to be borne.
Even though Uniform Civil Procedure Rules, r 29.4 provides that unless the Court orders otherwise, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising from every claim for relief in the proceedings, in the circumstances stated, I shall abide the request even though there will be additional costs incurred in the further argument if the issue of costs cannot be resolved between them. See Grygiel v Baine [No 2] [2005] NSWCA 434, at [12], per Basten JA (Mason P and Bryson JA agreeing).
Following this judgment, it would be beneficial to the parties if they attempt to agree on the amount of costs to be paid, and by whom, in relation to all of the matters to avoid further time being spent, and costs being incurred.

[11]

The 2015 Will and the parties' assertions in respect thereof

Michael's case is that the 2015 Will is a simple document and that its dispositions are rational. He submits that the evidence overall, including the evidence of Nicholas (to which reference will be made), demonstrates that the deceased knew, understood and approved, the terms of the 2015 Will. He also relied upon the "involvement of the two attesting witnesses to the 2015 document and the status the deceased gives to the document when she invited those two people to participate in the process of witnessing her signature": Tcpt, 18 February 2019, p 16(5-13). He also relies upon other matters that were the subject of dispute to which reference will later be made.
It is next worth noting that there is no suggestion that the deceased lacked testamentary capacity at the time she made the 2015 Will. However, it was accepted that this does not imply, necessarily, that she knew and approved the contents of the 2015 Will.
Also, it was really not in dispute that there are circumstances, or features, in the present case which mean that knowledge and approval of the 2015 Will cannot be presumed merely upon proof of due execution and of the testamentary capacity of the deceased (both of which matters are not in dispute), with the result that the Court ought to be "vigilant and jealous" in examining the evidence when considering the issue of knowledge and approval.
I shall next summarise the defences and the foundations of the assertion that the 2015 Will is not the last valid Will of the deceased. None of the Defendants has any personal knowledge of the circumstances under which the 2015 Will came into being.
In broad summary, the submission is made that "…there are circumstances that, collectively, give rise to a well-grounded suspicion that the 2015 Will does not express the mind of the testator". The circumstances relied upon are: 1. The 2007 Will made no provision at all for Michael, dividing almost all of the estate between the deceased's children; 2. Michael was involved in both the preparation, and the execution, of the 2015 Will; 3. Michael is the sole beneficiary under the 2015 Will; 4. There was no lawyer, or other professional adviser, involved in the preparation or execution of the 2015 Will; and 5. The 2015 Will was prepared, and executed, whilst the deceased was suffering from terminal brain cancer, which weakened her in both mind and body.
The Defendants then submit that the doubt raised by the suspicious circumstances has not been removed, as: 1. No solicitor, whether independent or otherwise, was involved at any stage of the drafting, or execution, process, in relation to the 2015 Will; 2. The only evidence of any attempt to communicate to the deceased the contents or effect of the 2015 Will comes from Michael and involves conversations between the deceased and Michael; 3. No attempt was made to have any person, other than Michael, explain the draft 2015 Will to the deceased or to ensure she understood its nature or effect; and 4. The witnesses to the 2015 Will did not observe the deceased read the 2015 Will; did not witness the 2015 Will being read, or explained, to the deceased; and did not hear any statement indicating that she knew of, or agreed with, the contents of the 2015 Will.
Thus, in broad terms, the alleged suspicious circumstances relied upon are that there was a radical departure from a previous testamentary instrument (the 2007 Will); that the sole beneficiary was the controlling force in the preparation and execution of the 2015 Will; and that any reading over of the 2015 Will, if the deceased did, in fact, read it, is insufficient to enable the Court to conclude that she knew and approved of the terms of the 2015 Will.
On the issue of undue influence in the Probate proceedings, the Defendants submitted that: 1. The 2015 Will was prepared in such a way that very strongly favoured Michael, to the extent of him obtaining the entire estate when previously he received virtually nothing under the 2007 Will. No person in his circumstances could act in a disinterested fashion in relation to the preparation of the new Will; 2. There was no involvement at all of any solicitor, and no attempt to arrange for any person other than Michael to talk over with the deceased, the proposed distribution scheme of the 2015 Will or to provide any advice, however incomplete or inadequate; 3. Michael is a man who was, or had been, involved in the management of major corporations both in Australia and overseas and who possessed an assertive personality, a person who was successful and who was used to exercising authority. He took it upon himself to turn such conversations as he is found to have had with the deceased about her testamentary intentions into the document that is now propounded as the 2015 Will, at a time when the deceased was suffering from declining health and had a condition that would lead to her death; 4. The idea that all of the deceased's property should be bequeathed to Michael, apparently, came from Michael himself. His evidence at paragraph [21] of his September 2016 affidavit is to the effect that one day in "early 2015", the deceased said she wanted to change her will and that Michael said "I'll draft one for you once you make up your mind exactly how you want to divide your assets, as I have hitherto". The conversation referred to in the first affidavit contains no instructions from the deceased as to who the beneficiaries were to be, yet, at paragraph [22] of the affidavit, Michael stated that "[A] short time after this discussion above, I typed a draft of a will and presented it to the deceased." Thus, on his own evidence, Michael drafted a will without any prior instruction to do so, which provided for the entire estate to pass to only him. He then saw to it that the will he had drafted was executed by the deceased; 5. In an affidavit affirmed on 22 February 2017, at paragraphs [46]-[48], Michael seeks to adhere to his previous evidence, but also states that it was the deceased who suggested to him "[i]n or around July 2015" that she wanted to leave her entire estate to him because "[t]hat is the simplest way to avoid a challenge". He does not explain the chain of events leading to the first draft of the 2015 Will being prepared; 6. Michael suggests in his evidence that the deceased proceeded to make the 2015 Will because she held one, or both, of the following views: 1. It was less risky than making direct gifts to her children out of her estate to provide for them directly, thereby relying upon Michael to distribute that estate fairly and appropriately amongst those children; or 2. There was less risk of a challenge to her will if she made a new will without the involvement of a solicitor, completely disinheriting her children and leaving everything to Michael than if she simply left in place her existing will prepared in 2007 with the assistance of a solicitor. 1. It is difficult to imagine that "any reasonably intelligent person would hold these false (and verging on the ridiculous) view without encouragement by another, seeming more knowledgeable, person". If the deceased ever, in fact, held these views, it is inherently likely that she only held them due to Michael encouraging her to do so and keeping her from any adviser (such as a solicitor) who would disabuse her of those views; 2. Whilst it may be that Michael did what he did for financial gain, there is no need for such a finding in order to determine that there was probate undue influence; and 3. The balance of probabilities favours the notion that probate undue influence was employed by Michael in relation to the 2015 Will, and thus probate of that Will should not be granted to him.
(Although fraud in Probate had been alleged in an earlier amended Defence, the allegations of fraud were excised from the fourth amended Defence and the defence of fraud, in Probate, as a ground for invalidating the 2015 Will, does not need to be considered further.)

[12]

The Equity Claim

In relation to undue influence in equity, the Defendants submitted: "40. The primary submission of the Defendants is that it is unnecessary to import the doctrine of equitable undue influence into a testamentary context as the doctrine of probate undue influence is broad enough to cover the situations in which the doctrine of equitable undue influence could potentially be applied in relation to the making of a will. The Defendants only raise the doctrine of equitable undue influence in case the Court takes a narrow view of the scope of probate undue influence such that the probate doctrine is insufficient to protect the interests of persons in the position of the Defendants."
Yet, the submissions continue (with appropriate amendments): "44. The Defendants' cause of action is one of actual undue influence, and does not seek to rely upon any presumption. The Defendants contend that the notion of probate undue influence is at least co-extensive with actual undue influence in equity (if not more extensive), and if that submission is accepted then there is no occasion to import the equitable doctrine into a testamentary situation. If the Court were, however, instead to find that probate undue influence is less extensive than actual equitable undue influence, it would be necessary to do justice to persons in the Defendants' position that the doctrine of actual equitable undue influence be applied in the manner Lindsay J suggests in Boyce v Bunce such that a constructive trust be imposed over Michael's share of the estate. 45. The present case is not one in which a single gift in a will is affected by undue influence (so that the appropriate remedy would involve a trust for the benefit of the residuary beneficiary at whose expense the gift was made) but is rather a case in which the entire 2015 Will was brought into existence via undue influence. Thus if a remedy is granted for equitable undue influence, the appropriate remedial constructive trust to be imposed is a trust whereby Michael's share of the estate is held beneficially for the beneficiaries of the 2007 Will in the same proportions as those beneficiaries would have taken under that will. By that means equity would bring into being the same situation as if the 2015 Will had never been made."
The substance of the equity claim is that from about December 2014 until her death, Michael "assumed a position of ascendancy or domination over the deceased who was vulnerable to his influence", as a result of which "the deceased was unable to exercise her free and independent judgment [sic] in executing [the 2015 Will] disposing of her estate to [Michael] as sole beneficiary contrary to the intention expressed in the [2007 Will] disposing of her property in favour of her children".
Michael, of course, denies the allegations made against him.

[13]

Settlement of the family provision claim by Denise and by Nicholas

In relation to the claim for a family provision order by Nicholas, the following passages appeared in Michael's written submissions dated 12 February 2019, provided to the Court: "5. On 18 October 2017 Nicholas accepted an offer by the defendant to conclude Nicholas' family provision proceedings on the basis Nicholas receive provision out of the estate of the deceased in the amount of $300,000 plus costs on the ordinary basis. 6. The settlement is conditional upon the 2015 will being admitted to probate and is 'without prejudice' to Nicholas' rights to pursue probate of the 2007 will, although Nicholas has since filed a submitting appearance in those proceedings. 7. Nicholas has been unrepresented since 20 June 2018. 8. The settlement between Nicholas and the defendant is not consented to by the remaining family provision plaintiffs. 9. It is asserted by those plaintiffs there is a real risk the estate assets will be insufficient to meet the claims of the plaintiffs if the settlement with Nicholas be approved."
During the course of the first day of the hearing, senior counsel for Dominic and Julian, and counsel for Denise, stated that instructions had been received that, in the event that the 2015 Will is found to be the last valid Will of the deceased, and in the event that the equity proceedings are unsuccessful, no objection would be taken to an order being made that Nicholas receive, by way of provision, out of the estate of the deceased, the lump sum of $300,000 as well an order that his costs, calculated on the ordinary basis, out of the estate of the deceased be paid: Tcpt, 18 February 2019, p 58(39-44); Tcpt, 18 February 2019, p 59(46) - p 60(1).
On the last day of the hearing, senior counsel for Michael handed up Short Minutes of Order that had been agreed. As none of the affidavits by Nicholas had been read, the Court required the parties to identify the affidavits, or parts of the affidavits, that were to be relied upon, to enable the family provision orders to be made in his case. This was done, without objection, following the conclusion of the hearing.
(The affidavits filed in the family provision proceedings, commenced by Nicholas, were not read, as he did not appear when the cases were called on for hearing. Presumably, since he had filed a submitting Appearance in the Probate proceedings, and had reached agreement in respect of his family provision proceedings, he did not consider it necessary to appear. I have read the affidavits, filed in his family provision proceedings, in order to consider whether the orders in his favour should be made.)
Late on Friday, 22 February 2019, the Court was informed in an email from junior counsel for Michael, that Denise and Michael had also reached a settlement of Denise's family provision proceedings, which settlement was intended to be binding only in the event that the 2015 Will was found to be the last valid Will of the deceased. A copy of the proposed orders to be made was also provided.
On the recommencement of the hearing on Monday, 25 February 2019, counsel for Julian and Dominic stated instructions had been received that in the event that the 2015 Will is found to be the last valid Will of the deceased, and in the event that the equity proceedings are unsuccessful, no objection would be taken to an order being made that Denise receive, by way of provision out of the estate of the deceased, the lump sum of $420,000: Tcpt, 25 February 2019, p 337(38-46).
In Azar v Kathirgamalingan [2012] NSWCA 429, Campbell JA, at [195], noted, in relation to the settlement of a claim under the former Act, that: "…There is no statutory obligation to seek approval of an agreement to compromise such litigation, but if the settlement is to be implemented by court orders the court must satisfy itself that it has jurisdiction to make the order, and that the particular order is one that ought to be made in terms of s 7 of the Act: Bartlett v Coomber [2008] NSWCA 100 at [37], [72], [84]-[86]. Thus, an agreement to settle such proceedings by the making of orders is binding on the parties, insofar as it obliges them, either expressly or impliedly, to approach the court to seek the making of the orders: Mitchell v Osborne (Supreme Court of NSW, Young J, 20 May 1997, unreported); Groser v Equity Trustees Ltd [2008] VSC 163; (2008) 19 VR 598 at [24]-[26]; Coomber v Stott [2007] NSWSC 513 at [28] and [66] per Macready AsJ."
Since neither Julian, nor Dominic, objects to the orders sought by Denise or by Nicholas being made if the 2015 Will is found to be the last valid Will of the deceased, and in the event that the equity proceedings are unsuccessful, in view of the conclusions to which I have come, the orders sought by each will be made in due course.

[14]

The Medical Evidence

Although there is no allegation that the deceased lacked testamentary capacity, the Defendants asserted, in the fourth amended Defence, that "following brain surgery she suffered memory loss, slurred speech, and never fully recovered. Oral and intravenous chemotherapy as well as radiation caused extreme lethargy, digestive problems, diarrhoea and memory loss worsening over time". There was a dispute about some of these allegations.
In the circumstances, and because the physical and mental state of the deceased at the time the undue influence allegedly took place, may be material, it is necessary to deal with the medical evidence and what follows relate to my findings in this regard. I accept the representations, said to have been made by the deceased, and recorded in the contemporaneous records, as to her physical and mental state.
It is clear that for many years before her death, the deceased suffered from Irritable Bowel Syndrome, which caused her sporadic, but extreme, discomfort. (Irritable Bowel Syndrome refers to a disorder that involves abdominal pain and bloating, as well as changes in bowel movements. In the case of the deceased, she also had persistent diarrhoea.)
In an email dated 23 December 2015 (Ex. 2/423), the deceased wrote that she could not believe that "[u]p to a year ago, I had never been on any prescription medication". There is no reason to disbelieve the representation made in the email and it was not suggested, during the hearing, that the statement was inaccurate or untrue.
On 23 November 2014, the deceased self-presented to the Emergency Department of the Royal North Shore Hospital, by taxi, with a few-week history of intermittent episodes of expressive dysphasia and an acute episode of word finding difficulty and expressive aphasia. On presentation, she had expressive dysphasia without motor deficit.
Subsequent CT, and MRI, brain scans, resulted in a diagnosis of "metastatic adenocarcinoma of the lung with symptomatic brain metastasis, multiple brain mets, high volume liver metastases and pulmonary nodules with hilar lymphadenopathy and a small right-sided pleural effusin [sic], EGFR exon 19 IHC positive": Ex. 2/147.
On 25 November, 2014, she went on to have a stereotactic-guided craniotomy and resection of the tumour "…from which she recovered extremely well", with "no residual neurological deficits". However, she was diagnosed with incurable stage IV disease: Ex. 2/147-148.
The deceased was discharged from Royal North Shore Hospital on 5 December 2014, into Michael's care, he having returned to Australia on 25 November 2014 (a few weeks earlier than he had planned to return).
In a copy of the Northern Sydney Local Health District Multidisciplinary ICU Care Plan (Ex. 2/132), which does not bear the date of its creation, in relation to Contact Information, Michael is shown as "Contact Person 1", Nicholas as "Contact Person 2" and Julian as "Contact Person 3."
In the Occupational Therapy Initial Assessment, dated 27 November 2014, under the heading "Social Status", the deceased was described as "lives with husband (travels often)". Reference was also made to "supportive family and friends (dtr and son)": Ex. 2/133.
In a report dated 12 January 2015, from Dr Jonathan A Curtis, Neurosurgeon, the deceased was said to have "progressed very well since being discharged home. Her speech is essentially normal now with free-flowing spontaneous speech and there are obviously no word finding difficulties. … She has had no headaches seizure activity or other neurological symptoms of concern": Ex. 2/164.
(Dr Curtis affirmed an affidavit on 22 February 2019 in which he noted a typographical error in his original report. The quote from the report above accords with the amendment made by Dr Curtis to his report. As he was not cross-examined, his evidence can be more readily accepted.)
In May 2015, in a follow up of the deceased's stage 4 EGFR mutation positive non-small cell lung cancer, following treatment of brain metastases, A/Professor N Pavlakis, a Medical Oncologist, who saw her on that day, found her to be "doing reasonably well, her quality of life is reasonable, she is coping with the treatment and she is planning a trip to stay with her son in Malaysia for a short term": Ex. 2/264.
In a report, dated 7 July 2015, Dr Helen Proskurin, a Psychiatrist, reported that "Noeline told me today that she was not really aware of feeling anxious. She wondered whether she had heightened anxiety at night before bed but this was not very noticeable. She described herself as a worrier however". Despite this, Dr Proskurin thought that there were indications of "an anxiety disorder, most likely generalised anxiety. There was no evidence of an acute mood disturbance…". Dr Proskurin described the deceased as looking well and being "euthymic in effect": Ex. 2/326-327. (As I understand it, euthymia is defined as a normal, tranquil mental state or mood.)
In a report, dated 7 August 2015, from Dr M Stevens, a Senior Staff Radiation Oncologist, from the North Sydney Cancer Centre, the deceased was reported as having said that she "feels well and has improved with input from the Greenwich Palliative Care Team. Her Avanza has certainly helped her weight, appetite and mood. Her perceived quality of life, which is critical for lung cancer survival, is also good": Ex. 2/350.
In a "Consult Letter to GP" transmitted on 2 February 2016, prepared by a Clinical Nurse Consultant at Greenwich Community Palliative Care Service, it was noted that "Noeline has insight into her illnesses [sic] prognosis and extent but we did not discuss her advanced care plans or wishes for place of death today … She is still keen to attend physiotherapy as an outpatient weekly": Ex. 2/433-434.
Following a fall in late May 2016, the deceased presented at Royal North Shore Hospital Emergency with an injury to her head and with expressive dysphagia. However, this occurred over 9 months after the execution of the 2015 Will.
The Death Certificate of the deceased, lodged with the Registry of Births Deaths and Marriages, in July 2016, revealed that the causes of the deceased's death were metastatic non-small cell lung cancer (of 2 years duration) and paroxysmal atrial fibrillation (of years duration).
Senior counsel for the Defendants did not refer, specifically, to any medical evidence supporting what was alleged in the fourth amended Defence relating to the deceased's medical condition.
From the medical evidence overall, I am satisfied that following her operation, and a reasonable recovery period, the deceased's health improved. The medical evidence does not support the description of the deceased as asserted by the Defendants, particularly in mid to late 2015.
(I have referred to medical reports after the date of the 2015 Will as demonstrating the opportunities available to the deceased to make any complaints about Michael's conduct or behaviour towards her if that conduct had affected her mental state.)
It should be noted that there are numerous emails, written by the deceased, following the operation, demonstrating her ability to understand and explain, the contents of which emails are inconsistent with the Defendants' allegations.
By way of example, there is one email, dated 17 July 2015, addressed to Barry and Jill Holmes, in which the deceased apologised for the brevity of the email and states "[I] have a huge amount of paperwork to do put off over months, better get on with it": Ex. C/89. Another, dated 23 July 2015, addressed to Mr Gallagher, refers to the ATO, land tax, some advice given to her by Mr Hellman, and what she had been told by Nicholas about ASIC: Ex. C/92.

[15]

Evidence of conversations with the deceased

There was also a significant amount of evidence, concerning the deceased's conversations with a number of the deponents whose affidavits were read, and who recounted some of the conversations. For the most part, none of the parties took objection to the evidence of such conversations, which, generally, was recorded in direct speech. (In relation to a conversation objected to, it was admitted, not as proof of the truth of the statement made by the deceased, but only as a statement made by her.)
It is necessary to bear in mind the inherent shortcomings of hearsay evidence. I have borne in mind that the Court must exercise caution in deciding whether to accept the evidence, and, if it is accepted, to carefully consider the weight to be attached to it. Naturally, the version of events spoken of by the deceased to the deponent cannot, for the most part, be tested by cross-examination.
I bear in mind, also, the need for careful scrutiny to which evidence should be subjected in such circumstances (Plunkett v Bull (1915) 19 CLR 544, per Isaacs J at 548-9; [1915] HCA 14), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931, at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, at [20]).
In Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, McLelland CJ in Eq, referred to the proposition that: "where, as here, a claim is based on communications with the deceased person, the Court will treat uncorroborated evidence to such communications with considerable caution."
Although in a different context, Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]: "... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."
I also remember s 140 of the Evidence Act 1995 (NSW), to which Campbell JA referred in Brown v NSW Trustee and Guardian [2012] NSWCA 431, at [52]: "The onus would be on the Appellant to satisfy the court on the balance of probabilities that John received the sale proceeds on the basis that he would hold the house purchased with those proceeds on trust for Ian. To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence. As well, both under the common law and also under s 140 Evidence Act 1995, the evidence must be enough to enable the court to feel actual persuasion that a particular fact is so … I respectfully agree with the observation in Cross on Evidence, 8th Australian edition (2010) LexisNexis [9130] and footnote 184 that 'according to ALRC 26 [998], the provision does not require actual belief; but that is not what the language says'. What s 140(1) says is: 'In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.' It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct." (Citations omitted)
In relation to the evidence of the witnesses, generally, his, or her, credibility or veracity, may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Ll.R. 1, per Robert Goff LJ at 57.
I have also found what Lord Pearce, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep. 403, at 431, useful: "Credibility involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. [a]nd lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
In this case, I have given weight to the documents written by the deceased, or signed by her, a copy of which is included in Ex. 2. These documents provide more valuable, and, often, more revealing, information than what may be flawed attempts at recollection of conversations about facts given by persons with an interest in the outcome of the litigation.
There is no suggestion that the copy emails, or other documents, that form part of the evidence, are not genuine. There was dispute in relation to some of the documents, the Defendants asserting that the contents had not been written by the deceased. There was no suggestion, however, that where a document bore the signature of the deceased, it was not her genuine signature. I shall refer to such documents later in these reasons.
I have also given weight to a conversation, between the deceased and Nicholas in about August 2015, which I accept took place, to which reference will be made.

[16]

The Lack of Evidence

There can be little doubt that the ultimate question for the Court, in the Probate proceedings, is whether, acting judicially, it is satisfied that the 2015 Will propounded by Michael is the last will of a free and capable will-maker: Tobin v Ezekiel (2012) 83 NSWLR 757, at [44]; Woodley-Page v Symons (1987) 217 ALR 25, at 35.
In this case, a lack of knowledge and approval having been raised, it is for Michael to establish, on the balance of probabilities, the validity of the 2015 Will. However, it is for the Defendants to establish undue influence in probate.
One of the central planks of the Defendants' case is that the deceased had made the 2007 Will taking into account her strained relationship with Michael and having considered his previous conduct towards her. It was submitted that, bearing in mind their relationship, the 2015 Will would not have been signed if she had known, or approved, its terms, and that it would not have been signed, had her judgement not been overborne by the (undue) influence of Michael.
However, other than email correspondence, to which reference will be made, in which the deceased vented her anger towards Michael, there is no evidence, at all, that she ever sought, or obtained, any legal advice as to steps she could take to obtain a divorce order.
There is also no hint in the evidence, at any time after November 2014, that the deceased became increasingly isolated, or that her contact with her family members or her friends was restricted, in any way. In this regard, whilst the deceased may have been partly dependent upon Michael as her principal carer, there is no evidence that he became more controlling of the deceased's activities.
To the contrary, following her discharge from hospital in December 2014, the deceased is shown to have continued to maintain regular contact with all of her children and with many of her friends. She did so, sometimes with Michael, but many times without him being present.
Furthermore, there were periods, often of some days, at different times, both before, and after, the 2015 Will was executed, in 2015, and also in 2016, when Michael was not in Sydney, and when one, or more, of the children, was, or were, alone with the deceased. There would have been ample opportunity for the deceased to reveal to any one of a number of different people, including her children, any dissatisfaction about the terms of the 2015 Will and to have referred to any pressure, or improper influence, exerted by Michael in relation to her execution of that Will. There was no such evidence.
Even when Michael was in Sydney, there were occasions when one, or more, of the children was alone with the deceased: Tcpt, 20 February 2019, p 271(45) - p 272(34); Tcpt, 21 February 2019, p 307(23) - p 309(6). Furthermore, even though Dominic was not in Sydney during the period February to November 2015, he was in regular communication with the deceased either by email, or by telephone, during that period: Tcpt, 21 February 2019, p 307(23-28). He also gave evidence that he spent some 10 days, in January 2016, with her, whilst Michael was overseas.
There is simply no evidence of any complaint made by the deceased to any of her children, or for that matter, to any other person, about the terms of the 2015 Will, or about Michael's conduct in relation thereto, in the period after Michael returned to Sydney in November 2014.
In my view, there would have been many opportunities for the deceased to complain about the 2015 Will not being what she wanted and also to make another Will, if that is what she really wished to do. This could have been done on any one of the occasions when Michael was out of the country after July 2015, or even when he was in Sydney.
In addition, the deceased could have taken up the opportunity, offered to her by Nicholas, to obtain legal advice. She, herself, chose not to do so.
There is also evidence of steps taken, by the deceased, in relation to her investments, and otherwise, that demonstrate her independent thought and action, particularly after November 2014. I shall refer to some of that evidence later in these reasons.
Mr Byrne only swore one affidavit in the Probate proceedings, being a formal affidavit. Despite the deceased being described by him as his "client", he having stated "I witnessed her signature on many occasions", and despite an apparent request, from the deceased, made to him to provide a copy of the 2007 Will, and a response by him, in an email dated 28 November 2014, to which email was attached a copy of that Will (Ex. 2/135-145), he did not give any evidence of his professional relationship with the deceased, or of any conversations, that he had with the deceased, before, or after, she made the 2007 Will.
As the deceased's financial adviser, Mr Byrne might have been expected to have been informed, by the deceased, of an irretrievable breakdown of her marriage to Michael, or to have been requested by the deceased to provide advice, based upon the fact that she was, effectively, a single financial entity.
Also, one might have expected the person who had received an earlier testamentary instrument from the deceased, and who had retained either the original, or a copy thereof, and who was asked by the deceased to provide a copy of that earlier testamentary instrument, to do more than simply provide a formal affidavit. The retention by Mr Byrne of the original, or a copy, of the 2007 Will demonstrates, at least, some professional relationship between him and the deceased that existed after 2007 and at the end of 2014.
Furthermore, it is more probable than not, that there was some professional contact between them after 2007, considering some of the steps taken by the deceased relating to her financial affairs after the 2007 Will was made, and before, and after, her diagnosis with a terminal illness in November 2014.
I have earlier mentioned that Mr Byrne, even though he was a party in the Probate proceedings, did not attend at the hearing. There was no explanation for his failure to attend the hearing, or to give evidence about matters, other than formal matters relating to the estate (about which no cross-examination was required).
Mr Lodhia, in his affidavit, did not identify himself as the solicitor who had taken instructions, from the deceased, for the preparation of the 2007 Will. When senior counsel for the Defendants was asked whether he proposed to call Mr Lodhia "for any other reason", the response was negative: Tcpt, 18 February 2019, p 40(48-50). Later, during, and because of the nature of, the cross-examination of Michael, the Court raised with senior counsel for the Defendants, again, the lack of evidence about the deceased having made the 2007 Will "because of some concern that the deceased had about her husband": Tcpt, 18 February 2019, p 75(38-45).
It is to be noted that the reasons for making the 2007 Will making no provision, other than the gift of furniture, clothes and personal effects not otherwise disposed of, to Michael, and leaving the whole estate to her children in equal shares, was not explained in the 2007 Will, or otherwise.
Despite that fact, and despite the failure to call Mr Lodhia, or if he was not the lawyer who took instructions for the 2007 Will, the lawyer who did take those instructions, the Defendants asked the Court to conclude that the reason the deceased made the 2007 Will making almost no provision for Michael, was because of his conduct towards the deceased and because they had been separated 15 years earlier. To reach those conclusions, without some evidence of the deceased's reasons, as provided to the solicitor who drafted the Will, would be speculation on the part of the Court.
As was written in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, at 360: "If a party wishing to prove a particular fact relied upon, seeks to do so by inference from other facts, and fails to give or call available direct evidence of the fact, and there is no sufficient explanation for the failure to call that evidence, then, there will properly be less confidence in drawing the inference in question. The failure to call the available direct evidence may weaken the inference and in some cases this may lead a trier of the facts to decline to draw the inference. Thus, if a plaintiff, capable of proving by his direct evidence that he was at a particular place or that he suffered a loss, but sits in Court while inconclusive inferential evidence is led from others, he runs the risk that, by reason of his unexplained failure to testify, the inference he seeks to have drawn will be weakened and possibly rejected."
There was no explanation for the failure to have the author of the 2007 Will give evidence about matters relating to the instructions for, and the execution of, the 2007 Will.
If this lack of evidence were not enough, there is evidence that, at times in 2015, the deceased sent emails to Jack Hellman, her accountant: Ex. C/53-54; Ex. 2/294-295; Ex. 2/298-300; Ex. 2/343-344; Ex. 2/403. He, too, was not a witness in the proceedings. There was no explanation for the failure to call him as a witness. One might have expected him to be called to corroborate, by repeating any discussions with the deceased, some of the allegations made on behalf of the Defendants, including the allegation that the deceased and Michael were separated, or that the deceased had excluded Michael from substantial provision in the 2007 Will because of her then lack of relationship with him.
I remember, however, what Dixon J wrote in Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17, at 61 (in relation to these proceedings, substituting "defendants" for "plaintiff"): "It is proper that a court should regard the failure of the plaintiff to give evidence as a matter calling for close scrutiny of the facts upon which he relies and as confirmatory of any inferences which may be drawn against him. But it does not authorize the court to substitute suspicion for inference or to reverse the burden of proof or to use intuition instead of ratiocination."
In RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270, Ward JA (with whom Meagher JA agreed), wrote, at [160]-[161], and at [165]: "It is well known that a Jones v Dunkel inference is open where there is an unexplained failure to call evidence as to a matter which calls for explanation from a person whom it could reasonably be expected would be called to give such evidence. The rule in such a case permits evidence in relation to that matter to be given greater weight, and an inference or inferences to be more readily drawn, when the party who might have called evidence to the contrary has chosen not to do so. In Commonwealth of Australia v McLean (Court of Appeal (NSW), 31 December 1996, unrep), Handley JA and Beazley JA, as her Honour then was, said that '[t]he rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default'. RHG accepts that a Jones v Dunkel inference, if one does arise, can do no more than permit the court to infer that the uncalled evidence or missing material would not have assisted the relevant party's case; it does not permit the court to infer that the uncalled evidence would have been positively damaging to that case. Thus, it allows for the more ready acceptance of evidence which might have been contradicted but which was not. What a Jones v Dunkel inference does not permit is a choice between two guesses or conjectures, nor does it supply missing gaps in evidence (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136 at [50]). … It is important to keep in mind that the 'rule' in Jones v Dunkel is not mandatory (as McColl JA noted in the earlier judgment of this Court and as the primary judge noted in his judgment following the remittal). If a judge is comfortably satisfied on the evidence (circumstantial or otherwise) that a particular inference favourable to the party in question should be drawn, as the primary judge here was, then the rule does not mandate that an adverse inference should instead be drawn by reason of that party's failure to call a witness who might reasonably be expected to be able to shed light on that particular issue."
In all the circumstances, I am not prepared to infer reasons for the deceased making the 2007 Will in the terms that she did, as suggested by the Defendants, or otherwise infer, as the Defendants submitted, the Court should, that she would not have executed the 2015 Will because of her relationship with Michael had she known and approved of its terms.

[17]

The conversation between Nicholas and the deceased that was said to have been repeated to Dominic

There is an important series of events that provide an additional basis for rejecting the allegation that the deceased did not know and approve of the contents of the 2015 Will.
Nicholas affirmed an affidavit on 5 February 2019, shortly before the hearing, in which he stated that he had a conversation, with the deceased, in December 2014. He gave the following evidence in the affidavit: "6. In about December 2014 I had a conversation with my mother as follows: Deceased: 'I want to change some of the components of my will. I want to give Dom the KL property and I want you and Kirri to live in the Cremorne flat rent free.' Deponent: 'Do you want me to see if I can find a good estate planning lawyer?' Deceased: 'Yes please Nick.'"
He also stated that following this conversation, he had made an appointment for the deceased to see an estate planning lawyer (whose name he was unable to remember), but that no meeting between them had occurred: Ex. 2/154.
Nicholas sent an email to the deceased on 20 January 2015 informing her that the "lawyer has been calling me re your will. What would [you] like me to do?" The deceased responded by email dated 21 January 2015, telling Nicholas that she could not do anything "until that Malaysian thing is fixed…once I know how that is playing out I will do the will. You can tell her that": Ex. 2/170.
The next conversation that Nicholas said he had with the deceased concerning her changing her Will occurred in about August 2015 and was in the following terms: "9. In August 2015 I had a conversation with my mother in words to the following effect: Deponent: 'So what did you decide about your will mum? Should I reschedule the appointment with the estate lawyer?' Deceased: 'I am leaving everything to Michael and he is going to sort it out.' Deponent: 'I think that is incredibly stupid. He has a history of messing up things. I strongly suggest you meet with a lawyer to change it.' My mother became visibly upset and started crying. I dropped the conversation because I did not want to upset my mother any more. I did not discuss the will with my mother further."
Nicholas could not remember whether he had spoken to the deceased about changing her Will in March 2015, but thought it unlikely as "that was in the period where my mother had probably started chemotherapy and radiotherapy and, and obviously I didn't want to push contact with a legal professional at that point": Tcpt, 20 February 2019, p 244(24-30).
Nicholas accepted that he was "not working off any notes" for the purpose of preparing his affidavit of February 2019; that he did not have any other document, apart from an earlier affidavit to work from in preparing his later affidavit; and that he did not have a diary that set out what he had said to the deceased at various times in 2015, although he maintained "I remember this very vividly": Tcpt, 20 February 2019, p 245(10-20).
Although the February 2019 affidavit was served late, it was not in dispute that Nicholas had given instructions to his former solicitors (the solicitors who were then, and who continued, to act for the Defendants, even at the hearing) about having had such a conversation with the deceased. (No such conversation had appeared in his earlier affidavits that were read.)
The document marked Ex. H was produced in answer to a call by Michael's senior counsel. It is a redacted version of a draft, unsigned, affidavit, apparently prepared in April 2017, when Nicholas was represented by Ms Mena. The draft unsigned affidavit stated: "33. I did not speak to my mother again about changing her will until about August 2015, when my mother advised me that she had signed the Second Will. We were walking into Norths Leagues Club from the carpark [sic] when I had a conversation with my mother in words to the following effect: She said: 'I am leaving everything to Michael and he is going to sort it out.' I said: 'What do you mean by sort it out?' She said: 'He is going to take control to distribute everything amongst the lot of you.' I said: 'Mum I think that is incredibly stupid. He has a history of messing up things with poor execution and not seeking proper advice. I strongly suggest you, or the both of you, meet with a lawyer to change it, like Anna who I was trying to tee you up with before, which you kept putting off' She said: 'Michael has the instructions. I don't want to talk about this anymore.' I said: 'Mum please, please see a lawyer who can advise on prudent and proper estate planning, who is familiar with Australian tax law and disposal of estates. If Michael has gotten instructions, the chances are he will not seek advice and lob us with tax bills because he thinks he is saving money on lawyer fees which will potentially cost us money. All of our situations are completely different tax wise. We need someone to point out the ramifications. It's not one a size fit all.'"
Despite concluding the cross-examination, on the fourth day of the hearing, senior counsel for the Defendants sought to put some further questions to Nicholas. Because Nicholas had no objection to being cross-examined again, and because I considered that the dictates of justice required the Court to accede to the application, I permitted that further cross-examination.
Unsurprisingly, Nicholas was asked about the parts of the conversation with the deceased, in Ex. H, that did not appear in his affidavit made on 5 February 2019. He maintained that he had not sworn to the truth of the draft affidavit and that "[T]he conversation that happened with my mother re her will was more in line with what's been submitted": Tcpt, 21 February 2019, p 288(45-48). However, he accepted that the deceased had become visibly distressed and had started to cry. They did not speak of the 2015 Will again.
Nicholas stated that the parts of the draft affidavit with which he did not agree, "did not reflect my views or my recollection": Tcpt, 21 February 2019, p 291(3-5). Importantly, he stated that the deceased had not said that Michael "is going to take control to distribute everything amongst the lot of you": Tcpt, 21 February 2019, p 291(3-11).
Although Nicholas had stated that the conversation with the deceased was in August 2015, senior counsel for the Defendants put to him that he might have been mistaken about the date and that the conversation may have taken place in July 2015. Nicholas maintained the correct date was about August 2015 and repeated that belief several times when the contrary date was put to him.
There is no reason, and none has credibly been suggested by the Defendants, why Nicholas would have mis-stated the conversation that he had with the deceased, which, on the face of it, makes clear that she knew, and approved of, the terms of the 2015 Will. As senior counsel for the Defendants stated (Tcpt, 25 February 2019, p 344(32-34): "I'm not going to dispute he had a conversation in which the deceased said to him, as he says in his February 2019 affidavit, 'I've left it all to Michael to sort it out', and that she then broke down in tears."
Significantly, the evidence about having had such a conversation with the deceased is adverse to Nicholas' own interests since, if the 2015 Will is not the last valid Will of the deceased, he would receive far more than the lump sum, the subject of the proposed family provision order for which he has proposed to settle the family provision proceedings.
Whilst the version of the conversation with the deceased was given late in the proceedings, I accept the evidence that there was a conversation with the deceased, in August 2015, and that it was in terms of his affidavit of February 2019, rather than in terms of Ex. H (which had remained unsigned).
The conversation does not suggest that the deceased required any more assistance, or explanation, concerning the terms and effect of the 2015 Will. On the contrary, the conversation demonstrates that she had a good understanding of the provisions of the 2015 Will and that she had approved of its terms.
(I do not accept the submission made by senior counsel for the Defendants that "Nicholas' evidence tends to favour [the Defendants'] case" because the deceased told Nicholas in December 2014 that she "want[ed] to change some of the components of my Will": Tcpt, 25 February 2019, p 348(40-50). Even if what she says demonstrates that, at that time, she had particular bequests in mind, it seems clear that she changed her mind.)
An issue also arose, when Nicholas was to commence cross-examination, regarding a conversation that Nicholas said he had with Dominic following the conversation with the deceased in August 2015. The terms of any such conversation had not been included in his affidavit of 5 February 2019 (or in the draft affidavit that was Ex. H).
With the leave of the Court, Nicholas gave the following evidence in chief (Tcpt, 20 February 2019, p 242(30) - p 243(17)): "Q. Following the discussion with your mother in which she spoke about her will and its contents, did you speak to one of your siblings? A. I did. I had a conversation with my brother Dominic straight after that. It was either that day or within a couple of days after I found out. Q. Where were you at this time? A. When I had the conversation with my mother? Q. No, where were you when you had the communication with Dominic? A. I was in Sydney. Q. Where was he to your knowledge? A. Dominic was in KL, Kuala Lumpur. Q. How did this communication or conversation take place? A. It was through WhatsApp which is a digital messaging service and it was either by way of text or telephone call. I can't a hundred per cent recall which one it was but it was definitely through that channel. Q. When it's by text, the words are shown on the screen? A. Correct. Q. When it's by telephone call it's just a voice to voice? A. That's correct. Q. Can you recall what you said or what you typed that was sent to Dominic? A. I said that my mother had - Noeline, Noels had changed the will and left everything to Michael. Q. Can you recall what his response was? A. It was something in the vein of "That's a disaster". Q. Was this part of a general conversation or was this just a specific-- A. That particular conversation was specific to that. HIS HONOUR Q. Do you mean by that, that specific conversation on that day? A. Correct."
Nicholas could not remember, when cross-examined, whether his conversation with Dominic was by way of a telephone call or by way of a written text message: Tcpt, 20 February 2019, p 245(42) - p 246(16).
There was a dispute about this conversation, as Dominic denied any such conversation had occurred during the lifetime of the deceased. He said that the conversation, if it took place, would have been shortly after the deceased's death rather than before it. He gave evidence that "Nicholas either told me directly or it was in a Whatsapp chat which I believe he said earlier, however post my mother's death not pre". He acknowledged that Nicholas had told him that the deceased had told him that "she had made a will in which she "had left everything to Michael": Tcpt, 21 February 2019, p 305(25-35).
Dominic also said that it was "inconceivable" that if the conversation with Nicholas had taken place, it "wouldn't have been shared with Julian, if that conversation had taken place prior to my mother's death": Tcpt, 21 February 2019, p 306(35-43).
When asked, by the Court, whether there was any other reason he thought the conversation did not occur, he said there was, but he could not articulate any such reason or reasons: Tcpt, 21 February 2019, p 309(8-37). He repeated, however, that he had become aware of a conversation that Nicholas had with the deceased shortly after the death of the deceased about her Will: Tcpt, 21 February 2019, p 307(1-5).
Julian also denied that he had any conversation with any of his siblings, before the deceased's death, about the conversation that Nicholas said he had with the deceased, or that he had seen any written communication about that topic. He said that after her death, he had a conversation with Nicholas and Dominic about the deceased having made a will, although when asked about the conversation, he did not recall that Nicholas had stated that the deceased, before she died, had told him that she had made a will, or that she had said that Michael was to receive her whole estate. He accepted, however, that he had "found out" that Nicholas was making, or was prepared to make, a statement that the deceased had told him that she had made a will and that the Will left everything to Michael: Tcpt, 21 February 2019, p 323(13-24).
As there is a dispute about whether, and if so, when, the conversation between the male siblings took place, it is next convenient to deal with the evidence on that topic.
In cross-examination, Nicholas maintained that he had "definitely had that conversation" with Dominic: Tcpt, 20 February 2019, p 246(40-49). He also said that he had not had a similar conversation with either of Denise or Julian: Tcpt, 20 February 2019, p 248(47) - p 249(11).
Nicholas explained that if his conversation with Dominic had been in a telephone call there would be no history of it but that had it occurred in a text, it would, but that because he had changed his phone subsequently, two or three times since that date, the conversation history of a lot of his WhatsApp messages had disappeared: Tcpt, 20 February 2019, p 246(6-11).
Julian gave evidence that in preparing the case, he had "accessed something that's been referred to as WhatsApp for family communications" both before, and after, the deceased's death: Tcpt, 21 February 2019, p 316(39-45). He stated that he had not seen any communication, or had any conversation, on WhatsApp, in which there was reference to the deceased having made a will: Tcpt, 21 February 2019, p 322(3-18).
As I understand it, WhatsApp Messenger is an effectively free multimedia online messaging application, available for iPhone, and other smartphones. It uses the telephone's Internet, or wi-fi, connection to send messages, images, audio or video, free of charge, by, or to, one, or more, users of the application with a compatible smartphone or tablet with a sim card. It is possible to receive SMS messages, telephone calls, photos, videos, and voice messages between users of the application by way of "group chats". This enables members in a group to follow text conversations more easily and to respond to specific questions in a group chat, or write comments on content, in the group.
Apparently, WhatsApp text messages were produced from both Nicholas' telephone, and from Julian's telephone, and what was produced was inspected by counsel for Michael. The Court adjourned so that this could be done. None of the text messages produced were tendered by either party. This, of course, does not mean that there was no telephone conversation between them about the topic, only that there were no relevant text messages, between Nicholas and Dominic, in about August 2015, referring to the conversation that Nicholas had with the deceased.
The submission made by senior counsel for the Defendants was that "the likelihood is that the witness is just misremembering events over the space of time … I'm not going so far as to say that this witness (Nicholas) is telling a deliberate untruth but because the witness has only prepared his evidence recently, and there is a lapse of three and a half years, that he has become confused with all of the messages that were going backwards and forwards at the time and that he has misremembered the communication … I'm not suggesting that he is deliberately attempting to deceive the Court today about that but he is accidently deceiving the Court because he has misremembered the situation. He has remembered a conversation that never, in fact, took place because he's been confused by all of the WhatsApp messaging that was going on at the time": Tcpt, 20 February 2019, p 247(5-41).
As I am satisfied that such a conversation between the deceased and Nicholas took place in about August 2015, it is probably unnecessary to conclude whether he conveyed the conversation to Dominic a day or so after it occurred. However, as it may be relevant to the question of costs, I should express my conclusion that I cannot be satisfied, on the available evidence, that there was any conversation, by text message or orally, between Nicholas and Dominic, in about August 2015, concerning the deceased having made a Will.
However, I am satisfied that there was a conversation, a short time after the deceased's death, in which Dominic, and Julian, were both informed, or that they came to know, that there had been such a conversation, in August 2015, between Nicholas and the deceased.
Neither Dominic, nor Julian, suggested that he did not believe Nicholas when he was told of the conversation by Nicholas. Yet, no reference was made by either Dominic, or Julian, to the conversation with Nicholas. The concealment of such information, gained before the commencement of the Probate proceedings, and before the filing of the defence to Michael's Statement of Claim, does not assist Dominic or Julian.

[18]

The Evidence

The following sections address some additional relevant legal principles, the evidence of the witnesses, and the views to which I have come which inform my findings of fact.
In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that: "... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation."
His Honour's observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of NSW v Hunt (2014) NSWCA 47, at [56].
I next repeat part of what I wrote in Fulton v Fulton [2014] NSWSC 619, at [111] and [120]-[122]: "However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5]. … The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. … Also, I refer to what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315, at 319: 'Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.'"
Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964, per Kunc J, at [467].
Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249, at [74].
I also refer to what was written in Sangha v Baxter [2009] NSWCA 78, by Basten JA (with whom Handley AJA agreed), at [155]-[156]: "There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]."
Finally, I refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79; [1989] HCA 60, at [107]: "The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling."

[19]

Witnesses who are not family members

As stated earlier, Michael called a number of witnesses who were not family members. I find the evidence that each gave inherently probable, and I have no hesitation in accepting her, or his, evidence respectively. In my view, each of them was patently honest. Their evidence added to the picture presented by the family members, of the deceased's abilities and personality, and of her relationships, and, in particular, the extent to which she was likely to have yielded to attempts by Michael to exercise control over her in respect of her testamentary intentions, even if he had a controlling nature, which, on the evidence overall, I am satisfied, he did not.
I have no hesitation in accepting the evidence of each where it differs from the evidence or perceptions of any of the Defendants.
As stated, Ms Gallagher was one of the two attesting witnesses to the signature of the deceased on the 2015 Will. She identified Ex. A as the 2015 Will that she had signed. There was no challenge to her evidence regarding due execution.
In cross-examination, Ms Gallagher said that over the years, she had more contact with the deceased than with Michael, as the deceased "just lived down the street". However, she would meet them together, from time to time, socially. She would not meet Michael without the deceased.
She wrote, in her affidavit, that "[w]hilst sitting around my dining table the deceased produced a document" and that she was then asked to sign the document as a witness. Ms Gallagher wrote her name and address on the document and signed the document as a witness. She added that she "did not observe any person pressure the deceased to sign the will and she appeared to do so freely". She could not remember whether she had "received any previous warning prior to the production of that document that a will was going to be produced": Tcpt, 20 February 2019, p 255(45-49).
When asked, Ms Gallagher said that she thought that the deceased had produced the Will "in her bag". When asked whether it could have been Michael who produced the 2015 Will, she said "Not in my memory. I think it was in her bag. I just don't really remember but I think she did": Tcpt, 20 February 2019, p 256(7-10).
Mr Gallagher was the other of the attesting witnesses to the signature of the deceased on the 2015 Will. There was no challenge to his evidence regarding due execution.
In addition, in his affidavit sworn 15 September 2016, Mr Gallagher stated that at the time of the deceased signing the 2015 Will, he was aware that she "had been diagnosed with cancer". He also stated that the deceased "produced a document and said words to the effect: 'would you mind witnessing the will?'"
Mr Gallagher added that "the deceased participated in conversation on the evening of 22 July 2015 as she had done for many years". He also wrote that "[t]here was no indication that the deceased's memory or intellect had been affected by her illness".
In his affidavit, Mr Gallagher acknowledged that Michael "was in the room at the time of signing the will" but added "I did not observe the deceased to be under any pressure to sign the will".
In cross-examination, Mr Gallagher said that he had met Michael in 1971, when they worked together and then, in the same year, sometime after first meeting him, had met the deceased. He admitted there were occasions, thereafter, that he had socialised with Michael without the deceased being there. He said that he had not discussed matters of a personal nature (concerning extra-marital romantic, or sexual, relations) with Michael at any time. He could not remember whether he had foreknowledge that a will was going to be produced and that he was going to be asked to witness the deceased's signature on it, but the request did not surprise him, as he had asked the deceased to witness his signature on a prior occasion.
When asked whether it was the deceased, or Michael, who had produced the Will he "distinctly" remembered the deceased carrying the document: Tcpt, 20 February 2019, p 260(17-19).
In my view, because of the relationship of each with the deceased, each of Ms Gallagher and Mr Gallagher, was not an improbable choice to act as an attesting witness to the deceased's signature on the 2015 Will. I am satisfied that neither had any axe to grind in the context of giving evidence in the proceedings.
Mrs Gray, who was retired, but who had been a nursing sister and midwife, and to part of whose evidence I shall return, did not meet with the deceased, face to face, in 2015 or 2016, although they did speak by telephone, almost weekly, unless the deceased was travelling. She did not discuss the 2015 Will with the deceased at any time. She knew of the deceased's medical condition and that in late 2014 and very early 2015, that the deceased had been diagnosed with expressive dysphasia (a type of aphasia characterised by partial loss of the ability to produce language (spoken, manual, or written).
Mrs Gray denied that the deceased seemed to have difficulty at around that time in talking, or that the deceased found it "difficult to put together complete sentences", or that the deceased's speech "was noticeably slurred". Indeed, she said that she had "never found [the deceased] confused or dysphasic": Tcpt, 19 February 2019, p 129(3-35).
Mrs Gray, accepted that, on occasions, the deceased "was anxious because of her condition". She also acknowledged that she did not have in-depth conversations about the deceased's relationship with Michael and that the deceased had not confided in her about that relationship: Tcpt, 19 February 2019, p 130(1-28) (except, as will be read, on one occasion to which I shall refer).
Mr Bulfin gave evidence that the deceased had told him about the purchase of the Malaysian property and that she had a son living in Malaysia who "will take care of it for me". The deceased also informed him of her terminal illness, and, in 2015, they spoke more regularly about their respective health conditions. The deceased conversed with him throughout 2015 "in much the way she did in previous years". He and his wife had dinner with the deceased and Michael on two or three occasions in 2015 and early 2016.
In May, or June, 2016, Michael asked if Mr Bulfin and his wife would witness the 2016 Will "for the property in Malaysia". On Friday, 17 June 2016, they drove, with Michael, to the Royal North Shore Hospital, where the 2016 Will was executed.
Mrs Bulfin corroborated her husband's evidence about the deceased and Michael and the execution of the 2016 Will. She added that shortly after they arrived at the Royal North Shore Hospital, Michael said to the deceased "Barry and Julie are here to see you and to witness the will for the Malaysian property".
Mrs Bulfin also wrote that she met Michael in 2010 although she had met the deceased some time earlier. She said that "over the years, the deceased and Michael invited me and my husband over for afternoon tea and/or dinner. Although they lived apart, it appeared to me that the deceased and Michael were husband and wife, and the deceased referred to Michael as her 'husband'."
Ms Holmes annexed to her affidavit a copy of a number of emails passing between her and the deceased between 8 December 2014 and 27 January 2016. She wrote that she had met with the deceased "on a few occasions" in 2015, including for on occasion, coffee. She added "[t]he deceased's [sic] presented as her usual intelligent self and remained this way throughout my contact with her by email, telephone and in person … There was no point during any of my discussions with the deceased in which she was unable to communicate with me."
On the part of the Defendants, Joanne's affidavit sworn 9 April 2017 was read. She was not cross-examined. However, her evidence went only to the circumstances in which the Certificate of Title to the Malaysian property came to be held by her solicitor employer from about 29 October 2015.
(Michael gave evidence that he had collected the Certificate of Title from Mr Ho in about 1 September 2015 and that he had retained it until he and the deceased brought it back from Hong Kong in late September 2015. It had been given to Joanne whilst he was on an overseas business trip in late October 2015.)
Despite the fact that she had known the deceased and Michael for over a decade (at the date of the deceased's death), Joanne gave no evidence of her observations of the relationship of the deceased and Michael, or of any conversations that she had with the deceased about that relationship, or otherwise.

[20]

Evidence of documents signed by the deceased and conversations with the deceased

I shall start by referring to documents which I accept as having been signed by the deceased. I have already referred to each of the 2007 Will, the 2015 Will, and the 2016 Will (on which the deceased made her mark).
Throughout January and February 2015, the deceased and Michael worked on his application for migration to Australia by a partner sponsor. It appears, from Michael's evidence, which I accept, that the application was provided in two parts, the first being one by the applicant, and the second following a "formal prompt from Australian immigration after it has completed its scrutiny of the first part".
Michael, initially, lodged the Application on 4 March 2015. On 5 October 2015, Michael received an email from "immigration hongkong" requiring production of various documents to be provided by "the sponsor", who, in this case, was the deceased. The email appears to have been forwarded, within an hour of its receipt, by Michael, to the deceased: Ex. 2/379-382.
The evidence required included: "- Marriage certificate - Children's birth certificates - Evidence that you have remained in contact while separated, such as telephone bill, letters (envelopes and contents) copies of emails… - Detailed statements from you and your sponsor providing history and evidence of your relationship… - Evidence of your relationship … financial aspects, the nature of the household, social context of the relationship; and the nature of your commitment to each other."
Under the reference to "The nature of your commitment to each other" was a reference to "the terms of your wills".
The deceased signed a statement, which is contained as part of the copy of an Application for Migration to Australia by a Partner, which application was made by Michael to the Department of Immigration and Border Protection (as the Department of Home Affairs was then known). A copy of that written statement, dated 14 October 2015, (Ex. 2/386-387), provided by the deceased, as sponsor, and signed by her, relevantly provides: "As my husband's work required long hours and frequent travel, even more so after he joined Cable & Wireless, while my base of friends changed almost completely every 3 years as expatriate work contracts expired, we decided my life would be better in Australia as 3 of the children were living there by then. There was never any suggestion of separation in a legal sense and Michael and I maintained almost daily contact. He always supported me (and the grown-up children when required) emotionally and financially without demur, made frequent business trips to Sydney (as a founding director of Optus) plus side trips for special dates such as birthdays and Christmas; and our anniversary. In addition, I often met him in Hong Kong or elsewhere in Asia and Europe when his business trips were at, or close to, our meeting-points. In fact, he purchased an investment flat in Wimbledon circa 2001 that I had found for him so I could spend a month or two every year in London between tenancies. Michael sold me his half share in the Cremorne town-house for $1 in the mid in the mid-1999 [sic] it was more tax-efficient that our assets be held in separate names. This has not prevented him from continuing to pay all my current household expenses, maintenance, rates, utilities etc[.] from that point on plus a monthly personal allowance. I meanwhile invest in property and shares on my own account. Since an unheralded metastatic tumour was surgically removed from my brain in November 2014 with accompanying grim prognoses, I have changed my will (addended) in favour of my husband as executor and sole beneficiary. He, many years ago, had made me the sole payee of an offshore trust to be liquidated on his demise lest I were in need of immediate liquidity and sole executrix and beneficiary of his will."
Michael agreed that he had assisted the deceased in the preparation of this document and that some of what was written was in his style (the words "unheralded" and "addended"). However, there is no dispute that the deceased's signature appeared on the original of the document.
It was put to Michael that the deceased had not read the document before she signed it and that he "did not draw that paragraph to your wife's attention before she signed the document". Michael responded saying that the deceased "was not of, of the sort of nature that would sign anything anybody put in front of her without reading it": Tcpt, 20 February 2019, p 224(22-38).
It is not possible to come to a categorical view about this aspect of the evidence. What is clear, however, is that the deceased signed the original of this document, and that, subsequently, with Julian's Statutory Declaration (to which reference will be made), it was submitted to the Department of Immigration and Border Protection.
The significance of the document, and the fact that the deceased signed it, taken with the Statutory Declaration, which Julian acknowledged had been signed by him (said by him to be at the deceased's request), and in light of the description of the deceased's personality (to which I shall next refer), in my view, justifies the finding that she is more likely than not to have read the document before she signed it. If the deceased did not, then she adopted the document that she signed as her own. The narrative of the contents of the 2015 Will is included.
That the deceased knew of the fact of having a Will is also evidenced by an entry in an Hospital Progress/Clinical note, dated 10 May 2016, which includes the following entry (Ex. 2/449): "Notes in retrospect of 9.5.16 … Assessment: Living at home with husband. They have three sons, 1 son in Malaysia, 2 sons and a [daughter] nearby. Supportive family. Husband is primary carer. Finances: pt husband has exec position in telecommunications. Working from home. Sometimes away from work O/S. Has Will + POA (son). No guardianship. …Pt husband assisting with all care and domestic tasks"
Senior counsel for the Defendants sought to diminish the relevance and significance of this entry in the document, submitting that it did not reveal the source of the information. I do not accept that submission. I tend to the view that the likely maker of the statement was the deceased, as later in the notation, there is a reference to the social worker having met the deceased "on the ward". There is also, later in the notes (Ex. 2/450), a reference to a telephone conversation, between the social worker and the husband "over the phone" and a further notation "Met with pt & husband" on 13 May 2016 (Ex. 2/451). Had the conversation been with Michael, or with the deceased and Michael, I am of the view that the note would be likely to have referred to that fact.

[21]

The deceased - the person

A number of witnesses painted a similar picture of the deceased. Additionally, some of the emails provided colour to the picture of her.
Michael, for example, described the deceased as "an intelligent woman, well versed in finance, accounting …. She managed her own finances and took advice from her financial adviser and accountant…" He also wrote that she "had strong opinions in all worldly affairs and did not suffer fools gladly. The deceased made her point of view known at all times throughout her life and was not a meek and mild woman…". His description of the deceased was not the subject of any challenge.
Michael gave, by way of an example, the deceased's refusal to transfer the Malaysian property into his and her joint names, she having stated that "I don't think it's a good idea. It's only going to complicate things further. We'll have to go back to the beginning."
Another example of the deceased demonstrating an ability to speak her mind is found in Ex. 2/99 in a response to something Michael had written, stating "if it's a sellers [sic] market your statement doesn't make sense", and, later, "[y]ou are either blind or can't read".
There is an email dated 27 February 2015, to Dominic, in which the deceased referred to her disagreeing with something Michael had suggested to the Malaysian lawyers concerning a change in names on the title to the Malaysian property, "and then with his nagging, I gave in": Ex. 2/189.
In my view, this email demonstrates the deceased's ability to complain, and evidence of her actually having complained, about an aspect of Michael's conduct (in that instance, relating to the Malaysian property), if she was unhappy with it.
An earlier email, dated 26 February 2015, demonstrates that when the deceased disagreed with something that Michael had suggested, she told him in no uncertain terms, describing his suggestion as "not a good idea at all" and "I thought it ridiculous": Ex. 2/186.
All of these emails reveal that the deceased was quite capable of making decisions, independently of Michael, and, at times, contrary to suggestions made by him.
Julian described the deceased as "a caring and devoted mother". Dominic described her in the same way, adding the deceased was someone "who looked after my day-to-day needs and wants".
In his affidavit sworn 7 December 2018, Dominic wrote "my mother was a meticulous planner, who would constantly dote on her children's financial status as well as our general wellbeing and health" (at [30]).
The Court asked Denise to describe the deceased. She gave the following description (Tcpt, 20 February 2019, p 272(47) - p 273(13): "She was not backwards in coming forwards whatsoever. She would tell you exactly what she thought. She'd call a spade a spade. She was no shrinking violet. Sometimes she would nag me about my eating habits… She would tell you just how it is, not amongst her friends but amongst general family members, but her whole personality changed after she had the brain surgery, she was not the same person. Q. By that do you mean that, as you put it, she was less likely to not tell you what was going on or what? A. Yes, basically she became less confrontational, she became a meek mild gentle little lamb and very submissive. She just didn't - she never nagged me about my diet or losing weight or anything."
(The other evidence that I have read, and to some of which I have referred, does not support Denise's view of the deceased as "meek or mild" following her medical diagnosis in November 2014 and I do not accept that description of the deceased.)
Mrs Gray says that: "Despite her illness, the deceased maintained clear conversation with me throughout our discussions in 2015 and 2016. We discussed all manner of things. The deceased liked to debate her point of view and she was an intelligent woman good at doing so. The deceased was a woman who spoke her mind…"
This aspect of Mrs Gray's evidence was not the subject of challenge.
There is evidence of the deceased corresponding, by email, with her lawyer, Richard Ho, in Malaysia, in regard to the purchase of the Malaysian property in February and March 2015: Ex. 2/196-197. There is also evidence of an email that the deceased wrote to Dominic, in March 2015, about the same topic, in which she asked him to scan some documents sent to her by the Malaysian lawyer, which documents she had been unable to open. She requested him to send them to her because "I need to know what these legal documents say": Ex. 2/224.
The deceased wrote to Mr Ho in July 2015, asking him "to send me a full receipt for the recent payment on the disbursements and stamp duty plus the Power of Attorney signed in your office. I like to keep all my payments on file": Ex. 2/329. This implies a distinct presence of mind.
An email dated 2 December 2015, relating to a rental statement for the Malaysian property, also depicts her knowledge and understanding of her financial affairs: Ex. B/96-97.
There is evidence of an email sent by the deceased to Mr Hellman on 20 April 2015, in which she referred to discussions with him and confirmed that "I have closed my SMSF accounts now with only the SGB Power Saver account open to pay the closing expenses" and requesting him to "get the accounts made up and then audited as soon as possible…": Ex. 2/256-257. She informed Dominic of her taking steps to close the SMSF accounts in an email of 20 April 2015: Ex. 2/253.
(Michael gave evidence about a conversation with the deceased about the closure of the SMSF accounts, although he could not remember the date of the conversation, in which the deceased said she had done this "to make things easier for you". He was not cross-examined on this evidence.)
There is an email dated 30 July 2015, sent by the deceased to Mr Hellman, informing him that she had "realised today that I had missed putting in my UK pension payments so have typed them out … for you to add on to my income" and his response: Ex. 2/344.
Emails passing between the deceased to Ms Tiffany Cowdrey of Mr Hellman's office in September and October 2015 further demonstrate the deceased's involvement in her own financial matters and the requests she made for information that she did not understand: Ex. 2/371-373.
There are many other emails, to which reference does not need to be made, demonstrating the steps taken by the deceased to organise her own financial affairs, the terms of which amply demonstrate her involvement, and which do not suggest reliance upon Michael, in those matters.
Finally, it is to be noted that the deceased was not an ingénue when it came to making wills. She had made two Wills before the 2015 Will and was to make the 2016 Will shortly before her death. It is not credible that she would not have complained to someone of Michael's domineering attitude, or that she had not wanted to make the 2015 Will in its terms, if that had been the true position.

[23]

Michael

Michael's evidence was vigorously tested by senior counsel for the Defendants. Understandably, bearing in mind the nature of the defences and the Cross-Claim, the cross-examination concluded with the following series of questions and answers (Tcpt, 20 February 2019, p 226(14) - p 227(9)): "Q. I'm going to make a number of propositions to you. I need to do that for legal reasons and if you could just attend to my questions and answer my questions please. I put to you that you composed the 2015 will, that's correct isn't it? A. It is not. Q. I suggest to you that you composed the will without your wife having given you any instructions to compose a will in that form. That's correct isn't it? A. It is not correct. Q. You did not then read out the will to your wife, did you? A. I did read the will to my wife. Q. You never observed her reading the will did you? A. I did observe her reading the will or it wouldn't have been in my affidavit. Q. To your knowledge she never read the will, isn't that right? A. That is incorrect. Q. After you'd typed the will you put pressure on your wife to execute that will, isn't that right? A. No it is not right. Q. You arranged for the will to be witnessed by friends of yours only a few days after the will was drafted, isn't that right? A. It is incorrect insofar as these were not friends of mine, they were friends of ours. I, my - I didn't arrange - I put it to my wife whether or not that would be a more expedient - not an expedient, a more convenient date and place to do - well, not date and place - a more convenient place as we already had a pre-existing dinner arrangement with our friends and - to which she concurred immediately, which is also stated in the affidavit, to which they concurred immediately and we duly kept the dinner date and she took the will around with her, apparently in a sealed document prepared by me that she'd never seen. Q. You decided that she shouldn't see a solicitor about the will, isn't that right? A. I decided? Why would - about what will? Q. You decided that she should not see any solicitor in relation to the 2015 will, isn't that right? A. I didn't decide. It was entirely her decision. Q. You didn't want her to see a solicitor because you were concerned that a solicitor, when explaining the document would cause her not to execute that will, isn't that right? A. Of course it's not right. I will add the addendum, neither she nor I thought there was any point in seeing a solicitor."
Senior counsel for the Defendants criticised Michael's evidence about the circumstances in which the 2015 Will had been prepared. He also described Michael's evidence as "overwhelmingly the most important evidence on the Probate question" (Tcpt, 25 February 2019, p 348(3-5)), a description with which, respectfully, I disagree, particularly when one considers the other evidence, particularly the deceased's conversation with Nicholas in August 2015 and the document that she signed in October 2015.
Mr Young SC submitted: "30. Working from Michael Blendell's first affidavit (13 September 2016) the idea that all of the testator's property should be bequeathed to Michael Blendell apparently came from Michael Blendell himself. Michael Blendell's evidence at [21] in his 13 September 2016 affidavit is to the effect that one day in "early 2015" the testator said she wanted to change her will, with Michael Blendell saying "I'll draft one for you once you make up your mind exactly how you want to divide your assets, as I have hitherto". The conversation related contains no instructions from the testator as to who are be the beneficiaries under the will, yet at [22] Michael Blendell states "A short time after this discussion above, I typed a draft of a will and presented it to the deceased. Subsequent paragraphs indicate that this draft was in the same form as the 2015 Will later executed, and hence had Michael Blendell as sole beneficiary. 31. That evidence supports rather than negatives the hypothesis of undue influence as it has Michael Blendell, without any prior instruction so to do, drafting a will leaving the entire estate to himself and then seeing to it that the will he drafted is executed by the testator. 32. In his 22 February 2017 affidavit at [46] - [48] Michael Blendell simultaneously seeks to adhere to his previous evidence but also states that it was the testator who suggested to him "in or around July 2015" that she wanted to leave her entire estate to Michael Blendell because "That is the simplest way to avoid a challenge". It is thus unclear from the 22 February 2017 affidavit exactly what the chain of events are said to have been that led to the first draft of the 2015 Will being prepared."
Needless to say, Michael was cross-examined about the topic. He accepted that critical comments made by the deceased about the children, to which he had earlier referred in his first affidavit, "at least in any direct fashion, [did not] involve[d] giving you instructions to how to draft a will": Tcpt, 19 February 2019, p 163(12-14). He said that he thought that the conversation to which he had referred about changing her Will had occurred in January or February 2015. He also accepted that in the first affidavit, there was no specific reference to the conversation in which the deceased told him that she wanted to leave the whole of her estate to him, but stated that "she made the statement that she wished for me to be sole beneficiary and executor": Tcpt, 19 February 2019, p 165(2-3). He could not remember when, precisely, the draft of the 2015 Will was prepared but stated in his affidavit that when he typed it on the computer, the deceased had read it on the screen.
Michael said, referring to paragraphs [21] and [22] of his first affidavit (Tcpt, 19 February 2019, p 167(2-6)): "Between 21 and 22 she refined precisely, gave me precise instructions as to how she wanted to proceed, how she wanted her will to read and then the draft was typed with her next to me and I progressed to reading it aloud to her and then printing it out and handing it to her."
He also gave evidence that he thought it was "a short period" between when the draft was typed to when it was printed, read, and, then, executed, in the presence of Mr Gallagher and Ms Gallagher, by the deceased: Tcpt, 19 February 2019, p 168(17-24).
Michael also gave evidence that prior to late June 2015, he had no inkling that the deceased was going to make him the sole beneficiary of her estate: Tcpt, 20 February 2019, p 207(7-13). He was then asked some questions about a passage that appeared in the Application for Migration by a Partner, electronically lodged on 4 March 2015 (at Ex. 2/217) which stated: "We are each aware of the other's personal and financial situation and broadly that of each other's relatives … As for our wills, my entire estate passes to my husband except for a lump sum payment for our sole grand-daughter and minor charitable grants. I am his executrices [sic] with his estate split twixt our four children after a lump sum payment to his said grandchild and sundry personal chattel bequests."
Although Michael, in the witness box, could not remember whether he, or the deceased, had typed this passage, I consider that it was more likely to have been him (because of the use of the word "twixt") than her. He had stated, in his affidavit affirmed 22 February 2019, at [42], however, that they had discussed what was to be inserted in that document and had written that at the time of completing the application, the deceased had said: "Include that I have left you my entire estate apart from a lump sum to Erika and some minor gifts to charity. I have not decided whether to leave Erika in yet as I am concerned it may trigger a challenge from at least one of the children and you've already made her a beneficiary of your will."
In regard to the deceased having seen the application, it seems that an "auto-letter generator" email, received by Michael, was forwarded to the deceased in March 2015. Senior counsel for the Defendants pointed out, correctly, that there was no indication in the auto-letter generator email that a copy of the actual application, which contained the passage to which I have referred, had been forwarded to the deceased, but only that the acknowledgement of the application having been received, was forwarded to her by Michael.
Doing the best I can by carefully perusing the copy documents in evidence, it appears that the auto-generator email shows that it was sent to Michael at 3:23 p.m. EST (Sydney time) on 4 March 2015; that the auto-generator email contained the statement "This email and the attachment(s) was sent to Michael at [his email address]"; that the copy application in Ex. 2/199-223 was generated at "15:23:05 EST" (Sydney time), which suggests that it was an attachment and that it was generated at the time the email was sent to Michael (remembering that Sydney NSW is 3 hours ahead of Hong Kong); that the email, with the attachment, was received by Michael at 12:23 p.m. (Hong Kong time); that it was simply forwarded on by Michael to the deceased at 4:10 p.m. (Hong Kong time) on that day; and that the deceased acknowledged its receipt in an email at 9:04 p.m. on that date, writing "I suppose you have to just wait now": Ex. 2/198.
(It is not expressly clear, from the evidence, whether 9:04 p.m. refers to Sydney or Hong Kong time. However, it does not matter whether the email was sent by the deceased at 9:04 p.m. (Sydney time) or was received by Michael at 9:04 p.m. (Hong Kong time). What is important is that the deceased acknowledged receipt of the auto-generator email following it having been sent to her by Michael.)
Michael also gave evidence that it was in July 2015 that the deceased told him that she had decided that she wanted "everything" to go to him, that being "the simplest way to avoid a challenge". She also said that this would shift the burden onto him, as he would have to decide to whom he would make provision. She also said that she did "not care if you give any, or all, of the kids, a brass razoo".
In cross-examination, Michael was also asked some questions about having told Julian, in a WhatsApp message, that (Tcpt, 19 February 2019, p 169(9-13)): "I never got into her ear in terms of the will and made it crystal clear I neither wanted to be her executor nor beneficiary because of the hand beyond the grave legal concept."
He said that he had not wished to be either the executor, or beneficiary, but when the deceased said that this is what she wished to do in her Will, he did not argue with her. He repeated when asked (more than once) that it was the deceased's decision to leave the whole of her estate to him, saying that she "decided that is the way - she was tired of, of trying to work out in her own mind how she wanted to split up - how she wanted to change her will and she made a decision that that was the easiest way in her mind for doing it, of doing it": Tcpt, 19 February 2019, p 169(25-29). He repeated similar evidence at Tcpt, 19 February 2019, p 178(43) - p 179(5), p 185(5-30).
In relation to the meaning of "hand beyond the grave", Michael said that he understood the term to mean "her inability to be able to control, once the children had the money, what they did with it": Tcpt, 19 February 2019, p 184(13-16). This seems a plausible explanation of the meaning of the term and there is no reason to not accept that it was the way in which both the deceased and he understood the term.
He also gave evidence that he had discussions about the 2007 Will with the deceased. His evidence is supported by emails passing between them on 6 June 2007: Ex. 2/45-47. It is in one of these emails that a reference is made, by Michael, to "hands from beyond the grave do not really work going forward (in terms of Denise)".
Michael gave evidence, in his affidavit, about many conversations with the deceased after 2007, in which she stated a desire to change her Will. He provided evidence of the deceased having said, collectively of their children: "I cannot bear to think of my money being wasted by any of them with no long-term benefits."
Michael gave evidence in answer to a question regarding whether he realised that the terms of the 2015 Will would cause great resentment, envy and fury (with editorial corrections) at Tcpt, 19 February 2019, p 179(33-41): "I realised it would cause some resentment but I did not believe that my children were, were rapacious and greedy and I thought that they would naturally accept the fact that, in effect, she'd kicked the can down the road and that they would get it when I died. To the point that the day I returned to Hong Kong after my wife had, had been, had been buried I made a will mirroring in terms of, of, in terms of the full progeny mirroring the 25% split after only one material, only one material bequest before that."
In response to questions relating to why the deceased did not have the 2015 Will prepared by a lawyer, Michael maintained an earlier written response that she "did not wish to waste any more time or money on testamentary lawyers": Tcpt, 19 February 2019, p 183(44-50).
To assess Michael's credibility, I pay attention to his demeanour in the witness box, which I had a good opportunity to observe, as he was subjected to cross-examination, over some hours, on two days; to the inherent probabilities of his evidence, and to the contemporaneous documents.
Overall, and notwithstanding his financial interest in succeeding in the Probate proceedings, Michael's evidence, supported by other evidence, was not shaken. Whilst, at times, he appeared to me to be somewhat defensive, or as his senior counsel described it "frustrated" and "a bit garrulous" (Tcpt, 25 February 2019, p 346(29-31)), I found him to be a witness who was endeavouring to give a truthful account of how he dealt with the deceased and the way in which he had prepared the 2015 Will. I am satisfied that I should accept his evidence.
I must also remember that the principal, albeit not only, criticisms relate to the timing of the events about which he gave evidence. However, in regard to the timing of those events, the circumstances of the deceased suffering from a terminal illness, and Michael having to juggle attending to her and also attending to work related matters, must be remembered. In this regard, I note that the deceased was not critical of his efforts to look after her.
(In this regard, there can be no doubt that Denise's evidence is littered with dates that appear to be inaccurate. I do not point this out as a criticism, but simply note that it is unlikely that any of the members of the deceased's family, at the time, was focussed on the precise date of a specific event.)
This does not mean that Michael was a witness "whose credibility is so transparent that the Court is confident to rely upon the witness' evidence, even in the absence of objective corroboration": Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866, per Robb J, at [363]. He, as earlier stated, like Denise, Julian and Dominic, was highly self-interested, given the terms of the 2015 Will, and there was also the feeling of indignity in having to explain the events to his own children.
That a significant part of his evidence, namely that the deceased appeared to know, and to understand, what she had done in making the 2015 Will, was corroborated by Nicholas, is important in assessing his credibility. That she did not complain about him attempting in any way to influence the terms of the 2015 Will also corroborates his evidence that he did not do so. That another part of his evidence, going to his relationship with the deceased, was supported by a sworn statement from each of the deceased, and from Julian, (as will be read), is also important. (Despite Julian's later evidence about his Statutory Declaration, I consider it to be of significance.)
I accept that an error of judgement may have been made in not having an independent solicitor draft the 2015 Will, or provide independent advice to the deceased, but those were decisions in which the deceased, herself, participated. (In this regard, it has been noted that she did not accept an offer, made by Nicholas, to see a solicitor before the 2015 Will was executed. That, again, she did not take up the offer to do so when she spoke to him in August 2015 is also relevant. There is no suggestion that Michael was present during either of the conversations with Nicholas.)
Perhaps, keeping the contents of the 2015 Will from Denise, Julian and Dominic until after the deceased's death was also an error of judgement, but it is not clear when, or if, each of them had been told by the deceased about the contents of the 2007 Will.
Ultimately, it seems to me, in relation to the 2015 Will, the conversation the deceased had with Nicholas, in August 2015, and the document that she signed in October 2015, in which she stated the substance of the terms of that Will, corroborate Michael's evidence that the 2015 Will was what the deceased wanted to put into place. Coupled with her lack of complaint to anyone about his conduct, or about the terms of the 2015 Will that he had prepared, and which she then signed, in the presence of two independent witnesses, I am satisfied that Michael's evidence, overall, should be accepted.

[25]

Julian

Throughout the proceedings, Julian maintained that his parents had been separated. Yet, he made a Statutory Declaration (Ex. G), to which I shall refer later in these reasons, which is inconsistent with this evidence. He gave evidence that he "prepared and signed [the document] in support of [Michael's] return to Australia in support of a particular visa application"; that he had read the document, before he signed it; that he knew that giving false or misleading information was a serious offence; and that there were, or may have been statutory penalties under the legislation if he made a false statement: Tcpt, 25 February 2019, p 327(1-25).
Despite the fact it was inconsistent on this topic with his evidence in this case, he was not prepared to concede that either his evidence on the topic was false, or what he had written in the Statutory Declaration, was false. He simply said that what was in the Statutory Declaration was "incorrect". He said that (Tcpt, 21 February 2019, p 325(20-22): "Something being false is more something being done calculating and deliberately, something incorrect is a mistake being made without any intention to mislead."
Bearing in mind the way in which the Defendants' case was presented, so far as it related to the marriage relationship of the deceased and Michael, it is hard to accept that one version of his evidence was not false.
In my view, the version advanced by Julian, of his parents' marriage being a marriage in name only, should not be accepted. It is inconsistent with much of the other evidence that I have read and heard. I found his explanation, when confronted with a copy of his Statutory Declaration, that he could "not recall whether [he] actually composed what is in point 5 or not" to be unreliable (Tcpt, 21 February 2019, p 327(50)).
There were other aspects of Julian's evidence that I also do not accept. He gave evidence that his estimate of the value of his home unit in Neutral Bay, in June 2017, and also in April 2018, was $750,000 and that a week before the commencement of the hearing, it was $650,000.
In my view, this estimate of value was really a guess on his part. He did not personally inspect any of the other units that were for sale or that were sold, which he said he used as a comparison, although he said that "I inspected them online … so I had pictures" (Tcpt, 21 February 2019, p 312(36-44)); indeed, he did not even identify them in his evidence; nor did he suggest any expertise in the valuation of real estate.
The same criticism may be made of Julian's evidence of the value of Joanne's unit in Cremorne, which he had written, in his April 2018 affidavit, had a value of $1,200,000, but which he later said had fallen to $950,000 in less than 12 months: Tcpt, 21 February 2019, p 313(27) - p 314(2).
He also gave evidence that the contents of Joanne's unit had dropped from $20,000 to $15,000. However, there was the suggestion, which he could not dispute, that the insurance value of the contents was shown as $80,200 (in May 2017 - 2018): Ex. F.
Another aspect of Julian's evidence that I find implausible is his statement that he did not recall Nicholas telling him, after the death of the deceased, that the deceased had told Nicholas that Michael was to receive the whole of her estate: Tcpt, 21 February 2019, p 322(20) - p 323(5). Each of Dominic and Denise acknowledged that a conversation, with Nicholas, had taken place a short time after the deceased's death. It is more likely than not that Nicholas would have had a similar conversation with Julian.
When the Court raised with him the apparent inconsistency in his evidence, Julian gave the following evidence (at Tcpt, 21 February 2019, p 328(49) - p 329(19)): "Q. The other thing I wanted to ask you was this. Mr Ellison asked you a question about whether you had any conversation with any of your siblings in relation to your mother having made a will. Your answer was - that is, after her death and your answer was you had a conversation with Nicholas and Dominic together. "Dominic was in Sydney, still being here as he had arrived before her death." A. Right. Q. But then you said you couldn't recall the conversation. I didn't quite understand your evidence. Did you have a conversation after your mother's death with Nicholas and Dominic, whilst Dominic was in Sydney, in relation to your mother having made a will in which she left the whole of her estate to your father? A. Yes. Q. That was shortly after her death? A. Yes. Q. That was at a much earlier time than when you were required to write the affidavits? A. Yes."
Overall, I was somewhat unimpressed with Julian's evidence. I found that it lacked balance and perspective. However, on a more positive note, I do accept that he had a close and loving relationship, overall, with the deceased. I consider that an event in late 2014, in which they had a disagreement, which was described by the deceased in an email dated 20 October 2014 as one resulting in him not seeing her for 3 months: Ex. 2/110 and an email dated 13 November 2014, from the deceased to Julian, in which she referred to being treated "over the years … appallingly with your rudeness" and of having to "put up with so much rudeness and ingratitude…": Ex. 2/124 does not reflect their relationship overall. (I note, in this regard, that in a subsequent email, the deceased apologised for a part of what had been written by her earlier, although the apology does not seem to refer to the part of the earlier email that I have quoted: Ex. 2/125.)

[27]

The relationship of the deceased and Michael

There can be no dispute that the deceased, at the date of her death, was the de jure wife of Michael. In all, they had known each other for about 53 years and they had been married for over 50 years. It was not suggested that there had been a divorce order made in relation to their marriage.
I have referred to the assertion that the deceased and Michael had separated in 1992. Michael asserted that despite the fact that they did not live under the one roof all of the time, they continued as a couple, although they were living apart geographically.
Whilst there can be no dispute that, from about 1992, the deceased lived in Australia and that Michael lived, for the most part, in Hong Kong, there is also no dispute that they maintained direct, and indirect, contact at all times thereafter.
The evidence, which I accept, reveals that, thereafter, they communicated regularly, and often; that Michael frequently visited Australia, including for 10 board meetings a year of Optus Communications, of which he was a founding director, for at least one week's duration per visit; and that they attended, together, family birthdays, wedding anniversaries, and Christmas and New Year celebrations. When in Sydney, they lived, and they socialised, together, with family and friends.
There is no evidence that the deceased had either formed the intention to end the marriage, or that she had communicated such an intention, to Michael. Indeed, there is only one conversation, about which Julian gives evidence (and which Michael did not really dispute although he could not remember it) in which the deceased mentioned divorce to Michael.
Michael gave evidence that the conversation had occurred "in the heat of the moment": Tcpt, 19 February 2019, p 141(12-18). Accepting that the conversation occurred, there is no evidence at all that the deceased acted upon any desire before, or after, the conversation to obtain a divorce order or of consulting a lawyer about the dissolution of her marriage, or about the adjustment of matrimonial property interests.
There is also no evidence of the deceased saying to any person, including to any of their children, that she regarded the marriage to their father as having irretrievably broken down. One might have expected her to do so, as all of the children were adults and each was living separately and apart from the deceased for many years prior to her death.
(In stating the above, I accept that the law is unclear about the extent to which the breakdown of the marital relationship must be communicated to other people: Campbell & Cade [2012] FMCAfam 508, per Scarlett FM, at [28]).
The Defendants pointed to the tone of email correspondence sent by the deceased in 2014: Ex. 2/75-80; Ex. 2/84-85; Ex. 2/120-123. Whilst these emails are strongly worded, they are not indicative of the manner in which the deceased and Michael reacted, generally, one with the other. Furthermore, all appear to relate to the person referred to as "Aubrey".
Michael admitted in an affidavit affirmed on 13 May 2018, that "over the years I had the odd intimate relationship outside of the bonds of marriage". He says that the deceased "was aware of this and, although from time to time she voiced some criticism, she never expressed the view that my extra-marital relationships would alter our commitment to each other as husband and wife".
More time than was necessary was spent cross-examining Michael about this topic. Whilst it was, of course, a relevant topic for cross-examination, going as it does to the assertion that the deceased would have been unlikely to make a Will in his favour because of that conduct, I have the suspicion that instructions for that cross-examination were given for the principal purpose of embarrassing Michael and to demonstrate the indecency and impropriety of his conduct.
It is clear that the deceased was well aware of what Michael had done and had reacted, in her own way, to that conduct. There is an email dated 28 February 2015, sent from the deceased to Mr Gallagher (Ex. 2/192), in which the deceased writes: "49 years tomorrow anniversary, if [P]rince Phillip deserves a knighthood I should get whatever comes after that."
This demonstrates, at least, a sense of humour about her marriage relationship with Michael.
There is another email, dated 15 March 2015, from the deceased to Barry Holmes (Ex. 2/231) in which she writes: "I can't begin to tell you what a brick MJB has been, not only, cook, cleaner, shopper, washerwoman, ironer, running to pharmacies to pick up medications, talking to doctors and doing paperwork, but worst of all, during those diarrhoea bouts, seeing to me every five to ten minutes whilst they were going on…"
Bearing in mind what she wrote in the Statutory Declaration of October 2015, she seemed to have forgiven his conduct, or at least not regarded it as having damaged their marriage relationship to the point of its extinction.
Although well after the 2015 Will was executed by her, in an email dated 22 May 2016, the deceased described Michael as having "been an angel": Ex. 2/452.
Ms Holmes wrote that the deceased "spoke fondly of all of her children, and lovingly of her husband, Michael, whom [sic] she said 'worked overseas but visited often' and during her illness 'Michael is very good at looking after me'".
Denise admitted that her parents would meet, she says, usually at Christmas or on the deceased's birthday. She also admitted that, after 1992, when Michael would come to Sydney for business, he would stay at a five-star hotel, where the deceased "would usually join my father and stay at the hotel he was staying at with him". She also gave unchallenged evidence that in 2000, she and the deceased travelled to the United States, met Michael in New Orleans and visited Las Vegas together.
Denise also admitted that in 2015, the deceased and Michael travelled together to Malaysia and that she visited them there. The deceased told Denise that Michael was taking her on an overseas trip to Europe in July 2015, which he did.
Despite the assertion made by Julian that his parents were separated, Julian made a "Statutory Declaration by a Supporting Witness in relation to a Partner visa application" (Ex. G), dated 13 October 2015, sent to the Australian Government Department of Immigration and Border Protection, in which he stated: "3 State how you know the applicant and the applicant's partner or fiancé(e) and indicate how often you have been in contact with them Both Applicant and Sponsor are my biological parents who got married in London in 1964. I lived with both of them until the age of 18. Since I moved out of the family home, I have always maintained regular (at least weekly) contact with them both, irrespective of whether they were in the same location. My father and mother only lived apart a protracted period because of my father's work commitments. It was apparent they kept in more of less daily contact and explicit that he continued emotionally and financially to support my mother and/or siblings - she ceased to work as a Private Secretary from the time my sister was born in 1968 - while physically away from Sydney. 4 State whether you believe the relationship of the applicant and his/her partner or fiancé(e) to be genuine and continuing, and give your reasons for your belief My parents have always maintained a loving relationship and jointly took very good care of me, my two younger brothers and elder sister whether both under the same roof or not. My father has travelled regularly to Sydney on business since the mid 1990's, invariably ensuring his presence when one of us had a birthday or at Christmas. My parents (and usually the rest of the family) have always been together at special times, such as their wedding anniversary. My father has never failed to provide financial and emotional support to my mother; and always been there in the same capacity for his children, even when adults with children and spouses of their own. 5 State any other matters you wish to add in support of the visa application The only reason my mother decided to return to Australia from Hong Kong during the 1990's was that I and two other siblings had left school in Hong Kong and headed back to Australia: the youngest to continue his education at Scots College. The other factor was my father's heavy global, business travel schedule. There was never any hint that this was as prelude to divorce or legal separation; just that they maintained a loving and supportive relationship from a distance for revenue/income reasons. Phone calls were super frequent, to be replaced by emails in later years and in the case of me and my siblings, evermore by texts. Additionally, my mother has on innumerable occasions met up with my father in both Europe and Asia (when he was in those areas for business) so as to spend extended periods of private time together."
Although Julian said that he only wrote the Statutory Declaration for his dying mother, I am of the view that what is written is consistent with much of the evidence, otherwise given, in the case. It is highly unlikely that he would have written the Statutory Declaration for the deceased, or that she would have wanted him to do so, if her view of her relationship with Michael was as the Defendants assert. Each would have been well aware of the obligations to a government authority to tell the truth and the penalties for not doing so. (It is to be noted that Julian described his occupation in this document as "Fraud Analyst".)
Importantly, also, there is no suggestion that Michael ceased to maintain his ongoing responsibilities to the deceased and to the children, for whom he provided, even whilst living in Hong Kong after 1992.
It was accepted by the Defendants that, after learning of the deceased's diagnosis with a brain tumour in November 2014, Michael came to Australia on 25 November 2014, and from 5 December 2014 (after she was discharged from hospital) became her primary carer for the remainder of her life. He lived with the deceased at the Cremorne property whilst he was in Sydney.
Following his return to Sydney in November 2014, apart from travelling overseas on pressing matters, Michael attended medical appointments with the deceased, including consultations with various doctors, palliative care nurses and the deceased's psychiatrist.
In April 2015, the deceased wrote to Dominic thanking him for some payments that he had made and asking him to get some keys cut for the Malaysian property. She asked for several keys to be cut, including one for Michael: Ex. C/47.
In May 2015, the deceased and Michael travelled to Kuala Lumpur, only returning to Sydney on 16 June 2015. The deceased travelled again, alone on this occasion, to Kuala Lumpur between 19 August 2015 and 13 September 2015. She and Michael then went to Hong Kong for two days, then to London and Portugal (between 16 and 24 September 2015), returning to Sydney, via Hong Kong, on 27 September 2015.
In June 2015, the deceased and Michael wrote and signed a joint birthday card for Dominic.
On 28 November 2015, the deceased sent an email to Dominic noting that he had forgotten Michael's birthday and describing Michael's then condition having passed out from heat stroke: Ex. 2/408.
In about March 2016, three months before her death, the deceased and Michael travelled to Hawaii to celebrate their 50th wedding anniversary. In a "Consult Letter to GP" transmitted on 23 February 2016, prepared by a Clinical Nurse Consultant at Greenwich Community Palliative Care Service, it was noted that "Both Noeline and Michael were both more relaxed this visit, they are looking forward to a trip to Hawaii to celebrate their 50th wedding anniversary" and that the deceased had said that she wished "[t]o enjoy her upcoming holiday": Ex. 2/435-436.
(The deceased repeated the sentiments in an email dated 24 February 2016, that she wrote to Dr Horadam, her medical practitioner: Ex. 2/437.)
Hospital Progress Notes for 14 April 2016 record that the deceased reported that apart from "severe diarrhoea", "nothing else was bothering her": Ex. 2/440.

[28]

The relevant law on the topic of separation of married couple

Marriage is celebrated in accordance with a formal process prescribed by legislation (Marriage Act 1961 (Cth)) and is proved by a Certificate issued pursuant to that legislation. The legal status is immediately created at the time of the public ceremony and registration of the certificate of marriage. It is also trite to repeat that marriage involves many elements, some, or all, of which may be present in a particular marriage.
It is ended by a divorce order based on the ground that the marriage has broken down irretrievably, which order is made, if, and only if, the court is satisfied that the parties separated, and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order: s 48 Family Law Act 1975 (Cth).
In this case, there is no suggestion that the deceased and Michael were divorced at any time.
In In the marriage of Todd & Todd (No 2) (1976) FLC 92-008 Watson J referred to the meaning of "separation", and wrote, at 75,079: "...[i]n my view "separation" means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case."
The Full Court of the Family Court in Pavey & Pavey (1976) FLC 90-051; [1976] FamCA 36 expressed their general agreement with the comments of Watson J in Todd & Todd (No 2) (but disapproved of the use of the words "destruction of the marital relationship" and approved the wording in the Act itself, namely the "breakdown" of the marriage). The Court added (at 75,214; [31]): "...it is not possible to apply some mathematical formula to these activities and determine whether a "separation" has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation."
The determination to sever, or not resume, the marital relationship can be the decision of one party. However, there must be the communication of the intention to sever, or to not resume, the marriage relationship to the other party. Whilst that communication may be spoken or unspoken, it should be unequivocal, unconditional and unambiguous: Todd & Todd (No 2), at 75,214, affirmed in Clisbey & Viges [2011] FamCA 611 at [48].
Whether there has been a separation will be a question of fact to be determined according to the circumstances of each case. Parties may live apart, and despite so doing, regard their marriage as continuing: Price & Underwood (2008) 29 Fam LR 614.
It is also important to remember that there is a distinction between actions that connote unhappiness in a marriage and the determination to sever or not resume it. Severance or the determination not to resume the marriage has a distinct finality about it: Vaughan & Bele [2011] FamCA 436, at [13].
I am not satisfied that the evidence establishes that the deceased and Michael were separated, or that she had formed any intention to end the marriage, or that she had communicated any such intention to Michael. To the contrary, there is evidence I accept, that when the deceased was asked by her friend, Ms Gray, how she coped with Michael living overseas, the deceased replied "I have the best of both worlds. I can come and go as I please and can fly around the world".
Bearing in mind the principles referred to, taken with the facts of the case, there is insufficient evidence to satisfy me that the deceased and Michael separated at any time. In addition, there is much evidence of the continuity of association of the deceased and Michael in each other's life after 1992, which demonstrates that they did not act as if the marital relationship had been severed. I have referred to the conduct of each earlier in these reasons. The conduct of each towards the other reflects a mutual commitment to the continuation of a shared married life despite their physical, and geographical, separation.
I am wholly unpersuaded that this plank upon which the Defendants' case rests has been established. It follows that I am unable to be satisfied that the separation of the deceased and Michael was a reason for the deceased making the 2007 Will as is alleged by the Defendants. Similarly, I am unable to find that a separation from Michael was a basis for the deceased not having wished to make a Will in terms of the 2015 Will.
Senior counsel for the Defendants, in oral submissions, developed what he described as a "secondary submission" which was at Tcpt, 25 February 2019, p 355(34-39): "It's a very different situation where one lives with a spouse and has all one's assets comingled and has a 50 year marriage. That when one leads largely separate lives, except for the final period just before the deceased died, and when one acts in a way to effectively separate out my assets from your assets, and to be in a situation where both parties could quite happily agree in 2007 that the deceased shouldn't leave any money at all to Michael Blendell".
Senior counsel maintained that "by 2007, the deceased with Michael Blendell's consent, was leaving him no property": Tcpt, 25 February 2019, p 356(31-32). Even if that were so, that was the position in 2007. There is simply no evidence that she continued to be of the view that she should leave him no property when it came to her decision to change the 2007 Will. To the contrary, both the 2015 Will and the 2016 Will reflect the deceased's change of view.

[30]

Knowledge and Approval

There is no dispute in the present case that the 2015 Will was duly executed. Importantly, it is accepted that the deceased signed the 2015 Will.
In Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371, although a case involving an informal testamentary instrument, I dealt with the importance of the deceased's signature on a testamentary instrument. At [104]-[107], I wrote: "A signature, placed at the foot of a testamentary document would, in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch. 90 (C.A.) at 111. The object of a signature on a testamentary document was recently considered in Marley v Rawlings [2012] EWCA Civ 61; [2013] 2 WLR 205. After referring to Wood v Smith, Mrs Justice Proudman, at [51], wrote: 'Scott LJ's observation that the object of a signature by a testator is "to authenticate the written document in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision. Part of the motivation for the original requirements as to the position of the signature on a will was, it seems to me, the desire to provide a simple and reliable way of establishing, without oral evidence, that the will contained the provision that the testator wished to make. So initially the signature executing the document had to be at the foot or end of it and therefore almost inevitably had to be applied after the substance of the will had been set out, and even when that was relaxed in the 1852 amendment, it was still provided that no signature would be operative to give effect to any disposition or direction underneath or following it or which was inserted after the signature was made. In support of this view of the purpose of the signature, it is worth noting that in devising rules to apply after the Wills Act, in Guardhouse v Blackburn (1865-69) LR 1 P & D 109 at 116, Sir J P Wilde included the following: "Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents."' While dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative: In the Estate of Kiepas (Dec'd); Twemlow v Kiepas [2004] NSWSC 452. The document, itself, must also be considered in context (Estate of Gwendoline Myrtle Wray; Public Trustee v Commins; Masters v Cameron [1954] 91 CLR 353; The Estate of Silady (NSWSC, 21 November, 1994, unreported). An intention that the document be the will of the person who wrote it may be inferred from the physical form of the document itself: The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111; In the Estate of Margaret, Deceased, [2012] NSWSC 1490, at [31]."
As stated, there is also no dispute that the deceased had testamentary capacity at the time she made the 2015 Will. However, in addition to showing that the deceased had testamentary capacity, Michael, as the propounder of the 2015 Will, must also show that the deceased knew and approved its contents. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton [2005] WTLR 99, at 108, per Peter Gibson LJ and 117, per Chadwick LJ; Perrins v Holland [2009] EWHC 1945, at [45], per Lewison J.
Yet, there is a logical link between testamentary capacity and knowledge and approval, although each poses a different question. The test of capacity is concerned with whether the deceased had the ability to understand that she or he is executing a Will and the effect of doing so. Knowledge and approval focuses on whether the deceased actually knows and understands the content of the document that is being executed as a Will and intends that those terms should be incorporated into, and given effect, by the Will. Where that knowledge and approval is lacking the Will is invalid.
Michael, as the proponent of the 2015 Will, must satisfy the Court that it is the last will of a "free and capable" testatrix: Bailey v Bailey (1924) 34 CLR 558, at 570; [1924] HCA 21; Timbury v Coffee (1941) 66 CLR 277, at 283; [1941] HCA 22.
Upon proof of testamentary capacity and the due execution of a Will by the deceased, there is a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the deceased.
The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour wrote, at 528: "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
Traditionally, a two stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not "excite suspicion", then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity.
However, perhaps a single stage approach, as suggested more recently, by Lord Neuberger in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430, at [22], is more appropriate: "Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in In Re Crerar (unreported) but see (1956) 106 LJ 684, 695, cited and followed by Latey J in In re Morris, dec'd [1971] P 62, 78 namely that the court should: 'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.'"
I should also refer to the judgment of Lewison LJ in Simon v Byford [2014] EWCA Civ 280, at [47]: "When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed. The reason for the requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland [2010] EWCA Civ 840; [2011] Ch 270 at [25]. Normally proof of instructions and reading over the will will suffice: ibid at [25]. The correct approach for the trial judge is clearly set out in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380. It is a holistic exercise based on the evaluation of all the evidence both factual and expert."
Baron Parke, giving the advice of the Privy Council in Barry v Butlin (1838) 2 Moo PC 480, at 482-483; 12 ER 1089, at 1090, wrote: "The rules of law according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present Appeal … These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased."
Baron Parke was careful to stress that the second rule was concerned with proof of knowledge and approval, that it did not automatically apply, and that it did not displace the usual rules concerning the burden of proof. Continuing from the passage cited above, his Lordship stated, at 484-485: "...... it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove the knowledge of its contents by the deceased. A single instance, of not infrequent occurrence, will test the truth of this proposition. A man of acknowledged competence and habits of business, worth £100,000, leaves the bulk of his property to his family, and a Legacy of £50 to his confidential attorney, who prepared the Will: would this fact throw the burthen of proof of actual cognizance by the Testator, of the contents of the Will, on the party propounding it, so that if such proof were not supplied, the Will would be pronounced against? The answer is obvious, it would not. All that can be truly said is, that if a person, whether attorney or not, prepares a Will with a Legacy to himself, it is, at most, a suspicious circumstance , of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the Legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased."
In Tyrrell v Painton [1894] P 151, Lindley LJ, at 157, observed: "The rule in Barry v Butlin, Fulton v Andrew, and Brown v Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." (Footnotes omitted)
Davey LJ, at 159-160, wrote: "It must not be supposed that the principle in Barry v Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed." (Footnotes omitted)
These statements of law in Tyrell v Painton were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see Leona Johnson (Deceased) [2015] SASC 51, per Gray J, at [7].
In Wintle v Nye [1959] 1 WLR 284, the Court wrote, at 291: "It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed."
Thus, the suspicious circumstances considered are circumstances attending, or at least relevant to, the preparation and execution of the will itself: Fulton v Andrew (1874 - 1875) LR 7 HL 448, at 470-471. Although the circumstances to be considered generally comprise contemporaneous events, they might also include events after the execution of the will where those events have a direct bearing on the question whether the deceased knew and approved of its contents at the time of execution: In the Estate of Musgrove [1927] 1 P 264, at 286.
When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense.
In McKinnon v Voigt [1998] 3 VR 543, Tadgell JA, at 556, stated: "The case of Tyrrell v Painton illustrates very well the point that, where there is cast upon a propounded will a well-founded suspicion that it might not represent the mind and will of the person whose will it is represented to be, no grant will be made before the circumstances which raise the suspicion are explained so as to dispel it. The principle is the same whatever be the facts and circumstances which create the suspicion. It must be so whether the objection is, on the one hand, that the document, although executed by the deceased person, does not for some reason represent his mind and will or whether it is, on the other hand, that the document was not executed by the deceased at all."
In Bella-Lewis v Thompson [1996] QCA 27, at 451, McPherson JA (dissenting in the result) said of the circumstances able to raise a suspicion concerning knowledge and approval that, except, perhaps, where the will is retained by someone who participated in its preparation or execution, or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death".
I have written in The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603, at [125], that if a party writes, or prepares, a Will, under which he takes a benefit, that is a circumstance that ought, generally, to excite the suspicion of the Court, and one that calls upon the Court to be vigilant and jealous in examining the evidence in support of the instrument. Unless the suspicion is removed, and the Court is judicially satisfied that the paper propounded does express the true Will of the deceased, the Court ought not to pronounce in favour of its validity. The suspicion may be roused in varying degrees depending on the circumstances and what is needed to dispel those suspicions will vary accordingly: Fuller v Strum [2002] 1 WLR 1097 (CA), Peter Gibson LJ, at 1107. In other words, the extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case: Re Martin; MacGregor v Ryan [1965] S.C.R. 757, at 766.
In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA, at [47]-[48], wrote: "Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator. In this context the statements prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995." (Omitting citations)
His Honour also wrote, at 772-773, [51]: "Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the court … that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt … However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie … ; Nock v Austin … ; Vout v Hay … At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye …" (Omitting citations)
Ultimately, in satisfying itself that the deceased knew and approved of the contents of the Will, I also remember the useful dictum of A Cheung J in Ip Wai Hung v Yip Man Chiu [2007] HKCU 2108 at [74]-[75]: "One must not be misled by the requirement that the court's 'suspicion' be dispelled into thinking that unless each and every relevant or 'suspicious' circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will. To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will. Relevant or "suspicious" circumstances are pointers. They are not the end in themselves. For the court's ultimate task is to see whether the court's "suspicion" can be removed, i.e. the suspicion that the testator did not really know or approve of the contents of the will. Its task is not to see to it that each and every "suspicious" circumstance surrounding the making of the will is satisfactorily explained even though the two are to some extent, depending on the facts of each case, inter-related. One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents. In those cases, the court's duty is to pronounce in favour of the will. Furthermore, one must not forget the general principle in probate cases that a testator is quite entitled to be moved by capricious, frivolous, mean or even bad motives in making his will."
Because undue influence has also been alleged, it is important to note what was written in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [193]-[194], and [197]: "The circumstances sufficient to displace the presumption of knowledge and approval must give rise to a suspicion that the testator either did not know the true contents of the will or did not assent to them. Circumstances that arouse a suspicion only of fraud or undue influence will not displace a presumption of knowledge and approval. But circumstances arousing a suspicion of fraud or undue influence will often also support a well-grounded suspicion about the testator's knowledge and approval. Evidence adduced to allay a suspicion about knowledge and approval need not also be sufficient to allay any suspicion of fraud or undue influence. In Tobin v Ezekiel, Meagher JA said: 'Approval in this context does not include that in addition to knowing what he or she was doing, the testator executed the will in the absence of coercion and fraud.' …a testator may yet know and approve the contents of his or her will, even though the will does not reflect his or her true intention because its preparation is tainted by coercion or fraud. Approval, in this context, concerns whether the testator has given his assent to the contents of the will, of which he has a full appreciation. Approval does not entail that the testator's will was not overborne; nor does it entail that his approval was not procured by fraud. Hence a testator cannot be said to have not approved the contents of his or her will where he or she would not have approved its contents in the absence of coercion or fraud." (Footnotes omitted)

[31]

Undue Influence in Probate

The classic description of undue influence is that of Sir J P Wilde in Hall v Hall (1868) LR 1 PD 481, at 482: "To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeal to the affections or ties of kindred, sentiment or gratitude for past services, or pity for future destitution, or the like - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not a record of someone else's."
I dealt with the principles that apply in relation to undue influence in Probate in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275, at [263]-[276] as follows: "Undue influence in probate is to be distinguished from the equitable doctrine of undue influence. In order to render a will void, there must be influence which can justly be described by the court to have caused the execution of a testamentary document pretending to express the deceased's mind, but which really does not express her, or his, mind, but something else which she, or he, did not really mean: Boyse v Rossborough (1857) 6 HL Cas 2; 10 ER 1192, at page 1205; Craig v Lamoureux [1920] AC 349 at 357. In probate, 'persuasion, or influence, or importunity is not sufficient unless it amounts to coercion, that is, unless the testator is prevented by the persuasion, influence, or importunity from exercising free will'. (See: 'Wills and Intestacy in Australia and New Zealand', Hardingham, Neave and Ford (2nd Ed).) Perhaps, in light of submissions made in this case, what was said by Sir John Nicholl in Williams, formerly Cook v Goude (1828) 1 Hag Ecc 577 (at 581) is relevant: 'The influence to vitiate an act must amount to force and coercion destroying free agency - it must not be the influence of affection and attachment - it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion - by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.' See also Hall v Hall (1868) LR 1 P & D 481; 32 JP 503 in which Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment: Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker [2007] NSWCA 136 at [63]; (2007) 14 BPR 26,867. In relation to the degree of coercion required, Hannen P stated in Wingrove v Wingrove (1885) LR 11 PD 81 at p 82-83, in a passage quoted in Winter v Crichton (1991) 23 NSWLR 116 at 122: 'The coercion may, of course, be of different kinds, it may be in the grossest forms such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion though not actual violence.' Coercion is pressure that overpowers the volition of the deceased. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes the deceased to succumb for the sake of a quiet life, if carried to an extent that overbears her or his free judgment, discretion or wishes, is enough to amount to coercion in this sense: see, for example, Miller v Jones [1999] NSWCA 467; Edwards v Edwards [2007] WTLR 1387 at [47]. Yet, it is important to remember that undue influence relates to impairment of judgment, rather than to improper conduct on the part of the person possessing influence: Carey v Norton [1998] 1 NZLR 661; (1997) 16 FRNZ 686. Where, as in the present case, the Plaintiffs allege undue influence, the onus of proof lies upon them to prove the allegation. They must prove it on the balance of probabilities. However, an allegation of undue influence is a serious one, and it is necessary to remember s 140 of the Evidence Act 1995 which says that a Court may take account of the gravity of the matters alleged when deciding if a case has been proved. Vickery J explained in Nicholson v Knaggs [at 130]: 'An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.' Following this reference to Nicholson v Knaggs, Brereton J in Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, at [43], added: 'That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1 NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in probate circles, that the defence has never succeeded in New South Wales]. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation. This accords with well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357): As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49) was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.' … Sir James Hannen P in Wingrove v Wingrove at 83, said: '... It is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case, that power was exercised and that it was by means of the exercise of that power that the will, such as it is, has been produced.' As the Plaintiffs' case is said not to be a circumstantial one, direct evidence of the exercise of undue influence by Alek is relied upon. In such a case, the question to be answered by the court is whether the will of the deceased was overborne, to the requisite degree, by the conduct of the influencer, proved by direct evidence: Nicholson v Knaggs at [116]. Although in many cases, it is said that undue influence is fraud, it is useful to remember that in probate, undue influence and fraud are different concepts. As was said in Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker, at [64] - [65]: 'The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough ; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh[.] On the other hand, fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her.' In looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual."
In Daniel v Drew [2005] EWCA Civ 507, Ward LJ, at [36] said: "… in all cases of undue influence the critical question is whether or not the persuasion or the advice, in other words the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or to withstand the influence. The donor may be led but [he] must not be driven and [her] will must be the offspring of [her] own volition, not a record of somebody else's. There is no undue influence unless the donor if [she] were free and informed could say 'This is not my wish but I must do it'."
Unlike in the case of gifts and other inter vivos transactions (where in certain relationships, undue influence will be presumed), there is no presumption of undue influence in probate law in the case of a will. As was written by Powell J in Winter v Crichton (1991) 23 NSWLR 116: "While, in relation to gifts, or other like transactions, made inter vivos, the relationship between the parties may be such as to leave the Court to presume undue influence, the onus of displacing which presumption lying upon the donee of the gift, or the person benefiting from the transaction in question, where it is asserted that a will, apparently regularly executed - and apparently made by a person of competent understanding, and apparently a free agent, is challenged on the ground of undue influence, the burden of establishing that it was executed under undue influence lies on him who asserts it: as Lord Cranworth LC said in Boyse v Rossborough [1857] 10 ER 1192, 1211, 'Undue influence cannot be presumed.'"
Furthermore, albeit in the context of establishing a relationship of influence, what Gillard J wrote in Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573, at 577, is useful to remember: "The standard of intelligence and education, and the character and personality of the donor, are relevant matters. Age, state of health, blood relationship, experience, or lack of it, in business affairs of the donor, length of friendship or acquaintanceship between the donor and donee and the intricacy of their business affairs may be factors to influence a donor to depend upon the donee. Equally, the relative strength of character and personality of the donee, the period and closeness of the relationship and the opportunity afforded to the donee to influence the donor in his business affairs are correlative considerations to the foregoing."
The physical and mental strength of the deceased will also be relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one: Edwards v Edwards [2007] All ER (D) 46; [2007] EWHC 1798.
To succeed on the claim that the 2015 Will is invalid because of undue influence, the children will have to prove undue influence as a fact. Usually, direct evidence of undue influence is not available. The cases turn upon the strength of the evidence overall. The question is usually whether, taking all of the surrounding circumstances into account, with emphasis upon the terms of the will and the manner in which it was actually executed, undue influence is established.
From the above, it will be appreciated that there is a difference between undue influence and fraud. The difference was dealt with by Mason P in Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136, at [64]-[66]: "The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh. On the other hand, fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her. Fraud embraces a wide category of conduct affecting testamentary disposition. Relevantly, as regards the present case, in The Public Trustee v Mullane (Unreported, Supreme Court of New South Wales, 12 June 1992), Powell J (at 15) gave the following example of fraud capable of invalidating a will: 'wilfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent benefits being received by a natural object of the testator's bounty.'
Because the Defendants raise the claim of undue influence against the husband of the deceased, it is important to remember that Viscount Haldane in Craig v Lamoureux [1920] AC 349, at 356-357, explained: "A will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime … There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done."
It is not necessary for the Defendants to prove impropriety by the person said to have exercised the undue influence: Carey v Norton [1998] 1 NZLR 661 at 670; Green v Green (2016) 4 NZTR 26021; [2016] NZCA 486, at [39]-[40].
In Boyse v Rossborough (1857) 6 HL Cas 1, 51; [1854] EngR 252; 10 ER 1192, at 1212, Lord Cranworth wrote: "The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence; that the instrument, though apparently the expression of his genuine will, might, in truth have been executed only in compliance with the threats or commands of his wife, or that he has been led to execute it by unfounded prejudices artfully instilled into or cherished in his mind by his wife against those who would otherwise have been the probable objects of his bounty. But in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of it having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be influenced which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean. And the relationship of marriage is one where it is, generally speaking, impossible to ascertain how matters have stood in that regard."
More recently, the standard of proof that must be met by the Defendants is as set out in Brown v Guss [2014] VSC 251 per McMillan J, at [393]: "…The party alleging undue influence must show that the circumstances attending to the execution of the will are inconsistent with the will having been obtained other than by undue influence. The standard to which they must show the circumstances are so is on the balance of probabilities. If all they are able to prove is that undue influence and a lack thereof are equally likely, they have not proved their case. They must instead show that on balance, the hypothesis that the testator has been unduly influenced must be more likely than the contrary."

[32]

Determination of the validity of the 2015 Will

I consider that it is necessary to determine, first, whether the deceased knew and approved of the 2015 Will, and only then turn to the matter of undue influence in Probate. If satisfied that the deceased knew and approved of the 2015 Will, and that Michael did not exercise undue influence, it will be necessary to consider the equity proceedings.
It is fair to say that the 2015 Will exhibits some idiosyncratic language. However, Michael has always admitted that he drafted the 2015 Will and it seems common ground that it is in his style of writing.
However, in the present case, the proposition that the deceased knew and approved of the contents of the 2015 Will is very hard to resist. The 2015 Will was signed before two independent witnesses - Mr Gallagher and Ms Gallagher. Neither gave evidence that that there was anything untoward in the circumstances under which it was signed or in the deceased's physical or mental condition at the time.
It is also hard to resist the conclusion that Julian and Dominic, and to a lesser extent, Denise, having read the 2015 Will, have succumbed to feelings of, amongst other things, disappointment, and that they have been able to persuade themselves that evidence exists, which shows that the 2015 Will did not, could not, or was unlikely to, represent the intentions of the deceased, or that there was, because of her state of health, doubt cast on its validity.
This is evidenced by the apparent refusal to accept the significance of the conversation that Nicholas had with the deceased, in August 2015, in which she disclosed the contents of the 2015 Will to him in terms that demonstrate that she understood its contents; that, at no time, after making the 2015 Will, did she make any attempt to change the 2015 Will; that she did not complain to anyone, including each of them, about its contents, or about Michael's conduct in drafting the Will for her; or that she made another Will, in 2016, which has not been the subject of any challenge, in which she also devised the Malaysian property to Michael.
Underpinning the Defendants' allegations of lack of knowledge and approval (and undue influence), is their contention that it is inconceivable that the deceased could have made a will in the terms of the 2015 Will, bearing in mind Michael's conduct. There is a significant measure of disapproval of Michael's conduct during the marriage reflected in the evidence, particularly the evidence of Dominic and Julian. In my view, this, too, has contributed to the way in which the Probate suit was conducted.
Of course, Michael's conduct has some bearing on the assertion made by them that the 2015 Will is inconsistent with the deceased having been aware of the conduct (which clearly she was), but it is not necessary for the Court to judge whether it was wrong, but simply to determine whether it leads to the conclusion that because of that conduct, the deceased would not have made the 2015 Will, but for the influence that he yielded. I am not so satisfied.
Also, the Defendants submit that the reasons given by Michael for the deceased having made the 2015 Will are, namely, that, to provide for her children, it was less risky than making direct gifts to her children out of her estate, or that there was less risk of a challenge to her will if the deceased made a new will without the involvement of a solicitor completely disinheriting her children and leaving everything to Michael.
I am not satisfied that these were the reasons the deceased gave for making the 2015 Will. Michael gave evidence that she had concerns about distributing her estate to her children: "she was painfully aware of the dead hand beyond the grave principle…her inability to be able to control, once the children had the money, what they did with it… the inability to be able to direct or safeguard her money from being squandered on whatever" (Tcpt, 19 February 2019, p 184(15-23), and decided that it would be easier for him to do so: "…so as to kick her conundrum with [the distribution of the estate to the children] either down or off the road"(Ex. 2/724).
Even if the reasons were as submitted by the Defendants, those reasons do not demonstrate a lack of knowledge and approval of the 2015 Will. Julian and Dominic, and to a lesser extent, Denise, do not appear to have accepted the fundamental principle of law, namely that a person with testamentary capacity should, in general, be free to leave her, or his, property as she, or he, chooses, for whatever reason that she, or he, considers. In sum, they attribute the deceased making the 2015 Will to what they perceived as a lack of knowledge and approval or Michael's influence over her.
Having read all of the evidence, I am satisfied that the deceased knew and approved of the 2015 Will that she had signed. In this regard, I am satisfied that she knew that she was making a will, she knew its terms, and she intended that those terms should be incorporated into, and given effect by, the 2015 Will. It was not suggested by the Defendants that the deceased did not understand the effect of its terms.
I have asked myself why the deceased did not have a will prepared by solicitors as she had done with the 2007 Will. There is some explanation in the evidence. Put simply, there was no need to do so. She wished to make a Will that was straightforward and simple. It was to provide for the whole of her estate to pass to her husband of over 50 years. In these circumstances, she (and Michael) believed that the involvement of a solicitor was unnecessary. That is hardly a surprising view or one that is difficult to understand. In addition, both before and after the 2015 Will was made, she rejected the suggestions made by Nicholas that she consult a solicitor.
Finally, on this topic, in my view, there is nothing inherently irrational about the deceased having chosen to leave the entirety of her estate to her husband of over 50 years. Nor is it irrational to leave it to him, when he made his Will, to determine how he should provide for their children. The Court is not required to carry out an objective assessment of the fairness, or reasonableness, of the deceased's testamentary dispositions. Whilst it is true that there was a significant change to her testamentary dispositions between the 2007 Will and the 2015 Will, there is evidence, from Michael, which was not the subject of any challenge, that prior to the 2007 Will, the only Will that each had made, was one in which each had left to the other, her, and his, estate, respectively: Tcpt, 19 February 2019, p 142(24-34).
Even though there are circumstances that exist which excite the suspicion of the Court, having scrutinised all of the circumstances, remembering that the deceased had testamentary capacity, and that the 2015 Will was duly executed by her, she having read it, and drawing such inferences as I can from the totality of the evidence including that she disclosed the contents a short time later to Nicholas, I am satisfied that Michael has removed such suspicion, and has proved, affirmatively, that the deceased knew and approved of the contents of the 2015 Will and that it represents her final testamentary wishes.
That the deceased read the document, and that she executed it, must be given the full weight apposite in the circumstances. However, as a matter of law, I have remembered that those facts are not conclusive, and nor do they raise any presumption.
More important, it seems to me, is that the deceased, after July 2015, had ample opportunity to read, and to consider, the 2015 Will, reflect upon the wisdom of her actions in making a Will in those terms, and to change it if she did not wish to make such a Will. That she raised no questions, complaints, or concerns, about its contents, at any time after she executed it, including during periods when she was alone with one or more of her children, or when Michael was overseas, after July 2015, provides cogent evidence that the 2015 Will represented her testamentary intentions. There is little doubt that she had many opportunities after she signed the 2015 Will to express to persons, including all of her children, and her advisers, any complaints she might have had about the making of that Will. She also had many opportunities to ask such persons to assist her to make a new Will. One opportune moment was when she spoke to Nicholas about the terms of the 2015 Will.
Furthermore, she then made the 2016 Will, which also provided only for Michael.
Then it is for the Defendants to prove undue influence. As stated, the test for undue influence requires coercion overpowering the deceased's volition to be proved. I do not think there is any evidence to show that the deceased was unduly influenced in creating the 2015 Will.
From all of the evidence, I do not have the sense that there was a power imbalance in their relationship, with Michael exercising control over the deceased in relation to her testamentary intentions. That the deceased buckled under pressure from Michael to alter her testamentary intentions and make the 2015 Will, also seems inconsistent with the description of the deceased given by many of the witnesses, and as revealed by the email correspondence written by her. Whilst it is true that after November 2014, she depended upon Michael for medical and domestic matters, it does not appear that she did so in relation to business or social matters.
Importantly, there is no clear evidence, for example, that Michael pressured, or forced, the deceased to sign the 2015 Will. Neither Ms Gallagher, nor Mr Gallagher, observed any signs that suggested any such pressure, or force, at the time the deceased executed the 2015 Will, which the deceased, in fact, produced.
As stated, the deceased made no complaint to any of her children, or to anyone else, for that matter, of being coerced into making and/or signing the 2015 Will. A short time after making it, she explained its contents to Nicholas during her conversation with him, without suggesting it was not what she wanted, or attributing the reasons for making it to Michael's undue pressure, or any other conduct by him. The fact of her sadness, at the time of the conversation, does not lead to an inference that she had made a Will in those terms because of any such conduct. It is equally possible that, for example, the deceased, having discussed her Will, was reflecting on her own mortality. In either case, the cause of her crying is no more than speculation.
Overall, I consider it to be highly unlikely that the deceased would have yielded to attempts, by Michael, to exercise control over her testamentary intentions, even if he had a controlling nature. To come to the contrary view, would reflect a degree of pliability on the part of the deceased that is inconsistent with the picture of the deceased portrayed by the evidence overall. (The only reference, by the deceased, to Michael's conduct in regard to another matter is to his "nagging".)
If that were not enough, the Defendants rely upon an inference being drawn from circumstantial evidence. As such, it is not sufficient for them to show that the circumstances attending the execution of the 2015 Will are consistent with the hypothesis of its having been obtained by undue influence; they must show that it is inconsistent with a contrary hypothesis (that of undue influence).
An obvious hypothesis, which in my view is a reasonable one, is that the deceased wished to provide for her husband of over 50 years, trusting him to make such provision, as he considered appropriate, for their children on his death. In this regard, there is no evidence that his treatment of each of them had been unsupportive.
Accordingly, I am not satisfied that the Defendants have established undue influence in the probate sense. In my view, the allegation is without an acceptable and satisfactory evidentiary foundation. I am satisfied that the 2015 Will was the offspring of the deceased's own volition, and not the record of Michael's.
The Defendants have also failed in their attempt to show that Michael had a controlling relationship with the deceased at, or about, the time she made the 2015 Will, and that she was unable, or unwilling, to counter his control over her. I feel quite unable to draw the inferences, from the general circumstances, which the Defendants assert have been proved. Ultimately, all I have heard, and read, about the deceased, satisfies me that, at the time of executing the 2015 Will, she was still a very intelligent and independent-minded woman, who was quite capable of making her own decisions and rejecting suggestions with which she did not agree.
There is insufficient evidence to persuade me that Michael induced the deceased to make a Will that she did not intend to make.
I propose, therefore, to make an order granting to Michael, Probate in solemn form of the 2015 Will, and to order that Mr Byrne's claim for the grant of Probate of the 2007 Will be dismissed.

[33]

The Amended Cross-Claim - Equitable Undue Influence

It is next necessary to deal with the claim raised in the Cross-Claim. This can be done relatively shortly.
The genesis of the claim made in the amended Cross-Claim appears to be the obiter remarks of Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66, at 474-475; [62]-[63]: "The position taken by courts of probate has been that to show that a testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument, 'there must be - to sum it up in a word - coercion': Wingrove v Wingrove (1885) 11 PD 81 at 82-83. See also Baudains v Richardson [1906] AC169 at 184-185; Craig v Lamoureux [1920] AC 349 at 357; Winter v Crichton (1991) 23 NSWLR 116 at 121-122]. The traditional view, repeated by Sir Frederick Jordan [in his 'Chapters on Equity in New South Wales', reprinted in Jordan, Select Legal Papers (1983), page 137], has been that a court of equity will not, on the ground of undue influence as developed by the Court of Chancery, set aside a grant made by a court of probate: Allen v M'Pherson (1847) 1 HLC 191 (9 ER 727); cf, Birmingham v Renfrew (1937) 57 CLR 666 at 674, 676, 683, 690]. The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos. In the present litigation, with respect to the dispositions made by the will, no party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiary or the next of kin." (Footnotes omitted, citations added)
Naturally, the members of the Court gave no indication going to how the argument, if made, would have been determined. It appears that they were prepared to leave open, for further consideration, the application of equitable undue influence to testamentary dispositions.
The observation of the High Court was highlighted by Lindsay J in Boyce v Bunce [2015] NSWSC 1924, at [33]. His Honour characterised the observations of the High Court in Bridgewater v Leahy as: "…open to construction as an invitation to consider whether a disposition of property in a will might attract the operation of equitable principles relating to undue influence notwithstanding a finding that the will could not be held invalid on any application of probate principles relating to undue influence".
His Honour added, at [198]-[204]: "As the defendant's case presently stands, her allegation of 'undue influence' appears to be limited to an allegation of undue influence in equity which, but for the observations of the High Court in Bridgewater v Leahy (1998) 194 CLR 457 at 474-475 and a factual matrix involving conferral of a testamentary benefit on a solicitor, would be liable to be struck out. In the absence of any strikeout application at an earlier stage of the proceedings, and in circumstances in which detailed evidence has been filed bearing upon the relationships of the plaintiff and his wife with the testatrix, the present proceedings appear to be an appropriate vehicle within which to test the interconnection, if any, between the historically different concepts of 'undue influence' in the probate and equity jurisdictions. If the defendant proposes to run the principal proceedings with that end in mind, it would be desirable, although (having regard to CPA section 90 and UCPR rule 36.1) not perhaps necessary, to include as a prayer for relief, for example, a claim for a declaration that any entitlement that the plaintiff or his wife may have under a will of the testatrix admitted to probate is held on trust for the defendant as the person entitled to the testatrix's estate as a residuary beneficiary or as the person entitled on an intestacy. As presently advised, I do not see any necessity, or justification, for assimilation of 'equitable undue influence' in the concept of 'probate undue influence'; but neither do I apprehend that an application of equitable principles, as a supplement to an exercise of probate jurisdiction, in the manner contemplated by the High Court in Bridgewater v Leahy is beyond what is fairly arguable. In principle, an exercise of equitable principles is no less able to moderate the operation of probate law than it is able to moderate the operation of the common law. In the former case, as in the latter, equity could be said to have 'come not to destroy the law, but to fulfil it': FW Maitland, Equity: A Course of Lectures (Cambridge University Press, revised, 1936), page 17. Equitable principles are 'a living resource' (to quote PW Young, C Croft and ML Smith, On Equity (Law Book Co, 2009), paragraph [1.100]) adaptable, over time and space, in the service of the administration of justice. Their application in contemporary Australian society may differ from their application in nineteenth century cases conducted in England, or Australia. It is not necessary to embrace academic calls for a modified doctrine of undue influence in probate cases (Fiona Burns, 'Elders and Testamentary Influence in Australia' [2005] UNSWLawJl 2; (2005) 28 UNSW Law Journal 1), although such an outcome might ultimately emerge from an application of equitable principles in probate contests; but there is arguably (as Pauline Ridge suggests in 'Equitable Undue Influence and Wills' (2004) 120 Law Quarterly Review 617) scope for the imposition of a trust, after probate is granted, in the interests of subjecting inter vivos and testamentary gifts to substantially the same operational rules. That there is scope for debate in this area is confirmed by the observation that, as early as 1986, Justice Frank Hutley (a leading probate lawyer in NSW) suggested that equitable principles, including presumptions of influence, should be introduced into the law of wills because the strict law of probate tends to permit, if not to encourage, pressure on will-makers, particularly the old and feeble: NSW Law Reform Commission, Report 47 (1986)-Community Law Reform Programme: Wills-Execution and Revocation, paragraphs [8.31]-[8.35]."
I should mention that in Trustee for the Salvation Army (NSW) Property Trust v Becker (from which special leave to the High Court was refused with costs on 16 November 2007), Ipp JA, with whom Mason P and McColl JA agreed, noted at [62] that: "…the equitable doctrine of undue influence does not apply to testamentary gifts: Boyce v Rossborough; Craig v Lamoureux [1920] AC 349; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116. Importantly, probate undue influence differs from the equitable doctrine of undue influence under which the donor may fully intend and desire the transaction even though an inference of undue influence may arise: Bridgewater v Leahy (1998) 194 CLR 457 at 475 per Gaudron, Gummow and Kirby JJ."
At [70], his Honour added: "There has been much academic criticism in recent times of the law relating to challenges to wills made by old and frail testators: see Kerridge, 'Wills Made in Suspicious Circumstances: The Problem of the Vulnerable Testator' (2000) 59 Cambridge Law Journal 310; Ridge, 'Equitable Undue Influence and Wills' (2004) 120 Law Quarterly Review 617; and Burns, 'Elders and Testamentary Undue Influence in Australia' (2005) 28(1) University of New South Wales Law Journal 145. The nub of the criticism is that the law does not provide adequate protection to those affected by a vulnerable testator who is coerced or tricked into making a will. While I recognise that there is force in this view, this is not the case for embarking upon an inquiry into how the law might be changed, even if it were open for this Court, as an intermediate appellate court, to undertake such a task (which I doubt). For the reasons set out below, the primary findings of fact are unassailable and, even if the tests for setting aside wills were to be relaxed in the way that some have suggested, the result, in my view, inevitably, would be the same."
(Another issue, which is an important one, relates to the identity of the beneficiary, or beneficiaries, of the proposed remedy of the constructive trust. Of course, the Defendants submit that it should be the four children of the deceased, being the beneficiaries named in the 2007 Will. There is a respectable argument that if the deceased's intention was tainted by undue influence, the gift of the whole estate should be treated as undisposed property which would fall into residue or that there would be an intestacy.)
In light of my conclusions, it is unnecessary to grapple with these difficult and, so far, unanswered, issues.

[34]

Determination of the Cross-Claim

What is set out below should be read as a continuation of what is set out above as to factual matters. Despite my agreement with Lindsay J that I do not see any necessity, or justification, for assimilation of "equitable undue influence" in the concept of "probate undue influence", and because it is clear that this Court cannot embark upon an inquiry into how the law might be changed and more importantly, apply any such change, I shall deal with the matter as it is raised in the Cross-Claim, without further discussion of the question whether this Court can rely upon the concept.
I shall do so, also, despite the submission of the Defendants that: "…it is unnecessary to import the doctrine of equitable undue influence into a testamentary context as the doctrine of probate undue influence is broad enough to cover the situations in which the doctrine of equitable undue influence could potentially be applied in relation to the making of a will".
Importantly, in the present case, actual undue influence, in the equity sense, is relied upon by the Defendants. Reliance is not placed on presumed undue influence. (In any event, there is no presumption of a relationship of influence between spouses.)
Relevantly, to establish that undue influence was exercised, the Defendants would have to establish that (a) Michael, as the party who induced the transaction for his own benefit, had the capacity to influence the deceased; (b) the influence was exercised by him; (c) its exercise was undue; and (d) its exercise brought about the 2015 Will.
The effect of the argument, then, is, that whilst the deceased is not deprived of her, or his, property, equitable undue influence, in the testamentary context, would operate to deprive Michael of the deceased's property that he inherited under the 2015 Will, which was found to be created because of his undue influence.
As stated earlier, the evidence overall does not satisfy me that a relationship of ascendancy, power, or domination, on the one hand, and dependence or subjection on the other, existed in Michael's relationship with the deceased. The Defendants have not satisfied me that there was such a relationship of influence by Michael (the stronger party) over the deceased (the weaker party).
Even if such a relationship existed, it is insufficient to establish that Michael had the ability to unduly influence the deceased. The Defendants' evidence must establish that, in the circumstances of this case, Michael exercised that power, and that the 2015 Will was a product of the exercise of that power. They have not shown that.
Even if the Defendants had established such a relationship of ascendancy, and the exercise of influence by Michael, the evidence, overall, satisfies me that the 2015 Will was, indeed, the free, informed, and independent, act of the deceased, who exercised her own thought and judgement as to its terms. Its terms are readily explicable by the more than 50 year marriage relationship between the deceased and Michael.
By way of emphasis, this is not a case, for example, where Michael kept the deceased away from her children or other advisers. Nor is it a case where there is evidence of him using time with the deceased to poison her mind against the children. Whilst quite unwell, the medical, and other, evidence does not suggest that the deceased was in such a fragile physical or mental state, leading her to become so worn down that she was prepared to do whatever was suggested in order to have a quiet life, rather than because that reflected what, in reality, she wanted to do.
On the whole, the claim of undue influence, in the equity sense, also has no solid foundation in the evidence. Accordingly, the Defendants' Cross-Claim does not succeed. In the circumstances, the Defendants' Cross-Claim should be dismissed.

[36]

Nicholas' Claim

Nicholas is almost 41 years of age. He resides in rented accommodation in North Sydney, and is employed as a strategic account manager for ANZ Wealth. He has been employed within the same business, in varying roles, for ten years.
Nicholas attended high school at Scots College, Bellevue Hill. Following high school, in 2000 he completed a degree in Economics with a major in Marketing.
Nicholas' evidence indicates he had a good relationship with the deceased. This was not the subject of dispute.
So far as is known, Nicholas does not cohabit with another person. He has no children.
Nicholas' financial circumstances are set out in his affidavit affirmed 16 August 2017, and were not updated. He was not cross-examined in relation to his financial circumstances. Bearing that in mind, Nicholas' financial position, at that time, may be summarised as follows: 1. He has a gross monthly income of $12,596 and net monthly income of $7,714. His monthly expenditure is said to be $7,680. He also has quarterly expenditure of $400 (for electricity and gas), and yearly expenditure of $13,032 (for holidays and travel, and car insurance). 2. He estimates the total value of his assets to be $178,000. His assets comprise a car (estimated value of $35,000), two separate bank accounts ($5,000 and $10,000 respectively), ANZ Shares ($5,810), Pet barn Greencross shares ($3,000) and superannuation ($120,000). His liabilities include money owing to the Australian Tax Office ($16,000), AN Credit Card debt ($20,000), Citibank Credit Card debt ($20,000), AMEX Credit card debt ($1,500) and a car loan ($25,000).
I have also referred to the amount of $10,000 paid to Nicholas by Michael from the account of the deceased, following her death.
Nicholas and Michael have agreed that provision should be made out of the deceased's estate by way of a lump sum of $300,000. In all the circumstances of this case, I am prepared to make such a family provision order. The lump sum will enable him to pay off his liabilities and leave a capital sum to provide for exigencies of life.

[37]

Denise's Claim

Denise is 51 years of age. She lives alone in a public housing unit in Forestville, Sydney. She asserts that her accommodation is unsuitable as she says that she lives in apprehension of a neighbour, against whom Denise was granted an Apprehended Personal Violence Order that has now expired.
Denise receives a disability pension of approximately $800 per fortnight out of which rent is deducted for her public housing unit. From time to time, she has relied on St Vincent de Paul for assistance buying food. In the past, she has also relied on St Vincent de Paul for assistance with accommodation. She does not own any real estate and has only about $6,000 in superannuation.
Denise suffers chronic health problems, including back pain due to a spinal fusion carried out in 1988; chronic fatigue that first led her to go onto a disability pension in 1999; until she underwent weight loss surgery in late 2017 or 2018, morbid obesity; anxiety; depression and irritable bowel syndrome.
Denise has recently improved her health by undergoing a successful weight reduction procedure and a breast reduction is also indicated for the future. However, she continues to be in need of chiropractic treatment for her back. It is more likely than not, because of her medical conditions, that she will remain on the disability support pension for the foreseeable future.
Denise has private health insurance. The private health insurance enabled her to undergo a gastric band operation in 2018. There was a 'gap' of $4,950.00 not covered by insurance which Denise repaid with the assistance of a $3,000 loan from a friend.
Denise is relatively poorly educated. Having left high school without achieving her HSC, she worked a series of unskilled jobs from 1986 to 1998 and she continues to do odd jobs as she is able. Following her weight reduction, she may be able to undertake further part-time work if she is able to afford the training.
I have earlier referred to the fact that Michael, following the death of the deceased, gave Denise $10,000 out of the deceased's estate.
Denise gives evidence that her only major asset is her motor vehicle (a 2006 Mazda 2 ($3,000 - $4,000), purchased for her by Michael. After its purchase, Denise insisted she repay him half the cost ($10,000), which is not disputed.
It is Denise's evidence that she needs a home to accommodate her and her two dogs, which home can be purchased for an amount of $1 million, as well as breast reduction surgery (costing $10,000), a lump sum contribution (an amount "up to $600,000") to her superannuation, a fund of $400,000 for unexpected contingencies, a new motor vehicle ($21,800 - $26,000) and a new washer and dryer (with a value of approximately $1,200). (Earlier in the proceedings, she also sought provision for an overseas holiday ($17,000), although it appears this was not to be pressed.)
Although it was submitted by senior counsel for Michael, in the written submissions, that Denise's proceedings should be dismissed, Denise and Michael have now agreed that provision should be made out of the deceased's estate by way of a lump sum of $420,000.
In all the circumstances of this case, I am prepared to make such a family provision order. The lump sum will enable her to pay off her liabilities and leave a reasonable capital sum to provide for exigencies of life.

[38]

Dominic's Claim

I have earlier referred to Dominic's contribution to assist the deceased in relation to the acquisition of the Malaysian property and the deceased's recognition of that contribution.
So far as is known, and subject to what is said below about his failure to comply with two notices to produce, Dominic's financial position may be summarised as follows: 1. He has a gross monthly income of $5,181 and monthly expenditure of $4,793. It follows that he has a monthly surplus of income over expenditure of $388. 2. He estimates the total value of his assets to be $290,558. His assets comprise a three-bedroom apartment in Kuala Lumpur ($225,000), which he purchased in about 2014, a car ($5,000), a Public Mutual Bond (Malaysia) ($7,131), HSBC bank accounts ($15,200) and superannuation ($38,227). His liabilities include a CIMB loan account ($166,218), loan for legal fees ($31,000), and capital owing for New Found Success ($11,000), which amounts, in total, are $208,218. Taking into account liabilities, Dominic asserts that his "net position" is $82,340. 3. Dominic is employed full-time as a marketing director (Affidavit sworn 20 June 2017, at [23]).
On 16 January 2016, Dominic separated from his wife, Swe Zin Aung. They have an informal arrangement pursuant to which he pays the rent ($390 per month) for Swe's apartment.
Dominic does not cohabit with another person and he has no children.
In Dominic's affidavit sworn 20 June 2017, at [8], he stated that his relationship with the deceased was "always good". This was not the subject of any real dispute.
Dominic moved from Australia to Malaysia in 2002 and has resided overseas, continuously, since that time. In his affidavit sworn 20 June 2017, he indicated that after his move to Malaysia in 2002, he and the deceased had regular contact by telephone and e-mail, and that after the deceased's cancer diagnosis, in November 2014, they spent "much time together" during his lengthened trips to Australia to be with her, and when she visited Malaysia on two occasions in 2015, and when he flew to Australia to be with the deceased in the last month of her life (at [9]-[10]). He maintained regular email contact with the deceased thereby maintaining their close relationship, particularly after the deceased's cancer diagnosis in November 2014: Affidavit affirmed 20 June 2017, at [46].
In his affidavit affirmed 20 June 2017, Dominic asserted he "was a devoted and caring son to the deceased before she died", and "was always concerned for the deceased's well-being and happiness" (at [45]). Each time he was in Australia, he accompanied the deceased, and Michael, to the majority of the deceased's hospital appointments, to assist her because of her poor mobility, and to spend time with her: Affidavit affirmed 20 June 2017, at [47].
In relation to Dominic's reference to his own "ill health", he gave evidence that he has "a condition called ulcerative colitis, which is an inflammation of the upper intestine": Tcpt, 21 February 2019, p 294(41-43). He indicated his symptoms tend to flare up when he is subjected to stress: Affidavit sworn 7 December 2018, at [16]. When asked if, regarding his condition, he was still "reasonably able-bodied in terms of being able to pursue your career and so on…", Dominic stated "[f]or the time being but the, the outlook, you know, 15, 20 years down the track might be a lot different." (The basis for the last statement was not entirely clear as there was no medical evidence to suggest that his conditioning was worsening.) No other evidence about his health (or any physical, intellectual or mental disability) was given.
I have earlier referred to Dominic's contribution in assisting the deceased in relation to her purchase of the Malaysian property. The deceased appointed him as her Attorney in order to assist her complete the purchase of the Malaysian property, which took some 18 months to complete. He assisted her to negotiate the terms of the contract to purchase the Malaysian property, "liaising with the deceased's Malaysian lawyer, the Lands department and various other third parties to ensure that the deceased obtained foreign consent to purchase the Malaysian property and to complete the purchase" (at [38]-[40]).
He also gave evidence that he was "responsible for managing the funds she provided to me to complete the purchase of the Malaysian Property. After settlement took place, I was also responsible to arrange for various property management, rates and utility accounts to be transferred into her name and for suitable payment arrangements to be put in place for the on-going payment of these accounts. All of this work was very time consuming and at times, very frustrating due to the bureaucracy of the Malaysian systems" (at [41]).
I am satisfied that, in these ways, Dominic made an indirect contribution to assist the deceased in her purchase of the Malaysian property. However, in his affidavit sworn 7 December 2018, Dominic indicated that the deceased had allowed his wife to stay at the Malaysian property in January 2016, without paying rent or any management fees, and following their separation, from January to September 2016 (Affidavit sworn 7 December 2018, at [26]-[27]).
The evidence also indicates that, during the deceased's lifetime, there were occasions when the deceased gave Dominic sums of money, including when Dominic asked to borrow money, and that Dominic and the deceased communicated in relation to payment schedules for Dominic repaying money borrowed from the deceased: see Affidavit sworn 7 December 2018, at [34]. Otherwise, Dominic was not being maintained by the deceased before her death.
As has been stated, the 2007 Will makes provision for Dominic (and the three other siblings). He receives no provision from the deceased's estate under the 2015 Will.
In Dominic's affidavit sworn 7 December 2018, he gave evidence that the deceased had expressed a strong wish for all of her children to own, and to "pay off", property. He asserted, at [31], that he and the deceased had a conversation in, or around, June 2014, in which the deceased had said words to the effect "I want all you kids to have paid off property so you can put whatever you have left over into Super for old age".
Dominic also asserted that, during the same conversation with the deceased, the deceased said words to the following effect: "I'll probably leave Denise the Ben Boyd apartment as I would like to see her in her own place some day and not council housing with all the problem neighbours she has and all the dramas. And Nicholas needs to get into the housing market. I want him and Kirri to get a unit around here. Anything I give you lot needs to go into your mortgage and super fund" (at [31]).
In Dominic's affidavit sworn 7 December 2018, he gave evidence that, over the years, the deceased had made numerous statements to him, and his siblings, expressing her intentions regarding the division of her estate after her death. Dominic asserted that the deceased advised him her intentions included to provide a lump sum to those of her children that did not own a property, so they could purchase one; to provide funds to assist those of her children who had properties to pay off their mortgages; and if both those had been achieved, to provide a lump sum for each of her children to contribute to their superannuation accounts, which could only be accessed by them on retirement (at [32]).
I have referred to the deceased's testamentary intentions expressed in the 2007 Will, then in the 2015 Will and then in the 2016 Will. I have also referred to the amount of $10,000 paid to Dominic by Michael from the account of the deceased, following her death.
There is no other person liable to support Dominic.
I shall refer to Dominic's failure to produce documents shortly. There is another aspect of his conduct to which reference should be made. In cross-examination, Dominic accepted that, not long after the death of the deceased, he and Julian had accessed Michael's emails, without Michael's permission. In particular, he forwarded about 18 to 20 emails to his own account, and it seems, to Nicholas' email account: Tcpt, 21 February 2019, p 301(25-50).
This should not have been done by Dominic. He did not provide any reason for engaging in this conduct. Perhaps, his conduct, also, reflects the nature of his relationship with Michael.
Michael's legal representatives served a notice to produce under cover of a letter dated 14 March 2018 upon Dominic (by his solicitors). Included as one of the categories of documents required to be produced was: "6. Financial Statements (profit and loss and balance sheet) for the company 'New Found Success' … for the financial years ending 30 June 2016 and 30 June 2017."
Dominic is, and has been, for some time, a shareholder (999 shares or 10 per cent of the issued shares) and the marketing director of New Found Success. It is the holding company for a restaurant in Kuala Lumpur. There are said to be eight partners involved in this particular restaurant.
In a letter dated 29 January 2019 from Michael's lawyers to Dominic's lawyers, the following appears: "We refer to the Notice to Produce to Court served on your client in these proceedings on 14 March 2018 which was returnable on 29 March 2018. Having perused the documents produced by your client it is apparent that your client has not provided a proper answer to the Notice to Produce. In this respect, your client has failed to provide any bank statements (credit or debit), any superannuation statement, policies of insurance, nor a full copy of the financial accounts of the businesses in which your client maintains an interest. Furthermore, your client's financial disclosure is limited to a table within his affidavit of 20 June 2017. No attempt has been made to provide the actual values of the assets and liabilities set out within the said table, nor has any attempt been made to update your client's financial position since 20 June 2017 as is required prior to the hearing of this matter. It is with this background that we enclose by way of service a further Notice to Produce returnable 6 February 2019. Please ensure that your client complied with such notice without delay. We consider the time for production to be reasonable given that many of the documents sought have been outstanding since March 2018. In addition to the production of documents under the Notice to Produce we require your client to file a verified list of his current assets and liabilities by 6 February 2019 so that such can be included within the bundle of tender documents being provided to the trial judge. We put your client on notice that unless such full and frank disclosure is made within the timeframe outlined above we shall submit to the Court that his claim ought to be dismissed for want of proper disclosure of his financial circumstances."
The second notice to produce added the financial year ending 30 June 2018 to the request for financial records. A copy of the correspondence and each notice to produce was tendered as Ex. E.
Dominic was cross-examined about the failure to produce all of the documents in answer to each of these notices to produce. He agreed that he would have been able to "get whatever documents [were] required" of the company; that only two pages were produced, being pages 3 and 10 of what he said was "the annual audited statement" (for the year ending 30 June 2017); that he could have produced the balance of the document but had not done so; that the additional pages would show the income, expenditure, liabilities, payments and the profit of the company, directors fees paid by the company, and they may show dividends paid to directors and to shareholders; and that without the additional pages, one would not know much about the finances of the company: Tcpt, 21 February 2019, p 297(20) - p 301(22).
It is to be noted that Dominic's cross-examination took place on 21 February 2019. That was a Thursday. The Court did not continue the hearing on 22 February 2019. The final day of the hearing was the following Monday, being 25 February 2019. No attempt was made to re-open Dominic's case to produce the relevant documents that had not been produced or explain the continued failure to produce the documents.
Dominic was not cross-examined on his failure to "provide any bank statements (credit or debit), any superannuation statement, policies of insurance". I infer, therefore, that relevant documents had been produced by him but not until after 29 January 2019.
Senior counsel accepted, during oral submissions that he did not "tender in a reply case additional documents to disclose the complete position": Tcpt, 25 February 2019, p 388(44) - p 389(8).
The failure to produce the documents about which Dominic was cross-examined led to counsel for Michael submitting that Dominic's family provision claim should be dismissed.
It is clear from the evidence that Dominic did not disclose fully, at the date of the hearing, his complete financial and material circumstances. Importantly, he did not fully answer not one, but two, separate notices to produce, despite having the ability to do so, and it would seem, being informed of the potential consequences of his failure to do so. It is difficult not to conclude that he deliberately chose not to do so.
When this aspect was raised with senior counsel during oral submissions, he submitted that Dominic "didn't disclose in full one particular aspect of his circumstances": Tcpt, 25 February 2019, p 389(25). Senior counsel for Dominic placed reliance upon Dominic's affidavit of 20 June 2017 (made 20 months before the hearing) in which he had written, at [22], [24]-[26]: "I have interests in the following companies or trusts: (i) I own 999 shares (or 10%) of the issued shares in a Malaysian company called, New Found Success ('NFS'). The sole asset of NFS is a restaurant called, The BPP, which I jointly manage with the eight (8) other shareholders of the company. … I am currently employed full-time as a marketing director Scenic Idea Sdn Bhd from which I derive all income. To date BPP has not made a profit and I am not drawing a wage or salary from managing it. NFS has not distributed any dividends to me or any other shareholders."
Of course, that affidavit was made well before service of each of the notices to produce and, in my view, the reference to the shareholding therein does not provide a satisfactory explanation for not producing the documents sought. Nor does the affidavit provide any inkling as to the value of those shares.
In Dominic's affidavit of 11 February 2019, once again, he did not disclose the value of his shares. I do not accept the submission made by senior counsel that Dominic's evidence is that the shares have no value because the shares had been disclosed, but there was no value ascribed to them, or that the Court should draw the implication that Dominic attributed zero value to them: Tcpt, 25 February 2019, p 193(13-26).
In Collings v Vakas [2006] NSWSC 393, a case decided under the former Act, Campbell J wrote, at [66]-[68]: "Before the Court can make an order in the plaintiff's favour, it needs to be satisfied that she was left, at the testator's death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities. However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff's financial situation. In the present case, even though there are two elements of the plaintiff's financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff's financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision. In these circumstances, the plaintiff's claim is dismissed."
A similar approach was taken by McLaughlin As J in Foye v Foye [2008] NSWSC 1305, in which his Honour wrote, at [14]-[15] and [41]: "It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court. Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission. ... I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily."
For completeness, I should make reference to Hill v Buckley [2008] NSWSC 1374, in which Young CJ in Eq, at [14], commented: "A properly prepared case under the Act sets out in plain detail, brought up-to-date as at the hearing, the plaintiff's statement of assets, her statement of liabilities and her statement of income."
Also see, Cringle v Cringle [2018] NSWSC 1558, per Ward CJ in Eq at [35]-[36].
In this case, Michael complains that the evidence as to Dominic's financial circumstances is incomplete. Dominic admitted his default, yet he did nothing to remedy that default, even though it was made clear, in the correspondence referred to above, what the consequence of his default might be. It was expressly pointed out that a submission would be made that his claim should be dismissed because of default in the production of the documents sought.
Dominic submitted that his financial needs are as follows: 1. a sum to assist in purchasing a 1-bedroom, or studio apartment, on the Lower North Shore of Sydney close to his siblings. He estimates that a sum of $700,000.00 would be adequate for this purpose; 2. a sum to assist with repaying his loan of $166,218; 3. a sum to supplement his superannuation ($400,000) would be adequate to supplement his superannuation for retirement; and 4. a fund as a buffer for the vicissitudes of life.
He sought, in his written submissions, provision out of the deceased's estate of $1,300,000.
During oral submissions, senior counsel for Dominic and Julian informed the Court at Tcpt, 25 February 2019, p 387(7-13): "I've taken some further instructions over lunch and also particularly being cognisant of the fact that the submissions made previously are not realistic in view of the size of the estate, the amount of provision that Julian and Dominic are now seeking is the amount of $1 million in relation to Dominic and $500,000 in relation to Julian."
As will be read, I do not accept either submission.

[39]

Julian's Claim

Julian gave evidence that he and the deceased had a "very loving relationship" (Affidavit sworn 16 June 2017, at [8]), and that he and the deceased would see each other regularly, and contact each other by telephone and e-mail at other times (at [8]).
As stated earlier, he stayed with the deceased for a period of ten days in December 2015, to care for her, whilst Michael was overseas (Affidavit sworn 16 June 2017, at [10]). From the beginning of 2016, when he moved to Cremorne, he would see the deceased at least three times per week, and stayed with the deceased at her home in Cremorne "on a further one or two occasions" to care for her whilst Michael was away (Affidavit sworn 16 June 2017, at [10]). He says that he would take the deceased on weekend drives or walks, or out to lunch.
After the deceased was diagnosed with a terminal illness, and was admitted to a care facility or to hospital, Julian visited the deceased "almost every day" (Affidavit sworn 16 June 2017, at [11]).
Julian pointed out that he had been appointed the deceased's Attorney under Power of Attorney (Affidavit sworn 16 June 2017, at [12]).
Julian is currently self-employed as a handy-man, and works casually as a barista to supplement his income (Tcpt, 21 February 2019, p 311(11-12)).
In his affidavit sworn 16 June 2017, he gave evidence that in May 2017, he underwent an arthroscopy on his right knee, from which he was still recovering, and which had impacted on his earning capacity (at [29]-[30]). He stated that if he was forced to cease employment as a handy-man or barista due to physical impairment, or old age, he may find it difficult to source suitable alternative employment (at [32]). (There was no medical evidence to suggest that physical impairment may prevent him continuing in these jobs.)
Other than his knee, Julian did not give any evidence about any physical disability or incapacity. Under cross-examination, when asked if he was, otherwise, in good health, Julian expressed "As good a health as for my age, yes": Tcpt, 21 February 2019, p 311(20-21).
Julian owns a one-bedroom apartment in Neutral Bay in Sydney. In his three affidavits, Julian estimated that the Neutral Bay property was worth $750,000 and later, $650,000. Under cross-examination, it was noted that Julian had estimated the value of the property by looking at "other comparable units that were for sale or had sold at, at around that time", and that the property had not been professionally valued: Tcpt, 21 February 2019, p 312(23-44), p 313 (1-25). I have referred to his evidence earlier in these reasons.
Julian's total gross monthly income is $6,580, comprising $4,500 by way of gross salary and $2,080 by way of rent that he receives for his Neutral Bay property. The tenant was due to vacate the Neutral Bay property in February 2019 and no replacement tenant had been found. However, there was no evidence that his income had been reduced.
Julian's monthly expenditure is said to total $6,854, leaving a shortfall of $274 per month. He did not really explain how he meets the shortfall.
Julian and Joanne have entered into a binding financial agreement, clause 26 of which stipulates joint payment of living expenses. He stated that they keep entirely separate finances, and that they do not own any assets jointly. They share household expenses equally (Affidavit sworn 16 June 2017, at [44]-[50]). Clause 27 provides that any assets acquired before, or after, marriage that are in a party's sole name, remains that person's property after separation. They have not acquired any joint assets.
Julian pays Joanne a monthly rent of $640 to reside in her property in Cremorne (Affidavit sworn 12 February 2019, Annexure B).
Julian's evidence suggests his assets include his Neutral Bay property, discussed above, a motor vehicle, contents of an ANZ bank account, and superannuation, totalling $803,500. Julian asserts his liabilities include an ANZ mortgage secured over the Neutral Bay property, and a credit card debt, totalling $253,200, leaving a "net financial position" of $550,300 (Affidavit sworn 12 February 2019, Annexure A).
Julian also gave evidence of the assets and liabilities of Joanne, asserting her financial "net position" is $1,301,100 (Affidavit sworn 12 February 2019, Annexure C). They live together in a property in Cremorne owned by Joanne.
Under cross-examination, Julian stated that he himself had estimated the value of the contents within the Cremorne property, owned by Joanne. He stated that the contents of the Cremorne property were also owned solely by Joanne, and that she had paid for them with her credit card (Tcpt, 21 February 2019, p 314(4-31).
In his affidavit sworn 16 June 2017, Julian had stated, at [53], that he had "assisted the deceased in the conservation and improvement of various properties she owned over the years. She often called upon me to assist her with anything that needed fixing around her home. I have undertaken numerous repairs to her property, without remuneration". He also stated, at [54]-[55], that when the deceased went on holiday, he would take care of her mail, pay utility bills and water her garden and that it was he who would collect, and drop off, the deceased at the airport when she travelled.
As has been stated, the 2007 Will makes provision for Julian (and the three other siblings). He receives no provision from the deceased's estate under the 2015 Will.
Julian gave evidence that the only assistance he had received from the deceased, as an adult child, was "temporary accommodation", in 1992-1993, after returning from overseas, and again in 2003, following his marital separation, when stayed with the deceased in her home (Affidavit sworn 16 June 2017 at [56]). I have referred to the amount of $15,000 provided to him by Michael from the deceased's bank account after her death.
There was no suggestion that Julian was being maintained by the deceased before the deceased's death.
The only other person who may be liable to support Julian is his wife, Joanne.
I have referred to Dominic's conduct in accessing Michael's computer without Michael's permission. Julian assisted Dominic in this activity. He, also, should not have engaged in this conduct.
Senior counsel for Julian submitted, in writing, that Julian's financial needs are as follows: 1. a fund as a buffer for the vicissitudes of life; 2. a sum to assist with paying off the mortgage on his Neutral Bay apartment; 3. a sum, say $450,000, to supplement his superannuation; 4. he would like to be able to assist Erika with her expenses and tuition fees while she undertakes tertiary studies; and 5. a sum to assist with the purchase of a replacement vehicle costing approximately $30,000-$40,000.
He submitted, in writing, that a lump sum of $850,000 would, in all the circumstances of the case, be adequate and proper provision. However, he submitted, orally, that adequate and proper provision for Julian would be $500,000: Tcpt, 25 February 2019, p 387(7-12).

[40]

The Law - Family Provision

To justify an order for provision under the Act, the Court must be affirmatively satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as the court "thinks ought to be made" for the identified purposes: s 59(2).
Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgement is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes "adequate provision" for the "proper maintenance" of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.
If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
(The question of the process by which the Court is required to implement s 59(1)(c) and s 59(2) of the Act, revived by the Court of Appeal in Sgro v Thompson, has been compendiously dealt with by Robb J in Maynard v Maynard [2018] NSWSC 1961, at [121]-[163].)
I shall adopt the approach that I referred to in Vidler v Ivimey [2013] NSWSC 1605, in which I considered, in some detail, the history of this controversy to that point in time, at [38]-[40], and [68]-[84] and concluded at [84]: "Perhaps, the way to approach the matter is to simply refer to the Act containing 'twin tasks': Goodman v Windeyer, per Gibbs J, at 502, being the jurisdictional question and the discretionary question, with one task overlapping, to some extent, with the other."
The questions posed arise under s 59(2) and s 60(1)(b) of the Act. Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made involves an exercise of discretion in the accepted sense. The fact that the Court has discretion means that it may refuse to make an order, even though the question regarding inadequacy of provision has been answered in the applicant's favour.
Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Unless the Court orders otherwise, any family provision order under the Act takes effect as if it were a codicil to the Will (s 72(1)(a) of the Act).
The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a Court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs, but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
Of the freedom of testamentary disposition, in Grey v Harrison, Callaway JA wrote, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
As Pembroke J said, in Wilcox v Wilcox [2012] NSWSC 1138, at [23]: "The court does not simply ride roughshod over the testator's intentions… The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
In Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, at [47], the UK Supreme Court wrote: "It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors."
In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that: "…respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453[-]454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
His Honour added, at [86]: "To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
In Steinmetz v Shannon [2019] NSWCA 114, at [51], White JA, although partially disagreeing with the majority, wrote that he "did not say that wherever it can be seen that the deceased was capable of giving due consideration as to the adequacy of the provision in the will for a claimant and did so, that that was determinative of a claim for provision" and at [54], that "[t]he issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death".
Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
In this case, the estate is of reasonably large value. In Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep), Young J (as his Honour then was) said at 20-21: "[W]ith a very large estate… there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor."
In Vigolo v Bostin, at [51], it was noted that "in the case of large estates, provision can be made for the well-to-do".
In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], wrote: "… where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, [the court may] order further provision beyond the immediate and likely future needs of the applicant… providing a 'nest egg' to guard against unforeseen events." (Footnotes omitted)
Yet, it must also be remembered, as McLaughlin AsJ (as his Honour then was) stated in Lumb v McMillan [2007] NSWSC 386, at [26]: "The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff."
The size of the estate is but one factor, among many, which the Act requires the Court to take into account, in the evaluation suggested by s 60(2) of the Act, wherever it is relevant.
In relation to the claims, each being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia, at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker (1957) CLR 566; 31 ALJR 779; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17]. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; [1979] HCA 2, at 149.
A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox [2014] NSWCA 392, at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].
The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
In Foley v Ellis [2008] NSWCA 288, at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the Court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
Michael, who is the sole beneficiary, is not an applicant for provision. He does not have to prove an entitlement to the provision made in the deceased's Will for him, or otherwise justify such provision. Nor does he have to explain the decision by the deceased to make the provision that she did for him in her Will.
But, as previously stated, Michael has not advanced his claim on the basis of financial considerations. He has given no evidence of his financial resources or needs.

[41]

Qualifications on "Principles"

As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke [2015] NSWCA 195, at [84]-[85]; in Yee v Yee [2017] NSWCA 305, at [172]; and very recently, by White JA, in Steinmetz v Shannon, at [37]. They must be remembered.

[42]

Determination of the Family Provision claims

Having established eligibility, and that the proceedings were commenced within time, relevantly, the Court must determine whether, at the time the Court is considering the application, adequate provision for the proper maintenance or advancement in life, of each of Denise, Nicholas, Julian and Dominic, has not been made by the 2015 Will of the deceased.
What is written below should be read as a continuation of what has been written above. In addition, I have regarded the factual matters referred to earlier, so far as they are relevant, to the circumstances set out below.
There was no provision in the deceased's Will made for each of the deceased's children. However, this does not, automatically, mean that she, or he, will have satisfied what has been said to be the jurisdictional threshold. A person may fail to satisfy the description of being "left without adequate provision" even though no, or little, provision is made for her in the deceased's Will.
Yet, judged by quantum, and looked at through the prism of Denise's and Nicholas' financial circumstances and needs, as stated, I am satisfied that adequate provision for her, and his, proper maintenance or advancement in life has not been made by the 2015 Will of the deceased. The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
The Court is required to make an assessment of the financial position of each applicant, the size and nature of the deceased's estate, the relationship between each and the deceased, the competing claim of the others, and of Michael, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them: see, for example, McCosker v McCosker, at 571-572; Singer v Berghouse, at 210; Vigolo v Bostin, at [16], [75], [112]; and Tobin v Ezekiel, at [70].
Some estates are simply not large enough to make an order for provision. However, in this estate, there is enough to do so. Nevertheless, in Smith v Johnson, the Court of Appeal held that it was a miscarriage of the judge's discretion to order provision which exceeded the plaintiff's needs.
Having considered the matters I am required to consider, I am satisfied that an order giving effect to the settlement reached in relation to each of Denise, and of Nicholas, should be made.
I am also persuaded that inadequate provision has been made by the 2015 Will of the deceased for the proper maintenance and advancement in life of Julian. In reaching this conclusion, as I have already stated that the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
I have made an assessment of Julian's financial position, the nature of the deceased's estate, the relationship between him and the deceased, the competing claims, particularly of the deceased's other children and of Michael, as other persons who have a legitimate claim upon the bounty of the deceased, and the circumstances and needs, particularly, of each of them. In this case, the value of the estate is reasonably large, and is sufficient to make provision for the persons to whom the deceased owed some form of testamentary duty.
The more difficult question then arises, namely what provision "ought to be made for his maintenance, education or advancement in life", having regard to the facts known to the Court. This involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison, at 367. It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, similar considerations as are set out above often arise.
Having considered the matters I am required to consider, and remembering that what is "proper" requires an evaluative judgement that has regard to all relevant circumstances, not merely financial circumstances, I am satisfied that Julian should receive a capital sum for exigencies of life.
In coming to the conclusion on the quantum of the provision to be made for him, the deceased's entitlement to testamentary freedom is, of course, important and has been given significant weight in reaching my conclusions.
Nor have I forgotten that, generally, the community does not expect a parent to look after an adult child for the rest of that child's life and into retirement. Furthermore, the amount of provision that I consider adequate and proper will not impact upon the other pecuniary beneficiaries, but will reduce the residue of the estate passing to Michael, who has not given evidence of his financial resources and needs. However, I have weighed the very substantial contribution, as the spouse of the deceased of a very long marriage and his claim upon the bounty of the deceased in reaching my conclusion on the quantum of provision.
In coming to the conclusion on the quantum of provision to be made for Julian, I have also taken into account, amongst other things, the value of the estate; the competing claim of all of the family members; his close and loving relationship with the deceased; his direct contribution to the welfare of the deceased; the fact that Julian, at the date of hearing, has an earning capacity that cannot be regarded as entirely secure, and that whilst he does have an apartment, which provides him with an income to supplement his other income, it is mortgaged.
The provision for the proper maintenance and advancement in life of Julian that ought to be made, in my view, is by way of a lump sum of $240,000. This will enable him to reduce, almost completely, his mortgage debt with the consequence that he will have significantly greater available monthly income. Alternatively, it will provide him with a capital sum for exigencies of life. The lump sum also takes into account the respective financial circumstances of each of Denise and Nicholas, the value of the deceased's estate, and Michael's claim, as the chosen object of the deceased's bounty.
I have found the most difficult aspect of this case to be the claim for a family provision order by Dominic, who, in my view, chose, for reasons known only to himself, to not disclose, completely, the current value of his shareholding. He was made aware of the potential consequences of not doing so in the correspondence to which I have referred.
Against that, I have borne in mind that he did, at least, disclose the existence of his shares in the company, and his financial position otherwise; his close and loving relationship with the deceased; the reasonably significant, direct, non-financial contribution made by him in assisting the deceased in relation to the purchase, and retention of the Malaysian property, which contribution was acknowledged by her; his direct contribution to the welfare of the deceased; and the competing claim of all of the other family members.
On balance, although the case is a borderline one, I have concluded that the provision made for Dominic is neither adequate, nor proper, in all the circumstances.
The calculation of the lump sum that I propose to order takes into account, amongst other things, the value of the estate, the respective financial circumstances of each of the other claimants on the bounty of the deceased, that Nicholas did not disclose, fully, his financial circumstances at the date of hearing, and that Michael did not disclose, completely, all of his financial circumstances.
Weighing all in the balance, considering wisdom, justice and current community values, the provision for the proper maintenance and advancement in life of Dominic that ought to be made, in my view, is by way of a lump sum of $140,000. This amount will enable him to reduce his mortgage debt, if he chooses to, with the consequence that he could have additional available monthly income. Alternatively, it will provide him with a lump sum for exigencies of life.
I do not accept that the deceased owed to him, in all the circumstances of this case, the type of provision upon which submissions were made by his counsel.
I propose to order that each lump sum payable to Julian and Dominic should be paid at the same time as the amounts that are payable to Denise and to Nicholas.
In view of the fact that the costs of the Probate proceedings and Julian's and Dominic's family provision proceedings need to be the subject of further argument, I am unable to deal with the costs of any of the proceedings.
I shall, in the meantime, identify, for the consideration of the parties, a provisional form of orders, in each matter, that I would be prepared to make. I have used the form of orders provided by the lawyers for Nicholas and Denise. The lawyers should discuss any proposed amendments and provide any agreed amendments to my Associate within 7 days. If possible, terms as to paying the lump sum, and otherwise, in each case, should be the same or at least similar. In the event of dispute, argument on the orders can be heard at the same time as the costs argument.

[46]

Proceedings 2017/179996 - Denise's claim 1. Orders that Matthew Edward Byrne be removed as the first Defendant in the proceedings. 2. Orders, having found that the Plaintiff is an eligible person; that the proceedings were commenced within time; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, that she receive, by way of provision, out of the estate of the deceased, a lump sum of $420,000. 3. Orders an amount equal to any costs for which the Plaintiff may be liable to her own lawyers (such amount not to exceed one-third of the total solicitor-client costs as may be agreed or assessed) in associated proceedings 2016/188756 and 2016/302424, be paid out of the estate of the deceased. 4. Makes no order as to the Plaintiff's costs to the intent she pays her own costs of the proceedings. 5. Orders the Defendant's costs, calculated on the indemnity basis, of these proceedings, be paid, or retained, as the case may be, out of the estate. 6. Orders no interest is to accrue on the lump sum at (b) above if paid by the earlier of (i) three months from the making of the grant of probate of the 2015 Will; or (ii) sufficient funds being called into the estate to enable payment. 7. Orders no interest is to accrue on the amount payable at (c) above if paid within 14 days following assessment of the Plaintiff's costs in the associated proceedings. 8. Notes the agreement between the Plaintiff and the Defendant in the following terms: 1. In the event that the Plaintiff, Julian Karl Blendell, Dominic James Blendell, Nicholas Charles Blendell and/or Matthew Edward Byrne are ordered to pay any of the Defendant's costs in proceedings 2016/188756 and 2016/302424, the Defendant: a. Will not enforce any costs order as against the Plaintiff; and b. Will, in the event the Plaintiff is a co-debtor arising out of an order for costs against her in respect of proceedings 2016/188756 and/or 2016/302424, indemnify the Plaintiff against any claim by Julian Karl Blendell, Dominic James Blendell, Nicholas Charles Blendell and/or Matthew Edward Byrne for contribution to the payment of the costs order. 1. The intent of these orders and notations is that the Plaintiff will receive an amount of $300,000, net of any costs that she is, or becomes, liable to pay, arising out of proceedings 2016/188756, 2016/302424 and 2017/179996, or becomes otherwise liable to pay.

Parties

Applicant/Plaintiff:

Blendell

Respondent/Defendant:

Byrne & Ors; The Estate of Noeline Joan Blendell

Legislation Cited (8)

Family Provision Act 1982(NSW)

(Marriage Act 1961(Cth)

Succession Act 2006(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Evidence Act 1995(NSW)

Family Law Act 1975(Cth)

Marriage Act 1961(Cth)

Probate and Administration Act 1898(NSW)

Cases Cited (129)

1, 51; [1854] EngR 252; 10 ER 1192 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Brown v Guss [2014] VSC 251 Brown v NSW Trustee and Guardian [2012] NSWCA 431 Burke v Burke [2015] NSWCA 195 Butcher v Craig [2009] WASC 164 Camden v McKenzie [2007] QCA 136 Campbell & Cade [2012] FMCAfam 508 Carey v Norton [1998] 1 NZLR 661 Carey v Robson (No 2) [2009] NSWSC 1199 Chan v Chan [2016] NSWCA 222 Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 Christie v Manera [2006] WASC 287 Clisbey & Viges [2011] FamCA 611 Collings v Vakas [2006] NSWSC 393 Craig v Lamoureux [1920] AC 349 Cringle v Cringle [2018] NSWSC 1558 Crossman v Riedel [2004] ACTSC 127 Daniel v Drew [2005] EWCA Civ 507 Day v Couch [2000] NSWSC 230 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Foye v Foye [2008] NSWSC 1305 Fulton v Andrew (1874 - 1875) LR 7 HL 448 Fulton v Fulton [2014] NSWSC 619 Goodsell v Wellington [2011] NSWSC 1232 Gorton v Parks (1989) 17 NSWLR 1 Green v Green (2016) 4 NZTR 26021; [2016] NZCA 486 Grey v Harrison [1997] 2 VR 359 Grygiel v Baine [No 2] [2005] NSWCA 434 Hall v Hall (1868) LR 1 PD 481 Harkness v Harkness (No 2) [2012] NSWSC 35 Hawkins v Prestage (1989) 1 WAR 37 Hill v Buckley [2008] NSWSC 1374 Hoff v Atherton [2005] WTLR 99 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd 143 CLR 134 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 Hunter v Hunter (1987) 8 NSWLR 573 Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17 In re Munn; Hopkins v Warren [1943] SA St Rp 44; [1943] SASR 304 In the marriage of Todd & Todd (No 2) (1976) FLC 92-008 Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kohari v Snow [2013] NSWSC 452 Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 Leona Johnson (Deceased) [2015] SASC 51 Longman v R (1989) 168 CLR 79; [1989] HCA 60 Lumb v McMillan [2007] NSWSC 386 MacGregor v MacGregor [2003] WASC 169 Marks v Marks [2003] WASCA 297 Maynard v Maynard [2018] NSWSC 1961 McCann v Ward & Burgess [2012] VSC 63 McCosker v McCosker (1957) CLR 566; 31 ALJR 779 McGrath v Eves [2005] NSWSC 1006 McKenzie v Topp [2004] VSC 90 McKinnon v Voigt [1998] 3 VR 543 Meres v Meres [2017] NSWSC 285 Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371 Oakes v Uzzell (1931) 100 LPJ 99 Onassis v Vergottis [1968] 2 Lloyd's Rep. 403 Oxley v Oxley [2018] NSWSC 91 Palin v Ponting [1930] P 185 Pavey & Pavey (1976) FLC 90-051; [1976] FamCA 36 Perrins v Holland [2009] EWHC 1945 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Plunkett v Bull (1915) 19 CLR 544 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Price & Underwood (2008) 29 Fam LR 614 Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931 Re Martin; MacGregor v Ryan [1965] S.C.R. 757 RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 Salmon v Osmond [2015] NSWCA 42 Sammut v Kleemann [2012] NSWSC 1030 Sangha v Baxter [2009] NSWCA 78 Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 State of NSW v Hunt (2014) NSWCA 47 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Steinmetz v Shannon [2019] NSWCA 114 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stott v Cook (1960) 33 ALJR 447 Sung v Malaxos [2015] NSWSC 186 Taylor v Farrugia [2009] NSWSC 801 Thompson v Bella-Lewis [1997] 1 Qd R 429; [1996] QCA 27 Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22 Tobin v Ezekiel (2012) 83 NSWLR 75; [2012] NSWCA 285 Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 Tyrrell v Painton [1894] P 151 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 Vaughan & Bele [2011] FamCA 436 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Verzar v Verzar [2012] NSWSC 1380 Vidler v Ivimey [2013] NSWSC 1605 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep) Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Weisbord v Rodny; Rodney v Weisbord [2018] NSWSC 1866 White v Barron (1980) 144 CLR 431; [1980] HCA 14 Wilcox v Wilcox [2012] NSWSC 1138 Winter v Crichton (1991) 23 NSWLR 116 Wintle v Nye [1959] 1 WLR 284 Woodley-Page v Symons (1987) 217 ALR 25 Yee v Yee [2017] NSWCA 305 Category: Principal judgment Parties: 2016/188756 Michael James Blendell (Plaintiff) Denise Leanne Blendell (first Defendant/first Cross-Claimant) Dominic James Blendell (second Defendant/third Cross-Claimant) Julian Karl Blendell (third Defendant/second Cross-Claimant) Nicholas Charles Blendell (fourth Defendant, submitting appearance) Matthew Edward Byrne (fifth Defendant)