Bruce v Bruce [2026] NSWSC 900 | Case summary

Bruce v Bruce [2026] NSWSC 900 | Case summary | Zoe

Court

Supreme Court of NSW

Decision date

2026-07-30

Before

Williams J

Catchwords

SUCCESSION — Contested probate — Where deceased made wills in 2010 and 2015 — Where deceased’s son seeks a grant of probate for the 2010 will and challenges the validity of the 2015 will on the basis of lack of knowledge and approval and/or the undue influence of the deceased’s daughter — Where deceased’s daughter seeks a grant of probate of the 2015 will — Where deceased decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of her primary asset — Where daughter arranged for the witnesses to the deceased’s execution of the 2015 will — Where daughter, who expected to (and did) receive a substantial benefit under the 2015 will, remained in the room when the deceased’s 2015 will was made and executed — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether suspicious circumstances — Whether suspicion dispelled — Held: Deceased knew and approved the contents of the 2015 will SUCCESSION — Contested probate — Undue influence — Where the son’s case of undue influence overlaps with the case as to lack of knowledge and approval — Where daughter did not arrange for the deceased to obtain independent legal advice in relation to 2015 will — History of the deceased declining to change her 2010 will when daughter protested as to perceived unfairness — Relevance of daughter’s 18-month estrangement from the deceased following the execution of the deceased’s 2010 — Where deceased later decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of the primary asset of her estate — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether the deceased was fearful of her daughter who was present during the making and execution of the 2015 will — Held: Son failed to establish that the deceased made the 2015 will under the undue influence of her daughter CONTRACT— Testamentary contract — Deceased’s son alleges that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged representations not proved and testamentary contract claim fails ESTOPPEL — Proprietary estoppel by encouragement — Where the deceased’s son claims that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged promises were not made and proprietary estoppel claim fails

Source

Original judgment source is linked above.

Catchwords

SUCCESSION — Contested probate — Where deceased made wills in 2010 and 2015 — Where deceased’s son seeks a grant of probate for the 2010 will and challenges the validity of the 2015 will on the basis of lack of knowledge and approval and/or the undue influence of the deceased’s daughter — Where deceased’s daughter seeks a grant of probate of the 2015 will — Where deceased decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of her primary asset — Where daughter arranged for the witnesses to the deceased’s execution of the 2015 will — Where daughter, who expected to (and did) receive a substantial benefit under the 2015 will, remained in the room when the deceased’s 2015 will was made and executed — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether suspicious circumstances — Whether suspicion dispelled — Held: Deceased knew and approved the contents of the 2015 will SUCCESSION — Contested probate — Undue influence — Where the son’s case of undue influence overlaps with the case as to lack of knowledge and approval — Where daughter did not arrange for the deceased to obtain independent legal advice in relation to 2015 will — History of the deceased declining to change her 2010 will when daughter protested as to perceived unfairness — Relevance of daughter’s 18-month estrangement from the deceased following the execution of the deceased’s 2010 — Where deceased later decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of the primary asset of her estate — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether the deceased was fearful of her daughter who was present during the making and execution of the 2015 will — Held: Son failed to establish that the deceased made the 2015 will under the undue influence of her daughter CONTRACT— Testamentary contract — Deceased’s son alleges that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged representations not proved and testamentary contract claim fails ESTOPPEL — Proprietary estoppel by encouragement — Where the deceased’s son claims that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged promises were not made and proprietary estoppel claim fails

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Bruce v Bruce [2026] NSWSC 900

Hearing dates: 1-5 June 2026

Date of orders: 30 July 2026

Decision date: 30 July 2026

Jurisdiction: Equity – Probate and Family Provision List – Probate

Before: Williams J

Decision: See orders at [251] below.

Catchwords: SUCCESSION — Contested probate — Where deceased made wills in 2010 and 2015 — Where deceased’s son seeks a grant of probate for the 2010 will and challenges the validity of the 2015 will on the basis of lack of knowledge and approval and/or the undue influence of the deceased’s daughter — Where deceased’s daughter seeks a grant of probate of the 2015 will — Where deceased decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of her primary asset — Where daughter arranged for the witnesses to the deceased’s execution of the 2015 will — Where daughter, who expected to (and did) receive a substantial benefit under the 2015 will, remained in the room when the deceased’s 2015 will was made and executed — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether suspicious circumstances — Whether suspicion dispelled — Held: Deceased knew and approved the contents of the 2015 will
SUCCESSION — Contested probate — Undue influence — Where the son’s case of undue influence overlaps with the case as to lack of knowledge and approval — Where daughter did not arrange for the deceased to obtain independent legal advice in relation to 2015 will — History of the deceased declining to change her 2010 will when daughter protested as to perceived unfairness — Relevance of daughter’s 18-month estrangement from the deceased following the execution of the deceased’s 2010 — Where deceased later decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of the primary asset of her estate — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether the deceased was fearful of her daughter who was present during the making and execution of the 2015 will — Held: Son failed to establish that the deceased made the 2015 will under the undue influence of her daughter
CONTRACT— Testamentary contract — Deceased’s son alleges that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged representations not proved and testamentary contract claim fails
ESTOPPEL — Proprietary estoppel by encouragement — Where the deceased’s son claims that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged promises were not made and proprietary estoppel claim fails

Read the judgment on NSW Caselaw

Parties

Applicant/Plaintiff:

Bruce

Respondent/Defendant:

Bruce

Legislation Cited (1)

Conveyancing Act 1919

Cases Cited (46)

These proceedings concern the estate of the late Agnes Bruce, who died on 15 April 2024 at the age of 102 years.
Agnes is survived by her two children, Paula Margaret Bruce and Robert Colin Bruce, her grandchildren Colette Eyers (the daughter of Paula), Oliver Godwin (the son of Paula), and Alexander Bruce (the son of Robert), and her great-grandchildren Eve Taylor and William Taylor (the children of Colette).
The principal asset of Agnes’ estate is a property at 46 Arcadia Street, Coogee, which has an estimated value of $7,500,000 (46 Arcadia Street). Agnes and her husband, Colin Bruce purchased that property as joint tenants in February 1977. Agnes became the sole owner of the property following Colin’s death on 21 February 1998 by right of survivorship.
Colin and Agnes made mutual Wills on 6 November 1968, under which each of them left their entire estate to the other, and to Paula and Robert in equal shares if their spouse did not survive them (the 1968 Will****s).
Robert claims that Colin and Agnes made promises to him when they purchased 46 Arcadia Street in February 1977, and at various times thereafter, to the effect that the property would eventually pass to him.
At the time of Colin’s death on 21 February 1998, his 1968 Will was his last will and testament.
Agnes made an informal will on 27 March 1999 which made gifts totalling $110,000 to her two grandchildren at the time, and gave the rest of her estate to Paula and Robert in equal shares (the 1999 Informal Will).
Agnes made a formal will on 13 July 2010, revoking all former testamentary acts, giving 46 Arcadia Street to Robert, subject to the condition that, if the other assets in the estate were insufficient to cover liabilities and bequests totalling $515,000 to Paula and others, the gift of the property to Robert would be charged with the sum necessary to satisfy those payments, and giving the residue of her estate to Paula (the 2010 Will).
There is no dispute about the validity of the 2010 Will at the time it was made.
Agnes made a new will on 22 March 2015, revoking all previous wills and documents of testamentary intent, giving 46 Arcadia Street to Paula and Robert in equal shares, giving $10,000 to a friend, giving Robert all bank deposits and shares and giving the residue of her estate to Paula (the 2015 Will).
Both the 2010 Will and the 2015 Will appointed Paula and Robert as executors and trustees.
On 11 December 2024, Robert commenced proceedings 2024/460832 seeking a grant of probate in respect of the 2010 Will and claiming declarations to the effect that the 2015 Will is invalid on the grounds that Agnes lacked testamentary capacity at the time it was made, it was made without Agnes’s knowledge and approval of its contents, and/or was procured by undue influence exercised by Paula. Robert also claimed specific performance of a testamentary contract allegedly made by Agnes to leave 46 Arcadia Street to Robert, or damages for breach of that contract. Alternatively, Robert claimed that the doctrine of proprietary estoppel precludes Agnes’ estate from departing from representations allegedly made to him by Agnes during her lifetime that 46 Arcadia Street would pass to him. Robert submitted that the testamentary contract and proprietary estoppel claims are relevant only if his challenges to the 2015 Will fail.
On the same day, Paula commenced proceedings 2024/460951 seeking a grant of probate in respect of the 2015 Will.
The proceedings were heard together, with evidence in one being evidence in the other. Immediately after the evidence concluded and before the parties commenced closing submissions, Robert abandoned his claim that Agnes lacked testamentary capacity at the time she executed the 2015 Will. As to the remaining issues, I have determined for the reasons that follow that Agnes knew and approved of the contents of the 2015 Will and that she did not execute the 2015 Will under the undue influence of Paula. I have also determined that Robert has failed to establish the alleged testamentary contract and the alleged statements on which his proprietary estoppel claim is founded. In coming to those conclusions, I have considered all of the parties’ written and oral submissions, although I have not found it necessary to restate the substance of all of those submissions in order to explain the reasons for my decision.
In these reasons, I refer to the deceased and her husband and their two children by their first names – Agnes, Colin, Paula and Robert – to avoid confusion that would otherwise arise from their common surname. For consistency, I adopt the same convention in relation to the spouses and children of Paula and Robert. No disrespect is intended.

It was submitted on behalf of Robert that his evidence on all matters of controversy should be preferred over Paula’s evidence because: (a) his evidence was clear and responsive to the questions asked of him and he made admissions contrary to his own interests; (b) Paula’s evidence was frequently non-responsive and evasive; and (c) Paula’s evidence was inherently unreliable as demonstrated by the late change to her evidence concerning financial contributions made by Robert to the costs of obtaining the development consent for the property at 9 Berwick Street, Coogee.
The submission that Robert gave evidence that was clear and responsive referred to numerous extracts of the transcript of Robert’s cross-examination in which it was submitted demonstrated his “clear responsive recollection of past events”. The fact that Robert answered many questions stating in clear terms a recollection that he claims to have of past events or conversations does not, by itself, demonstrate that his claimed recollection is reliable, for all of the reasons explained by McLelland CJ in Eq in Watson v Foxman. Furthermore, the extracts of the transcript of Robert’s cross-examination that were relied on as demonstrating his willingness to make admissions contrary to his own interests are not, with one exception, admissions concerning matters that were material to the determination of these proceedings. The exception comprises the concessions that Robert was forced to make when confronted in cross-examination with documentary evidence demonstrating that his evidence that he was living with Agnes at 46 Arcadia Street “on a nearly full-time basis” in 2017 in order to care for her was wrong. Those concessions, and Robert’s subsequent abandonment of his claim that Agnes lacked testamentary capacity by March 2015, to which that evidence had been directed, illustrate the unreliability of Robert’s evidence in relation to matters said to have occurred approximately ten years ago and raise serious doubts about the reliability of his evidence concerning events and conversations said to have occurred even further in the past. [6]
Paula’s evidence was evasive on occasions, including her evidence referred to at [174] and part of her evidence referred to at [205] below. However, I reject Robert’s submission that Paula’s evidence at [127] below was evasive for the reasons there explained. As counsel for Paula submitted, Robert’s evidence was also evasive on occasions where a responsive answer to the question asked of him would have been contrary to his interests in these proceedings. Examples of this include Robert’s evidence referred to at [42]-[44] below.
I have addressed Robert’s submissions about the late change to Paula’s evidence concerning Robert’s financial contributions to the costs of obtaining the development consent for 9 Berwick Street, and its implications for the assessment of the reliability of Paula’s evidence, at [93]-[95] below. In short, the evidence of both Paula and Robert in relation to disputed conversations and events during the period between 1977 and 2015 must be treated with caution for the reasons explained at [18]-[21] above. In the reasons that follow, I have assessed the relevant aspects of their evidence in the manner described at [20] above.
For all of those reasons, I reject the general submission made on behalf of Robert that his evidence on all matters of controversy should be preferred over Paula’s evidence.
The evidence given by each other witness was of short compass. I do not consider that it is necessary or helpful to consider the reliability and credibility of the evidence given by those witnesses in general terms, as Robert asked the Court to do. The evidence of each of those witnesses is referred to below to the extent that it is relevant to the issues to be determined in these proceedings, and any questions concerning the reliability or credibility of that evidence are addressed in that context.

In December 1976, Robert was living together with Colin and Agnes in a block of units that his parents owned at 37 Arcadia Street, Coogee. According to Robert’s evidence, he became aware that his parents intended to sell 37 Arcadia Street. Robert gave evidence that, when he mentioned this to their neighbour, Mrs Kerslake at 46 Arcadia Street, she told Robert that she intended to sell her property and offered to sell it to him. Robert wanted to buy 46 Arcadia Street but could not afford to do so and did not believe that a bank would lend him the necessary funds. Robert therefore proposed to his parents that they make a loan to him out of the sale proceeds of 37 Arcadia Street to finance his purchase of 46 Arcadia Street. Colin and Agnes told Robert that they needed to buy a new home out of the sale proceeds of 37 Arcadia Street and that they would not have sufficient funds to lend Robert the purchase price of 46 Arcadia Street. However, Colin and Agnes proposed that they purchase 46 Arcadia Street “for the three of us”, or words to that effect. Robert gave evidence that he recalls the gist of words said by his parents during this conversation to the effect that “they would buy the property, but it would eventually be mine”.
According to Robert’s evidence, he met with Mrs Kerslake together with his parents at 46 Arcadia Street a few days after the conversations referred to above. Mrs Kerslake told Colin and Agnes that she had offered to sell 46 Arcadia Street to Robert, and not to them. Colin and Agnes told Mrs Kerslake that the property would eventually pass to Robert. Robert told Mrs Kerslake that he trusted his parents’ word.
At the time that Robert says those conversations about the purchase of 46 Arcadia Street took place, Colin was about 67 years of age, Agnes was about 54 years of age, and Robert was about 22 years of age. Paula was about 24 years of age, and was living in Adelaide.
Paula gave evidence that she recalls that Agnes was friendly with Mrs Kerslake when they were living opposite one another in Arcadia Street, and that she recalls Agnes telling her at some time prior to 1976 that Mrs Kerslake had mentioned that she planned to move out of Sydney or to an outer suburb of Sydney and that Agnes had told Mrs Kerslake that she would be interested in buying 46 Arcadia Street if Mrs Kerslake were ever to sell. Paula also gave evidence that her parents told her in late 1976 or early 1977 that they were purchasing 46 Arcadia Street from Mrs Kerslake, and that Agnes often spoke to her during this period about their negotiations with Mrs Kerslake. Paula does not recall Agnes mentioning Robert having any involvement in those negotiations. Paula gave evidence that neither her parents nor Robert told her at any time that Mrs Kerslake had offered to sell 46 Arcadia Street to Robert, or that her parents had purchased the property for Robert.
Colin and Agnes sold 37 Arcadia Street for $113,500. The sale settled on 4 February 1977. According to Robert’s evidence, the sale settled despite the purchaser paying only half of the purchase price. The purchaser was in some financial difficulty, and the balance of the purchase price remained outstanding for a long time.
The sale of 46 Arcadia Street to Colin and Agnes as joint tenants also settled on 4 February 1977. The registered memorandum of transfer bearing that date records Mrs Kerslake’s acknowledgement of receipt of the consideration of $55,500. Robert moved into 46 Arcadia Street with his parents and continued living there with them until 1986.
According to Robert’s evidence, the payment of only half of the purchase price by the purchaser of 37 Arcadia Street meant that Colin and Agnes had sufficient funds to settle their purchase of 46 Arcadia Street but had little money left over for renovations. A number of conversations took place between Robert, Colin and Agnes shortly after settlement. Robert does not claim to recall the details of those conversations, but he gave evidence that he recalls that the gist of what was said was that Colin and Agnes asked him to contribute to major renovations of 46 Arcadia Street because they had little money available for renovations and “they reminded me that we had an agreement that I would inherit this house and I agreed”. Robert gave evidence that his parents told him in these conversations that “it will eventually pass to you, and you are investing in your own future” or words to a similar effect.
It was put to Robert in cross-examination that his evidence of the promises that he says Colin and Agnes made to him that 46 Arcadia Street would eventually pass to him was inconsistent with the 1968 Wills, which were not updated at any time prior to Colin’s death in February 1998. Robert responded by observing that the 1968 Wills pre-dated the promises that he says were made to him from 1977. By that answer, Robert evaded confronting the fact that neither of his parents updated their Wills to reflect the promises that he claims were made to him at about the time those promises are said to have been made or, in Colin’s case, at any time prior to his death twenty years later on 21 February 1998. As explained later in these reasons, Colin took steps to put his affairs in order in 1997 when he was diagnosed with heart failure. Those steps did not include making any change to the mutual Wills that he and Agnes had made in 1968. Colin appears to have been content to leave things on the basis that, after Agnes’ death, all of her assets (including their jointly owned assets which passed to her by right of survivorship on his death, and including 46 Arcadia Street if it remained in her ownership at the time of her death) would be divided equally between Paula and Robert. [7]
It was also put to Robert in cross-examination that the terms of Agnes’ 1999 Informal Will were inconsistent with the promises that he says Colin and Agnes made to him that 46 Arcadia Street would eventually pass to him. Robert acknowledged that the 1999 Informal Will did not gift 46 Arcadia Street to him, adding: “But similarly at that stage, my mother also thought she still had beneficial ownership of 9 Berwick Street.” There is no evidence that Agnes believed that she had beneficial ownership of 9 Berwick Street when she made her 1999 Informal Will. Nor was there any basis for such a belief in March 1999. I have found that Colin and Agnes transferred all of their interest in that property to Paula, and Paula became the sole legal and beneficial owner of that property, in about August or September 1993. [8] As counsel for Paula submitted, even if Agnes had believed that she retained a beneficial interest in 9 Berwick Street when she made the 1999 Informal Will (contrary to my finding), this would not have been capable of explaining the terms of that Will in a manner that was consistent with the promises and representations that Robert alleges were made to him concerning 46 Arcadia Street. Robert’s evidence on the subject of the 1999 Informal Will was evasive and implausible.
In his affidavit affirmed on 29 April 2025, Robert asserted that Agnes’ 2010 Will was consistent with the promises that he said were made to him by Colin and Agnes concerning 46 Arcadia Street. It was put to Robert in cross-examination that the condition attached to Agnes’ gift of 46 Arcadia Street to him under the 2010 Will was inconsistent with those alleged promises. Robert’s answers evaded meaningfully engaging with the inconsistency between the condition and the alleged promises, asserting that the condition would not affect the gift if there were sufficient funds in the estate to pay the liabilities and legacies provided for in Agnes’ 2010 Will.
Robert has given evidence that he undertook significant renovation and construction work at 46 Arcadia Street during 1977 and 1978 and that he also made financial contributions to such work, including purchasing gas pipes and heating, purchasing carpets, purchasing and replacing all water pipes, installing a new bathroom, plumbing, tiling, painting and landscaping, purchasing a second hand stove, and installing new kitchen cabinetry and bench tops.
According to Paula’s evidence, it was Colin and Agnes, and not Robert who carried out these works, which also included the construction of a double garage and laundry and the construction of a brick front fence. Paula recalls having regular telephone conversations with her parents while she was living in Adelaide during this period in which they described these works to her. Based on her recollection of those conversations, Paula gave evidence that Colin carried out much of the renovation work himself with some assistance from Robert, and Colin and Agnes engaged and paid a builder to carry out the building work (being the construction of the garages, laundry and front fence).
In reply to Paula’s evidence, Robert maintained that he did the work described at [45] above but acknowledged that the construction of the garage and laundry was undertaken by a builder engaged by Colin and Agnes after the purchaser of 37 Arcadia Street paid the outstanding balance of the purchase price in about February 1978.
In her affidavit replying to Robert’s evidence and in cross-examination, Paula maintained her denial that Robert had carried out or paid for any material renovation or construction at 46 Arcadia Street during 1977 to 1978.
Robert also gave evidence that he carried out further renovations at 46 Arcadia Street, and maintained the property, during the period in which he lived there until 1986. According to Robert’s evidence, he had numerous conversations with Colin and Agnes during this period the details of which he cannot recall but can recall the gist of which was “how I was doing this work and how it was an investment in my future and it was my consideration for inheriting 46 Arcadia St in their wills”.
Robert did not give evidence describing the nature of or the extent of the work that he says he carried out at 46 Arcadia Street during the period between 1978 and 1986. He did not retain receipts for any such work.
During the period in which Robert says that he was carrying out works to 46 Arcadia Street between 1977 to 1986, Robert was living at that property with his parents without paying rent. Robert was between 22 and 32 years of age at the time.
In November 1980, Robert purchased a unit in Clovelly for $63,000 using $18,000 of his own funds, a gift of $5,000 from Agnes, and a bank loan of $42,000 to cover the balance of the purchase price, stamp duty and conveyancing costs.
Paula gave evidence denying that Robert had carried out renovations to 46 Arcadia Street during the period between 1977 to 1986. According to Paula’s evidence, all of the renovations were complete when she visited the property no more than a year after her parents had purchased it, save for the construction of the garage and the laundry which took a little longer to complete.
Robert’s evidence of the gist of the words that he says his parents said to him and to Mrs Kerslake during their discussions and negotiations concerning the purchase of 46 Arcadia Street during the period between December 1976 and February 1977, his evidence that his parents reminded him during the period between February 1977 and 1978 when he claims to have carried out major renovations to the property that they had an agreement that Robert would inherit the property and that it would eventually pass to him, and his evidence that his parents told him that the further works which he claims to have carried out at the property during the period up to 1986 were “an investment in my future” and “my consideration for inheriting 46 Arcadia St in their wills”, is based solely on his recollection and is unsupported by any contemporaneous documents. His recollection is inherently unreliable due to the passage of time and the likely effect of these proceedings on the processes of memory. [9]
Robert’s evidence of the statements and promises allegedly made to him by Colin and Agnes is inconsistent with the objective fact that neither of his parents made a will at any time thereafter under which 46 Arcadia Street was to be left to him by the survivor of his parents. [10] It is inherently improbable that Robert’s parents made promises to him concerning his inheritance that were inconsistent with the provisions of their 1968 Wills.
Even under Agnes’ 2010 Will, which Robert seeks to uphold in these proceedings, the gift of 46 Arcadia Street to Robert was subject to a condition that is inconsistent with the alleged promises and statements, as was submitted on behalf of Paula. [11] In any event, there is no temporal connection between the alleged promises and statements and the 2010 Will. Agnes’ 1999 Informal Will, the terms of which were wholly inconsistent with the alleged promises and statements, intervened. The principal case theory propounded on behalf of Robert in these proceedings – that the terms of the 2010 Will reflect what Agnes considered to be fair as between Paula and Robert following events that occurred during the period between 1993 and 2001 in relation to another property at 9 Berwick Street, Coogee – is inconsistent with the alleged promises said to have been made during the period from December 1976 to 1986 that Robert would inherit 46 Arcadia Street. [12]
For the reasons at [54]-[56] above, I do not feel actual persuasion that Colin and Agnes made the alleged statements and promises referred to at [35]-[36], [41] and [49] above.

In or about September 1986, Colin and Agnes inherited a two-thirds share in a property at 9 Berwick Street, Coogee (9 Berwick Street), from their friend Ms Harriet O’Donnell. Ms Helen O’Donnell was the owner of the other one-third share.
Robert lived at 9 Berwick Street during various periods of time between late 1986 and about mid-1991. Paula moved into 9 Berwick Street in about 1987 or 1988, together with her daughter, Colette, after their return from Adelaide. Colette was born in 1981. Robert and Paula have different recollections about the time periods from 1987 during which Robert, Paula and Colette resided at the property together. Nothing turns on that. The three of them were residing at the property in 1990 when Paula’s future husband, Mr Jeremy Godwin, moved in before he and Paula married in early 1991. It is common ground that neither Paula nor Robert was satisfied with those living arrangements at 9 Berwick Street. It is not necessary to make any findings about the reasons for that dissatisfaction. Robert ultimately moved out in about July or August 1991, shortly before Paula and Jeremy’s son, Oliver, was born in September 1991.
On 24 September 1987, Ms Helen O’Donnell transferred her one-third share in 9 Berwick Street to Robert and Paula as tenants in common in equal shares. The consideration for the transfer was paid by Colin and Agnes, and not by Robert and Paula. Following the registration of the transfer, the registered owners of 9 Berwick Street were Colin (as to a one-third share), Agnes (as to a one-third share), Robert (as to a one-sixth share), and Paula (as to a one-sixth share). It is common ground between Paula and Robert that they each agreed to hold the one-sixth interest transferred to them for the benefit of their parents.
On 4 January 1989, Agnes transferred her one-third share to Paula and Colin transferred his one-third share to Robert, following which Paula and Robert were the registered owners of 9 Berwick Street as tenants in common in equal shares. The memoranda of transfer from Agnes and Colin to Paula and Robert (respectively) recorded that each transferor acknowledged receipt of consideration of $100,000. However, it is common ground between Paula and Robert that they did not pay any consideration for the interests in the property transferred to them by Agnes and Colin. Paula and Robert had a shared understanding that their one-half interests in 9 Berwick Street were held for the benefit of their parents and that their parents were the beneficial owners of the property. According to Robert’s evidence, he understood at this time that, when 9 Berwick Street was later sold, he and Paula would each receive $100,000 and that the balance of the sale proceeds would be paid to Colin and Agnes.
As referred to above, Robert moved out of 9 Berwick Street in about July or August 1991. It was submitted on behalf of Robert that this had the “practical consequence” that “if there was an intention by [Agnes and Colin] to, in effect, give to Robert and Paula the legal interest they now had in Berwick St as of 1989 that situation was no longer tenable because of the conflict between Robert and Paula and their living arrangements at Berwick St”. There is no evidence capable of supporting an inference that Agnes and Colin intended to make a gift of 9 Berwick Street, in which they continued to hold the beneficial interest at that time, to Robert and Paula during their lifetimes. It will be recalled that, under the 1968 Wills made by Colin and Agnes in 1968, the survivor of the two of them left their estate to Paula and Robert in equal shares. The conflict between Robert and Paula did not render those testamentary arrangements untenable, either generally or insofar as they applied to 9 Berwick Street, when Robert moved out of the property in July or August 1991.
By memorandum of transfer of land dated 22 August 1993, Robert transferred his interest in 9 Berwick Street to Paula. The memorandum records an acknowledgement of receipt or consideration of $280,000. It is common ground that Robert did not in fact receive consideration of $280,000, which he said was recorded in the memorandum of transfer for stamp duty purposes.
By memorandum dated 2 September 1993, Paula granted a mortgage over 9 Berwick Street to Colin and Agnes. The terms of the mortgage were set out in Annexure A to the memorandum:

The transfer from Robert to Paula and the mortgage granted by Paula in favour of Colin and Agnes were registered on the title to 9 Berwick Street on 7 September 1993.
There is a dispute between Robert and Paula about the true substance of the transaction pursuant to which the transfer and mortgage were executed and registered (the 1993 transaction).
It is common ground that, immediately prior to the 1993 transaction, Colin and Agnes were the beneficial owners of 9 Berwick Street.
According to Robert’s evidence, Colin and Agnes remained the beneficial owners of 9 Berwick Street after the transfer of his interest in the property to Paula, and Paula became the sole trustee of the property for Colin and Agnes. Robert did not receive any payment from Paula in consideration for the transfer of his interest in the property to her. Colin and Agnes paid him the sum of $100,000 as a payment for holding the property on trust for them pursuant to the arrangement that he understood had been made in 1989. [13] Robert also gave evidence of his belief that there was no loan of $500,000 made by Colin and Agnes to Paula, and that the mortgage that was registered against the title to 9 Berwick Street ostensibly securing such a loan was intended to protect Colin and Agnes’ interest as the beneficial owners of the property in case of any claim made by Jeremy against the property in any family law proceedings between Jeremy and Paula, and that Colin, Agnes and Paula had entered into a “side agreement” acknowledging Colin and Agnes’ beneficial ownership of the property. At the time of the 1993 transaction, Paula and Jeremy had recently separated or were in the process of separating.
According to Paula’s evidence, she “bought out” Robert’s one-sixth share of 9 Berwick Street by paying him the sum of $100,000. Paula then purchased Colin and Agnes’ beneficial interest in the remaining two-thirds of the property for the price of $550,000. That price was calculated on the basis that the market value of 9 Berwick Street at the time of the 1993 transaction was $750,000. According to Paula’s evidence, she became the sole legal and beneficial owner of 9 Berwick Street on completion of the 1993 transaction, subject to the interests of Colin and Agnes as mortgagees under the registered mortgage.
Paula was cross-examined extensively about whether she paid the sum of $100,000 to Robert as she claimed, or whether Colin and Agnes paid that sum to him. Paula gave evidence that she was “very confident” that she had paid that sum to Robert, but acknowledged that she was unable to locate any records of such a payment and could not recall the steps that she had taken to make the payment. In her affidavit affirmed on 31 March 2025 and under cross-examination, Paula gave evidence that the payment may have been made to Robert “through my parents”.
Paula gave evidence that, of the $550,000 purchase price, she paid the sum of $50,000 to her parents as a deposit. She was unable to pay the balance of $500,000 at the time of the 1993 transaction, and that sum was the subject a loan from her parents secured by the mortgage registered against the title to 9 Berwick Street.
Paula was cross-examined extensively about whether Colin and Agnes had in fact made a loan of $500,000. After acknowledging that her parents did not pay her the sum of $500,000, Paula gave the following evidence in cross-examination:

It is not clear what, if any, words followed the words “Loan To Paula Bruce &” because the corner of the page on which the note was written appears to have been torn away. For the avoidance of doubt, no suggestion was made by either party to these proceedings that this was done deliberately by any person.
The words “To Pay $200 per week until FINAL PAY” appear to have been struck through, and the words “or on sale of property” appear to have been inserted using a different, darker ink than the rest of the writing on the page.
On the basis of the evidence referred to at [60]-[78] above, considered as a whole, I find that Paula became the sole legal and beneficial owner of 9 Berwick Street as a result of the 1993 transaction, and that she acquired that interest by paying a purchase price of $550,000 that was calculated based on a market value of $750,000 for the property from which Colin and Agnes agreed to deduct a sum of $200,000, representing an amount of $100,000 that Colin and Agnes had agreed to pay to each of Paula and Robert when 9 Berwick Street was sold under the arrangement about which Robert gave evidence at [61] above. As recorded in Robert’s contemporaneous note referred to at [74] above, the sum of $100,000 payable to Paula under that arrangement was deducted from the purchase price as a sum to which Paula was entitled. The sum of $100,000 payable to Robert under that arrangement was deducted from the purchase price payable by Paula as *“*Roberts payout”. Robert’s contemporaneous note is consistent with Paula’s evidence that she made that payment of $100,000 to Robert. There is no evidence of any other reason why that sum would have been deducted from the purchase price payable by Paula to Colin and Agnes for 9 Berwick Street, as recorded in Robert’s note. I accept Paula’s evidence that she paid the sum of $100,000 to Robert. Paula’s affidavit evidence that she paid a deposit of $50,000 to Colin and Agnes, to which she adhered in cross-examination, is also consistent with Robert’s contemporaneous note. I accept Paula’s evidence that she paid that deposit. I also accept Paula’s evidence referred to at [71]-[72] above that Colin and Agnes lent Paula the balance of the purchase price in the sum of $500,000, and that the loan was secured by the mortgage that was registered over the property in favour of Colin and Agnes. Those aspects of Paula’s evidence are consistent with the registered memorandum of mortgage, Robert’s contemporaneous note referred to at [74] above in which the sum of $500,000 is described as “Loan Amount”, and Agnes’ contemporaneous note referred to at [76] above. The submission made on behalf of Robert that there was “no appreciable evidence that there was any vendor finance arrangement in place” between Colin and Agnes (as vendors and lenders) and Paula (as purchaser and borrower) is baseless and fails to grapple with the substance of Paula’s evidence referred to at [71]-[72] above.
I reject Robert’s evidence concerning the true transaction referred to at [68] above. That evidence is wholly inconsistent with the contemporaneous memorandum of transfer and memorandum of mortgage and there is no evidentiary basis for finding that those documents were a sham. [14] Robert did not adduce evidence that would provide a sufficient basis for finding that he and Paula (insofar as the memorandum of transfer is concerned) and Paula, Colin and Agnes (insofar as the memorandum of mortgage is concerned) intended to deceive any person as to the true nature of the 1993 transaction by executing and registering those documents. Robert’s evidence that they intended that Colin and Agnes should remain the beneficial owners of 9 Berwick Street, and that the mortgage should serve as a form of protection of that interest in the event of any claim against the property by Jeremy, is implausible. A mortgage securing a loan of $500,000 would not be effective to protect the alleged interest of Colin and Agnes as beneficial owners of the property which was valued at $750,000 at the time of the 1993 transaction according to Robert’s contemporaneous note referred to at [74] above and which was inherently likely to increase in value in the future. That implausibility would be compounded if Robert’s evidence at [75] above were to be accepted. However, I reject that evidence in the absence of any supporting contemporaneous documents.
Robert’s evidence at [68] above is wholly inconsistent with his own contemporaneous note extracted at [74] above. I reject the submission made by counsel for Robert that the words “Must be legally protected” in his contemporaneous note refer to the protection of the interests of Colin and Agnes as alleged beneficial owners of the property. In my opinion, it is clear from reading the note as a whole that caveat referred to in point 6 of the note is referable to the loan and loan agreement referred to in point 4, and the interests of Colin and Agnes to be “legally protected” by the caveat were their interests in having security for the repayment of that loan. In the events which happened, they were protected by the registration of a mortgage rather than the lodgement of a caveat.
The submissions made on behalf of Robert made no attempt to reconcile the apparent inconsistency between his evidence referred to at [68] above with his note made in October 2001 referred to at [118] below concerning the agreement allegedly made between himself, Paula and Agnes in May 1999 about the division between them of the proceeds of any sale of 9 Berwick Street.
For all of those reasons, I reject the submissions made on behalf of Robert to the effect that Colin and Agnes remained the beneficial owners of 9 Berwick Street following the 1993 transaction and that Paula held the legal title to the property as trustee for them. I find that, under the 1993 transaction, Paula acquired 9 Berwick Street for a price calculated in accordance with the parties’ understanding of the market value of the property at the time, adjusted as described at [79] above. Of the sum of $550,000 that was payable following those adjustments, Paula paid $50,000 as a deposit and Colin and Agnes lent her the remaining $500,000. That loan was secured by the mortgage registered against the title to the property on 7 September 1993.
Robert’s signature on the memorandum of transfer of his interest in 9 Berwick Street to Paula dated 22 August 1993 was witnessed by Lorraine, with whom Robert was in a relationship at the time and who he later married. According to Lorraine’s evidence, to the best of her recollection, the gist of the conversations that she recalls between Robert, Colin and Agnes at family dinners that she attended at about the time of these events in 1993 was that “the transfer took place because 46 Arcadia Street … would eventually become Robert’s property, as Paula now owned 9 Berwick Street”. I note that this evidence is irreconcilably inconsistent with Robert’s evidence, which I have rejected, that Colin and Agnes remained the beneficial owners of 9 Berwick Street following the 1993 transaction. I reject Lorraine’s evidence that family conversations at the time linked Paula’s ownership of 9 Berwick Street to an alleged promise that 46 Arcadia Street would eventually be given to Robert. That evidence is inherently implausible because, as I have found above, Paula purchased 9 Berwick Street. In cross-examination, Lorraine acknowledged that she was not aware of that at the time of the 1993 transaction. Given the demonstrated unreliability of Lorraine’s evidence in relation to events that occurred as recently as 2018, [15] I do not regard her evidence of conversations as long ago as 1993 as reliable unless it is corroborated, consistent with undisputed facts, or consistent with the inherent probabilities.

In 1997, Colin was diagnosed with heart failure.
According to Paula’s evidence, Colin and Agnes approached her soon after Colin’s diagnosis and asked her to pay in full the balance of the loan that she owed to them in respect of her purchase of 9 Berwick Street. Colin and Agnes told her that they wanted to use the money to help Robert financially. Colin told her that he was very unwell and wanted his affairs in order before he died. Paula was unable to repay the loan at that time without selling 9 Berwick Street. She proposed an alternative solution whereby Robert could be given the land behind the existing house at 9 Berwick Street on which to build a home and Paula could retain the balance of the property. According to Paula’s evidence, this proposal was rejected either by Robert, by her parents, or by all of them. Paula therefore agreed to sell 9 Berwick Street in order to repay the loan as requested by Colin and Agnes.
On 17 July 1997, Paula entered into a contract for the sale of 9 Berwick Street to Smilie Pty Ltd. In about September 1997, Paula terminated the contract for the purchaser’s failure to complete. The purchaser sued Paula seeking orders for specific performance of the contract or relief against forfeiture of the deposit. The purchaser was unsuccessful at first instance and on appeal: Smilie Pty Ltd v Bruce [1998] NSWSC 17 (17 February 1998) and Smilie Pty Ltd v Bruce [1998] NSWCA 681; (1998) 9 BPR 16,723 (21 December 1998).
According to Robert’s evidence, Colin told him at the time of his diagnosis that he “wanted to make things right” (those are Robert’s words). Colin said to him words to the effect of: “I need three more years Rob, three more years.” I reject the submission made on behalf of Robert that this evidence supports a finding that Colin wanted to “equalise” the property at 9 Berwick Street “for his children” so as to “provide for his children equally”. Colin and Agnes had already sold 9 Berwick Street to Paula, as I have found at [79]-[83] above. That property was no longer theirs (or Colin’s) to “equalise”. In circumstances where Paula had received the benefit of an interest-free loan from Colin and Agnes to fund her purchase of 9 Berwick Street in September 1993 and Colin and Agnes had not enforced their right to require her to make the repayments that had been due on 30 August 1994 and 30 August 1996, Paula’s evidence that Colin and Agnes wanted the loan repaid so that they would be in a position to provide some financial assistance to Robert is inherently plausible. I accept that evidence.

On 14 May 1998, architects acting on behalf of Paula applied to Randwick City Council for development consent for the development of nine units at 9 Berwick Street. The Council refused the application.
According to Robert’s evidence, Agnes asked him in 1999 to fund an appeal to the Land and Environment Court against Randwick City Council’s refusal of development consent for the nine units at 9 Berwick Street. Agnes made the request shortly before the time period for lodging any such appeal was to expire. Robert initially declined. According to his evidence, Agnes then “begged me to help her.” According to Robert’s evidence, Agnes promised him that, if he funded the appeal, he would receive $500,000, being one half of the $1,000,000 that a development approval was expected to add to the sale price of 9 Berwick Street, and this was later confirmed by Paula in a meeting between Agnes, Robert and Paula in May 1999. As referred to later in these reasons, Robert made a typewritten note in October 2001 which included a record of his recollection at that time of the meeting at which he says that agreement was made in May 1999. Lorraine gave evidence of what Robert told her about conversations that he had with Paula and Agnes in early 1999, the substance of which is broadly consistent with Robert’s evidence about the agreement that he claims to have made with Paula and Agnes, save for the timing of the conversation in which that agreement is said to have been made.
Although Paula initially gave evidence that she did not recall asking Robert to help fund costs associated with the proposed development of 9 Berwick Street and she did not recall receiving any such financial support from him, it is now common ground that, between May 1999 and early 2000, Robert paid legal fees and other costs relating to the appeal to the Land and Environment Court against Randwick Council’s refusal of Paula’s development application. According to Robert’s evidence, he paid a total amount of $17,935. According to Paula’s evidence, Robert paid a total amount of only $13,935. Paula’s evidence acknowledging that Robert made payments which she says totalled $13,935 was given in an affirmed that she affirmed on 29 May 2026 after she found a letter that she wrote to Robert in which she acknowledged receipt of funds in that amount. The letter is undated, and Paula cannot recall sending it to Robert. I infer from the contents of the letter, to which I refer at [121] below, that it was written in or about October 2001.
In her affidavit affirmed on 29 May 2026, Paula identified certain circumstances and significant life events during the period from 1998 to 2000 which she said were some of the reasons why she had forgotten about the payments that she now accepts were made by Robert. When it was put to her in cross-examination that those circumstances and events mean that her evidence of conversations and other events during the same period cannot be relied on, Paula denied this. Paula’s assertion that those circumstances and events had a limited or selective effect on the quality of her recollection of matters relating to that time period is implausible. All of the evidence of Paula and Robert concerning the matters in dispute in these proceedings needs to be viewed with caution due to the passage of time for the reasons explained at [18]-[21] above.
In cross-examination, it was put to Paula that she had failed to identify in her 29 May 2026 affidavit each component of her earlier evidence that she accepted was wrong following her discovery of the letter, and to expressly say that each such component was wrong, and to apologise for it. It was put to her that, by failing to do so, she was being dishonest in her 29 May 2026 affidavit. In my opinion, that attack on Paula’s credit was misconceived. Most of the evidence in Paula’s earlier affidavits that was said by the cross-examiner to be “wrong” had been expressed in terms of Paula’s recollection. Paula’s evidence was that the discovery of the letter triggered a recollection that Robert had made the payments acknowledged in her 29 May 2026 affidavit. As Paula said in answering those questions in cross-examination, the whole purpose of that affidavit was to correct her earlier evidence. That is abundantly clear from reading the short affidavit as a whole. I do not consider that the correction called for the formulaic approach suggested by counsel for Robert requiring Paula to address each sub-paragraph of her lengthy earlier affidavits, particularly in circumstances where the letter had been discovered and Paula had prepared her 29 May 2026 affidavit just days before the commencement of the final hearing. I reject Robert’s submission that Paula’s failure to adopt that formulaic approach was dishonest.
In the days leading up to the commencement of the final hearing, Paula also discovered an incomplete letter to Robert dated 4 November 1999 which she does not recall ever sending to Robert. In that incomplete letter, Paula acknowledges receipt of cheques from Robert totalling $13,935, and continued:

According to Robert’s evidence, Paula requested a sum of $20,000 from him in 2000 in addition to the payments he had already made. Robert declined to make that payment because Paula would not tell him what the money was to be used for, and he formed the view that it would not be used for the development application for 9 Berwick Street. Paula discontinued communication with him after he declined to pay the further $20,000.
Paula gave evidence denying that she asked Robert to pay an additional sum of $20,000.
Paula gave evidence denying making any agreement with Robert, in May 1999 or at any other time, to pay him the sum $500,000 or any other amount from the sale proceeds of 9 Berwick Street. Paula acknowledged that there were discussions about Robert obtaining a loan to contribute to the cost of the development that Paula was at that stage proposing to undertake, with a view to Robert obtaining a unit in the development as a home.
In about March 2000, Paula negotiated a loan of $500,000 from Verekers Administration Pty Limited to be secured by mortgage over 9 Berwick Street for the purpose of developing the property if development consent was granted. Paula gave evidence that it was her intention at the time to develop the property if the development consent was granted, rather than simply selling the property with the development consent. Robert gave evidence that he was trying to borrow funds at the same time for the purpose of contributing those funds to the proposed development. Robert gave evidence that he also had some reservations about his and Paula’s ability to develop the property themselves as they were not experienced property developers. As I have mentioned above, it is Paula’s evidence that she was proposing to undertake the development herself, not together with Robert, and that Robert’s involvement under discussion at the time was the contribution of funds in return for a unit the proposed development when completed. Ultimately, Robert did not take out a loan for the purpose of contributing to the funding of the proposed development. Robert gave evidence in cross-examination that he was offered a loan, but he did not accept the offer because he was not satisfied with the rates and terms.
It was put to Robert in cross-examination that, although there had been discussions about his involvement in a proposed development of 9 Berwick Street, no agreement had been reached between Robert and Paula about any amount that Robert would receive. Robert maintained that Paula agreed to pay him $500,000, and that he would not otherwise have proceed to make the payments which, according to his evidence, amounted to $17,935.
The appeal to the Land and Environment Court was successful and consent for the development of nine units at 9 Berwick Street was granted on 30 May 2000.
According to Robert’s evidence, he had obtained a market appraisal of $1,500,000 for 9 Berwick Street when the Land and Environment Court proceedings were commenced. When the development consent was granted, Robert estimated that the value of the property had increased to $2,850,000. Robert’s evidence did not disclose the basis of that estimate, other than to refer to his belief that $2,850,000 was the price for which Paula sold 9 Berwick Street in July 2001. As referred to at [109]-[110] below, the sale price was $2,400,000.
On or about 28 June 2000, Paula granted a mortgage over 9 Berwick Street to Verekers Administration to secure the loan of $500,000 referred to at [100] above. I infer that, at that time, Paula was still intending to proceed with the development of 9 Berwick Street. That intention changed at some time prior to July 2001 when Paula sold 9 Berwick Street, with the benefit of the development consent, to Grandview on Berwick Pty Limited, as referred to below. At the time of the sale, the mortgage that Paula had granted to Colin and Agnes as part of the 1993 transaction remained on the title in addition to the mortgage to Verekers Administration. Following Colin’s death on 21 February 1998, Agnes became registered as the sole mortgagee of the 1993 mortgage on 10 October 2000. Paula had not repaid any part of the sum of $500,000 secured by that mortgage.

Robert and Lorraine married in September 1999 and had a son, Alexander, in October 2000. In about late 2000 or January 2001, Agnes invited Robert and his family to move in with her at 46 Arcadia Street with a view to building a second storey on the property so that they could all live there together and Robert and Lorraine could care for Agnes. According to Robert’s evidence, he intended to use the $500,000 that he says had been promised to him from the sale of 9 Berwick Street to fund the proposed second storey, and the arrangement was “for ownership of 46 Arcadia to be shared equally between myself and Mum”. According to Paula’s evidence, Agnes told her that she (Agnes) would pay for the second storey.
According to Lorraine’s evidence, Robert spent time and money on maintaining and renovating 46 Arcadia Street after they moved into the property. Robert told her that he had also done so when he and his parents had first moved into the property. Lorraine deposed that it was clear to her from her discussions with Agnes before she and Robert moved into 46 Arcadia Street in January 2001 “that Robert inheriting 46 Arcadia St was her intention. This is because I recall during various conversations we had from time to time, the deceased would make comments such as, ‘It just makes sense that you move in now as Robert will get the property anyway and he can make improvements to it’ or words to that effect”. According to Lorraine, she recalls those conversations because she remembers reassuring Robert that she would not make a claim on 46 Arcadia Street if they divorced. It is inherently improbable that Agnes made statements to Lorraine to the effect described by Lorraine in early 2001 less than two years after making her 1999 Informal Will in which she left her estate to Paula and Robert in equal shares. Lorraine’s recollection has been demonstrated to be unreliable in relation to events that occurred as recently as 2018. [19] I do not feel actual persuasion that the alleged conversations occurred 25 years ago in the terms described by Lorraine.

In or about July 2001, Paula entered into and completed a contract for the sale of 9 Berwick Street to Grandview on Berwick Pty Limited. The registered memorandum of transfer dated 19 July 2001 records Paula’s acknowledgement of receipt of consideration of $2,400,000.
Robert gave evidence that he believes the sale price of 9 Berwick Street included a unit in the development up to an amount of $450,000 in addition to the monetary consideration of $2,400,000 recorded in the memorandum of transfer. Paula gave evidence that, at the same time as entering into the contract for the sale of 9 Berwick Street to Grandview on Berwick, she entered into a contract to purchase one of the units in the development for which consent had been granted. In her affidavit affirmed on 31 March 2025, Paula gave evidence that she paid the purchase price of $800,000 for that unit.
Contemporaneous documentary evidence establishes that Lot 5 in the strata plan registered at 9 Berwick Street pursuant to the development was transferred to Paula by Grandview on Berwick on 4 December 2002 for consideration of $900,000 recorded in the registered memorandum of transfer, and that a mortgage granted by Paula in favour of Permanent Custodians Limited as security for a housing loan contract was registered over Lot 5 on the same date. Robert’s evidence does not disclose any basis for his belief that Paula received the unit, or half the value of the unit as he asserted in cross-examination, without payment, as part of the consideration for the transfer of the whole of 9 Berwick Street to Grandview on Berwick. There is no evidence that would displace Grandview on Berwick’s acknowledgement of the receipt of consideration of $900,000 in the registered memorandum of transfer of Lot 5 to Paula, which is prima facie evidence that Paula paid that sum to Grandview on Berwick. [20] There is no evidence that the value of the unit exceeded $900,000.
On the basis of the contemporaneous documentary evidence, I find that the price paid by Grandview on Berwick to Paula in consideration for the transfer of 9 Berwick Street on or about 19 July 2001 was $2,400,000, and that Paula paid the sum of $900,000 to Grandview on Berwick in consideration for the transfer of Lot 5 in the development carried out by Grandview on Berwick at 9 Berwick Street on or about 4 December 2002.
Apparently in anticipation of settlement of Paula’s sale of 9 Berwick Street, Agnes wrote to a “Verekers Solicitors” on 14 July 2001 stating:

Paula does not recall sending the letter, and Robert gave evidence that he does not recall receiving it.
I note that Robert’s evidence referred to at [115] above that Agnes offered to pay him “what Paula owed me” on 20 October 2001, is inconsistent with Robert’s note made after the conversation on that date referred to at [118] above which records that “Agnes made an offer of $50,000 from Paula on 20/10/01” and records no offer or promise by Agnes to pay the sum of $500,000 which Robert contends Paula owed him under the agreement that he says they made concerning the sale proceeds of 9 Berwick Street.
In his affidavit affirmed on 7 March 2025, Robert deposed that his “belief” that Agnes had offered to pay him “what Paula owed me” was founded on the undated handwritten document signed by Agnes and Paula to which I refer at [135] below. That is to say, his belief is not based on any recollection of any conversation with Agnes at the time, but has been reconstructed from his interpretation of that document to which he was not a party. Robert’s interpretation of the document strains against the language of the document.
Paula gave evidence that, under pressure from Robert and Agnes to give Robert some money from the sale proceeds of 9 Berwick Street, she ultimately paid a sum of between $25,000 and $50,000 to Robert as a gift. Robert denies receiving any such payment from Paula.
In closing submissions, Robert made much of Paula’s statement in the undated and likely unsent letter referred to at [121] above that: “Your future at Arcadia St is secure”. As was submitted on behalf of Paula, when read in the context of that paragraph of the letter as a whole, it is plain that Paula was merely referring to the accommodation that she understood Agnes was providing for Robert and his family “at Mum’s house”. [24] Paula gave evidence that she had been pleased when Agnes had first mentioned to her that she would share living space at 46 Arcadia Street with Robert because she (Paula) saw it as a good solution for Robert to have secure accommodation and she was happy that Agnes would have the company of Robert and Lorraine. Paula’s understanding of what had been provided to Robert – expressed in her own words in the letter at [121] above – stands in stark contrast to the statement that Robert attributes to Paula in his October 2021 note referred to at [118] above that Paula “had agreed I was to receive 46 Arcadia Street Coogee in Agnes’ will”. In any event, it was not up to Paula and Robert to agree what either of them would receive by way of inheritance from Agnes. Both the 1968 Will and the 1999 Informal Will made by Agnes left Agnes’ estate to Paula and Robert in equal shares.
Paula was cross-examined extensively about the monetary amount that was paid to her by Grandview on Berwick on settlement of the sale of 9 Berwick Street in July 2021. Paula acknowledged that the sale price of $2,400,000 represented a significant capital gain, but could not recall the exact amount that she received on settlement and noted that she made a payment at settlement in respect of the unit she purchased off the plan in the development to be undertaken by Grandview on Berwick (Lot 5). In light of the documentary evidence referred to at [111] above, it is highly improbable that the whole of the purchase price for Lot 5 was paid by Paula simultaneously with the settlement of her sale of 9 Berwick Street to Grandview on Berwick. That documentary evidence is not inconsistent with a deposit in respect of Lot 5 having been paid at that time. I reject Robert’s submission that Paula’s inability to recall the details of the amount she received on settlement reflects adversely on her credit or that she was being evasive in her answers to questions about that subject matter. The amount that Paula received on settlement would have been affected not only by the payment of $500,000 to Agnes, but also by the payment of the amount (if any) required to discharge the mortgage in favour of Verekers Administration, any deposit in respect of Lot 5, the usual adjustments for rates and services, and any deductions for legal fees or conveyancing costs. As counsel for Paula submitted, it is unremarkable that Paula could not recall these details under cross-examination 25 years after the settlement of the sale of 9 Berwick Street. Paula readily acknowledged in cross-examination that she had received a considerable benefit from holding 9 Berwick Street without making any payment for it other than the $50,000 deposit paid in 1993, before disbursing the proceeds of the $2,400,000 sale in July 2001.
Contrary to the submissions made on behalf of Robert, the issues raised for determination in these proceedings do not require any finding about whether or not Paula and Robert entered into an agreement in or about May 1999 concerning a proposed development of 9 Berwick Street and the sharing of the proceeds of sale of the property – either with a development consent or developed in accordance with that development consent – between Paula, Robert and Agnes. It suffices to find that there were discussions about those matters during the period from about May 1999 until about October 2001, and that Paula and Robert were engaged in a bitter dispute about those matters by October 2001. It is common ground that their relationship never recovered from this dispute, and that they did not speak to one another after October 2001 until about 2018 when they began to communicate about care arrangements for Agnes.
It was submitted on behalf of Robert that the Court should find that *“[t]*he course of the Berwick Street dealings resulted in Paula achieving a very substantial financial benefit for little or no outlay” and that this benefit to Paula “provides the likely explanation as to the contents of the deceased’s 2010 Will”. On the basis of all of the evidence referred to at [60]-[127] above, I find that Paula received an interest-free loan of $500,000 from Colin and Agnes in September 1993 in respect of which she made no repayments of principal until July 2001 when she sold 9 Berwick Street. I find that this loan facilitated Paula’s acquisition of 9 Berwick Street in 1993, and enabled her to hold the property until she obtained the development consent in May 2000 and to achieve a significant capital gain on the sale of the property with the benefit of that development consent in July 2001. It is inherently probable that Agnes appreciated the gain that Paula had been able to generate with the benefit of the interest-free loan. It is possible that this wholly or partly explains why Agnes changed her Will in July 2010, departing for the first time from an equal division of assets between her two children and providing instead for 46 Arcadia Street to pass to Robert subject to the condition referred to at [8] above. However, I decline to make the finding for which Robert contended, namely, that this is the likely explanation for the 2010 Will. Any such finding would be speculative, as there are other possibilities, including that the 2010 Will reflected a distribution of Agnes’ estate that she considered at that time would provide an appropriate measure of financial security and advancement for both Paula and Robert based on her perception at that time of the value of the assets that would comprise her estate and the respective financial positions and needs of Paula and Robert. As I have noted earlier in these reasons, there is no challenge to the validity of the 2010 Will at the time it was made.

In about February 2002, Robert and his family moved out of 46 Arcadia Street and went to live in Noosa, Queensland.
Lorraine gave evidence attributing the move to Agnes having become dismissive and distrustful of her from about mid-2001 and to Robert’s family marginalising her, which was adversely affecting her relationship with Robert. Lorraine gave evidence attributing the change in the attitude of Agnes and other family members towards her to Paula making statements to family members insinuating that Lorraine wanted the house at 46 Arcadia Street and had married Robert for that reason. Robert gave evidence to similar effect. Paula denies making statements of the kind alleged. The evidence given by Robert and Lorraine concerning the statements allegedly made by Paula is second- and third-hand hearsay. That evidence carries little weight, particularly when regard is had to the passage of time that has elapsed since the statements are said to have been made. I do not feel actual persuasion that Paula made the alleged statements.
According to Paula’s evidence, Agnes told her shortly before Robert and his family moved to Noosa that Robert had demanded that she transfer 46 Arcadia Street into Robert’s name, and that she had refused to do so. Agnes also told Paula that she and Robert did not speak for some time after Robert and his family moved out of 46 Arcadia Street in those circumstances.
According to Robert’s evidence, he asked Agnes to add his name on the title to 46 Arcadia Street as a part-owner because, after Paula did not pay him the $500,000 that he had expected to receive out of the sale proceeds of 9 Berwick Street, he would need to borrow in order to fund the construction of a second storey at 46 Arcadia Street. Robert gave evidence that he would have difficulty obtaining a bank loan for that construction without being able to offer security over an interest in the property, and he was reluctant to invest in the property without having the security of being named on the title in case Paula should make a claim against 46 Arcadia Street in the future. Robert gave evidence denying that there was ever any falling out or break in communication between himself and Agnes over this issue at about the time that he and his family moved to Queensland.
In cross-examination, Robert gave the following evidence:

Paula gave evidence that she and Agnes made this agreement after Agnes told her that Colin had asked Agnes to help Colette to buy a house because Colette’s father had died in tragic circumstances when she was very young, and Agnes had promised Colin that she would do so. Paula was grateful for Agnes’ offer to assist Colette, but proposed that she would provide this assistance to her daughter using some of the money that she had made from 9 Berwick Street and that Agnes could provide Robert with some money to assist him to buy a house as Colin had intended to do if Paula had been able to repay the $500,000 loan secured against 9 Berwick Street before he had passed away. At the time Paula and Agnes made the arrangement recorded in the handwritten document referred to above, Agnes and Robert were still not speaking after their falling out over Agnes’ refusal to put Robert’s name on the title to 46 Arcadia Street.
In about April 2002, Agnes paid the sum of $200,000 to Robert. It is common ground between Robert and Paula that this payment was a loan. A letter to Agnes from solicitors acting for her at the time refers to her requirements in respect of the terms of the loan, including that it be secured by mortgage over a property on which Robert and Lorraine were building a dwelling. It is also common ground between Robert and Paula that Agnes subsequently forgave the loan and discharged the mortgage. According to Robert’s evidence, that occurred in about 2008. At the same time as describing the $200,000 payment as a loan that was subsequently forgiven, Robert gave evidence that the payment was part of the $500,000 that he says Paula had agreed to pay him out of the sale proceeds of 9 Berwick Street and that the deceased had offered to pay him after Paula had refused to pay in October 2001. [25] In cross-examination, Robert asserted that his characterisations of the payment as (a) a loan that was forgiven several years later and (b) part-payment of a sum of $500,000 promised to him by Agnes in October 2001, were “one and the same”. Plainly, the payment cannot bear both of those inconsistent characters, and Robert’s assertion reflects poorly on his credit as a witness.
Robert gave evidence that at some time between late 2002 and early 2003, Agnes told him that she had attended a meeting with Paula, Colette and Ms Bronwyn Lyons at Paula’s home in Bronte. Ms Lyons is a niece of Agnes. According to Robert’s evidence, Agnes told him that the meeting was about “the balance of proceeds from the sale of 9 Berwick St which had not been paid to the deceased” and that, “at this meeting, Paula insisted that she should retain the proceeds of Berwick St as an early inheritance as I would receive the whole of 46 Arcadia St as my inheritance” and that “she would relinquish any claim over 46 Arcadia St” and that Agnes had agreed to this.
Ms Bronwyn Lyons gave evidence that she attended a meeting in late 2001 or early 2002 at Paula’s home at which Paula, Collette and Agnes were present. Ms Lyons gave evidence that she cannot recall the exact words spoken, but the purpose of the meeting was “to discuss what should happen to the proceeds of the sale of 9 Berwick Street”. In her affidavit affirmed on 6 March 2025, some 23 years after the meeting in question, Ms Lyons deposed that:

Paula gave evidence denying that she ever attended any such meeting in relation to the sale proceeds of 9 Berwick Street, denying that she considered that her receipt of the sale proceeds of 9 Berwick Street in 2001 (which she had purchased from her parents in 1993 for an agreed price) was a form of “early inheritance”, and denying that she had ever made statements disclaiming or relinquishing any inheritance in relation to 46 Arcadia Street, is inherently plausible.
It is inherently improbable that Paula called or participated in a “meeting” at her home in late 2001 or early 2002 (according to Ms Lyons’ evidence) in late 2002 or early 2003 (according to Robert’s evidence) to discuss “what should happen to the proceeds of sale of 9 Berwick Street” in circumstances where: (a) Paula was the sole legal and beneficial owner of that property at the time of its sale, subject only to the 1993 mortgage, as I have found at [79]-[83] above; (b) the 1993 mortgage had been discharged on repayment of the $500,000 loan on settlement of the sale in July 2001, and Agnes had no entitlement to anything further out of the sale proceeds as I have found at [115] above; and (c) Paula had already spent the proceeds as recorded in her contemporaneous document referred to at [121] above. For those reasons, I do not feel actual persuasion that any such meeting occurred.
In cross-examination, Ms Lyons acknowledged that she did not have a detailed recollection of the conversations that she described as having occurred at the alleged meeting. That is to be expected, given the passage of more than twenty years since the conversations are said to have occurred. However, it renders implausible Ms Lyons’ claim in her affidavit extracted at [139] above to recall Agnes’ body language and tone of voice during the alleged conversations. Even if I had been persuaded that the alleged meeting took place, I would not have been persuaded that conversations occurred at the meeting in the terms to which Ms Lyons deposed in her affidavit. Nor would I have been persuaded that conversations occurred at the meeting in the terms of Robert’s evidence referred to at [138] above. That evidence is inherently improbable in circumstances where Agnes was not owed anything further from the sale proceeds of 9 Berwick Street as I have found at [115] above, and Agnes took no steps to change her Will at or shortly after the time her alleged conversation with Robert to implement the agreement she allegedly told him she had made with Paula at the alleged meeting concerning the disposition of 46 Arcadia Street in her Will.
I note that the submissions made on behalf of Robert did not explain the fundamental inconsistency between Robert’s claim that Agnes (together with Colin) made a binding promise to him as early as 1977 that 46 Arcadia Street would pass to him by way of inheritance in consideration for work that he carried out at that property during the period from 1977 to 1986, and his evidence that Agnes told him in late 2002 or early 2003 that she had made an agreement with Paula that he would receive 46 Arcadia Street under Agnes’ Will because Paula had retained the sale proceeds of 9 Berwick Street.

Nothing turns on how Paula came to have some understanding about the terms of the 2010 Will which precipitated her reaction described below. However, as will be seen later these reasons, Ms Smith’s evidence in relation to another matter is of some importance to Robert’s challenges to the validity of the 2015 Will. Counsel for Robert submitted that the whole Ms Smith’s evidence should be “approached with some caution” because the answer that is emphasised in the extract of her evidence set out above was a denial of having any discussion with Paula about the 2010 Will, and that denial was inconsistent with Ms Smith’s earlier and later answers that she did not recall conveying to Paula her impression about the contents of the 2010 Will. I reject that submission. It is clear that Ms Smith’s evidence was that she did not recall conveying her impression about the 2010 Will to Paula, and that she denied having a discussion with Paula about Paula’s understanding of the 2010 Will.
According to Paula’s evidence, she was deeply hurt by Agnes’ actions in leaving 46 Arcadia Street to Robert and only, as she understood it, a small cash sum to herself. Paula also considered that the 2010 Will was contrary to the agreement that she made with Agnes in 2002, [26] which Paula had honoured by providing Colette with a sum of about $450,000 to $500,000 to purchase a house.
Paula gave evidence that she immediately approached Agnes and sought confirmation regarding the terms of her Will and told her that the Will was “grossly unfair to me”. Paula also expressed her disappointment that the Will was contrary to their previous agreement referred to above. Paula gave evidence that Agnes provided no explanation to her and said that she did not have to explain to anyone what she did in her will. According to Paula’s evidence, Agnes said very little else in response to Paula’s complaints.
In cross-examination, Paula gave evidence for the first time that, during her exchange with Agnes referred to immediately above, Agnes acknowledged or agreed that the terms of her 2010 Will were unfair to Paula. I do not feel actual persuasion that Agnes made any such concession to Paula during that conversation which Paula failed to mention in her affidavit. In the absence of any challenge to the validity of the 2010 Will in these proceedings, in the absence of any evidence of a reason why Agnes might have chosen to make her 2010 Will in terms that she considered were unfair to one or other of her children, and having regard to the fact that Agnes did not make any change to her Will until external circumstances changed in 2015 as referred to later in these reasons, [27] it is inherently improbable that Agnes believed that her 2010 Will was unfair to Paula at the time of her conversation with Paula referred to above. I find that Paula’s evidence in cross-examination that Agnes acknowledged or agreed during that conversation that the terms of her 2010 Will were unfair was made up by Paula in the heat of the moment under cross-examination, as the cross-examiner put to her.
Paula gave evidence that she had another conversation with Agnes at or about this time in which “I asked my mother to be fair in her treatment of her two children”, and that Agnes “refused to engage” with her and said to her words to the effect: “No one will tell me what to do with my will”.
As I have already mentioned, Paula acknowledges that she received a considerable benefit from holding 9 Berwick Street without making any payment for it other than the $50,000 deposit paid in 1993 before disbursing the proceeds of the $2,400,000 sale in July 2001. [28] It was put to Paula in cross-examination that Agnes may have made the 2010 Will in the terms which she did gifting 46 Arcadia Street to Robert, subject to the charge in the event of a shortfall of funds to pay estate liabilities and bequests, “because of what happened in relation to the Berwick Street property”. Paula answered that she could not speculate about Agnes’ reasons for making the 2010 Will in the terms in which she did.

According to Paula’s evidence, she was so upset about the terms of Agnes’ 2010 Will that that she did not contact Agnes for about 18 months after their exchanges referred to at [158]-[160] above. As I understand Paula’s evidence, the period of estrangement commenced after those exchanges, which had occurred immediately after Paula heard about the contents of the Will in 2010. Given that the 2010 Will was made on 13 July 2010, those exchanges must have taken place at some time in the latter half of 2010. It is therefore probable that the 18-month period after that encounter, during which Paula gave evidence that she did not contact Agnes, concluded at some time in the first half of 2012. Agnes was in her late 80s at the time. As Paula acknowledged in cross-examination, she did not contact Agnes at all during that 18-month period, even on her birthday and at Christmas.
Ms Bronwyn Lyons gave evidence that Paula told her towards the end of 2011 or possibly early 2012 that she was not happy with what she would receive under Agnes’s 2010 Will. Ms Lyons also gave evidence that Agnes told her in 2012 that Paula was pressuring her to change her 2010 Will “but I refuse to do it”. During that conversation, Agnes said to Ms Lyons words to the effect of: “I am not changing my Will. Paula received 9 Berwick Street, why would I give her more than Robert? I have always tried to be fair to both.” Ms Lyons acknowledged in cross-examination that, at the time of that conversation, she had not been aware that Paula had paid $550,000 for 9 Berwick Street and that Robert had received $100,000.
Ms Bronwyn Lyons also gave evidence that, to her observation and based on her discussions with Agnes at the time, Paula withdrew from or reduced contact with Agnes between about late 2012 and 2014. Her sister, Ms Delwynne Lyons, gave evidence that she was “absolutely sure” that Paula and Agnes were estranged for a period of about three years. When asked about the basis of that evidence, Ms Lyons said: “mostly it was from my sister Bronwyn *‘*cause she was in constant contact with the deceased.”
Neither party relied on the evidence of Ms Bronwyn Lyons or Ms Delwynne Lyons about the timing or duration of the period of estrangement. It was ultimately common ground between Paula and Robert that the estrangement was for a period of about 18 months.
Paula did not challenge the evidence that Robert adduced from Ms Bronwyn Lyons to the effect that Agnes told her during her estrangement from Paula that she refused to change her Will in response to pressure from Paula.
In cross-examination, Paula acknowledged that withdrawing from all contact with Agnes for a period of 18 months after their exchange referred to at [158] above was likely to have an emotional impact on Agnes. Paula said that she had distanced herself from Agnes during that period because she (Paula) was distressed. Paula denied that she ceased contact with Agnes in order to see whether Agnes might come back to her about the contents of her 2010 Will after being deprived of contact with her daughter for a time. Paula further denied that she was attempting to pressure Agnes to change her Will.

Paula gave evidence that she reached out to Agnes after not speaking to her for about 18 months following their encounters referred to at [158]-[160] above, and they were reconciled. So far as Paula was aware at that time, Agnes had not made any change to her Will since they had last spoken.
Paula gave evidence in cross-examination that, by the time she reconciled with Agnes, she had accepted the 2010 Will even though she did not like it.
Paula gave evidence that she had a conversation with Agnes in about 2014 in which Agnes told her that she hardly ever heard from Robert and complained that Robert and Lorraine “didn’t even thank me for the money I gave them”. According to Paula’s account of that conversation, she replied by saying to Agnes: “You know you are leaving the house to both of them”, referring to Robert and Lorraine. Agnes replied: “No, just to Robert”. Paula, who was by then a solicitor, gave evidence that she explained to Agnes that, if Robert and Lorraine were ever to divorce, then Lorraine “would likely get a portion of the Coogee property”. Paula’s evidence does not disclose what, if any, response Agnes made to that observation. It was put to Paula in cross-examination that her observation was “factually incorrect”. I do not accept that it was “incorrect”, although the word “likely” might arguably have been putting the matter a little too highly. It was also put to Paula in cross-examination that she made the observation in order to manipulate or pressure Agnes into changing the 2010 Will. Paula denied that, and said that she was merely correcting Agnes’ statement that she (Agnes) was leaving 46 Arcadia Street “just to Robert”.
According to Ms Janet Smith’s unchallenged evidence, Agnes spoke to her about changing her Will during one of Ms Smith’s regular visits to Agnes. Ms Smith cannot now recall the date of the conversation, but gave evidence that it was “quite some time after she had executed her original Will in 2010”. Agnes explained to Ms Smith that “she wanted to change her Will because the value of her house had increased significantly since the date of her existing Will”. Ms Smith, who was aware that Agnes’ existing Will had been executed in 2010, gave evidence that she had agreed with Agnes’ statement about the increase in the value of 46 Arcadia Street. In the absence of evidence that the value of 46 Arcadia Street increased suddenly soon after Agnes executed the 2010 Will on 13 July 2010, I infer the conversation occurred towards the end of the period between Agnes’ execution of the 2010 Will on 13 July 2010 and her execution of the 2015 Will on 22 March 2015, rather than towards the beginning of that period. Ms Smith gave evidence that she suggested to Agnes at the time of the conversation that she should contact her solicitor in order to update her Will, and offered to assist her in contacting the solicitor. Agnes thanked her for the offer, and said that she would let her know. Ms Smith did not hear from Agnes again in relation to her Will after this discussion, and did not know until after Agnes’ death whether or not she had changed her Will.
Paula gave evidence that, at some time after her conversation with Agnes in 2014 referred to at [170] above, Agnes raised the subject of her Will with Paula of her own volition. Agnes told Paula that she had been thinking about changing her Will. Agnes did not explain the reason why. Paula did not pursue that conversation at the time, but welcomed the news that Agnes was considering changing her Will.
Paula gave evidence that she then raised the subject with Agnes in early 2015 on an occasion when they were having coffee at Bondi Junction. Paula asked Agnes whether she had changed her Will as she had indicated she was thinking about doing, and Agnes replied that she had not. Paula gave evidence that she and Agnes then discussed a range of options for Agnes to update her Will, including contacting the solicitor who had prepared her previous will, or using a pro-forma document available from the post office on which Agnes could copy the 2010 Will and make whatever changes she wished to make. Paula told Agnes that she would need two witnesses. According to Paula’s evidence, Agnes said that she did not want to use the solicitor who had prepared the 2010 Will. Paula assumed that this was because that solicitor had been the husband of Agnes’ great-niece, and they had subsequently divorced and were not on good terms. Paula told Agnes that a “post office will” would be valid. Paula did not suggest to Agnes that she could consult a different solicitor. According to Paula’s evidence, she and Agnes did not discuss the contents of the new Will that Agnes intended to make during this conversation.
Paula gave evasive answers in cross-examination when asked why she initiated the conversation with Agnes about changing her Will in early 2015. Based on what Paula knew about the 2010 Will, it was apparent to her that any change to the 2010 Will would be likely to be beneficial to her, as Paula acknowledged in cross-examination. Having regard to her appreciation of that and her attitude towards the 2010 Will, it is inherently probable that Paula initiated the conversation with Agnes in early 2015 in order to encourage her to follow through on her intention expressed in the 2014 conversation referred to at [172] above to change her 2010 Will. In other words, as the cross-examiner put to Paula, she was “following up” Agnes.
Either during the conversation referred to at [173] above, or at some later time prior to 22 March 2015, Paula told Agnes that she (Paula) would not be able to witness Agnes’ proposed new Will and that the witnesses could not be named as beneficiaries. Paula gave evidence that she assumed that she would be one of the beneficiaries. Paula and Agnes discussed who would be “suitable” to act as a witness to Agnes’ execution of the Will. Agnes told Paula that she did not want her sister-in-law Melva to be a witness, and Paula told Agnes that she did not want to involve Ms Janet Smith or her daughters. In her affidavit affirmed on 7 March 2025, Paula deposed that she did not want to involve Ms Smith because she was a friend of Paula’s. In cross-examination, Paula said that she did not want Ms Smith to be a witness to Agnes’ execution of her proposed new Will because she (Paula) considered that Ms Smith was “compromised” by reason of her “involvement” in the 2010 Will. I will return to that topic below. According to Paula’s evidence, she suggested to Agnes that Agnes’ sister Ms Olive Jaeger and Paula’s son Oliver would be suitable witnesses. Paula considered that both of them were “trustworthy people who would maintain confidentiality”, and that they were readily available to act as witnesses. Paula drove Agnes to the Central Coast about once a month to visit her sister-in-law Melva and her sister Olive, and suggested to Agnes that she could arrange a meeting with Olive and Oliver to sign and witness Agnes’ proposed new Will during one of those visits. Agnes agreed to Paula’s proposal. Paula then telephoned Olive and asked her whether she would be willing to act as a witness to Agnes’ proposed new Will. Olive agreed. According to Oliver’s evidence, Paula also telephoned him and asked if he would be willing to assist Agnes in preparing a new Will by acting as one of her witnesses. Oliver agreed to do so. Paula told Oliver that Olive had also agreed to act as a witness, and proposed that the Will could be prepared and signed during their next visit to the Central Coast. Oliver agreed to this proposal.
According to Paula’s evidence, she had a pro-forma Will from the post office which she had intended to use to prepare her own Will. She told Agnes that she could use it instead.
Paula gave evidence that she did not tell Robert that Agnes was considering changing her Will because she realised that this would potentially be a point of tension between herself and Robert.
Paula accepted in cross-examination that Ms Janet Smith would be the one person in whom Agnes would place trust when it came to any discussion about changing her Will. Yet, as I have mentioned above, Paula considered that Ms Smith should not be a witness to any new Will to be made by Agnes because, in Paula’s view, Ms Smith “had been compromised … [b]y being involved in a will between Robert and I ... [w]here the proceeds had been divided unequally”. Paula said: “I felt concerned that she’d – I would not have involved her in any … further dealings.” As will become apparent later in these reasons, Paula was perfectly content for Ms Smith to be appointed as the Enduring Attorney for Agnes in 2017.
In my opinion, Paula’s evidence about her attitude towards Ms Smith and her connection with the 2010 Will (which had been witnessed by Ms Smith’s daughters) reveals that Paula considered her mother’s Will to be a contest between herself and Robert (to whom she had not spoken since about late 2001, and who she detested according to the submissions made by her counsel at the hearing) and that Paula was wary of anyone who she perceived might embrace the notion that Agnes might choose to give anything less than half of her estate to Paula. Under cross-examination, Paula denied that she was seeking to achieve a specific outcome under Agnes’ proposed new Will, but said that she was “hoping for” what she regarded as “greater fairness”.

In his affidavit affirmed on 7 March 2025, Robert gave evidence describing a deterioration that he said he had observed in Agnes’ physical and mental health from late 2012. Robert’s evidence included accounts of Agnes being confused about where she was and where her home was in 2014, forgetting how to cook in 2014, and being unable to manage her finances in 2015. Robert gave evidence that, throughout 2016 and 2017, he increased the nights that he stayed overnight with Agnes until he was living with her at 46 Arcadia Street “on a nearly full-time basis” in 2017. In his affidavit affirmed on 31 March 2025, Robert gave evidence that he had been staying with Agnes full time and caring for her throughout 2016 and 2017. This evidence, which Paula disputed, was admitted as relevant to Robert’s pleaded claim that Agnes lacked testamentary capacity at the time she executed the 2015 Will. As was put to Robert in cross-examination, his evidence was inconsistent with his own bank statements from that period which show that he was regularly interstate during 2016 and 2017 and also made two overseas trips during 2017. As was submitted on behalf of Paula, it was also inconsistent with Agnes’ contemporaneous medical records, which consistently record during that period of time that Agnes lived alone independently, and that she had a supportive son and daughter. I reject Robert’s evidence.
In her affidavit affirmed on 5 March 2025, Lorraine gave evidence that she noticed a decline in Agnes’ mental state from about 2014. According to Lorraine’s evidence, Robert spent a great deal of time at Agnes’ home between late 2014 and 2019, eventually sleeping there overnight to make sure that she was alright. This was at a time when Robert was working full-time. Lorraine gave evidence in her affidavit and in cross-examination that, in 2018, when Robert and Lorraine’s son Alex was completing his final year at school, Robert became Agnes’ sole carer and continued in that role until she moved to a care facility in 2020. I reject that evidence, which is inconsistent with the evidence given by both Paula and Robert that they took turns staying with Agnes for one week at a time at 46 Arcadia Street from 2018 until Agnes went into full-time care at Beresford Hall in 2020. [29]
Immediately before closing submissions during the final hearing, Robert abandoned his claim that Agnes lacked testamentary capacity at the time she executed the 2015 Will.

According to Robert’s evidence, he spent Sunday, 22 March 2015 with Agnes at 46 Arcadia Street where he was doing maintenance work. During the course of the day, Robert recalls that Agnes told him that “she was invited to Paula’s house at 172 Beach Street Coogee to have dinner with Olive [Agnes’ sister] and Paula’s son, Oliver” and that “Paula’s [sic] brought Olive down from the Central Coast” or words to similar effect. Late that afternoon, Paula and Oliver picked up Agnes from 46 Arcadia Street. Robert did not speak to them because he had not spoken to Paula since she had, according to Robert, refused to pay him the $500,000 that she owed him from the sale proceeds of 9 Berwick Street.
Robert gave evidence that he returned to 46 Arcadia Street on the morning of 23 March 2015 to continue the maintenance work. Agnes approached him looking very upset. Robert asked her: “How was the dinner at Paula’s?” Agnes replied: “They wouldn’t bring me home, they wouldn’t bring me home, they wouldn’t bring me home.” Robert asked her: “Who wouldn’t bring you home mum?” Agnes replied: “Oliver and Paula, Oliver and Paula, Oliver and Paula”. Robert asked: “Why wouldn’t they bring you home mum?” Agnes replied: “They made me, they made me, they made me.” Robert asked Agnes: “What did they make you do?” According to Robert’s evidence, Agnes then collapsed sobbing. Robert stopped asking questions and tried to comfort her, but she was inconsolable, so he led her to her room to rest. Robert gave evidence that, in later days, he asked Agnes what had happened, but she did not reply and “looked at me blankly as if she did not recall”. Robert deposed that he did not contact Paula at this time, “as I did not know her address or phone number”.
As Robert accepted in cross-examination, it was a regular occurrence for Paula to take Agnes to the Central Coast to visit Olive. He could not recall any occasion other than 22 March 2015 when Paula had (according to his evidence) collected Olive from the Central Coast and brought her to Sydney for dinner. Olive did not like to travel.
In his affidavit affirmed on 31 March 2025, Robert gave evidence that he was with Agnes until the late afternoon of Sunday, 22 March 2015, as referred to above, for the whole of the day on Monday, 23 March 2015, and for the remainder of that week. In cross-examination, Robert confirmed his recollection that he was with Agnes for the whole of the week commencing Monday, 23 March 2015, because he had been finishing the work that he had been carrying out at 46 Arcadia Street on Sunday, 22 March 2015. However, when shown his own bank statements, Robert conceded that he had travelled to Canberra on Thursday, 26 March 2015. Robert said that he probably stayed in Canberra throughout the Friday and Saturday, and accepted that his bank records show that he was in Queensland by Sunday, 29 March 2015. This illustrates the unreliability of Robert’s evidence concerning his recollection of the events of Sunday, 22 March 2015, and the following week.
Paula and Oliver gave evidence disputing Robert’s version of the events of Sunday, 22 March 2015, and denying that they had dinner with Agnes and Olive at Paula’s home in Coogee on that evening. Paula also gave evidence that Olive had never visited her home Coogee. Paula also gave evidence denying that she “forced” Agnes to do anything.
I reject Robert’s evidence referred to at [183]-[184] above. First, it is inherently improbable that Paula would have transported Olive to Sydney for the purpose of witnessing Agnes’ new Will when it was a regular occurrence for Paula to take Agnes to have Sunday lunch with Melva and Olive on the Central Coast. Second, it is inherently implausible that Agnes – who Robert now accepts was not suffering from dementia at that time – was sufficiently upset about what had transpired to express her feelings about it to Robert, yet did not tell him either then or in the following days what had occurred or seek his assistance to undo what had occurred if she had wanted to undo it. Moreover, Robert’s evidence is internally inconsistent. He claims that he was unable to contact Paula to ascertain what had occurred to distress his mother so deeply, on his version of events, because he did not know Paula’s telephone number or address, yet his account of his conversations with Agnes includes Agnes telling him Paula’s address.
According to the evidence given by Paula and Oliver, Paula drove Agnes to Toukley on the Central Coast on Sunday, 22 March 2015, where they had lunch at the home of Agnes’ sister-in-law Melva, and her sister Olive, at Melva’s home. Oliver accompanied them on the drive from Sydney and was present at the lunch.
As counsel for Robert put to Paula in cross-examination, Agnes had been in hospital during the period from 26 February to 3 March 2015, just three weeks before she travelled to the Central Coast and made her new will on 22 March 2015. Paula gave evidence that Agnes had been well on that day. I accept that evidence in light of the contemporaneous hospital notes which record that the symptoms with which she had presented to the hospital had “self-resolved” over the weekend prior to her discharge on 3 March 2015 without any central cause for those symptoms having been identified, and that Agnes was “alert and orientated” at the time of her discharge on 3 March 2015.
According to the evidence given by Paula and Oliver, Paula drove Olive home after lunch. Paula, Oliver, Agnes and Olive went inside Olive’s home where they sat around Olive’s dining table. Paula was seated on one side of Agnes and Oliver was seated on the other. Olive was seated next to Paula. Paula produced the post office pro-forma Will document that she had brought with her. Paula had not previously shown that document to Agnes. Agnes did not spend time reading or looking at the pro-forma document before asking Oliver to write out the Will for her and beginning to dictate. Agnes referred to a document that she had taken from her handbag while dictating to Oliver the terms of her Will. As was put to Oliver in in cross-examination, he was essentially acting as a scribe for Agnes. Neither Paula nor Oliver saw the document to which Agnes was referring, and neither of them could recall how many pages it contained.
I reject the submission made on behalf of Robert that the Court should reject Paula and Oliver’s evidence that Agnes was referring to a document taken from her handbag while dictating the terms of the new Will to Oliver. The basis of that submission was that neither Paula nor Oliver could recall whether the document had one page or a number of pages, and there is no evidence about the contents of the document and whether it had any relevance to the terms of the Will that Agnes was dictating. Agnes’ conduct in referring to the document while dictating the terms of her new Will gives rise to a strong inference that the document was directly relevant to the terms of that new Will. It is unsurprising that neither Paula nor Oliver can recall ten years after the event how many pages the document had. That is not something they would have had any cause to pay particular attention to at the time. By contrast, the fact that Agnes appeared to be referring to some other document when dictating the terms is a matter that they would have noticed and it is plausible that they can recall that detail now. As was submitted on behalf of Paula, the difference in recollection between Oliver and Paula about whether or not Agnes asked Paula about the meaning of any legal terms is unremarkable given the passage of time since the day in question, and is significant only because it confirms that they have not discussed their evidence in these proceedings. I note that counsel for Robert did not suggest that there had been any collusion between Paula and Oliver in the preparation of their evidence.
Paula gave evidence that Agnes asked her to clarify the meaning of legal words a couple of times, and that Paula responded briefly to those questions. However, Oliver gave evidence that Paula was not involved in the contents of the Will in any way and did not explain the meaning of any words to Agnes. Oliver denied that it was Paula rather than Agnes who dictated the words “Legacy and Bequests*”* and “Residue” where they appear in the headings in the Will that he wrote out for Agnes. I reject the submission made on behalf of Robert that Oliver’s denial is implausible. If the document to which Agnes was referring when dictating the terms of her new Will was either the 2010 Will or notes made by Agnes of the terms she wanted to include in her new Will – drawing on some of the contents of the 2010 Will – it is entirely plausible that Agnes dictated those headings in the new Will, which closely reflect headings in the 2010 Will. I accept Paula’s submission to that effect.
According to the evidence given by Paula and Oliver, Agnes wanted to make provision in her Will for her grandchildren. Paula reminded Agnes that Oliver could not sign the Will as a witness if he was to be a beneficiary under the Will. According to Paula’s evidence, they then discussed that Agnes would not make provision in her Will for her grandchildren, but that by giving 46 Arcadia Street to Paula and Robert equally, Agnes would facilitate each of them being able to provide for their own children.
Oliver gave evidence that Agnes mentioned her share portfolio and said something about whether she should leave something extra for Robert or for his son, Alexander. Ultimately, Agnes instructed Oliver to write that Robert would receive her share portfolio.
Oliver gave evidence that he can no longer recall the precise words that Agnes instructed him to write into her Will on the occasion that is now more than ten years ago, but he does recall that his impression of Agnes at the time was that “she knew what she had and what she wanted done with it, and she was able to tell me that”. Oliver described his grandmother as “a strong-minded woman” and gave evidence that she was “her usual self” on the day in question.
According to the evidence given by Paula and Oliver, Agnes read through the Will after Oliver had written it out and asked Oliver to help by clarifying his handwriting at a few points. Oliver read out to Agnes those words or sections where she asked for such clarification.
Paula gave evidence that she could not recall what, if anything, Agnes said after reading what Oliver had written. However, she recalled that Agnes did not raise any objection to what had been written and proceeded to sign the Will in front of Oliver and Olive, who then signed as witnesses.
Paula remained in the room throughout the whole of the process described above. In cross-examination, Paula initially acknowledged that she appreciated at the time that, given that she hoped to be a beneficiary under Agnes’ new will, it would have been better for her not to be present in the room when Agnes made and executed the will. Paula later said that she had not thought at the time about whether she should leave the room. I find that Paula, who had been admitted as a legal practitioner in February 2004, did appreciate at the time that it would be preferable for her to leave the room.
The 2015 Will was in the following terms:

As Paula acknowledged in cross-examination, this outcome was a matter of importance and significance to her because it rectified the unfairness that she had perceived in the 2010 Will. Paula acknowledged that Agnes knew how she felt about the 2010 Will and 46 Arcadia Street. However, Paula denied that she knew that Agnes knew what she had to do in the new will in order to make Paula happy. Paula also denied that she would have said anything if Agnes had made her will in terms that did not give Paula an interest in 46 Arcadia Street, and denied that she would have retaliated in some way such as by declining take Agnes home to Coogee. I accept Paula’s denials. As referred to below, Paula had not shared with Oliver her reaction to Agnes’s 2010 Will. If Paula had been disappointed by the terms of the new will that Agnes made on 22 March 2015, it is inherently improbable that Paula would have expressed that disappointment at the time in Oliver’s presence. Paula denied exerting influence over Agnes and coercing her to make the 2015 Will in the terms in which she did.
According to Oliver’s evidence, he was at Olive’s house together with Paula and Agnes for about one hour while the 2015 Will was prepared and executed. He then travelled back to Sydney with Paula and Agnes.
I reject the submission made on behalf of Robert that Oliver’s evidence concerning the events of Sunday, 22 March 2015 “should be treated with some caution” because he only had a vague understanding of the reason for the rift that had occurred between Paula and Agnes in about 2010 and he did not understand that it was related to Agnes’ Will. Oliver’s lack of understanding of the reason for the rift, and his resulting lack of understanding that the terms of the Will that Agnes made on 22 March 2015 were of some significance and importance to Paula, does not require his evidence of what was done and said on that day in his presence to be treated with any particular caution. I accept Robert’s submission that Oliver was not in a position to know Agnes’ subjective state of mind and the effect on Agnes of Paula’s presence in the room while Agnes dictated the Will. However, Oliver’s evidence of his recollection of the manner in which Agnes spoke and conducted herself on that occasion is relevant. As with the evidence of all witnesses in this case, some caution is required in assessing Oliver’s evidence because the events in question occurred more than 10 years ago.
Contemporaneous records – toll statements for Paula’s car for travel on 22 and 23 March 2015, Paula’s bank statements recording transactions on 22 March 2015, and a text message sent by Oliver to a friend on 22 March 2015 – corroborate the evidence of Paula and Oliver that they travelled to the Central Coast on the morning of 22 March 2015 and returned later that afternoon.
Paula gave evidence that she retained the original of the 2015 Will and provided her mother with a copy of it at some later time. Paula deposed that she was concerned to ensure the original 2015 Will was “safe and secure”. In response to questions asked by me, Paula gave evidence that she did not consider that the 2015 Will would be “safe and secure” in the locked safe in Agnes’ home because Robert had access to that safe, she did not trust Robert, and she was not sure what might happen to the original 2015 Will if Robert had access to it. In re-examination, Paula said that she did not trust Robert with the original of the 2015 Will because she believed he had been “very involved with the 2010 Will”. I accept the submission made on behalf of Robert that this answer given in re-examination reflects adversely on Paula’s credit because she had not given that evidence in response to a question in cross-examination in which she was asked whether there were any factual matters known to her other than the dealings with 9 Berwick Street that might explain the terms of the 2010 Will. In response to that question in cross-examination, Paula had given the evasive answer: “I can’t comment”. Paula acknowledged that her retention of the original 2015 Will meant that it was not possible for Agnes to destroy it if she had changed her mind, but said that it was open to Agnes to make a new Will revoking the 2015 Will if she had chosen to do so.
Paula denied that she did not want Robert to find out about the 2015 Will, but she did not tell him about it. Paula considered it a matter for Agnes to tell Robert about it if she chose to do so. As will become apparent later in these reasons, Robert first found out about the 2015 Will when Paula sent him a copy of it on 15 May 2024, one month after Agnes passed away.
I have rejected Robert’s evidence referred to at [183]-[184] above concerning the events of 22 March 2015. I accept Paula and Oliver’s evidence that they drove Agnes to Toukley on that day where they had lunch together with Olive and Melva, following which Agnes made and signed the 2015 Will in the presence of Olive, Oliver and Paula, with Olive and Oliver attesting her execution of the will. It is consistent with the contemporaneous records referred to at [204] above and with Paula’s usual practice of taking Agnes to Toukley for Sunday lunch with Melva and Olive once a month that the 2015 Will was signed on the Central Coast in the circumstances described by Paula and Oliver rather than at Paula’s home in Coogee as Robert contends. I accept the evidence of Paula and Oliver about the manner in which Oliver wrote out the terms of the 2015 Will dictated by Agnes while she referred to a document, and that Agnes took time to read over what Oliver had written and sought clarification about his handwriting where she required it, before signing the 2015 Will. Paula and Oliver’s evidence is broadly consistent, yet different in matters of detail to the extent that is to be expected of two witnesses who have prepared their evidence independently about events that occurred just over ten years ago.

In closing submissions, Robert did not contend for a finding that Olive was suffering from dementia at the time that Agnes signed the 2015 Will. Nor did Robert refer to any evidence that would be capable of supporting such a finding. For that reason, and for the reasons explained at [183]-[207] above, the alleged suspicious circumstances in (a)-(c) and (g) set out at [220] above have not been established. In my opinion, the circumstances at (d)-(f) and (h) create a slight degree of suspicion, in circumstances where the evidence establishes that Paula liaised with Olive and Oliver to act as witnesses and remained present in the room while the 2015 Will was made. However, I reject the submission made on behalf of Robert that the benefits conferred on Paula under the 2015 Will are a suspicious circumstance independent of the manner in which the 2015 Will was prepared because Paula had received substantial benefits from 9 Berwick Street. That submission was based on Robert’s contention that Paula held that property as trustee for her parents even after the 1993 transaction. I have rejected that contention. [33]
In relation to the further matters pleaded by Robert and enumerated at [221] above, I have accepted the evidence of Paula and Oliver that the contents of the 2015 Will were recorded by Oliver as dictated by Agnes, who was referring to another document when dictating those terms. [34] I infer that Agnes had given consideration in advance of the gathering on 22 March 2015 to the terms of the new will that she intended to make. That inference is consistent with the evidence that Agnes expressed to Ms Smith a desire to change her 2010 Will as a result of her perception that the value of 46 Arcadia Street had increased significantly. [35] It is immaterial whether she discussed those terms with any other person in advance of dictating and executing the 2015 Will. It is irrelevant that the terms of the 2015 Will were not read aloud to Agnes before she executed it in circumstances where the evidence establishes that she had dictated those terms and took time to read over those terms as recorded by Oliver before executing the document. [36] The evidence establishes that Agnes did appreciate that the 2015 Will did not make provision for her grandchildren and great-grandchildren. [37] As to the final matter particularised by Robert – that Agnes did not appreciate or understand that the 2015 Will contradicted the testamentary contract with him or, alternatively, her representations to Robert that she would leave 46 Arcadia Street to him in exchange for renovation works performed at the property – Robert has failed to establish the alleged testamentary contract and the alleged representations, as explained below. [38]
In my opinion, the slight degree of suspicion raised by the circumstances particularised by Robert at (d)-(f) and (h) set out at [220] above is dispelled by the unchallenged evidence of Ms Smith that Agnes had decided to change her 2010 Will on the basis of what she understood to be a significant increase in the value of 46 Arcadia Street, [39] together with the evidence of Paula and Oliver, which I have accepted, that Agnes dictated the terms of the 2015 Will which were recorded by Oliver and that Agnes read those terms that Oliver had written before signing the document in the presence of Olive and Oliver who attested her signature. [40] On the basis of that evidence, I find that Agnes knew and approved the contents of the 2015 Will and appreciated the gravamen of the document, and that the 2015 Will reflects her real intention and true will.

Robert’s pleaded case of undue influence relied on substantially the same matters as his case that Agnes did not know and approve of the 2015 Will. I repeat my observations and findings at [222]-[224] above.
Robert also relied on Paula’s role in making arrangements with Olive and Oliver to act as witnesses, the fact that Oliver wrote the 2015 Will, the fact that Paula remained in the room while the 2015 Will was prepared and executed, and the fact that Paula did not arrange for Agnes to have independent legal advice before she executed the 2015 Will. I accept that those circumstances prima facie provide some support for an inference of undue influence, but they do not support a finding that undue influence is the probable explanation for the 2015 Will for the following reasons.
First, Agnes had a history of making up her own mind about the terms of her Will and sticking to her decision in the face of Paula’s protests about unfairness. Agnes had not changed her mind about the terms of her 2010 Will at any time during the period of approximately 18 months during which Paula ceased all contact with her mother due to her perception that she had been unfairly treated. [44]
Second, Ms Smith’s unchallenged evidence establishes that Agnes decided to change her 2010 Will due to her understanding that the value of 46 Arcadia Street had increased significantly. After discussing this with Ms Smith, Agnes told Paula of her own volition that she had been thinking about changing her Will. [45] There is no evidence that Agnes’ re-consideration of her 2010 Will was prompted by Paula resuming contact with her, which had occurred approximately two years earlier. [46]
Third, Agnes had a history of making testamentary documents without the assistance of a solicitor. The terms of her 1999 Informal Will demonstrate that she was quite adept at picking up the legal language of a document drafted by a solicitor and applying it in writing her own testamentary document. Ms Smith had offered to arrange for Agnes to see a solicitor if she wished to do so in preparing her new will in 2015. Agnes did not take up that offer. [47] In the absence of evidence of anything that precluded Agnes from accepting Ms Smith’s offer of assistance, I infer that Agnes did not wish to seek legal advice in relation to her new will.
Fourth, although Oliver wrote out the 2015 Will, the evidence establishes that he did so in the terms dictated to him by Agnes, which I have found that Agnes had considered in advance, and that Agnes read over the terms that he had written before executing the document. [48]
Fifth, I accept that, by her involvement in the selection of witnesses, Paula was seeking to exclude persons who she thought might not be aligned with her views about “fairness” from having any potential influence over Agnes’ testamentary intentions. [49] However, there is no evidence that the witnesses exerted any influence, or that Paula exerted any influence through the witnesses, over the terms of the 2015 Will which I have found that Agnes considered in advance, dictated to her grandson, and reviewed before execution. [50]
Sixth, in light of Agnes’ history of standing firm in the face of Paula’s reaction to her 2010 Will , and having regard to the fact that the 2015 Will was made about three years after Paula had resumed contact with Agnes and in terms that Agnes had considered prior to 22 March 2015, dictated on that day, and reviewed before she signed the 2015 Will, Paula’s presence during the process of the writing and execution of the 2015 Will does not support a finding that undue influence by Paula is the probable explanation for the 2015 Will. Robert’s submission that Agnes would have been fearful of Paula when dictating and executing the 2015 Will because she was reliant on Paula transport her back home to 46 Arcadia Street that afternoon, lacks credibility. Paula had been taking Agnes to and from the Central Coast for lunch with Melva and Olive on a regular basis since resuming contact with Agnes some years before Agnes indicated any intention to change her 2010 Will. Oliver’s evidence describes that he had a strong relationship with Agnes and there is no evidence which supports an inference that Oliver would have tolerated Paula threatening to leave Agnes stranded on the Central Coast had she been disappointed with the terms of the 2015 Will, or that Agnes had any reason to apprehend such a reaction from Paula.
Straying from his pleaded case, Robert submitted that Paula had engaged in a campaign of “blatant manipulation” by telling Agnes that leaving 46 Arcadia Street to Robert meant leaving it to Lorraine as well, and by spreading rumours about Lorraine. I reject that submission. Paula told Agnes that she would be leaving the property to both Robert and Lorraine in the context of a conversation initiated by Agnes expressing displeasure with Robert and Lorraine. I have found that the statements made by Paula about the potential outcomes of family law property settlements if Robert and Lorraine were to divorce in the future were not incorrect. [51] Robert did not identify any evidence of Paula spreading rumours about his relationship with Lorraine at about the time of this conversation. The only such evidence relates to 2001, and that evidence has not persuaded me that Paula spread any such rumours. [52] In any event, the evidence does not establish a connection between Paula’s conversation with Agnes about Lorraine’s potential claim on 46 Arcadia Street in any family law property settlement and Agnes’ decision to change her will. Ms Smith’s unchallenged evidence to which I have referred at [230] above attributes Agnes’ decision to her perception that the value of 46 Arcadia Street had increased significantly.
Robert also submitted that Agnes was frail at the time she dictated and signed the 2015 Will because she had been admitted to hospital for five days some three weeks earlier. I reject that submission for the reasons explained at [190] above.
For all of those reasons, Robert has failed to discharge his onus of proving that Agnes made the 2015 Will under the undue influence of Paula.

Robert’s claim is a claim of proprietary estoppel by encouragement. In order to succeed in that claim, Robert must establish: [56]
a clear and unequivocal promise made to Robert by Agnes, who is said to be the party estopped in this case;
that Agnes intended, or that a reasonable person in her position would have intended, that Robert would rely upon that promise by some action, omission or course of conduct;
that Robert did rely on that promise by acting, or omitting to act, in the general manner that would have been expected by Agnes; and
that Robert will suffer detriment if the promise is not fulfilled, in the sense that he will be left in a worse position as a consequence of his reliance on the promise than if the promise had not been made.
Robert’s proprietary estoppel claim is founded on one or more of the alleged statements referred to at [35]-[36], [41] and [49] which are said to have been made to Robert orally by Agnes, together with Colin, during the period from December 1976 to 1986.
The well-known fallibility of human memory regarding what was said in conversations that occurred many years or even decades ago is a reason to exercise caution when assessing Robert’s evidence. [57]
In relation to the first element, Robert bears the onus of proving the alleged statements. The observations of Hammerschlag J (as his Honour then was) in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd to which I have referred above in relation to the testamentary contract claim apply equally to the proprietary estoppel claim. [58]
For the reasons explained at [54]-[57], Robert has failed to discharge that onus. The proprietary estoppel claim must therefore be dismissed.
Even if Robert had established the alleged statements, I would not have been satisfied that Agnes intended, or that a reasonable person in her position would have intended, that Robert would rely on such statements in the circumstances referred to at [242] above. Nor would I have been satisfied that Robert relied on such statements by spending his own time and funds in carrying out works and renovations to his parents’ property where he was living rent-free during a period of ten years in which he was between 22 and 32 years of age, working full-time, and using his earnings to make his own property investment with financial assistance from Agnes. In circumstances where there was no evidence of even an estimate of the monetary amount that Robert claims to have outlaid on the works at 46 Arcadia Street, and having regard to the countervailing benefits of rent-free accommodation and the resulting freedom to apply his earnings to his own property investment in 1980, I would also have accepted the submission made on behalf of Paula that Robert had not established that he would suffer detriment if Agnes were permitted to depart from the alleged promised inheritance of 46 Arcadia Street such that it would be unconscionable for her estate now to do so. [59]

Bruce v Bruce

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (1)

Cases Cited (46)

Judgment

Introduction

Salient facts

Introductory observations

Background matters

The purchase of 46 Arcadia Street in 1977

9 Berwick Street

Paula’s attempt to sell 9 Berwick Street in 1997

Colin passes away

Agnes makes the 1999 Informal Will

Plans to develop 9 Berwick Street: 1998-2000

Statements allegedly made by Paula and Agnes to Delwynne Lyons in 2000

Robert and his family move to 46 Arcadia Street: late 2000 or early 2001

Sale of 9 Berwick Street and the dispute about the sale proceeds: mid-late 2001

The period from 2002 to 2010

Agnes makes the 2010 Will

The period of estrangement between Agnes and Paula after Paula learned about the 2010 Will

Agnes discusses making a new Will

Robert’s and Lorraine’s evidence concerning Agnes’ testamentary capacity

The events of Sunday, 22 March 2015

Agnes executes an Enduring Power of Attorney in January 2017

Agnes is diagnosed with dementia: April 2018

Agnes’ admission to Beresford Hall aged care facility: March 2020

Events after Agnes’ death

The deceased’s estate

Did the deceased know and approve the contents of the 2015 Will?

Applicable principles

Consideration and determination

Was the 2015 Will procured by undue influence?

Applicable principles

Consideration and determination

Testamentary contract

Proprietary estoppel

Conclusion and orders

Proceedings 2024/460832

Proceedings 2024/460951

Endnotes