Disposition of the appeal
27In Tobin v Ezekiel at [43]-[54] this Court addressed the doctrine of suspicious circumstances as it applies to the presumption of knowledge and approval of the contents of a will. Particularly relevant in the present context is the following observation at [47]:
"What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it."
28It is worthwhile also recalling what Viscount Simons said in Wintle v Nye (at 291) in relation to the same subject:
"It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined. Here was an elderly lady who might be called old, unversed in business, having no one on whom to rely except the solicitor who had acted for her and her family; a will made by him under which he takes the bulk of her large estate; a will made, it is true, after a number of interviews extending over a considerable time, during which details of her property and of her proposed legacies and annuities were said to have been put before her, but in the end of a complexity which demanded for its comprehension no common understanding; on her part a wish disclosed in January, 1937, to leave her residuary estate to charity which was, by April, superseded by a devise of it to him, and on his part an explanation of the change which was calculated as much to aggravate as to allay suspicion; the will retained by him and no copy of it given to her; no independent advice received by her and, even according to his own account, little pressure exercised by him to persuade her to get it; a codicil cutting out reversionary legacies to charities allegedly for the benefit of annuitants but, in fact, as was reasonably foreseeable, for the benefit of the residuary beneficiary."
29The task which the primary judge was required to undertake, adopting the language of Isaacs J in Nock v Austin [1912] HCA 73; 25 CLR 519 at 528, called for a "vigilant and anxious examination ... of the evidence as to the testator's appreciation and approval of the contents of the will".
30The primary judge's finding that Stanley had testamentary capacity is not challenged. In making that finding his Honour took account of Stanley's age, enfeebled condition and occasional periods of confusion. He found that there was nothing that indicated Stanley was suffering from such an episode at the time he made his will: [60]. That finding is not challenged. The evidence of Mr Gelonesi did not suggest that there was any confusion or lack of understanding evident in his communications with Stanley on 11 or 14 August. Nor did Marjorie's evidence of the events of 12 and 13 August refer to any confusion.
31The primary judge also found that Stanley understood the nature of a will and that it was likely he understood in general terms what his real property and other assets were: [20]. Neither of those findings is challenged. The primary judge made findings as to Stanley's conversations with Mr Gelonesi concerning the making of a will on 7 and 11 August 2009. In the first conversation the question whether Stanley had a will was raised, he said he did not need one and was told by Mr Gelonesi what the consequences might be if he did not make one: [8], [33]. On 11 August 2009 Stanley gave instructions for the making of a will and received an explanation as to what an executor did: [38]. This evidence confirmed an understanding of the nature of a will as a document by which Stanley could record in a binding way what was to happen to his property after he died.
32The evidence as to the nature and extent of Stanley's property was that it had not changed for some time so that his knowledge of that property was, as described by Associate Professor Peisah, "old 'crystallised knowledge'": [20]. The instructions Stanley gave concerning the response which Marjorie should make to the letter received from the owner of the adjoining property in Dee Why revealed a fairly detailed recollection and knowledge on his part of the physical characteristics of that particular property. There was also evidence that on 11 August 2009 Mr Gelonesi asked Stanley over the telephone, albeit by leading questions, about his properties and other assets and received responses to those questions which confirmed, to some extent, his knowledge of them: [38].
33It is significant that, in contrast to the position of the testatrix in Wintle v Nye, the task which faced Stanley at the time he made his will was a fairly straightforward one. He was familiar with his property and assets, there were only two persons having an immediate call on his bounty - Marjorie and Robert - and the will as drafted and presented to him on 14 August 2009 was simple in its terms.
34The question was whether Stanley intended to make a will in those terms - so that it could be said that it expressed his "real intentions": Barry v Butlin at 485; 1091; and "true will": Tyrrell v Painton [1894] P 151 at 157, 159. That question had to be considered in circumstances which created a suspicion that it may not do so because Marjorie, who took all of the benefit under it, had participated in its preparation and was present before it was executed.
35As has already been noted, the primary judge referred to three matters which he considered showed that Stanley knew and approved the contents of his will. They were aspects of the events of 11, 13 and 14 August 2009. On the basis of the first and third of the events, the primary judge was satisfied that Stanley knew of the contents of the will. On 11 August he gave instructions for the drawing of a will which left the whole of his estate to Marjorie and on 14 August the will was read over to him before he signed it.
36The primary judge considered that the events of 13 August 2009 showed that Stanley also had weighed Robert's claims on his testamentary bounty: [64]. In particular, his Honour considered that Stanley's signing of the document prepared by Marjorie showed an intent to leave the whole of his estate to Marjorie notwithstanding that he had a half-brother who also had a claim on his bounty. Although that was the outcome of the exercise undertaken on 13 August, Stanley's decision to leave the whole of his estate to Marjorie was made or confirmed on the following day when he signed his will. The significance of what happened on 14 August is that it occurred in the absence of Marjorie and after the will had been read aloud to him.
37The events of 13 August established that Stanley knew he had a brother and that he could leave his estate to be divided between Marjorie and Robert or to be given to one or other of them. That was not controversial because, as the primary judge notes at [59], Marjorie's evidence that Stanley signed the document following the discussion she said she had with him was not challenged. A consequence of this was that his earlier rejection (at [18]) of the evidence of Marjorie and her husband as to Stanley being "upset" about Robert having made a new will was not relevant. Nor was his concern as to Marjorie's mental acuity at the time of the hearing: [58].
38If the primary judge is to be understood as saying, by his conclusion at [67], that Marjorie's evidence of what happened on 13 August 2009 established that the will expressed Stanley's "real intentions", the effect of that evidence is overstated. As I have said, its significance is that it showed Stanley to have been conscious of his brother's existence and claim upon his bounty at the time he made the will. Those facts, taken with the events of the following day when he signed a will which had been read aloud, were sufficient to establish affirmatively that he knew and approved of its contents.
39The appellant points to a number of matters which it is said the primary judge either failed to take into account or to give sufficient weight when addressing the issue of knowledge and approval. It is convenient to deal with those matters in the sequence in which the events to which they relate occurred.
40In relation to the events of 11 August 2009, it is emphasised that Mr Gelonesi's firm had previously acted for Marjorie, that she procured its services to draw the will and that the instructions as to its terms were given by Stanley by telephone and in her presence. The primary judge correctly regarded each of these circumstances as suspicious in the relevant sense; as also was the fact that Marjorie stood to receive a substantial benefit under the proposed will. Also he did not accept Mr Gelonesi's evidence as to the discussions he had with Stanley about his having brothers or sisters: [41]; and was rightly critical of the fact that Mr Gelonesi had not asked any non-leading questions so as to ascertain the particular reasons for Stanley's decision to leave the whole of his estate to Marjorie. Despite these reservations, the unchallenged evidence was that during the telephone conversation Stanley instructed Mr Gelonesi to prepare a will by which he left everything to Marjorie. The giving of such an instruction by someone having testamentary capacity was evidence that Stanley knew of the terms of the will which was to be prepared for his signature.
41Secondly, the appellant refers to Stanley's change of mind between 7 and 11 August 2009. The reasons for that change of mind are not known. A possible explanation is that he thought further about what was said to him by Mr Gelonesi on 7 August: [8]. Since about 2005 Marjorie had assisted Stanley on a daily basis with things such as the preparation of meals, payment of accounts, shopping and medical appointments: [12]. The primary judge found that this close relationship provided a rational reason for his decision to leave the whole of his estate to Marjorie. It may also have provided the motivation for his decision to make a will. The primary judge was conscious that Marjorie may have sought to persuade him to that course: [37]. The fact that Stanley changed his mind in such circumstances required vigilance in being satisfied that he understood what he was doing. Whilst it is argued that there was no good reason why Robert should have been excluded completely from Stanley's testamentary disposition, it is not submitted that in this case his exclusion was so irrational as to make it unlikely or less likely that Stanley could have known and approved of its contents. There were reasons which were capable of justifying the decision he made as rational and considered.
42The appellant relies on the circumstances in which the 13 August document was produced and the unsatisfactory aspects of Marjorie's unresponsive evidence given in cross-examination in relation to the events of that day as requiring that this evidence should have been given little weight. Certainly it had to be evaluated carefully. The unchallenged findings establish, however, that the document was prepared, read aloud and signed; and that in that process there was reference to Robert and to different ways in which Stanley might divide his estate between Robert and Marjorie.
43The appellant refers to the fact that on 14 August Marjorie had been with Stanley when the solicitor arrived, at which time she was asked to leave the room. However, the subsequent events showed that Stanley was given sufficient time to consider and affirm, in her absence, what he was doing. The will was read aloud and there was some questioning directed to confirming that he understood its contents. Stanley then signed the will. The primary judge's acceptance of the evidence of Mr and Mrs Gelonesi as to these events is not challenged; and is not affected by his rejection of their evidence that there had been a discussion about Stanley's having a brother or sister.
44What is said, however, is that the fact that a will is read aloud is not necessarily conclusive. That is undoubtedly so. But in the circumstances of this case it was persuasive and entitled to significant weight. The will was in simple terms. There were only two persons having an immediate call on Stanley's bounty. The will left everything to Marjorie. That was apparent on the reading of the will. It was consistent with the instructions Stanley had given on 11 August. On 13 August Robert's claim on Stanley's bounty had been brought to Stanley's attention. Given that state of affairs, the primary judge is not shown to have erred in concluding that when Stanley signed his will on 14 August 2009 he knew and approved of its contents.