Colegrove v Dullaghan

Supreme Court of NSW|2016-07-26|Before: Robb J

Introduction

By summons filed on 28 September 2015, the plaintiff, Ms Jennifer Anne Colegrove, seeks the following relief concerning a document signed by the late Mr Peter Paskalis on 16 July 2010 (which I will call the "2010 will"): 1. A declaration that the informal testamentary document signed by Peter Paskalis, witnessed by Greg Woods and dated 16 July 2010 ("the 2010 Will") is a valid Will within the meaning of the Succession Act 2006, s 8. 2. Letters of Administration with the 2010 Will attached be granted to Jennifer Anne Colegrove, the sole beneficiary named therein. 3. The proceedings be referred to the Registrar to complete the grant in accordance with the Rules. 4. Indemnity costs.
The defendant is Ms Toula Dullaghan, who was the sister of Mr Paskalis.
Mr Paskalis died on 23 August 2015, aged 59 years.
On 3 August 1989, Mr Paskalis made a will (which I will call the "1989 will") the operative parts of which were: I Hereby revoke all Wills heretofore made by me, and declare this to be my last Will and Testament. I appoint ANNA PULST (MOTHER) of 27 SOPHIE St DUNDAS to be the Executrix and Trustee of this my Will I Give Devise and Bequeath All property real, or personal which I possess to my mother absolutely but if she shall not survive me then I appoint my sister TULA (sic) DULLAGHAN of 7 ORION PLC, LILYDALE MELBOURNE VIC as my executrix and I give devise and bequeath all my said property to her absolutely.
This will was made on a printed form. The name and address of the executrix and all of the words under the phrase "I Give Devise and Bequeath" were written in Mr Paskalis' handwriting.
On 11 December 2015, Ms Dullaghan filed a cross summons in which she sought an order that probate of the 1989 will in solemn form be granted to her. There is no issue between the parties concerning the validity of the 1989 will, save for the question of whether or not it was revoked by the 2010 will. It is agreed that, if the court declines to make the order sought by Ms Colegrove in par 1 of her summons, the court should grant the relief sought by Ms Dullaghan in her cross claim.

Ms Colegrove's case

In essence, Ms Colegrove's case is that the 2010 will was executed by Mr Paskalis, and witnessed by Mr Woods, in the following unusual circumstances.
Mr Paskalis had for some time before 16 July 2010 lived in a separate room in the grounds of the residential premises occupied by Ms Colegrove and Mr Woods. The three persons were very close, and Mr Paskalis used the principal house freely.
On the day in question, Mr Paskalis was booked to fly out of Australia on a holiday overseas, to Istanbul, and he also intended to visit Turkey, Greece and Israel. Ms Colegrove had agreed to drive Mr Paskalis from Mt Ousley near Wollongong to the airport at Mascot in Sydney. The time for departure of the flight was 3:15 pm. Ms Colegrove and Mr Paskalis had arranged to have coffee together shortly after they left the property at Mt Ousley, as well as lunch at the airport before Mr Paskalis' flight. Mr Paskalis entered the room where Ms Colegrove was sitting at around 8 am in the morning. Mr Woods, a solicitor, who was also present, by chance asked Mr Paskalis whether he had a will, as it was thought that Mr Paskalis was going to visit countries including Israel where there may be some danger of misadventure. Mr Paskalis responded by saying "No". Mr Woods then said to Mr Paskalis: "Do you know that if you don't have a will and you die, everything will go to your sister. Is that what you want?" Mr Paskalis answered: "No it's not". Mr Woods then asked Mr Paskalis who he wanted to leave his assets to, and Mr Paskalis replied: "I want to leave everything to Jenny" (meaning Ms Colegrove).
Mr Woods then said: "You should do a will before you go then". There was then discussion about Ms Colegrove and Mr Paskalis being about to leave for the airport, and that there was no time to go into Mr Woods' office for the purpose of having the will properly executed and witnessed. Mr Woods had to leave home to go to his nearby office to pick up his file, for the purpose of attending a hearing in the then-called Federal Magistrates Court of Australia, in Wollongong at 9 am.
Mr Woods said to Mr Paskalis: "A valid will needs to have two signatures but we can still hand write a will now with only me as a witness. It will still be recognised as your will, but if it is ever needed to be used, it would have to go to the Supreme Court to be validated because of having (sic) only one witness' signature. When you get back you need to go to a solicitor or Isabel at work, and get it done properly." Mr Paskalis then replied: "Okay". (Isabel Bentancor was a conveyancer employed by Mr Woods' company).
Ms Colegrove then went to the printer and pulled out a piece of photocopying paper. Mr Paskalis said to Ms Colegrove "You write it". Ms Colegrove said to Mr Woods "What do I put?" Mr Woods then dictated the words that Ms Colegrove wrote on to the paper. Ms Colegrove apparently misheard the word "former" in par 1, and instead wrote "formal". No one picked up the error. At the time, Ms Colegrove was sitting at the table on the seat closest to the lounge, and Mr Paskalis was standing behind her watching as she wrote. When Ms Colegrove had finished, Mr Paskalis signed the will, followed by Mr Woods, who signed as a witness.
By that time it was around 8:30 am. Mr Woods then left for work. Ms Colegrove and Mr Paskalis then left to go to the airport.
In due course, Ms Colegrove placed the will in a file in her filing cabinet, in which she kept documents relating to Mr Paskalis' affairs. There it remained until after Mr Paskalis' death.
Ms Colegrove gave evidence of these events in a statement that became exhibit B. Her evidence was closely corroborated by the evidence of Mr Woods, given in his statement that became exhibit D.
Ms Dullaghan ultimately submitted that the court should not believe the version of these events given by Ms Colegrove and Mr Woods.

Legal principles

Before I examine the evidence in more detail, it will be convenient to set out the legal principles that apply to the determination of whether a document that is apparently intended to be a testamentary disposition should be accepted as being a valid will of the maker. The parties accepted that the principles that the court is bound to apply are as set out in the judgment of Meagher JA in Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, with whom Basten and Campbell JJA agreed: [43] The appellants' first argument, as the primary judge observed, raises for consideration the relationship between knowledge and approval of the contents of the will, which the proponent must establish, and undue influence which is a defence to be made out by the opponent. More broadly it raises the inter-relation of suspicious circumstances, undue influence and testamentary capacity which, as Sopinka J observed in Vout v Hay [1995] 2 SCR 876 at 885, has perplexed both courts and litigants since Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089. [44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21 ; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22 ; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668 and 670; Nock v Austin [1918] HCA 73 ; 25 CLR 519 at 522, 528. [45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98 ; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13 ; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. [46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. [47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. [48] In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34 ; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.
Ms Colegrove also relied upon the following observations by Hallen J in Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371, concerning the significance of the document being signed by the putative testator, as an indicator that the person intended the document to take effect as his or her will: [104] A signature, placed at the foot of a testamentary document would, in most cases, carry the implication that the testator intended the signature to give testamentary effect to the document: Wood v Smith [1993] Ch 90 (C.A.) at 111. [105] The object of a signature on a testamentary document was recently considered in Marley v Rawlings [2012] EWCA Civ 61 ; [2013] 2 WLR 205. After referring to Wood v Smith, Mrs Justice Proudman, at [51], wrote: Scott LJ's observation that the object of a signature by a testator is "to authenticate the written document in question as the will of the testator" is interesting. There seem to me to be two elements in that. By his signature, the testator is not only executing the document as a will with immediate effect but also (at least in a broad sense, subject to adjustment arising from issues of want of knowledge and approval and matters within the scope of section 20) confirming that the document represents his testamentary intentions. This dual function is consistent with the historical roots of the present provision. Part of the motivation for the original requirements as to the position of the signature on a will was, it seems to me, the desire to provide a simple and reliable way of establishing, without oral evidence, that the will contained the provision that the testator wished to make. So initially the signature executing the document had to be at the foot or end of it and therefore almost inevitably had to be applied after the substance of the will had been set out, and even when that was relaxed in the 1852 amendment, it was still provided that no signature would be operative to give effect to any disposition or direction underneath or following it or which was inserted after the signature was made. In support of this view of the purpose of the signature, it is worth noting that in devising rules to apply after the Wills Act, in Guardhouse v Blackburn (1865-69) LR 1 P & D 109 at 116, Sir J P Wilde included the following: Secondly, that except in certain cases, where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents.
I would add, with respectful agreement, the following extracts from Hallen J's judgment: [86] In Estate of Masters (decd), Re; Hill v Plummer Priestley JA, at 466, wrote that the particular questions for determination, are "essentially questions of fact". [87] The burden of proof of all issues relating to s 8 is on the Plaintiff and is to be satisfied on the balance of probabilities. Of course, in deciding whether the Court is so satisfied, I am required to take into account that these are Probate proceedings (the nature of the cause of action); that to be determined is what is the last testamentary document of the deceased (the nature of the subject matter of the proceeding); and the gravity of the matters alleged (s 140 Evidence Act 1995). … [96] I respectfully agree with what White J said in NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872, at [15]: To restate the last requirement, the question is whether the deceased intended the document to be his or her testamentary act, that is, to have present operation as a will (Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446 at 455; Oreski v Ikac [2008] WASCA 220 at [52]-[55]).
Ms Colegrove also relied upon the following statement by Powell J (as his Honour than was) in Application of Brown, Estate of Springfield (1991) 23 NSWLR 535 (at 539), dealing with an application under s 18A of the Wills Probate and Administration Act 1898 (NSW): While each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
The point of this submission was that, in the present case, the only departure from the requirements for the formal validity of the 2010 will was the absence of one witness' signature.

Ms Dullaghan's case

The parties have not exchanged pleadings. Accordingly, the issues have not been defined in the conventional manner. Nonetheless, senior counsel for Ms Colegrove accepted that she ultimately had the onus of proof to establish that the 2010 will was the last will of a "free and capable" testator, and that the document was executed by Mr Paskalis with knowledge and approval of its terms; as well as the onus of establishing that the requirements of s 8 of the Act are satisfied.
Ms Dullaghan did not argue that the 2010 will was invalid for want of testamentary capacity on the part of Mr Paskalis. She therefore did not submit that Mr Paskalis was not a "capable" testator on 16 July 2010.
Nor did Ms Dullaghan argue that, at the time he signed the 2010 will, Mr Paskalis was not a "free" testator, because he had been coerced into signing the 2010 will, so that he did so under the undue influence of Ms Colegrove and Mr Woods, in the sense discussed in the case of Tobin v Ezekiel by Meagher JA at [49] (and not extracted above, because of its not being applicable in the present case).
What Ms Dullaghan did submit was that there are many significant features of the present case that create "a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator", to use the words of Meagher JA at [46]. Ms Colegrove did not deny that there are circumstances that the court would ordinarily regard as suspicious; or that, accordingly, the court should give careful scrutiny to the evidence, and that she was required to satisfy the court by cogent evidence that it should be "affirmatively satisfied" that Mr Paskalis knew and approved of the terms of the 2010 will, and that it expressed his testamentary intentions as his will.
However, if the 2010 will was prepared and signed in the manner described by Ms Colegrove and Mr Woods, the simplicity of the gift to Ms Colegrove, as well as the wording of the document, would make it hard to doubt that a person in the position of Mr Paskalis, with the qualifications of a psychiatric nurse, would have known and understood the nature of the testamentary disposition made by the document.
As I understand Ms Dullaghan's case, this is not a case whereby the presence of suspicious circumstances should cause the court to decline to be satisfied that, in the context in which Mr Paskalis in fact signed the document, he actually understood and approved of the effect of the words used in it. Ms Dullaghan puts forward a more extreme case that, notwithstanding that she is by want of her presence at the time that 2010 will was signed, unable to directly contradict the evidence given by Ms Colegrove and Mr Woods, the combined effect of many significant grounds for suspicion should cause the court to decline to accept that Ms Colegrove has established that the 2010 will was made in the circumstances that she alleges. Counsel for Ms Dullaghan put to Ms Colegrove and Mr Woods in cross-examination simply that they were not telling the truth when they relayed the circumstances in which the 2010 will was prepared and signed by Mr Paskalis.
Ms Dullaghan relied upon many interrelated features of the evidence in this case, to suggest that the circumstances were so suspicious that the court simply should not accept that the 2010 will was in fact signed by Mr Paskalis, in circumstances that made it a valid will, even though neither Ms Dullaghan, nor the court, is able to identify the precise circumstances that justify a finding that the 2010 will is not a valid expression of Mr Paskalis' testamentary intention.
Ms Dullaghan starts with the fact that Ms Colegrove, who would be the sole beneficiary in relation to the whole of Mr Paskalis' estate, was the amanuensis for Mr Paskalis in actually writing out the terms of the 2010 will. The terms of the will were formulated and dictated by Mr Woods, who was, and is, Ms Colegrove's de facto partner; and in that respect, also self-interested in the gift expressed in the 2010 will. Mr Woods was a practising solicitor at the time. Although he advised Mr Paskalis as a friend; was not retained by him; and did not receive a fee, he still had a practical obligation to provide proper advice to Mr Paskalis acting in Mr Paskalis' interests.
Mr Paskalis had previously travelled to countries that may have involved an element of risk; such as Russia in 2009. That had happened when Mr Paskalis was living in the outside bedroom at Ms Colegrove's and Mr Woods' residence; so they were aware of that fact. Yet Mr Woods did not raise the issue of whether Mr Paskalis had a will on the earlier occasion. Ms Colegrove and Mr Wood had at least one month's notice of Mr Paskalis' intention to travel to Turkey, Greece and Israel on 16 July 2010, as Ms Colegrove said she booked Mr Paskalis' air ticket about a month before he left, but neither of them took timely steps before the day of departure to enquire about whether Mr Paskalis had a will.
Even if Mr Woods did raise the issue of Mr Paskalis' will after 8 am on 16 July 2010 in a spontaneous way, Mr Woods was aware, and so advised Mr Paskalis, that any will that he signed that was only signed by one witness would be formally invalid; and its effectiveness would depend upon the Supreme Court being persuaded that the requirements of s 8 of the Act were satisfied. Ms Colegrove and Mr Woods were on good terms at least with one of their neighbours; being a married couple with children, and even if it was expected that the husband may already have gone to work, it was possible that the wife would be available and prepared to be a second witness to the 2010 will, yet no attempt was made to see whether one of the neighbours would agree to be a second witness.
Furthermore, even if Mr Woods was required to attend a hearing in court at 9 am, he had to go to court via his office, which was nearby, and there should at least have been someone in attendance at the office who could have been the second witness; even if there would not have been a practical opportunity to have the will formally engrossed and executed in proper form. Mr Paskalis' flight was not due to leave the airport until later that afternoon at 3:15 pm; so that there was ample time for Mr Woods to arrange for the 2010 will to be properly executed and witnessed; even if he had limited time available himself.
It was Mr Woods' general practice to ensure that wills that he prepared on behalf of clients contained a term that appointed the executor chosen by the testator; yet in the case of the 2010 will Mr Woods entirely omitted to include a term appointing an executor, and did not provide any advice to Mr Paskalis concerning the desirability of including a term appointing the executor chosen by Mr Paskalis.
Ms Colegrove was a good friend of Mr Paskalis, but she was not family, and was not a person who would ordinarily be considered as appropriate for Mr Paskalis' testamentary bounty; at least to the entire exclusion of Mr Paskalis' sister, Ms Dullaghan, and her two children who were Mr Paskalis' nephews. It is suspicious, Ms Dullaghan says, that Mr Paskalis did not himself think about whether his sister or his nephews had a call upon his bounty; and furthermore Mr Woods, as a solicitor, should have asked Mr Paskalis whether he had any other relatives who should share in his estate, even if Mr Paskalis expressed the view that he did not want his estate to go to Ms Dullaghan.
In this context, it is Ms Colegrove's case that, when Mr Woods asked Mr Paskalis whether he had a will, Mr Paskalis said that he did not. That was not true, as Mr Paskalis had made the 1989 will. It is highly improbable, argues Ms Dullaghan, that Mr Paskalis would have forgotten that he had made an earlier will; and there is no apparent reason why Mr Paskalis would have been unwilling to say that he had already made a will.
Ms Dullaghan also submits that it is suspicious that Mr Woods did not take more positive steps than he did, after Mr Paskalis returned from his trip, to ensure that Mr Paskalis retained a solicitor to prepare a new will that satisfied the requirements for formal validity. Mr Woods, according to Ms Colegrove's evidence (although not his own), advised Mr Paskalis on 16 July 2010 that, when he returned from overseas, he needed to go to a solicitor, or Isabel "to get it done properly"; but he did not take steps after Mr Paskalis returned to ensure that he made a formally valid will. Ms Dullaghan submitted that, as Mr Woods was a very experienced solicitor, and one of the specialties advertised by his firm was the drawing of wills, his duty and expertise would have caused him to be proactive in ensuring that Mr Paskalis made a formally valid will, if on 16 July 2010 he had advised Mr Paskalis that the efficacy of the 2010 will depended upon a finding by the Supreme Court that s 8 of the Act applied.
In cross-examination of Mr Woods, counsel for Ms Dullaghan put to him that, in a number of respects, his conduct as disclosed by his own evidence involved significant professional failings, and that he had acted negligently; in such matters as failing to include a term in the 2010 will that appointed an executor; in failing to take more positive steps to find a second witness so that the will would be formally valid; and in failing to ensure that Mr Paskalis went to a solicitor after he returned from his trip to make a formally valid will. Mr Woods rejected some of the criticisms levelled at him, but accepted the others.
As senior counsel for Ms Colegrove put in submissions, the issue before the court is what happened on 16 July 2010, and whether Mr Paskalis intended the 2010 will to form his will; not what ought to have happened, and accordingly there is no basis for the court to make findings concerning Mr Woods' competence. I agree with this submission in principle; and add that, in my view, it is not appropriate for the court to enter upon consideration of that issue, as it was not raised by Ms Dullaghan before the hearing in any way that put Ms Colegrove or Mr Woods on notice that Mr Woods would be required to defend his professional conduct.
It remains available, however, to Ms Dullaghan to argue that, given the length of Mr Woods' experience as a solicitor, and in particular his practice of preparing wills for clients, the court should infer that he was likely to act in a manner consistent with his professional obligations and proper practice, so that it is a factor weighing against the probability that a particular event occurred, if the occurrence of that event required conduct on Mr Woods' part that was inconsistent with his professional obligations and proper practice. That is one factor required to be taken into account by the court, together with all other relevant factors raised by the evidence.
As the onus lies on Ms Colegrove to prove that Mr Paskalis signed the 2010 will, in circumstances that show that he intended the document to be his effective will, the question is, and always has been, whether Ms Colegrove has satisfied that onus having regard to the whole of the evidence; starting from an acceptance that by and large the factors relied upon by Ms Dullaghan do provide strong grounds for suspicion, so that the court is required to be vigilant, and give careful scrutiny to the evidence, before being affirmatively satisfied that Mr Paskalis knew and approved of the terms of the 2010 will, and intended it to have effect as his will.

Relationship between Mr Paskalis and Ms Colegrove

An appropriate place to start in considering whether Ms Colegrove has satisfied the onus placed upon her is to consider the evidence concerning the personal relationship between Ms Colegrove and Mr Paskalis.
Ms Colegrove gave evidence that she first met Mr Paskalis in around 1991. She and Mr Paskalis were in a de facto relationship between 1991 and 1994. Following the end of that relationship, the couple continued to be close friends until the time of Mr Paskalis' death.
During the course of their relationship, Mr Paskalis purchased a property at 1/30 Little Eveleigh Street, Redfern on 27 July 1992. Ms Colegrove purchased a property at 244 Abercrombie Street, Redfern in April 1993. After the end of their de facto relationship, Mr Paskalis moved into his house at Little Eveleigh Street. Ms Colegrove and Mr Paskalis continued to see each other daily while Ms Colegrove lived in the area.
Ms Colegrove and Mr Woods commenced their relationship in 2004.
In March 2005, Mr Paskalis sold his Redfern property.
There is a difference in the evidence concerning whether Mr Paskalis went to live with Ms Dullaghan at her home in Melbourne in late 2004 (Ms Dullaghan), or April 2005 (Ms Colegrove).
There is some uncertainty in Ms Dullaghan's evidence as to whether Mr Paskalis moved out of her home into a caravan park nearby in mid-2006 or 2007 (Ms Dullaghan's affidavit pars 10 and 14).
In November 2007, Ms Colegrove sold her home in Sydney and moved to Wollongong. Ms Colegrove purchased a property at West Wollongong in her sole name on 2 April 2008.
Mr Paskalis moved to Wollongong on 2 April 2008, and took up residence in the West Wollongong property owned by Ms Colegrove, in response to an invitation from Ms Colegrove.
Ms Colegrove sold the West Wollongong property in April 2009, and at that time Mr Paskalis moved into a cabin in the yard of the property at 8 Strone Avenue, Mt Ousley. During the time that Mr Paskalis was living with Ms Colegrove and Mr Woods, Ms Colegrove and Mr Paskalis saw each other almost every day. They would go for coffee together almost every morning, either to North Beach or Corrimal. Ms Colegrove's evidence was that the cabin used by Mr Paskalis was not a granny flat, but a detached bedroom. Mr Paskalis used the kitchen and bathroom in the house, as well as sharing her computer, and spent time in the house with Ms Colegrove and Mr Woods. She said that the three people lived as a family, eating together and spending their leisure time together.
It was common ground between the parties that Mr Paskalis regularly drank alcohol to excess. Mr Paskalis would often consume too much alcohol in his cabin, before going to sleep. Ms Colegrove said in cross-examination that she thought that Mr Paskalis had a low tolerance for alcohol, and that he would often appear drunk, even if he had only had a couple of glasses of wine. She said that Mr Paskalis was nonetheless careful never to drive when he was affected by alcohol. Mr Paskalis also did not let his drinking prevent him from functioning in his job as a psychiatric nurse at Wollongong Hospital.
There was also evidence that, from about 2003 to the time when he sold his house in 2005, and went to live with Ms Dullaghan in Melbourne, Mr Paskalis had a relationship with a woman known as Leeza. The detail of the evidence of this relationship is not particularly significant. There are suggestions that the woman may have taken drugs, and that during this period Mr Paskalis may have been involved in drug-taking himself, and there were substantial and regular withdrawals from his bank account, which ultimately led to the loss of his equity in his home; with the result that Mr Paskalis was forced to sell, before his mortgagee did. The settlement figures provided by Mr Paskalis' solicitors to him showed that, of the amount of $368,432.30 received from the purchaser on settlement, $325,761.68 was paid to the bank, and after other expenses, only $30,046.10 was paid to Mr Paskalis.
This evidence is only relevant as a backdrop to Mr Paskalis' life before he went to Melbourne to live with Ms Dullaghan in about 2005. It appears that Mr Paskalis' life was in disarray, and he was unable to hold down a regular employment.
Ms Colegrove said that, when Mr Paskalis moved to Wollongong in 2008, he was quite depressed. Ms Colegrove helped him with paperwork and appointments. He improved dramatically in mood after a few months when he became settled in Wollongong. He expressed happiness at living near to both the escarpment and the ocean, having a permanent job again, and living with Mr Woods and Ms Colegrove.
Mr Woods' evidence was that he first met Mr Paskalis in 2 April 2008, when Mr Paskalis moved to Wollongong. Mr Paskalis lived with Mr Woods and Ms Colegrove starting from April 2009, after Ms Colegrove sold her West Wollongong property, until March 2015. He said that Mr Paskalis would have his meals in the house, and had full access to the rest of the home. He said that Mr Paskalis liked to sit in the backyard drinking tea and feeding the birds.
Mr Paskalis purchased a property at 3/7 Pleasant Avenue, North Wollongong, in September 2014. The tenants moved out in around March 2015, and Mr Paskalis took up residence there until the date of his death.
Mr Woods said that Ms Colegrove and Mr Paskalis had a close relationship. They were like brother and sister. They saw each other every day when Mr Paskalis was living in the couple's home; and they continued to see each other on an almost daily basis after Mr Paskalis moved out in March 2015.
Mr Woods also said that Ms Colegrove assisted Mr Paskalis to manage his life. Although he was in full-time employment as a psychiatric nurse, he failed to attend to the details of managing his life. For example, before Mr Paskalis bought the North Wollongong property, Ms Colegrove assisted Mr Paskalis in preparing and lodging income tax returns that he had failed to lodge for 10 years, from around 2004 until 2014. Ms Colegrove said that her involvement included contacting Mr Paskalis' former employers, and obtaining the necessary group certificates. She also sent Mr Paskalis to an accountant for the purpose of having the income tax returns prepared. Mr Paskalis then received tax refunds of around $40,000, which enabled him to use that fund as part of the deposit for the purchase of the North Wollongong home unit.
Nothing was put to Ms Colegrove in cross-examination to suggest that any part of her evidence concerning her close relationship with Mr Paskalis was exaggerated or untrue; and nothing was put to her that contradicted her evidence.
Nor was it suggested in any way to Mr Woods in cross-examination that any evidence given by him concerning the closeness of the relationship between Ms Colegrove and Mr Paskalis was exaggerated or untrue.
On 7 April 2011, Ms Colegrove made a will of her own. By cl 3, she gave a legacy to Mr Paskalis of $50,000. That is the only specific legacy that she gave. By cl 4, she gave the residue of her estate to Mr Woods. Clause 5 provided for the event that Mr Woods predeceased Ms Colegrove. In that event, Ms Colegrove divided her estate into eighths. By cl 5.2, she gave 2/8ths of her estate to Mr Paskalis.
The terms of Ms Colegrove's will provide some evidence of the close relationship between Ms Colegrove and Mr Paskalis, and some support for the likelihood that, at the time Ms Colegrove made her own will, she was aware that Mr Paskalis had made a will in her favour.
I am satisfied that the evidence establishes that Ms Colegrove and Mr Paskalis, for the whole of the period from the end of their de facto relationship in about 1994, maintained a friendship of exceptional closeness. In the period from the time that Mr Paskalis moved in to the cabin at the home of Ms Colegrove and Mr Woods, up to the time of the making of the 2010 will; and thereafter until Mr Paskalis' death, Mr Paskalis was effectively treated as one of Ms Colegrove's family. He engaged in day to day activities with Ms Colegrove, with a regularity that would rarely be matched by even the closest of adult siblings. Mr Paskalis relied upon Ms Colegrove to organise his life. Ms Colegrove, by inviting Mr Paskalis into her life with Mr Woods, was substantially responsible for putting Mr Paskalis' life on an even footing; creating the conditions that would enable him to substantially escape from his depression, and return to his employment as a psychiatric nurse on a regular basis; to engage in regular international travel; and to start saving and achieve the financial position where he was able to borrow money to buy his own home unit in late 2014. Apart from the objective evidence that Ms Colegrove and Mr Paskalis were extremely close friends, I accept Ms Colegrove's evidence that there was an extremely strong emotional bond between the two.
In my view, the extremely close and long term friendship between Mr Paskalis and Ms Colegrove, and the strong emotional bond, together with the constant practical assistance given by Ms Colegrove to Mr Paskalis, provide a firm foundation for a finding, which I make, that it is highly probable that by 16 July 2010, when asked by Mr Woods who he wanted to leave his estate to, Mr Paskalis had a genuine and strong desire to leave his estate to Ms Colegrove. The relationship between the two was such as to provide strong support for the conclusion that, in signing the 2010 will, while knowing of its formal invalidity, Mr Paskalis intended the document to take effect on his death as his will in favour of Ms Colegrove.

Evidence of disinterested witnesses

Mr Zis Anastas, who lived with his wife and children in the house next door to the residence of Ms Colegrove and Mr Woods, gave evidence that is relevant to the question as to whether Mr Paskalis signed the 2010 will with the intention that it would take effect as his will. Mr Anastas said in his affidavit that he formed a friendship with Mr Paskalis, as a result of his friendship with Mr Woods. Mr Paskalis told him on a number of occasions about his plans to travel overseas. Mr Anastas said: 12. On one such occasion he advised me that he was planning to go on a trip either to Mexico or Russia (I cannot presently recall which). I recall a conversation with him to the following effect: I said to him "It's dangerous there, I hope you've got your will in place." This was meant as a light-hearted comment. He said to me words to the effect of "It's all sorted. It's all going to Jenny." I said "That makes sense." He said "Yeah, she's looked after me, she deserves it." I remember thinking to myself at the time: "Yeah I understand. I know how close you to are, she looks after you and I guess you wouldn't be back on your feet without her."
The evidence shows that Mr Paskalis made a trip to Mexico in July 2012. He did not travel to Russia after 16 July 2010 (although it appears that he did so in early 2009).
In cross-examination, Mr Anastas was asked about the circumstances in which Ms Colegrove or Mr Woods became aware of the conversation he had with Mr Paskalis concerning his will, at T 42.26: Q. About that so how did you know about Jenny having some difficulty? A. As we were driving from Corrimal Beach one day to North Beach after we'd finished surfing and had a coffee, I asked, "How's Pete's wills going?" and he said, "It's going to court". I said, "Why I thought she was going to get control of it and that it was all going to her" and he said, "What made you think that?" and I said, "Because Pete told me so". Q. Now so Greg spoke to you first about the will, or you spoke to Greg about the will, why were you concerned about it? A. Just wanted to know what's going on because I thought I think they had the car back then, I'm not too sure what was it was just a general question, you know, as you drive along, "How's such and such going?" Q. You just asked about Peter's will? A. Well, "What's happening with Peter's estate? What's going on there? His apartment's still sitting there, have you been in there?" you know Q. Did you ask about Peter's estate or ask about Peter's will? A. Be more about Peter's estate I suppose, what's happening there, yes. Q. Did Greg then say, "There's a problem with the will"? A. No he just told me that it's been contested.
This evidence suggests that Mr Anastas effectively volunteered the information to Mr Woods about his conversation with Mr Paskalis concerning the latter's will.
Mr Anastas was asked questions in cross-examination about his evidence that he initially raised the issue of whether Mr Paskalis had a will flippantly, and he was also asked whether Mr Paskalis' reply was flippant. Mr Anastas denied that it was.
No suggestion was put by counsel for Ms Dullaghan to Mr Anastas that he was not telling the truth, or that his recollection was faulty, in relation to the conversation with Mr Paskalis.
Mr Jason Cross was a psychiatric nurse in 2010, and a work colleague of Mr Paskalis at Wollongong Hospital. He had known Mr Paskalis for approximately six years before his death, and had been to the residence that he shared with Ms Colegrove on two occasions. In his affidavit, Mr Cross gave the following evidence: 3. On Tuesday 11th of August 2015 I had met Peter at Jenny's house where Peter had recently moved out from to pick up a birdcage that Peter was discarding due to the move… While it was there Peter and I sat in the backyard and had a cup of tea for approximately 90 mins. 4. Throughout the conversation Peter and I spoke of his retirement plan, moving into his new unit, and what he was going to do with work… 5. During our conversation on 11 August 2015 Peter stated to me that he was so happy with his new unit that he was no longer going to travel any more to focus on paying off the unit and setting himself up for retirement. In Peter's words on that day "every day will be a holiday living next to the beach". Peter then stated that because of our conversations about the risk of misadventure while travelling that he had made a Will leaving everything to Jenny. 6. During that conversation of discussing his Will, Peter explained that the reason that he had was leaving everything in his Will to Jenny is because he was so close to her. Peter stated that he had moved to Wollongong because of Jenny and that Jenny and her partner were effectively his only close friends, so much so that they were family. Peter stated that he had lived with them for many years and they had in some way supported him by bringing him into their home. 7. This conversation is very clear in my memory because this would be the last time that I had seen Peter, as one week later he had passed away.
Mr Cross was cross-examined, and it was put to him that he could not remember the detail of the conversation with Mr Paskalis, of which he gave evidence in his affidavit. The following exchange occurred at T 51.31: Q. Yes, Mr Cross, you can't remember detail of what Mr Paskalis spoke about that day can you? A. No, you're wrong. Q. You say the conversation was an hour and a half? A. Yes. Q. What else did you discuss in the hour and a half? A. Him moving to his new apartment. About what he was doing with work. When he was moving to the new apartment and we spoke about the Rosellas that would come. He had a bird basin thing out the backyard and we spoke about the Q. Bird bath I think it's called. A. A bird bath and he talked about feeding the birds out the back and then he showed me the bird food that he used to attract the birds and so Q. So you can remember all about the conversation can you? A. Yeah. Q. I suggest to you, you can't, Mr Cross? A. You can suggest what you like.
Counsel for Ms Dullaghan explored with Ms Colegrove in cross-examination how it was that she became aware that Mr Cross was able to give the evidence that he gave in his affidavit. Ms Colegrove said that, after Mr Paskalis' death, she became a Facebook friend of Mr Cross. She and Mr Woods visited Mr Paskalis' grave on the day that would have been his 60th birthday. She took a photo and later sent the photo to Mr Cross using Facebook. Ms Colegrove gave the following evidence at T 37.34: Q. You said that. So you said that to Jason? A. In a text, in a message on Facebook, I said, "By the way did Peter ever say anything to you about his will?" Q. Why would you ask Jason that? A. Because it just occurred to me that there were people he was close to at work who I didn't know and they might something might have been said.
A screenshot of Mr Cross's Facebook response showed that he replied as follows: Hey Jen. He did talk to me about his Will the day i picked up the birdcage. He was leaving what he had to you. I will always remember that conversation because it was so you eerie that he passed away a few days later like he knew something was going to happen to him.
Mr Anastas and Mr Cross were both disinterested witnesses, whose evidence I accept. Their evidence was not really challenged.
The evidence given by those two gentlemen provides strong corroboration for Ms Colegrove's case; to the effect that Mr Paskalis understood that he had made a will; that he had left all of his estate to Ms Colegrove; and that he had done so for the reason, in substance, that Ms Colegrove was his best friend, who had done a great deal to help him.

Credibility of Ms Colegrove and Mr Woods

This is an appropriate point for me to state my findings concerning the credibility of the evidence given by Ms Colegrove and Mr Woods.
Both witnesses gave their evidence in a straightforward and credible way, and I accept their evidence without qualification.
Ms Dullaghan's case was that the evidence tendered in support of Ms Colegrove's case was not sufficient to overcome the burden of the suspicious circumstances in which the 2010 will was made. However, Ms Dullaghan did not articulate any positive case concerning the circumstances in which the 2010 will was prepared, or by what means, or at what time, in order to establish that the document was not created in circumstances claimed by Ms Colegrove, and was not made by Mr Paskalis as his will.
The reality of that observation is reflected in the terms of the cross-examination of both witnesses, on the subject of whether Mr Paskalis made his will on 16 July 2010, in the manner to which both witnesses deposed.
The only cross-examination of Ms Colegrove on the subject was at T 38.22, as follows: Q. What I suggest to you is that the creation of the document, 16 July 2010, didn't happen as you've told the Court, did it? A. It happened exactly as I told the Court.
The cross-examination of Mr Woods at T 67.50, was as follows: Q. Now, I suggest to you Mr Woods is that what you have told the Court about what you said to Mr Paskalis and what happened on the morning of 16 July 2010, is just not true? ELLISON: I object… BELL Q. Mr Woods, I suggest to you is that your account you have given on what happened on the morning of 16 July 2010, in respect of Mr Paskalis is just not true is it? A. That's incorrect.
Counsel for Ms Dullaghan was confined to putting such bald assertions to Ms Cosgrave and Mr Woods, because there was nothing in the evidence as a whole which provided an objective foundation for counsel to fashion an attack on the evidence given by either witness, save for the attack that was made in the cross-examination of Mr Woods on his professional competence in permitting Mr Paskalis to make an informal will, and then failing to ensure that he took the steps necessary to make a will, the validity of which did not depend upon the Supreme Court finding that s 8 of the Act had been satisfied.
The significance of the events of 16 July 2010 should be assessed in the context that Mr Paskalis had effectively lived in Ms Colegrove's and Mr Woods' home for a little over a year since April 2007. He had shared meals with them, as well as all of the facilities of the home. There must have been a close and relaxed relationship between the three people, which would have facilitated relatively informal relations between them. I see no reason not to accept the evidence of Mr Woods and Ms Colegrove, that the former raised the issue of Mr Paskalis' will in a spontaneous way, in response to the discussions that occurred in the period between approximately 8 am and 8:30 am on the day. As Mr Paskalis' ticket had been purchased about a month before the day, it could well have happened during that period that Mr Woods had raised the issue of Mr Paskalis' will. That simply did not occur. I do not think it strange that it was after Mr Paskalis had packed and was ready to go to the airport that Mr Woods raised the issue, in the context of saying goodbye. As the plane was due to leave at 3:15 pm, it may be that, objectively, alternative arrangements could have been made that would have led to the 2010 will being witnessed in a way that made it formally valid. Ms Colegrove said that Mr Paskalis was keen to leave the house immediately. Mr Paskalis will not have been the first air traveller who was anxious to take no risks and to get to the airport as soon as possible. Mr Woods may have been able to make remote arrangements for the 2010 will to be witnessed properly at his office; but if it was 8:30 am, and Mr Woods was anxious to ensure that he reached court by 9:00 am, there is nothing strange in his not thinking to make more elaborate arrangements concerning the witnessing of the will, including by seeking to disturb the neighbours, on the off chance that one or more of them would be able to drop what they were doing and witness Mr Paskalis' will.
Mr Woods conceded that his failing to dictate a term appointing an executor was inconsistent with his invariable practice otherwise; and that he probably should have ensured that the 2010 will was taken to his office for registration and safekeeping. Mr Woods said that he advised Mr Paskalis on a number of occasions, after he returned, that he should visit a solicitor to ensure that his will was properly executed; but that he did not feel that it was proper to push Mr Paskalis. Mr Woods resisted the suggestion that he had a duty to be more forceful in ensuring that Mr Paskalis re-made his will in a formally valid way. I do not accept that the shortcomings in the procedure adopted by Mr Woods are so exceptional that the court would be justified in rejecting the evidence of Ms Colegrove and Mr Woods concerning the circumstances in which the 2010 will was made.
It must be borne in mind that, for a period of about a decade, following the end of his de facto relationship with Ms Colegrove, to the time when he moved to Wollongong, Mr Paskalis' life was in significant disarray. His situation improved thereafter, but the evidence is that even after the time when he renewed his full-time employment as a psychiatric nurse, he left 10 years of income tax returns in abeyance until Ms Colegrove imposed upon him to remedy the situation in about 2014. It is simply not surprising that Mr Paskalis did not respond to the advice that he was given by Mr Woods that he should ensure that his will was properly executed, before his untimely death.
On the particular facts of this case, I do not accept that the circumstances in which Mr Paskalis made the 2010 will, though clearly exceptional as they were, justifies or requires the court to decline to accept the evidence given by Ms Colegrove and Mr Woods.
Ms Cosgrave gave evidence in cross-examination (T 26.50) that her belief was, at the date that the 2010 will was prepared, that Mr Paskalis had very little assets at that stage. She was not contradicted, and given the evidence of Mr Paskalis' circumstances before he went to live in Wollongong, it is quite likely that he had very few assets.
In her formal affidavit in support of her application for a grant of letters of administration with the 2010 will attached, Ms Cosgrave gave evidence that, as at 28 September 2015, Mr Paskalis' estate had a gross value of $433,114 and a net value of $297,982.76.
An amount of $300,000 is a substantial sum of money, but it is not so huge an amount, where the question is - to put it starkly - whether Ms Colegrove and Mr Woods have fabricated the 2010 will, and falsified their evidence in support of Ms Colegrove's claim.
I bear in mind that Mr Woods would be putting in dire jeopardy his admission as a legal practitioner, and his ability to earn a living as a practising solicitor, if he participated in the making of a false claim by Ms Colegrove.
On the whole of the evidence presented by Ms Colegrove, I am fully satisfied that the 2010 will was prepared and signed in the manner explained by Ms Colegrove and Mr Woods; Mr Paskalis was a "free and capable" testator, who had full knowledge and approval of the terms of the 2010 will, and intended it to have effect as his will.

Ms Dullaghan's evidence

In coming to this conclusion, I have not ignored the evidence tendered on behalf of Ms Dullaghan, although ultimately, I have formed the view that that evidence is not of substantial probative value, primarily because Ms Dullaghan had no significant knowledge of any of the events that bear directly on the resolution of the issues in this matter; particularly the application of s 8 of the Act.
Ms Dullaghan gave evidence concerning her understanding of Mr Paskalis' life, albeit as seen from a distance, except for the period in which Mr Paskalis lived in Melbourne. She said: "For all of Peter's life I shared a special, loving and close relationship with him. Peter and I were regularly in contact by telephone, would meet for family get-togethers or just enjoy each other's company as brother and sister". Ms Colegrove gave some evidence capable of putting in doubt the closeness of the relationship between Mr Paskalis and Ms Dullaghan, but I would give little weight to that evidence, without making a finding that I do not accept what Ms Colegrove has said. The relationship between siblings may be a deep and abiding matter, lasting decades, and may not be substantially affected by minor or passing irritations.
Without in any way meaning to disparage or doubt the relationship between Mr Paskalis and Ms Dullaghan, as the latter perceived it, I am satisfied that the evidence shows that, at least in the last five or so years of his life, Mr Paskalis' relationship with his best friend, Ms Colegrove, was exceptional, and Mr Paskalis had an abiding affection for her, and a great feeling of gratitude and debt for what she had done in turning around his life.
In her affidavit, Ms Dullaghan raised the fact that she was the nominated beneficiary in Mr Paskalis' superannuation policy with HESTA Industry Super Fund. There is evidence that Mr Paskalis opened one superannuation account on 28 October 2005 and another on 29 October 2005. On 15 September 2014, HESTA Industry Super Fund informed Mr Paskalis by letter that it had merged the later account into the earlier one. Ms Colegrove in her affidavit in reply accepted that Mr Paskalis nominated Ms Dullaghan as the nominated beneficiary for the first superannuation account but not for the second one.
The significance of this evidence is unclear, and Ms Dullaghan's counsel did not refer to it in his written opening or oral final submissions. If Mr Paskalis nominated Ms Dullaghan as the beneficiary of his first superannuation account on 28 October 2005, that would be some evidence that he wished at that time to provide for his sister in the event of his death. There is however no evidence as to why two accounts were opened on consecutive days. Ultimately, this evidence is inconclusive, as it is consistent with Mr Paskalis, knowing that he had left his estate to Ms Colegrove under his 2010 will, deciding to make some provision for Ms Dullaghan by means of his superannuation accounts.

Orders

I therefore make the following orders: 1. Declaration that the informal testamentary document signed by Peter Paskalis and witnessed by Greg Woods dated 16 July 2010 (the 2010 Will) is a valid will within the meaning of Succession Act 2006 (NSW), s 8. 2. Letters of Administration with the 2010 will attached be granted to Jennifer Anne Colegrove, the sole beneficiary named therein. 3. The proceedings be referred to the Registrar to complete the grant in accordance with the Rules. 4. Dismiss the cross summons.
In accordance with the request of the parties, I will invite them to make submissions concerning the appropriate order for the costs of the proceedings on the summons and the cross summons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2016

Wills Probate and Administration Act 1898(NSW)

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