Undue influence and knowledge and approval
161I do not accept Dr Baker's opinion that Mrs Simpson was not easily influenced (see at [27] above).
162Before probate of a will will be refused on the ground of undue influence, it must be shown that the will of the testator was overborne, that is, that the testator did not intend and desire the disposition, but was coerced into making it (Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR 26,867 at [63]-[64], 26,869). In such a case the testator will not have known of and approved the contents of the will.
163In the present case the pressure on Mrs Simpson to make a will in favour of the Salvation Army was substantially applied by Mr Nicholson and Mr Jeskie. They did not take a benefit under the will. However, the involvement of the Salvation Army's solicitor, Mr Hopper, management of Elizabeth Jenkins Place, and the suggestion made to Mrs Simpson that her place in the home was in jeopardy because of non-payment of fees, also brings into play what is known as the doctrine of suspicious circumstances. That doctrine was explained by Burchett AJ in Vernon v Watson [2002] NSWSC 600 at [2]-[9] as follows:
"[2] The central question in the case is whether, and if so how, the validity of the will propounded by the plaintiffs is affected by the doctrine of probate law commonly invoked by the use of the expression suspicious circumstances. The principle relating to suspicious circumstances was stated by a'Beckett J in In re Nickson, deceased [1916] VLR 274 at 281:
'There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews [1875] LR 7 HL 448.'
See also the interesting article 'Suspicious Circumstances and Wills' by Anthony Smith [1994] Queensland LSJ 347 et seq.
[3] The burden imposed by the rule is the burden of removing the suspicion so as to show that the mind of the testator is indeed to be found reflected in the will that is propounded. In the authorities, what is required is expressed in different ways, but they are all to the effect that extreme care, the nature of which will vary according to the facts of the case, is required before the court can accept a will as valid where the will or the instructions on which it was drawn came into existence, or the making of the will was conducted, by the agency of a person who benefits substantially under it. In some instances, it may be virtually impossible to remove the suspicion attaching to such a will. From the many statements in the authorities, I select the following as indicating the extent of the burden. Sir John Nicholl, in Paske v Ollat (1815) 2 Phill Ecc 323; 161 ER 1158, said of a case of suspicious circumstances:
'The Court is always extremely jealous of a circumstance of this nature. ... [I]n all instances of the sort, ... the proof should be clear and decisive.'
His Lordship referred to 'propriety and delicacy' as inferring that 'an interested person ... should not conduct the transaction', and he mentioned its 'clandestinity', among other factors, as increasing the onus, which, he said, may be increased 'even so much as to be conclusive against the instrument'.
[4] In Baker v Batt (1838) 2 Moore 317; 12 ER 1026, Parke B, delivering the advice of the Privy Council, said at 321; 1027:
'There is also another principle ... which has long prevailed in the Ecclesiastical Courts, which is this, - that if the person benefitted by a Will, himself writes or procures it to be written, the Will is not void, as it would have been by the Civil Law; but the circumstance forms a just ground of suspicion, and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the Testator.'
But in Barry v Butlin (1838) 2 Moore 480; 12 ER 1089, Parke B, again speaking for the Privy Council, at 485; 1091, set the limit of the stringency of the rule as 'in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.' Thirty years later, in Atter v Atkinson (1869) LR 1 P & D 665 at 668, Sir J P Wilde (as Lord Penzance then was) said:
'The proposition, however, is undoubted that if you have to deal with a will in which the person who made it himself takes a large benefit, you ought to be well satisfied, from evidence calculated to exclude all doubt, that the testator not only signed it, but that he knew and approved of its contents.'
[5] One of the leading cases is Fulton v Andrew (1875) LR 7 HL 448, where Lord Hatherley described (at 469-470) the facts that 'the will had ... been framed through the agency of those who took [the] benefit in the residue'; that the same persons 'alone supported the case of the will having been read to the testator'; and that the 'instructions [were not sent] to the testator's ordinary solicitor', as 'grave circumstances attending the transaction'; and his Lordship proceeded (at 471-472) to declare the law in terms which have often been repeated since, as they were by a'Beckett J in the passage I have cited from In re Nickson.
In Fuller v Strum [2002] 2 All ER 87 at 96, 107 and 112, the members of the Court of Appeal emphasized that Lord Hatherley's expression (adopted by a'Beckett J) 'the righteousness of the transaction' does not involve what Chadwick LJ called an 'overriding requirement of morality'. But their Lordships did not cast any doubt on the rule which requires the dispelling of the suspicion that the testator may not have known or may not have approved the contents of the will. As Peter Gibson LJ put it, '[t]he doctrine of "the righteousness of the transaction" whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged.' But it seems to me that the true meaning of Lord Hatherley's expression was explained by a'Beckett J in In re Nickson at 281, when he said:
'I do not understand the righteousness of the transaction to mean that the will was a wise and just one, but that there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it.'
This was the view of the burden that was taken by Lord Macnaghten, delivering the advice of the Privy Council, in Farrelly v Corrigan [1899] AC 563 at 566 when he said it was 'incumbent on those who sought to uphold the gift ... to prove the truth and honesty of the transaction, and to remove the suspicions which the comparative magnitude of the gift and the circumstances under which the will was prepared were calculated to excite.' To the extent that Turner P may be thought to have implied a different understanding in Tanner v Public Trustee [1973] 1 NZLR 68 at 88 et seq, I respectfully disagree with that understanding, both as a matter of the natural meaning of Lord Hatherley's language, and on the authority of a'Beckett J and Lord Macnaghten.
[6] In Tyrrell v Painton [1894] P 151 at 156, Lindley LJ put it that suspicious circumstances raised the question: 'Do the defendants affirmatively establish to my satisfaction that the testatrix knew what she was doing when she executed this will?' After referring to Barry v Butlin and Fulton v Andrew, he made it clear (at 157) that the rule is not confined to the case where a will is prepared by or on the instructions of a person taking large benefits under it, 'but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document'. In the same case, A L Smith LJ put the matter succinctly (at 158) when he expressed a need to be satisfied that the testatrix 'knew what she was about when she signed that will'. The third member of the court, Davey LJ, said (at 159-160):
'[T]he principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed. Here the circumstances were most suspicious, and the question a judge has to ask himself is whether the defendants have discharged themselves of the onus of shewing the righteousness of the transaction.'
Similarly, in The Public Trustee v McKeon (1917) 17 SR (NSW) 157 at 164, Street J took the principle to require that probate ought not to be granted unless the court could feel 'full and entire satisfaction that the instrument did express [the testator's] real intentions'.
[7] The law on this subject has been considered in the High Court of Australia, and particularly in Nock v Austin (1918) 25 CLR 519. Barton and Gavan Duffy JJ (at 524) adopted the question posed by Lindley LJ in Tyrrell v Painton as the right test, adding (at 525) that circumstances of suspicion 'necessitated vigilance and jealousy on the part of the Court in weighing the evidence'. Isaacs J (at 528) said 'the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document'; and that the 'circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will'.
[8] Among 20th century decisions on this ancient principle, a leading place is held by Wintle v Nye [1959] 1 WLR 284, a decision of the House of Lords. There, the verdict of a jury in favour of the will was overturned by the House in view of the strength of the suspicious circumstances. Those circumstances were that the will gave a significant benefit to the solicitor who drew it, who was not an intimate friend and whose evidence of the testatrix's instructions was uncorroborated. Viscount Simonds said (at 291):
'It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.'
Lord Reid (at 295) referred to 'the weight of the onus which must be discharged if the will is to stand', making it clear that this was very great. What was required to be shown was that the person procuring the execution of the will had fulfilled the duty 'to bring home to the mind of the testator the effect of his testamentary act'.
[9] The relevant principles have been applied in a series of Victorian Supreme Court decisions. I have already referred to In re Nickson, decided by a'Beckett J. In In re Breen [1927] VLR 164, Irvine CJ, having observed that it was the proponent himself who took the instructions for the will and drew it up, said (at 166):
'The difficulty is whether I am justified in relying entirely upon the evidence of a man who drew up, upon instructions alleged to have been taken by himself, a will under which he receives a substantial benefit.'
He referred (at 169 and 170) to the necessity for 'very clear proof of volition and capacity as well as of a knowledge by the testator of the contents of the instrument', and to 'the presumption against the will propounded which the law so clearly attaches to the other circumstances of this case'. Despite direct evidence, which his Honour did not criticise except insofar as it came from interested persons, Irvine CJ concluded (at 170):
'After full consideration, I think I should not be justified in accepting the evidence of this character from an interested source as sufficient to rebut the presumption against the will arising from the nature of the will itself.'
A very recent Victorian decision is McKinnon v Voigt [1998] 3 VR 543, where Tadgell JA (with whom Phillips JA agreed) said (at 552) of circumstances exciting suspicion in a case where the evidence supporting the will was given by interested witnesses and the will itself had not been produced for a significant period:
'In accordance with settled principle, an onus lay upon the respondents to dispel that suspicion as a pre-requisite to a grant to them of letters of administration.'"
164In his letter of 11 May 2006 to Mr Kerridge referred to at para [121] above, Mr Hopper denied that he had a conflict of interest. However, before he took instructions from Mrs Simpson, the Salvation Army Property Trust was an established client of Mr Hopper's. The Salvation Army Property Trust, his established client, was to be the sole beneficiary of the will. The position of a solicitor in those circumstances was addressed by Santow J in Pates v Craig, The Estate of Cole (Santow J, Supreme Court of New South Wales, 28 August 1995, unreported; BC9505250). I extract the relevant parts of his Honour's judgment from the judgment of Hallen AsJ (as his Honour then was) in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [89]:
"[89] In Pates v Craig The Estate of Cole (NSWSC, 28 August 1995, unreported), Santow J, made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. His Honour said:
'There do not appear to be rules of professional conduct specifically governing the first situation. Thus r 22 of the Professional Conduct and Practice Rules deals with situations where a solicitor receives instructions to prepare a will in which that solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever "associate" may mean, it probably falls short of including a conventional solicitor/client relationship. Reg 28 of the old Legal Profession Regulation 1987 is to a similar effect. That does not, however, mean that no ethical considerations arise in such circumstance. The essence of a solicitor's fiduciary obligations to a client is the unfettered service of that client's interests. This will require the solicitor to avoid acting for more than one party to a transaction where there is a likelihood of a real conflict of interest between the parties. As Wootten J stated in Thompson v Mikrelsen (Supreme Court of NSW, 3 October 1974, unreported), in the analogous context of conveyancing transactions: "The reasonable expectations of a client instructing a solicitor [is] that the solicitor will be in a position to approach the matter concerned with nothing [in mind] but the protection of his client's interests against [those] of another party. [The client] should not have to depend on a person who had conflicting allegiances and who may be tempted either consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself."
The same considerations may arise in the context of preparation of wills. It is clear that a conflict of interest may arise between the interests of an intended principal beneficiary seeking to procure a will in his, or her, favour and the interests of the testator. The testator should be assisted by his legal or her legal adviser only in making a valid will. This means, inter alia, that the natural objects of the testator's bounty must be capable of being appreciated, by the testator, even though the testator may choose to exercise that capacity so as to omit such objects or disfavour them. In such circumstances, the legal practitioner would be expected to give advice to the intended testator on a number of matters. Some of these may be potentially contrary to the interests of the proposed beneficiary. The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is a reason to fear lack of testamentary capacity on the part of the testator by reason such as fragility, illness or advanced age. Further, in such context, the solicitor could not prudently rely on the informed consent of both clients to act in such a transaction where their interests conflict, there being doubts about the capacity of the testator to give such informed consent ...
There is an additional consideration, not dependent on the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It is clearly undesirable to attempt to lay down precise and specific rules as to what that necessarily entails for every case. Such rules may lead to a perfunctory, mechanical checklist approach. What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned, on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity ... For this purpose, and subject to the earlier caveat concerning checklists, the advice concerning the taking of instructions contained in Mason & Handler's 'Wills, Probate and Administration Service NSW (Butterworths) [at 10,019] is a useful guide:
[10,019] TAKING OF INSTRUCTIONS - ISSUES OF TESTAMENTARY CAPACITY
If any doubts do rise as to the testator's capacity the following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor in the discharge of his duties:
(i) The solicitor who is to draw the will should attend on the testator personally and fully question the testator to determine capacity - the questions should be directed to ascertain whether the testator understands that he is making a will and its effects, the extent of the property of which he is disposing and the claims to which he ought to give effect;
(ii) One or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify whether the issue of capacity is raised. Where possible, one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of the testator's condition, question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of other persons at this time would require the testator's consent;
(iii) A detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present.
If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will. It is a good general practice for the solicitor who took instructions to draw the will and be present on execution and this practice should not be departed from in these circumstances. On execution, the attesting witnesses should, where possible, come from those persons (including the solicitor) referred to above who were present at the time of instructions and, again, as at every stage, detailed notes of the events and discussions taken.'
If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted."
165Although Mr Hopper did not perceive that he had a conflict of interest (or more accurately, a conflict between duty and duty), I think he did have such a conflict. The Salvation Army Property Trust was an established client. He worked from its offices. The Salvation Army Property Trust would expect him to do what was proper to document what Mr Hopper was told was Mrs Simpson's intention to leave her estate to the Salvation Army. His duty to Mrs Simpson included making inquiries relevant to her testamentary capacity, including as to whether she appreciated who had claims on her bounty and was able to evaluate those claims. This would have included inquiring who was or were the beneficiary or beneficiaries of any existing will. Bringing Mrs Simpson's mind to bear on the question of who, other than the Salvation Army, might have claims on her estate was potentially not in the interests of his established client. It is clear from Mr Hopper's evidence that he relied upon his "own test" as to testamentary capacity that he did not make the appropriate inquiries. He did not give evidence of making inquiries of Mrs Simpson to ascertain who had claims on her testamentary bounty. He gave no evidence of having asked her about her existing will or of having ascertained that Mr Dickman had been named as her beneficiary in a will made the previous year. He only saw Mrs Simpson alone for about five minutes. Part of that time was taken up with discussions concerning a power of attorney.
166As noted at para [51] above, both Mr Nicholson and Mr Jeskie said that the power of attorney was executed at Mr Hopper's suggestion. I am satisfied that Mrs Simpson was pressured into giving the power of attorney. There was no reason for her not to have continued the existing arrangements whereby Mr Dickman held her power of attorney, except that others wanted to stop Mr Dickman from having control of her estate. Neither Mr Nicholson nor Mr Jeskie had any qualifications to fit them to carry out the task of being her attorney. They had had comparatively little involvement with her. The giving of the power of attorney in conjunction with the will is a suspicious circumstance indicating that Mrs Simpson's own will was being prevailed on.
167It is also a suspicious circumstance that someone from the Salvation Army had told Mr Nicholson or Mr Jeskie that her security at Elizabeth Jenkins Place was in jeopardy because her fees were unpaid. As might be expected, when this was conveyed to Mrs Simpson it caused her distress. Mrs Simpson was apprehensive when the will was made that she might have to leave Elizabeth Jenkins Place. As noted earlier in these reasons, there was no basis for the concern as to non-payment of fees. It might not be a coincidence that at this time the relevant fee account was posted not to Mr Dickman, but to his solicitor, which resulted in the delayed receipt of the invoice by Mr Dickman.
168Mr Hopper read over the will of 10 January 1999 to Mrs Simpson and I accept that Mrs Simpson gave him instructions that she wanted her estate to go to the Salvation Army. However, I think this was owing to pressure being applied to Mrs Simpson by Mr Jeskie and by Mr Nicholson and by her concerns arising from the inaccurate statement that her security at Elizabeth Jenkins Place was at risk and that her fees had been unpaid. Nor did she appreciate what she was doing. The best evidence that this is so is Mrs Simpson's having told Mr Dickman on the morning of Sunday, 12 September 1999 that she thought that Mr Nicholson and Mr Jeskie had got her to sign some papers in the office and that she did not understand what she had done and had not wanted to sign anything, but had done so. She repeated this to Mr Dickman later that day and the following day.
169Mr Hopper prepared the second will that was signed by Mrs Simpson on 14 September 1999 without having taken further instructions from her. He did not attend on Mrs Simpson to give her the second will or to explain its contents. Mr Hopper gave evidence that Mr Buckner had told him that he (Mr Buckner) had been instructed by Mr Dickman for Mrs Simpson to make another will. I have not accepted that evidence, but it is clear that Mr Hopper thought that Mrs Simpson had either executed a new will or was going to. I do not understand how in those circumstances he could have prepared a new will for Mrs Simpson, again leaving the property for the Salvation Army Property Trust, this time for the specific purposes of Elizabeth Jenkins Place, without having ascertained from Mrs Simpson that she had not changed her mind and still wished to leave her property in that way.
170Mrs Simpson signed that document in the presence of Mr Nicholson and Mr and Mrs Jeskie, but there was no evidence that the document was read over to her. Whilst both Mr Nicholson and Mr Jeskie said that Mrs Simpson repeated her instructions that she wanted to leave her estate to Elizabeth Jenkins Place, I am not satisfied that she did bring a free and voluntary mind to that question. She had been concerned that she had signed a document a few days beforehand without knowing what it was she was signing, but thinking that something had been put over her. She thought she was being "mucked about a lot". She had been subjected to pressure by Mr Nicholson and Mr Jeskie. The nurse, Ms Nabb, recorded in her letter to the Guardianship Tribunal of 1 October 1999 that Mrs Simpson was "emotionally labile" and had displayed depression and tearful outbursts over the past few weeks regarding her finances.
171In the applications to the Guardianship Tribunal and to the Local Court, Mr Dickman was blamed for causing this distress and putting pressure on Mrs Simpson to change her will. It was not Mr Dickman who was causing the distress, but Mr Nicholson, Mr Jeskie and Mrs Simpson's family. The fact that Mrs Simpson was induced to sign a statement in support of the application made on her behalf to the Local Court for an Apprehended Violence Order against Mr Dickman which stated that she did not wish to have continuing contact with Mr Dickman and was frightened of him, when that was not the fact, shows that she was amenable to signing documents under pressure from others that did not reflect her true wishes.
172I do not consider that the statements Mrs Simpson made to the Guardianship Tribunal at the hearing on 8 October 1999 that she wished her estate to go to the Salvation Army and specifically to Elizabeth Jenkins Place indicates that her will of 14 September 1999 (or her earlier will of 10 September 1999) was the product of a free and voluntary mind. That statement was made when Mrs Simpson was still subject to the pressure of her family and her neighbours. They were out in force before the Guardianship Tribunal. Moreover, as set out at para [99] above, one of two conclusions should be drawn from the Tribunal's statement of reasons that "when asked whether she recalls signing a power of attorney or will, Mrs Simpson replied that she signed documents and could not read them so she did not know what she had signed." It is probable that this referred to the documents she signed on 10 and 14 September 1999, as they were the only documents she signed. If so, this also indicates that Mrs Simpson did not know and approve of the contents of the will she signed on those days. On the other hand, if this sentence is a reference to events of 13 September 1999, it shows confusion because Mrs Simpson did not sign any documents on that day.
173For these reasons I conclude that neither the will of 14 September 1999 nor the earlier will of 10 September 1999 should be admitted to probate and that the grant of probate of the will of 14 September 1999 should be revoked. Unusually, in this case that conclusion can be put on each of the grounds of lack of testamentary capacity, undue influence amounting to coercion and lack of knowledge and approval. In the circumstances in which the wills of 10 and 14 September 1999 were signed, Mrs Simpson lacked testamentary capacity because she was unable to evaluate the claims of Mr Dickman on her estate. But this was because of the pressure to which she was subjected and which she was not capable of withstanding. Her signature to the wills of 10 and 14 September 1999 was not "the offspring of [her] own volition [but] the record of someone else's" (Hall v Hall (1868) LR 1 P & D 481 at 482). There were suspicious circumstances surrounding creation of both wills and notwithstanding that the first will was read over to her, I am not satisfied that she knew and approved of the contents of the wills.