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[2013] NSWSC 18
Supreme Court of NSW
2012-06-01
White J, Powell J, Young J, Santow J
Original judgment source is linked above.
South Wales, LBC Information Services 1996 Category: Principal judgment Parties: David Wilfred Dickman (Plaintiff) Peter Ezekiel Holley (1st Defendant) The Salvation Army (NSW) Property Trust (2nd Defendant) Representation: Counsel: I E Davidson SC with V Brigden (Plaintiff) L Ellison SC with P Wallis & B Eurell (Defendants) Solicitors: Michael Kerridge & Company (Plaintiff) Gadens (Defendants) File Number(s): 2010/352727; 2010/240893
Judgment 1HIS HONOUR: These two proceedings were heard together. They concern the estate of Vera May Simpson who died on 16 September 2005 aged 102. From January 1997 Mrs Simpson was a resident of the Salvation Army Elizabeth Jenkins Place Residential Aged Care Facility ("Elizabeth Jenkins Place"). On 14 September 1999 she made a will that after revoking prior wills appointed the financial secretary of the Salvation Army (NSW) Property Trust as her executor and gave the whole of her estate to the Salvation Army Eastern Australian Territory for the use and benefit of the Elizabeth Jenkins Place aged care facility. The defendant, Mr Holley, held the office of financial secretary at the time the application was made for probate of the will. Probate of the will was granted on 5 October 2006 to him. 2The plaintiff, Mr Dickman, had been a friend of the deceased since 1965. Although not related to her, she regarded him as her son. By a prior will made on 23 September 1998 Mrs Simpson appointed Mr Dickman as her executor and left all of her estate to him. 3The principal asset of the estate was a house owned by the deceased in Mona Vale. The house was sold. After payment of debts, funeral and testamentary expenses, payments totalling $732,133.76 were made to the Salvation Army on and prior to 5 December 2006. 4Mr Dickman commenced proceedings on 20 July 2010 seeking the revocation of the grant of probate made on 5 October 2006 to the defendant and a grant of probate in solemn form to him in respect of the will of 23 September 1998. 5In the probate proceedings Mr Dickman alleges that at the time she made her will of 14 September 1999 Mrs Simpson lacked testamentary capacity. He also says that there were suspicious circumstances surrounding the execution of that will, that it has not been shown that Mrs Simpson knew and approved of the contents of that will, and that it was procured through the undue influence of neighbours of Mrs Simpson, namely Mr and Mrs Jeskie, and Mr Nicholson, or of officers of the Salvation Army, including the management of Elizabeth Jenkins Place, or both. 6During the hearing Mr Dickman sought leave to amend his statement of claim to seek an order that Mr Holley pay to him the sum of $732,133.76. Mr Holley consented to the amendment. 7On 25 October 2010 Mr Dickman commenced separate proceedings against Mr Holley and the Salvation Army (NSW) Property Trust claiming a declaration that Mr Holley held the net proceeds of the estate of Mrs Simpson on constructive trust for him, that the Salvation Army (NSW) Property Trust holds the net proceeds of the estate on constructive trust for him and an order that both defendants account for those proceeds. 8Mr Dickman alleges that in about December 1996 Mrs Simpson represented to him that if she moved into Elizabeth Jenkins Place she wanted Mr Dickman to continue to visit and assist her, and that if he continued to see her and talk to her after she moved there, she would leave him everything in her will. He alleges that a similar representation was made in 1991. Mr Dickman pleads that in reliance on these representations he continued to visit and provide assistance of various kinds to Mrs Simpson until he was prevented from seeing or communicating with Mrs Simpson. 9Counsel for Mr Dickman said that Mr Dickman sought the relief in the Equity proceedings (that is the constructive trust claim) only in the alternative to the relief claimed in the probate proceedings. 10As well as denying Mr Dickman's allegations, the defendants pleaded that both claims were barred on the ground of laches or acquiescence. 11By his cross-claim Mr Holley sought a grant of probate in solemn form of the will of 14 September 1999. Alternatively, he sough a grant of probate in solemn form of a will dated 10 September 1999. This will was destroyed after the will of 14 September 1999 was made. The defendant's evidence was that by that will the deceased left her estate to The Salvation Army (NSW) Property Trust, but without specific reference to Elizabeth Jenkins Place. 12The case raises the following issues:
Background to the making of the will of 23 September 1998 13Mr Dickman first met Mrs Simpson in about 1965 when he was 19 and she was about 63. He and Mrs Simpson developed a close relationship. Mr Dickman regarded her as a mother or even grandmother figure. In correspondence in 1982 and 1984 addressed to "My dear David" Mrs Simpson described herself as "your second Mum". 14In 1977 Mrs Simpson entered into a contract to sell an investment property she owned in North Balgowlah to Mr Dickman. The purchase price was $41,500. He paid a "deposit" of $8,500. The property was an investment property. The contract was settled on 20 September 1977 when Mrs Simpson provided the certificate of title and a transfer in favour of a company owned by Mr Dickman. Thereafter he received all the rents and paid all the expenses. Mrs Simpson remained an unpaid vendor until Mr Dickman was able to pay the outstanding "loan". On 16 August 1991 Mr Dickman paid $35,000 and received a fresh memorandum of transfer and a withdrawal of a caveat that had been lodged to protect Mrs Simpson's interest as unpaid vendor. Mr Dickman did not register the transfer. 15Mrs Simpson's cousin, Mr Barber, died in early 1991. Her husband had died in 1948 and she had no children. Mr Dickman became a frequent visitor. In 1991 Mrs Simpson, who was then aged 89, started discussing with Mr Dickman the possibility of her going into a retirement home. According to Mr Dickman, she said to him words to the effect of all of the following: "'You'll still come to see me and look after me won't you love?' 'You're all I have since Billy went, you won't dump me now will you? If you do, I won't leave you a thing.' 'You'd better keep coming to see me love and this house will be yours' 'When I go love, I want to leave everything to you. Apart from Billy, you're the only one who's ever done anything for me.'" 16In the following five years Mr Dickman provided assistance to Mrs Simpson in a range of matters including arranging her home insurance, maintenance and repairs around her Mona Vale property, arranging appointments with her general practitioner and taking her to medical appointments, helping her with communications with Meals on Wheels, organising Homecare at her Mona Vale home, helping her with payment of accounts and organising for her to receive a taped edition of the Manly Daily Newspaper. By 1997 Mrs Simpson was substantially blind. 17On 14 November 1996 Mrs Simpson had a fall and was taken by ambulance to Mona Vale Hospital. On 16 January 1997 she moved into the Salvation Army Hostel at Elizabeth Jenkins Place. Mr Dickman was in frequent communication with her. He made a number of purchases for her. Mr Dickman deposed that on a number of occasions commencing from around December 1996 until the time she moved to Elizabeth Jenkins Place, Mrs Simpson said to him words to the effect: "'If I move there, I want you to keep visiting and looking after me. If you do, I'll leave you everything in my will.' 'I've always loved you, you know that don't you? If I stay in that home [meaning at Elizabeth Jenkins Place], I want you to look after me as you always have. If you do, I'll leave you everything. I really don't have anyone else love. I don't know what I would do if I could not see you or talk to you. Promise me you will.'" 18Mr Dickman deposed that he said: "Mum, of course, I'll keep on seeing you. We'll be able to talk just like we always do. I'll still be here to look after you." 19Mr Dickman deposed that whilst he would still have visited Mrs Simpson after she moved to Elizbeth Jenkins Place and spoken with her by phone, even if she had not made these representations, nonetheless he bore them in mind and would not have visited her as frequently as he did if she had not done so. 20After Mrs Simpson moved into Elizabeth Jenkins Place, Mr Dickman visited regularly and took her on weekly trips to a hydrotherapy pool at Mona Vale Hospital. This continued until September 1999. Mr Dickman said that the attention he gave to Mrs Simpson was a source of tension between him and his then partner, Carolyn Sargent, which contributed to a deterioration in their relationship which ended bitterly in 2006. However, as Mr Dickman's relationship with Mrs Simpson came to an end in September 1999, it cannot have been too material a factor to his ultimate break-up with Carolyn Sargent. 21Mr Dickman regularly took Mrs Simpson out to the nearby Collaroy Beach Reserve, or for coffee, or to go shopping. He made regular purchases for her. At this time Mrs Simpson's solicitor, a Mr Richard Booker, held a power of attorney for her. From late March 1997, there were delays in the payment of the fees payable by Mrs Simpson for the hostel accommodation. On 12 June 1997 Mr Dickman paid the Salvation Army $2,514.40 for the outstanding fees. The fees of $2,514.40 were paid by a cheque drawn by Aims Unlimited Pty Limited, a company controlled by Mr Dickman. He advised a Major Joy Armstrong of the Salvation Army that: "I would be grateful if you would, to put her mind at rest, confirm with Vera that the account has been paid. Vera has discussed with me looking after these payments on her behalf. Please advise if you require any formal notification." 22Mr Dickman was told by staff at Elizabeth Jenkins Place that they could not provide him with information concerning Mrs Simpson unless he had a power of attorney. On 21 August 1997 Mrs Simpson appointed Mr Dickman as her attorney. The power of attorney was prepared by a solicitor, Mr David Buckner, of Collaroy. Mrs Simpson had expressed dissatisfaction with her previous solicitor. Mr Dickman took Mrs Simpson to Mr Buckner's office. The office was up a flight of steps which she had some difficulty in negotiating. Mr Buckner saw Mrs Simpson alone. There is no question as to the validity nor the propriety of the power of attorney. 23On 9 June 1998 Mrs Simpson had a fall and was taken to Mona Vale Hospital. She was not there long and returned to her room in the hostel at Elizabeth Jenkins Place. On 11 June 1998 Mrs Simpson told Mr Dickman that "I want a will and I want it done now love". Mr Dickman suggested that they see Mr Buckner, but Mrs Simpson said: "That takes too long. You can buy a will kit. I am leaving you everything. It's for you. I want it done now. Mr Buckner can be an executor." 24Mr Dickman prepared a handwritten will using a will kit form. The will appointed Mr Buckner and Mr Dickman as executors and gave all of Mrs Simpson's property to Mr Dickman. That will was signed by Mrs Simpson on 11 June 1998 in the presence of Mr Dickman's partner, Carolyn Sargent, and a staff member of Elizabeth Jenkins Place, who signed as attesting witnesses. 25Subsequently, Mrs Simpson said that she wanted a "proper will" that was done by a solicitor. She told Mr Dickman that she wanted to see the solicitor near the coffee shop (that is, Mr Buckner). Mr Dickman arranged for Mr Buckner to see Mrs Simpson at Elizabeth Jenkins Place. He attended on her twice. She told Mr Buckner that she wanted to make a will leaving everything to Mr Dickman to whom she referred as her son. Mr Buckner did not ask about any previous will. Mr Buckner said that he had a vague recollection of her telling him that she had no children other than Mr Dickman. He could not specifically remember asking Mrs Simpson about her assets, although it would be in accordance with his usual practice for him to have done so. 26Mr Buckner prepared a will for execution in which he described Mr Dickman as the testatrix's son. He took the draft to Mrs Simpson who said that Mr Dickman was not her son, but was like a son to her. Mr Buckner then redrafted the will. The will as redrafted was signed by Mrs Simpson on 23 September 1998 in the presence of Mr Buckner and a Ms Terlien who signed as an assistant to the business manager at Elizabeth Jenkins Place. The will revoked all prior wills. It appointed Mr Dickman "whom I regard as my son" as executor and trustee of the will. It gave the estate, after payment of debts, funeral and other testamentary expenses, to Mr Dickman absolutely. It is this will that Mr Dickman seeks to have admitted to probate. 27Mrs Simpson was 96 at the time of this will. She was 95 when she made the earlier will in favour of Mr Dickman. Although described as "legally blind" she was able to keep a notebook. Much of the writing is hard to read. An entry for Thursday, 11 June includes a note "signed will my decision. Vera Simpson Thursday 11 June 1998". A note for 17 September records a meeting with Mr Buckner. This was the first day on which he took instructions for the September will. Mrs Simpson was attended by a general practitioner, a Dr Marian Baker. Her attendances on Mrs Simpson started in August or September 1998. She said that as at 22 September 1999 (that is, a year later) Mrs Simpson was mentally alert for a woman of her age, not confused and of sound memory and who held strong and definite views and was not suffering from delusions, nor easily influenced. That was the position in September 1998. However, events occurred in September 1999 that cast doubt on this assessment as at September 1999.
Background to the will of 10 September 1999 28There does not appear to have been anything out of the usual affecting Mrs Simpson between September 1998 and August 1999. In a report to the Guardianship Tribunal of 1 October 1999, a Ms Kathy Nabb, a registered nurse at Elizabeth Jenkins Place, reported: "Vera is emotionally labile due to her old age. It is a great burden for Vera to manage her own financial affairs since she has no family and relatives to care for her. She has been depressed and tearful outbursts have been displayed over the past few weeks due to worries regarding her finances. It appears that outside parties whom [sic] have interest in Vera also has [sic] interest in her finances." 29Mr Dickman took Mrs Simpson to a hydrotherapy pool at Mona Vale every Monday. He deposed that on Monday, 6 September 1999 she said to him in a distressed voice "The higher ups [I recall that Vera was unable then to identify whom at the Salvation Army she was referring to] don't want me to stay. They have said I might have to leave as I am at a place only for self-reliant people and they said they might not have room for me in the other place." The "other place" would have been an associated nursing home run by the Salvation Army. Mr Dickman said that during that week Mrs Simpson's way of speaking with him changed dramatically. That evidence is consistent with the report of Ms Nabb referred to above and with the occurrence of other events during September 1999. 30Mr Dickman said that at some time in the week commencing 6 September Mrs Simpson started to ask him what he called "weird questions" like "I didn't get my pension, where is it?". Mrs Simpson had not asked that question before. Her pension was paid into her National Australia Bank account. Mr Dickman told her that, but she did not seem satisfied. Mrs Simpson also said to Mr Dickman "Why haven't my fees been paid? The higher ups spoke to me again." He assured her that her fees had been paid. At about the same time Mrs Simpson asked him questions such as "What have you done with the house?" and he told her "The house is fine". He also told her that some belongings of a daughter of a neighbour, David Jeskie, were in the garage. During this week Mr Dickman was busy as he was a candidate for Manly Council. The election was held on Saturday, 11 September 1999. He was elected. 31There was no problem with the payment of Mrs Simpson's fees to the Salvation Army. Mr Dickman paid the fees from her Westpac Bank account. Mr Dickman had paid fees for the period from 26 June 1999 to 3 September 1999 on 21 July 1999. A monthly fee account dated 31 August 1999 addressed to Mr Dickman at his post office box at Seaforth stated that a sum of $643.49 was payable for the month of September 1999. Although addressed to Mr Dickman's post office box, this account plus other documents, including the receipt dated 21 July 1999 for an earlier payment of fees, was posted to Mr Buckner instead of to Mr Dickman. Mr Buckner posted those documents to Mr Dickman who received them on or shortly before 13 September 1999. Mr Dickman wrote a letter to Major Sneller, the manager of the hostel, on 13 September 1999. He said: "I now hold receipts which I requested for payment of monies on behalf of Vera their having been forwarded by post to me by Mr David Buckner solicitor of Collaroy. There appears to have been some confusion on your offices [sic] behalf in that whilst the above were made out to my attention they were posted to Mr Buckner who as you are aware acts for Mrs Simpson. Please ensure that your records are correct and all communications are forwarded to me at the above address. In accordance with your accounting enclosed is a cheque made out in the sum of Eight Hundred and Forty Three dollars Forty Nine cents being payment of Six Hundred and Forty Three Forty Nine cents as to residents [sic] fees and Two Hundred dollars to Trust for day to day expenses for Vera Simpson. I must voice my concern that a member of your staff has prior to the 10th September last discussed this among other things with some previous neighbours of Mrs Simpson who in turn Mrs Simpson advises me raised the matter of her security at Elizabeth Jenkins Place in that her fees were unpaid. There is no doubt in my mind that this has occurred in that the amount mentioned is in accord with those figures now before me. The above occurrence I should have thought would not happen and has as you would appreciate caused Mrs Simpson unnecessary stress in that she had one of your staff members facilitate her telephone call to me early Sunday morning the 12th instant." 32There was no reply to that letter. Major Sneller said he would have transferred it to the business manager. Mr Dickman's letter of 13 September is corroborative of his evidence that Mrs Simpson was upset by having been told that her security at the hostel was at risk because of unpaid fees. There is other corroboration of that evidence. As appears below, a solicitor for the Salvation Army, Mr Lyndon Hopper, prepared two wills for Mrs Simpson. In a letter to Mr Dickman's solicitor, Mr Kerridge, of 21 September 1999, Mr Hopper said "We would also mention that we were approached by the management of Elizabeth Jenkins Place to assist Mrs Simpson because of the concerns of management in regard to the payment of her fees and her ongoing care ...". This also suggests that someone from management, who has not been identified, was asserting a concern regarding payment of fees, although there was no basis for such a concern. Mr Hopper's reference to the concerns of management in regard to Mrs Simpson's ongoing care also corroborates Mr Dickman's evidence that Mrs Simpson was concerned that she might not be able to stay at the hostel. 33One of Mrs Simpson's neighbours when she lived at Mona Vale was a Mr Graeme Nicholson. He was an electrician by trade. From the time of Mrs Simpson's admission to Elizabeth Jenkins Place in January 1997 up to 8 September 1999 he had visited her on only a handful of occasions. He deposed that on 8 September 1999 he was doing an electrical job next door to Elizabeth Jenkins Place and decided to visit Mrs Simpson. He deposed to the following: "Although her eyesight was not that good Vera was able to identify me by the sound of my voice. We had a conversation with her in words to the following effect. Me: 'Hello Vera.' Vera: 'Hello Graeme, come in and lock the door.' Vera: 'Mr Dickman is not my son, I don't have any children. My late husband made me terminate 5 pregnancies and I lost a boy, stillborn at six and a half months.' 'I don't have any money but one dollar, no pension card, no reading glasses and my 7 rings that were on a safety pin are gone. Can you please ask David [Dickman] to give them back?' Me: 'Of course I can do that.'" 34If this evidence is correct, it was a very strange event to have occurred. Mr Nicholson gave evidence in cross-examination that he understood that Mrs Simpson was saying that Mr Dickman had taken those things from her. 35Mr Dickman gave evidence, which I accept, that by September 1999 Mrs Simpson had no use for a pension card, but the card was in a purse wallet kept in the bedside drawers in her room. By that time she was unable to read and had not used her reading glasses for over a year as they were ineffective. Instead, she used a large magnifying glass if she tried to read something. Mrs Simpson had a gold wedding band and an engagement ring, but otherwise Mr Dickman had never seen her having had seven rings, let alone seven rings on a safety pin. He had not taken any rings, money, pension card or reading glasses from Mrs Simpson. I accept that evidence. 36Dr Baker confirmed that Mrs Simpson had never told her anything about her husband, let alone her husband having made her terminate five pregnancies. Dr Baker had never seen Mrs Simpson with seven rings on a safety pin. An old age psychiatrist, Associate Professor Carmelle Peisah opined that this conversation deposed to by Mr Nicholson suggested that Mrs Simpson was likely to have had a paranoid ideation regarding Mr Dickman. She noted that the episode as described by Mr Nicholson had a conspiratorial air about it, namely the words "come in and lock the door" and then suddenly saying "Mr Dickman is not my son". Associate Professor Peisah said that "It sounds like a disenfranchisement ... out of nowhere, a disenfranchisement with Mr Dickman specifically related to the idea that he had stolen her pension card, stolen her glasses and her seven rings ...". I accept that if the episode occurred as deposed to by Mr Nicholson, it does suggest a paranoid ideation. Not surprisingly, Mr Dickman did not challenge this part of Mr Nicholson's evidence. However, I have reservations concerning Mr Nicholson's reliability. I deal with this later in these reasons. 37Mr David Jeskie was another neighbour of Mrs Simpson when she lived at Mona Vale. He was slightly acquainted with Mr Dickman. He and Mr Dickman met in 1997 in connection with his daughter having access to Mrs Simpson's garage to store some belongings. The details of that visit were disputed, but nothing turns on the dispute. 38In his affidavit Mr Jeskie said that in September 1999 he was telephoned by Mr Nicholson from Elizabeth Jenkins Place and asked to come down because Mrs Simpson wanted to make a will. He said he attended on Mrs Simpson with his wife and Mr Nicholson on 10 September 1999 when the will was signed. He gave no evidence of any earlier meeting with either Mr Nicholson or Mr Hopper on the subject of Mrs Simpson's will. 39Mr Nicholson deposed in his affidavit that some time between 8 and 10 September when he was visiting Mrs Simpson at Elizabeth Jenkins Place, a conversation to the following effect took place: "Me: 'Vera had [sic] you done a will?' Vera: 'Yes, I left it to David Dickman.' Me: 'You always said you were going to leave your estate to the Mona Vale Hospital. Are you sure you still want to do that?' Vera: 'Oh. I should change my will.' Me: 'If you don't change your will, the hospital won't receive your estate. Do you don't [sic] want to leave any of your estate to your family?' Vera: 'No.' Me: 'Why don't you leave it to The Salvation Army, then you can help the 120 people in the hostel.' Vera: 'That's a good idea.' Me: 'Would you like me to organise someone to come and make up your will?' Vera: 'Yes.'" 40Mr Nicholson said that he spoke to a staff member at Elizabeth Jenkins Place, a Captain Coulter, and told him that Mrs Simpson wanted to make a will leaving her estate to the Salvation Army, and later that day Captain Coulter gave him the phone number for Mr Hopper. Mr Nicholson said that it was on 10 September that he telephoned Mr Jeskie from Elizabeth Jenkins Place and asked Mr Jeskie to come down so that Mrs Simpson could make her will. 41Mr Hopper deposed that on about 8 September he received a telephone call from Mr Jeskie who said he was a neighbour of Mrs Simpson and was concerned about a person trying to influence her about leaving her house to him. Mr Hopper said that later that day Mr Jeskie and Mr Nicholson came to his office and a conversation took place to the following effect: "Mr Nicholson: 'We have been providing support and help to Vera for a long time before David Dickman came along. He is overly friendly and is too much of a friend.' Mr Jeskie: 'A man from the Water Board came to Vera's house and when I went to see what he was doing he told me he was investigating why her water use was low. I told him that it was because Vera was now in a nursing home. I mentioned that David Dickman was overly caring of Vera. The man then mentioned that he had heard of David Dickman at work and that he has done this before. He has targeted old ladies.' Mr Nicholson: 'Vera has asked us to organise a will for her, she wants to leave her estate to the Sally's [sic]. You will need to go and see her as she is unable to come to you.' [Mr Hopper]: 'I will prepare something and then visit Elizabeth Jenkins Place in a couple of days but I will need to make sure that this is what Vera wants.' Mr Nicholson: 'We will see you there.'" 42Neither Mr Jeskie nor Mr Nicholson corroborated this evidence. However, it is clear that someone spread a story that Mr Dickman preyed on old ladies. Major Sneller said that he had heard rumours of Mr Dickman's having befriended elderly women in the past for financial gain. 43There was no truth to these rumours. Somebody was slandering Mr Dickman. It was probably Mr Nicholson or Mr Jeskie, or both. 44On 10 September 1999 by arrangement with Mr Nicholson, Mr Hopper went to Elizabeth Jenkins Place to see Mrs Simpson. Mr Hopper gave the following evidence: "19. I spoke with Vera for approximately 10 minutes. Of these 10 minutes, we were alone for about 5 minutes. Only while we were alone did I discuss Vera's wishes with her. It is my practice with elderly people to have a general discussion about the time of year or who the current Prime Minister is or other events in order to gauge whether the person is sufficiently aware and capable of making a will. I cannot now recall what I asked Vera but I do recall having this type of discussion with her. As a result of our conversation I decided that Vera was capable of making a Will. Vera spoke to me freely and was intent on making her will. 20. From my conversation with Vera, my impression of her was that she was a forceful kind of lady as she was firm in her responses when we discussed her will. She said to me words to the effect of 'I want to leave it all to the home. That is what I want'. She indicated that she was referring to Elizabeth Jenkins Place. I had no doubt that this is what Vera wanted. 21. I also discussed with Vera making a power of attorney. We had a conversation in words to the following effect: Me: 'If you become unable to sign something, a power of attorney would enable someone to sign on your behalf in relation to your financial affairs. You still have the right to do everything yourself, but the power of attorney will continue on in the event that you lose your marbles and could not sign for yourself.' Vera: 'How do you stop it'? Me: 'The best way is to write a letter. Do you understand?' I then saw Vera nod her head. The conversation continued in words to the following effect: Me: 'Who would you like to hold your power of attorney?' Vera: 'Both David Jeskie and Graham Nicholson.' Me: 'I will draw up your will and Power of Attorney and come back and see you to get them signed.'" 45In a subsequent affidavit Mr Hopper said that he had a clear recollection of Mrs Simpson's being single-minded and of saying that she wanted to leave her estate to the Salvation Army and Elizabeth Jenkins Place. 46Mr Hopper returned later that day with a power of attorney and a will. The will was a short document. He said he had no doubt that he read clause 3 of the will to her which was a clause whereby the Salvation Army was to receive her estate. He says that Mrs Simpson repeated that she wanted her estate to go to the Army. Mr Hopper had no recollection of discussing the nature and value of Mrs Simpson's property with her, but recalled that he knew that she owned real estate. He says it would have been his practice to have asked Mrs Simpson whether there was anybody else she would like to have left her estate to, but does not recall any response from her to that question. Mr Hopper said that it was his practice to ask whether a client has an existing will and believes that he would have had that conversation with Mrs Simpson, but does not recall it. He did not recall any conversation he might have had identifying beneficiaries under an earlier will or the date of any earlier will. 47The power of attorney was made out in favour of Mr Jeskie and Mr Nicholson. He saw Mrs Simpson sign the power of attorney and witnessed her signature. He asked Mr Nicholson who would be the second witness to the will. Mr Nicholson said that Mr Jeskie and his wife would be there any minute. Mr Hopper did not wait for them. He left the unsigned will with Mrs Simpson and arranged for the executed copy to be delivered to him later. It is not clear why Mr Hopper did not witness Mrs Simpson's will along with Mr Nicholson. Mr Hopper said that it is clear he was not present when the will was signed, because if he had been, he would have witnessed it. In his letter to Mr Kerridge of 21 September 1999, Mr Hopper said that he was present when Mrs Simpson signed the power of attorney and the first will. 48Mr Hopper said that he was unaware that the deceased had made a prior will leaving everything to Mr Dickman. He was definite in that recollection. It follows that either he did not ask Mrs Simpson whether she had a prior will, or, if he did, she did not say that she had, naming Mr Dickman as her sole beneficiary. Mr Hopper said that he was familiar with the legal tests for testamentary capacity and in his second affidavit set out a summary of that test. But in his oral evidence he acknowledged that that was what he was now informed was the test for testamentary capacity and he had not earlier been aware of that, as such. He said "I had established my own test which I had used over the years which I believe was the appropriate test and it became a matter of course for me to go through that process of asking the questions that I usually ask these people." 49As set out at para [44] above, Mr Hopper deposed that it was his practice with elderly people to have a general discussion about the time of year or who the current Prime Minister is or other events to gauge whether the person is sufficiently aware and capable of making a will. He deposed he had this type of discussion with Mrs Simpson. I infer that this was Mr Hopper's "own test" of testamentary capacity. Mr Hopper said that it was not his practice to ask a client whether they had made prior wills because he would tell the client that the will they were to make would revoke any other will that they had made. He said "And so the question as to whether they had one or not, I don't think I ever raised with them." Mr Hopper said that Mrs Simpson was as sharp as a tack and was definite in her statement of intention to leave her estate to the Salvation Army for Elizabeth Jenkins Place. 50After Mr Hopper left, Mr and Mrs Jeskie arrived. Their evidence is that Mrs Simpson signed the will and it was witnessed by Mr Nicholson and Mrs Jeskie. Mr Hopper said that Mr Jeskie delivered that will to him on the following Monday, 13 September 1999. 51No satisfactory explanation was given for the execution of a new power of attorney. Mr Nicholson and Mr Jeskie said that this document was executed at Mr Hopper's suggestion. Neither of them had any prior knowledge of Mrs Simpson's affairs or any particular qualifications to be her attorney. Mr Nicholson was an electrician. Mr Jeskie was an ambulance officer. On Mr Hopper's evidence, he suggested that Mrs Simpson make a power of attorney to enable others to handle her affairs when she became incapable of doing so herself. He must have been unaware that Mrs Simpson had already made a power of attorney. She must not have told him of the power of attorney given to Mr Dickman. This would be consistent with Mr Hopper's consultation with Mrs Simpson having lasted only five minutes. 52However, in light of the events which followed, there is another explanation for the giving of the power of attorney to Mr Jeskie and Mr Nicholson. Sometime after 16 September and before 23 September 1999 (another witness, Mrs Muller, says that it was on 17 September 1999) a cousin of Mrs Simpson, a Mrs Rona Healy, completed an application to the Guardianship Tribunal for a guardianship and financial management order to be made in relation to Mrs Simpson. In that application Mrs Healy said that Mr Jeskie and Mr Nicholson were given power of attorney to stop Mr Dickman from having full control of Mrs Simpson's estate.
Circumstances of the will of 14 September 1999 53Saturday, 11 January 2000 was the day of the local council election. Mr Dickman was fully occupied with that election on that day. At 7am on Sunday, 12 September, Mr Dickman was telephoned by Mrs Simpson. This was not a common event because Mrs Simpson was blind and needed assistance to make the phone call. Mr Dickman was telephoned by one of the staff from Elizabeth Jenkins Place who put Mrs Simpson on to him. He had never before received a phone call from Mrs Simpson at that hour on a Sunday morning. Mr Dickman said that Mrs Simpson said to him words to the effect: "Love, I think I have done something silly. I need to see you today. Next door Jeskies and Graeme have been here the last few days. Saying a lot of things. No one is here now, so we can talk. I've been awake all night. I think they got me to sign some papers in the office. I don't understand what I've done. I didn't want to sign anything. I think we've had one put over us. I've got to see you today." 54Mr Dickman was not cross-examined on that evidence. I accept it. It is corroborated by a diary entry made by Mr Dickman for that day at 7am which reads "Vera re DJGN stressed and unsure". I think Mr Dickman is a careful witness. His correspondence was restrained and understated. In these proceedings he convincingly refuted the allegations made against him in 1999 in the Local Court and in the Guardianship Tribunal, although he did not have the opportunity to do so at the time. 55This statement by Mrs Simpson is important. It casts serious doubt on whether Mrs Simpson did know and appreciate what she was doing on 10 September 1999 and it raises a question whether she was driven to signing the will and the power of attorney against her will. 56Mr Dickman had not planned to see Mrs Simpson until his regular Monday trip to take her to the hydrotherapy pool, but he told her that he would see her later that day. At around 8 am Mr Dickman telephoned Mr Jeskie. That is confirmed by a diary entry and is confirmed by Mr Jeskie. Mr Dickman deposed that he said: "What's going on? Vera's just rung and said you two have been there the past few days and she has signed some papers." He said that Mr Jeskie replied: "I've got every right to be there. I'm Vera's power of attorney with Graeme Nicholson. We're looking after her now." 57Mr Jeskie did not tell him in that phone call that Mrs Simpson had made a new will. Mr Jeskie did not deny this conversation and he acknowledged that he told Mr Dickman that he and Mr Nicholson were Mrs Simpson's joint attorneys. 58Soon after that call Mr Dickman visited Mrs Simpson and took her to Collaroy Beach. He gave evidence that she then said to him words to the effect: "They were papers I signed in the Major's office. One of the Army higher-ups who gave me the papers spoke softly. He might have been a solicitor. I couldn't read them and I don't know what I signed. They said something about I had better sign those papers otherwise they might not have room for me to stay in the other place where they could look after me. They said my fees had not been paid and I might have to leave." I accept Mr Dickman's evidence that Mrs Simpson said these things. 59Mr Hopper responded to parts of Mr Dickman's affidavit, but not to this paragraph. It is consistent with the evidence referred to earlier in these reasons that an issue had arisen about Mrs Simpson's security of tenure and payment of fees. 60When Mr Dickman and Mrs Simpson returned to Elizabeth Jenkins Place they were met by Mr Jeskie and Mr Nicholson. There was a physical confrontation involving shouting and swearing, the latter on the part of Mr Nicholson, as I find. It was of such dimension that Major Sneller was called out and had to tell Messrs Jeskie, Nicholson and Dickman to take their argument outside. Mrs Simpson was upset and distressed. The nursing notes for Elizabeth Jenkins Place recorded for 12 September 1999, amongst other things: "Neighbours in hostel to visit. Extremely worried about her (the neighbours) whereabouts. They are concerned that she is with David Dickman. Major Sneller and Matt Blessington notified." 61Mr Dickman deposed that after he had managed to get Mrs Simpson back to her room, there was further shouting with Mr Nicholson and Mr Jeskie where Mr Nicholson accused him of ripping Mrs Simpson off and said "Maybe that's why Vera's fees aren't being paid for here" and Mr Jeskie said "We have her power of attorney now and you won't be able to rip her off anymore. Here take it. It's been properly done by our solicitor. So you can butt right out." Mr Jeskie gave Mr Dickman a copy of the power of attorney of 10 September 1999. I accept that evidence. Where Mr Dickman's evidence conflicts with that of Mr Jeskie and Mr Nicholson, I prefer Mr Dickman's evidence. 62Mr Nicholson appeared even from the short time he was in the witness box to be volatile. Mr Jeskie's manner was quite forceful. Mr Dickman was more subdued. 63Mr Dickman was concerned about the power of attorney given to Mr Jeskie and Mr Nicholson because he had not registered the transfer over the North Balgowlah property that he had purchased from Mrs Simpson. There had been a difficulty in that his former solicitor apparently claimed a lien over the executed memorandum of transfer and the certificate of title. At 9 am on 13 September he instructed his solicitor, Mr Kerridge, to lodge a caveat over that property to protect his interest as purchaser. 64Mr Dickman arrived at Elizabeth Jenkins Place at about 10 am on Monday, 13 September to collect Mrs Simpson for her weekly swim at the Mona Vale Hospital hydrotherapy pool. When he arrived, both Messrs Jeskie and Nicholson were there. There was another confrontation in which Mr Jeskie and Mr Nicholson tried to obstruct Mr Dickman. Mr Dickman said that both he and Mrs Simpson were quite shaken. I accept that evidence. They did not go swimming, but instead he drove Mrs Simpson to Collaroy Beach Reserve. Mr Dickman had the copy of the power of attorney of 10 September 1990 with him. Mr Dickman deposed that Mrs Simpson told him words to the effect "I think I've been really silly. I'm not really sure what I've signed. But I've signed papers, something for the Salvation Army." Mrs Simpson also said "The higher ups have told me my fees aren't being paid. I am really worried that I'll have to leave". I accept that evidence. Mr Dickman suggested that she should see Mr Buckner who was across the road. Mrs Simpson said "Whatever you think". Mr Dickman telephoned Mr Buckner who joined Mr Dickman and Mrs Simpson in the reserve. He showed Mr Buckner a copy of the power of attorney in favour of Messrs Jeskie and Nicholson. 65Both Mr Dickman and Mr Buckner were adamant that Mrs Simpson did not sign any documents in the park on 13 September 1999. Mr Buckner had not drafted any documents for her to sign. Mr Buckner would never have prepared a will for the deceased to sign without first having spoken with her alone. I accept Mr Buckner's and Mr Dickman's evidence about this. Mr Buckner formed the view that Mrs Simpson was confused and upset and said to her "You don't have to do or sign anything straight away". 66Mr Dickman recalled Mr Buckner's also saying: "If you're not sure about anything that the Salvation Army asks you to sign, you don't have to sign. Perhaps I should see you when you are feeling a bit better and we can sort out who you want to give your authority to. We might be able to sort out getting rid of the power of attorney David showed me when you are feeling a bit better and not so confused." 67I accept that evidence. On their return to Elizabeth Jenkins Place Messrs Nicholson and Jeskie were again waiting for them. Mr Nicholson told Mr Dickman words to the effect: "Our solicitor, Mr Hopper has phoned and told us that you're getting Mr Buckner to revoke our power of attorney. It's not going to work. You stay away from Vera or else." 68Mr Nicholson deposed that on 13 September Mrs Simpson told him that Mr Dickman took her to a park in Collaroy and a man there asked her to sign something. He said that he asked her whether she signed it and she said she did, but did not know what it was. 69A Mrs Coral Muller, who was a second cousin of Mrs Simpson, was also present on 12 and 13 September. She said that some time after 13 September Mrs Simpson told her that when Mr Dickman took her to the park, he made a call on his mobile phone and soon after a man arrived with some paperwork. Mrs Simpson said she was not sure whether it was a will, but Mr Dickman told her to sign it. According to Mrs Muller, Mrs Simpson said words to the effect: "I was frightened so I signed the will differently. I left out a cross that normally appears next to my name." 70Mr Hopper gave evidence that on Monday, 13 September he received a telephone call from Mr Jeskie in which Mr Jeskie said words to the effect "Dickman's going to get Vera to make another will." Mr Jeskie gave no such evidence. Mr Hopper said that at about the same time he received a telephone call from Mr Buckner, whom he knew was a local solicitor, and a conversation to the following effect took place: "Mr Buckner: 'I have been instructed by David Dickman for Vera Simpson to make another will.' [Mr Hopper]: 'Well I made a will for her on Friday.' Mr Buckner: 'Yes.' [Mr Hopper]: 'Ok, well do what you want?' Mr Buckner: 'I wanted you to know that I had done it.'" 71Mr Buckner denied that he had a conversation to that effect with Mr Hopper. I accept that denial. No such will had been made by Mr Buckner, nor did he have such instructions. 72Without further instructions from Mrs Simpson, Mr Hopper prepared a new will to be executed by her. In his letter of 21 September 1999 to Mr Kerridge, Mr Hopper said that this second will was prepared as an oversight had occurred in that the bequest to the Salvation Army should have specifically mentioned the work of Elizabeth Jenkins Place, but it did not, and this was done to substitute the previous will she had signed earlier. It was not possible to corroborate that evidence. Mr Hopper destroyed the will dated 10 September 1999 following what he described as his usual practice after the later will was signed on 14 September 1999. Mr Hopper was not present at the signing of the further will on 14 September 1999. 73Mr Jeskie did not give evidence of asking Mr Hopper to prepare a second will. His evidence was that he was telephoned on 14 September by Mr Nicholson who told him that they needed to see Mrs Simpson again, as her will had to be changed back because Mr Dickman had had her change her will. Mr Nicholson said that on or around 14 September, Mr Jeskie obtained an unsigned copy of Mrs Simpson's will from Mr Hopper so that "we could have Vera execute a fresh one". 74According to Mr Nicholson and Mr Jeskie, they attended on Mrs Simpson on 14 September. Mr Nicholson told her that "Vera we have a fresh will for you to sign". According to both Mr Nicholson and Mr Jeskie, Mrs Simpson said she was sure that she wanted to leave her estate to Elizabeth Jenkins Place. Mr Jeskie said that Mrs Simpson was calm and attentive on 14 September when she confirmed on a number of occasions that she wanted to leave her estate to the Salvation Army. She signed this will in their presence and the presence of Mrs Jeskie. Mrs Jeskie and Mr Nicholson witnessed the will. There is no evidence that the will was read over to Mrs Simpson. 75The nursing notes of Elizabeth Jenkins Place for 13 and 14 September include the following: "13.99 Vera seemed worried about something this morning and was in deep thought, resident was encouraged and received a lot of TLC, very, very quiet and preferred not to talk. ... 14.99 Resident was upset early morning, stated 'I think I'm being mucked about a lot'. TLC given." 76A later entry for 20 September 1999 records: "Vera was teary in the morning and stated that she is 'not very happy'. Just a lot of things going on and better for her to seek advice." 77Mr Dickman attempted to see Mrs Simpson on 14 September, but was physically prevented from doing so by Mr Nicholson. Mr Nicholson denies this, but I do not accept that denial. Mr Dickman made a contemporaneous complaint by fax on the same day to Major Sneller. He wrote as follows: "Following copy of my letter to you of 13th Inst. I confirm my attendance at your office to day and the fact that I was unable in the normal course to visit Vera Simpson as a result of the Jeskies and Nicholsons causing a disturbance and physically obstructing me as you witnessed with Mr Nicholson following me into your anti-room [sic] blocking the doorway. Mrs Simpson has advised me that on Friday Sept 10 last she executed documents in the prescence [sic] of one of your officers and an army solicitor. I note Mrs Snellers response to me when I mentioned Mrs Simpson's solicitor was 'which one?' I further note your advice to me that your interest is the well being of your occupants. It is patently obvious that Messrs Jeskie and Nicholson are harassing Vera and precluding her from going about her normal day to day living activities in that they have been present to my knowledge on Thursday 9 Friday 10 Saturday 11 Sunday 12 Monday 13 and again this day. This is beyond the normal behaviour of visiting. Given the above circumstances I hold grave fears for Mrs Simpsons [sic] well being and as a matter of urgency request the following: (i) The nature of the documents mentioned above? (ii) The name of the solicitor? (iii) What relationship the solicitor in (ii) above has with the Salvation Army? (iv) The name of your officer or officers present when Mrs Simpson executed the abovementioned documents? (v) Why Mrs Simpson was not given copies of the documents she executed in your offices? I trust that in consideration of Vera Simpson's well being and financial position that you will respond without delay." 78Major Sneller did not respond to the complaint that Mr Dickman had been obstructed from seeing Mrs Simpson. On 20 September 1999, he gave a cautious response to the five numbered questions. He identified Mrs Simpson's solicitor as being Mr Hopper and advised that a will was signed. 79On 20 September 1999, Mr Michael Kerridge, solicitor, wrote to Mr Hopper advising that he was acting for Mr Dickman. Mr Kerridge wrote that he understood that a will had been prepared by Mr Hopper and also some other document relating to Mrs Simpson's property at Mona Vale. He said: "Mr Dickman has been a long term friend of Mrs Simpson and he is concerned that duress may have been applied to Mrs Simpson by a Mr Nicholson and/or a Mr Jeskie for whom we understand you also act, in changing her will and signing other documents. Would you therefore please forward to our office as soon as possible a copy of the will signed by Mrs Simpson recently and also a copy of the other document recently signed by Mrs Simpson which were prepared by you. Please also advise the date on which you first received instructions from Mrs Simpson." 80Mr Hopper responded on the following day enclosing a copy of the will signed by Mrs Simpson on 14 September 1999. Mr Hopper wrote: "We relinquished our instructions in this matter on Friday last but enclose a copy of the Will which was prepared in this office and signed by Mrs. Simpson away from the writer. This second Will was prepared as it was indicated that an oversight had occurred in that the bequest to The Salvation Army had to specifically mention the work of 'Elizabeth Jenkins Place' and this was done to substitute the previous Will she had signed earlier. No other document has been prepared in relation to Mrs. Simpson's property at Mona Vale although it was canvassed that she might possibly provide a Restrictive Covenant for the benefit of an adjoining property owned by Mr. Jeskie. We chose not to be involved in that arrangement. The only other document which was signed was a Power of Attorney which is in the custody of both Jeskie and Nicholson. We acted only for them in regard to their assistance with Mrs. Simpson's Will and Power of Attorney. Although we were not always present when Jeskie and Nicholson were in Mrs. Simpson's company, the writer was there when she signed the Power of Attorney and the first Will. There appeared to be a good relationship between her and Jeskie and Nicholson, she appeared to be quite at ease, aware of what she was doing and comfortable. We withdrew from our instructions when we spoke to Mr. Buckner and he indicated that Mr. Dickman would be arranging for revocation, through Mr. Buckner, of the Will and Power of Attorney and to use the writer's phrase, 'we refused to be involved in a tug of war'. We did agree after that time to prepare the second Will but only on the basis set out above. We would also mention that we were approached by the Management of Elizabeth Jenkins Place to assist Mrs. Simpson because of the concerns of management in regard to the payment of her fees and her ongoing care and her expressed wish to change her Will and appoint new attorneys."
Local Court and Guardianship Tribunal Proceedings 81Mr Dickman attempted to telephone Mrs Simpson on several occasions later that week. The phone was answered either by one of the Jeskies or Mr Nicholson and then hung up, or was not answered. Mr Jeskie, Mr Nicholson and Mrs Simpson's family were determined to stop Mr Dickman from having Mrs Simpson change her will again. To this end, they sought and obtained an interim apprehended violence order against him from the Manly Local Court and they brought proceedings in the Guardianship Tribunal for a guardianship order and a financial management order. According to Mr Jeskie, the family asked him "to instigate an AVO". Mr Jeskie swore in his affidavit in support of the apprehended violence order that he was concerned that Mr Dickman was going to harass Vera into changing her will again, and was also concerned for her safety and welfare. In his cross-examination in this case he retracted that evidence. He said that at the time he did not have a concern and repeated that he was only acting on the instructions of Mrs Simpson's family. In cross-examination Mr Jeskie said that Mrs Simpson had not expressed to him any concerns about Mr Dickman's visiting her. It was only Mrs Simpson's family who said they did not want Mr Dickman to visit her. 82Mrs Muller confirmed in her affidavit that Mr Jeskie and Mr Nicholson, in consultation with the family, took Mrs Simpson to take out an apprehended violence order against Mr Dickman. 83Mr Jeskie arranged for Mrs Simpson to see a solicitor, Mr McCooe. Mr McCooe did not give evidence. It is not clear whether Mr McCooe saw Mrs Simpson alone. He prepared a statement for her in support of an application for an apprehended violence order which she signed. According to Mr Jeskie there was a conversation between Mr McCooe and Mrs Simpson in his presence to the following effect: "Mr McCooe: 'An AVO will mean you will not be able to have contact with Mr Dickman. Is this what you want? Vera: 'I don't mind seeing him but only if he does not make me change my will again. I don't want to change my will again.'" 84The statement signed by Mrs Simpson included the following: "Early this month I decided to make a Will leaving my estate to the Elizabeth Jenkins Place, Collaroy operated by The Salvation Army. I was interviewed by a Solicitor from Dee Why, Mr Linden Hopper and I signed that Will on 10 September. On the following Monday, 13 September, David Dickman collected me to take me for my weekly swim (hydrotherapy) at Mona Vale Hospital. He took me to the hospital but advised me that the pool was closed. He then drove me to a park in Collaroy, made a call on his mobile phone. A short time later another gentleman appeared and David asked me to sign a document which I have since been informed was a Will in David Dickman's favour. I was not given a copy of that Will. I still wish to leave my estate to the Salvation Army (Elizabeth Jenkins Place) and since then have made a further Will in their favour. On Sunday 12 September David called at the hostel and there was an unpleasant scene involving David Dickman, my neighbour (since 1948), David Jeskie and one of my cousins. I am very distressed and upset. My nearest relative is my cousin Rona Healey who is with my agreement, making an application to the Guardianship Tribunal. I do not wish to have continuing contact with David Dickman. I am frightened of him and I am concerned that if he is informed of this application he will constantly contact me with a view to coercing me away from the course I wish to adopt." 85Mr McCooe and Mrs Simpson then attended court. The neighbours and family were out in strength. Mr and Mrs Jeskie, Mr and Mrs Muller, Mrs Rhonda Healey, Mrs Cochrane and her son were all present. I infer Mr Nicholson was also present. He said he was present with Mrs Simpson's family in Mr McCooe's office (although Mr Jeskie's evidence was that Mrs Simpson could not get up to Mr McCooe's office) when Mr Jeskie said "Mr Dickman took Vera to change her will in a park, we are concerned for her safety. The police and the Court recommended that we should take out an AVO". Mr Nicholson said that he had seen the police with Mrs Cochrane and her son and Mr and Mrs Muller, and Mr and Mrs Jeskie who had directed them to the Manly Court House which in turn had directed them to see a solicitor. 86If the statement signed by Mrs Simpson accurately reflected what she said, as distinct from what members of her family or her neighbours said, it shows that she was confused about the events of 13 September. She did not sign a document. She apparently did not recall Mr Buckner's identity. It is not clear who could have informed Mrs Simpson that the document she signed was a will. Mr Hopper said that he was told by Mr Buckner that "he had done it", but that evidence must be wrong in the light of Mr Buckner's compelling evidence that no document was signed. The statement Mrs Simpson signed for the Local Court that she did not wish to have continuing contact with Mr Dickman and was frightened of him was contrary to what, according to Mr Jeskie, she said to Mr McCooe, namely that she did not mind seeing Mr Dickman if he did not make her change her will. If Mrs Simpson were genuinely frightened, I would be satisfied that that was not caused by anything done or said by Mr Dickman, but was an emotion engendered by others. However, I do not think Mrs Simpson was frightened of Mr Dickman at all. 87There was a hearing in the Guardianship Tribunal on 8 October 1999. The Tribunal recorded in its reasons that: "Mr Nicholson and Mr Jeskie have in fact commenced proceedings on Mrs Simpson's behalf for an apprehended violence order against Mr Dickman to prevent him from visiting her at the hostel. During the hearing Mrs Simpson clearly expressed her wish to have Mr Dickman and his wife continue to visit and take her out as they have done in the past." 88The application for an interim apprehended violence order was heard ex parte on 22 September 1999. It was supported by a statement by Mr Jeskie on the grounds that he was concerned for her safety and welfare, a statement he disavowed in these proceedings. The order was made until 5 October 2009. 89The Local Court proceedings were an abuse of the process of the court. They were not brought to protect Mrs Simpson from any harm she feared from Mr Dickman, but were brought by Mrs Simpson's neighbours and family to prevent Mr Dickman's taking steps that would enable Mrs Simpson to change her will again. 90In the meantime, Mrs Healey prepared the application to the Guardianship Tribunal for a guardianship order and a financial management order in respect of Mrs Simpson. In the application Mrs Healey stated that the reason why she thought a guardian was needed was that: "During the last week from 9.9.99 to 15 Sept Vera has changed her will three times due to outside pressure from David Dickman who is no relation to Vera. This has caused her extreme distress and heartache. David Dickman has been in carriage of her financial affairs the last four years. He has taken advantage of her financial affairs and not given her the balance of her fortnightly pension." 91In answer to the question why she thought a financial manager was needed, Mrs Healey wrote: "As the closest relative Vera is being exploited by David Dickman and I now have fears for her safety and her wellbeing." 92As noted at para [52] above, Mrs Healey stated that the appointment of Messrs Jeskie and Nicholson as Mrs Simpson's attorneys was taken to stop Mr Dickman from having full control of Mrs Simpson's estate. 93The first sentence quoted in para [90] above was wrong. Mrs Simpson had not changed her will three times due to pressure from Mr Dickman. She made a will twice, apparently under pressure from one or more of Mr Jeskie, Mr Nicholson, Mr Hopper or the management of Elizabeth Jenkins Place. The statement that Mr Dickman had not given Mrs Simpson the balance of her fortnightly pension was true in the sense that he had not provided that money to her in cash. There was no reason for him to have done so. The implicit suggestion that he was retaining Mrs Simpson's pension for his own benefit was false. It was banked to her account. Mrs Healey's allegations that Mr Dickman had taken advantage of Mrs Simpson's financial affairs and that Mrs Simpson was being exploited by Mr Dickman were false. 94The evidence in support of those allegations was contained in an affidavit of Mr Jeskie. He attached a copy of the caveat lodged by Mr Dickman over the property at North Balgowlah. He attached evidence of two cheques that Mr Dickman caused to be drawn from Mrs Simpson's Westpac Bank account in favour of him or his company, one being a cheque for $2,514 on 14 August 1998, and the other being a cheque for $3,000 dated 10 December 1998. Mr Jeskie's affidavit was sworn on 5 October 1999. The hearing before the Tribunal took place on 8 October 1999. Mr Dickman had no opportunity to respond to that evidence. As noted earlier in these reasons, the caveat lodged in respect of the North Balgowlah property related to a contract which had been completed in 1991. The cheque for $2,514 was in repayment of the fees he paid on Mrs Simpson's behalf for her accommodation. The cheque for $3,000 was in partial reimbursement of expenses. Mr Dickman's evidence in these proceedings establishes that he had incurred more than $3,000 of expenses on behalf of Mrs Simpson. 95Mr Dickman attended the Manly Local Court on 5 October 1999. Mrs Simpson did not appear. Mr Dickman had no opportunity to test the matters alleged against him. The matter was stood over and the order was extended, although he was permitted to appear at the hearing at the Guardianship Tribunal on 8 October 1999. (The interim apprehended violence order had prohibited Mr Dickman from going within 20 metres of Elizabeth Jenkins Place or contacting or approaching Mrs Simpson, so that without a variation of the order, he could not have appeared at the Tribunal's hearing if Mrs Simpson were present.) 96At the Guardianship Tribunal members of Mrs Simpson's family, namely Mrs Cochrane and Mrs Muller expressed concerns about Mr Dickman's involvement and relationship with Mrs Simpson. 97The Guardianship Tribunal ordered that the estate of Mrs Simpson be subject to management under the Protected Estates Act 1983 and committed the management of her estate to the Protective Commissioner. The Tribunal ordered that she be placed under guardianship and ordered that her guardian be the Public Guardian. The functions the guardian was to have in relation to Mrs Simpson included co-ordinating access arrangements to Mrs Simpson and where access should take place. In its reason for its decision the Tribunal stated: "On 10 September 1999 Mrs Simpson executed a new will and a Power of Attorney appointing her former neighbours, Mr David Jeskie and Mr Graham Nicholson as her attorneys. On 13 September 1999 Mrs Simpson was taken by Mr Dickman to a park in Manly and another will and Power of Attorney were executed by her apparently appointing Mr Dickman as her attorney and allegedly changing her will to ensure her estate passes to Mr Dickman. On 14 October 1999 [scil. 14 September 1999] a further will and Power of Attorney were signed reinstating the position in the documents dated 10 September 1999. Mrs Simpson advised the Tribunal that she wished her estate to go to the Salvation Army and specifically Elizabeth Jenkins Hostel. She was concerned about the events of 13 September 1999. 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." 98It is not clear whether the last sentence of the paragraph quoted above is confined to the events of 13 September 1999 or whether Mrs Simpson was speaking more generally in saying that she had signed documents she could not read and did not know what she had signed. No transcript of the proceedings before the Guardianship Tribunal is available. A request for a transcript was made in 2006 by Mr Hopper, but he was told that the audio tapes had been retained for only six months and no transcript had been prepared. 99One of two conclusions can be drawn from the second paragraph. Mrs Simpson may have told the Tribunal that she had signed documents on 13 September when she was taken by Mr Dickman to the park, but did not know what she had signed. If that was what she said, it shows confusion because she did not sign any document at that time. On the other hand, Mrs Simpson may have been recalling that she signed documents on 10 and 14 September 1999. If so, it again shows confusion because she did not know what she had signed. 100Following the appointment of the Public Guardian, the AVO proceedings against Mr Dickman were withdrawn. Mr Dickman had brought his own AVO proceedings against Mr Nicholson. They were also withdrawn. 101At the hearing before the Tribunal, Mrs Simpson is reported to have said that Mr Dickman had not paid for the Seaforth (that is, the North Balgowlah) properties. Mr Dickman did not dispute that Mrs Simpson said those words, but it was in his interest not to deny it. The Tribunal merely recorded that Mr Dickman told it that he had paid for the purchase of the properties in full, but produced no documentation to support that statement. (It is now accepted that he had paid for the properties in full.) I accept Mrs Muller's evidence that Mrs Simpson said words to that effect. I think it likely that she did so as a result of statements made to her by either someone from her family or Mr Jeskie to that effect. It was not in fact true. This further suggests that Mrs Simpson was vulnerable to influence. 102Mrs Muller gave evidence to the effect that the presiding member of the Tribunal, Mrs Pollard, asked Mrs Simpson what she wanted to do with her money, and on being told that she wanted the money to go to the home she was in, that Mrs Pollard ordered everybody out of the room except Mrs Simpson and said that "We will make out her will". According to Mrs Muller, when others returned to the room Mrs Pollard said words to the effect: "Vera has left her estate to Elizabeth Jenkins Place and it cannot be changed. I have ruled that no more wills can be made out or changed." 103If this evidence were correct it would suggest that when the Tribunal recorded Mrs Simpson as saying that she had signed documents but did not know what she had signed, she was not referring only to documents allegedly signed on 13 September. According to Mrs Muller, Mrs Simpson was saying how she wanted to leave her estate, that the Tribunal understood her not to have a will and the presiding member said that the Tribunal would make out a will for Mrs Simpson. 104This would be highly irregular. It is no function of the Guardianship Tribunal to make wills for persons who might become protected persons, let alone to give directions that wills cannot be changed. This evidence was not corroborated. I do not accept it.
Cessation of relationship between Mr Dickman and Mrs Simpson 105Mr Dickman understood from the orders made by the Tribunal that he could not have contact with Mrs Simpson without the approval of the Public Guardian. 106The notes of the Office of the Public Guardian indicate that by 13 October 1999 Mr Dickman had been in touch with the Office seeking to avoid Mrs Simpson's having to attend court on the return of the application for an interim apprehended violence order. That hearing was scheduled for 18 October 1999. 107On 15 October a member of the Public Guardian's office discussed the matter briefly with Dr Baker. Dr Baker said that Mrs Simpson was distressed about the current situation and felt pressured by all those involved. She stated that Mrs Simpson had told her at one time that she did not want to go, but was not always consistent. She thought it might be too much for her, but did not say that Mrs Simpson should not attend the court hearing. As noted previously, the application was withdrawn. 108Mr Dickman deposed that he only recalls speaking to Mrs Simpson once more after the Guardianship Tribunal hearing. She telephoned him on one occasion in 1999 out of the blue. She asked "Why haven't you been to see me?". Mr Dickman said "There was a court which stopped me seeing you and you said you didn't want to see me in the court documents. Your affairs were taken over and I had to get permission to see you and I haven't been given permission to see you. Also I was threatened with physical violence by Nicholson if I came near you again." Mr Dickman said that something Vera said to him in that call made him believe that she was still unstable and that she had "lost her marbles". He did not visit or speak with Mrs Simpson again. 109Mrs Simpson had a fall in November 1999 and was admitted to Mona Vale Hospital. Mr Dickman was in contact with the Office of the Public Guardian in November 1999 following the fall. 110On 16 November 1999 Mr Dickman told an officer from the Office of the Public Guardian that he would like to see Mrs Simpson, but that he had been staying away from her due to all of the court action. He was told that the Public Guardian could arrange access and provide the opportunity for all parties to see Mrs Simpson. Mr Dickman said that he did not want the other parties to see her. He was told that Mrs Simpson had expressed a desire to see everyone. Mr Dickman said that he would like to see Mrs Simpson at Mona Vale Hospital on the Wednesday night. The Public Guardian's office contacted Mr Nicholson to tell him to not to be present at the Mona Vale Hospital that night. Mr Nicholson rang back to say that he had spoken to Mrs Simpson who told him that she was not sure whether she wished to see Mr Dickman. The visit did not occur. 111On 18 November the Office of the Public Guardian made a phone call to Mrs Simpson. The note reads: "Asked her whether she would like to see Mr Dickman. She stated 'Yes and no'. When I asked her to explain this she stated that 'she would like to see him to say goodbye'. Mrs Simpson said that she would not like to see Mr Dickman unless she had support with her and asked that I consult with the Hospital about this support. She stated that if support could not be provided, then she would prefer not to see him. Otherwise, Mrs Simpson reported that she was a little confused and worried about a lot of things." 112Counsel for Mr Holley referred to this note as rebutting any inference that Mrs Simpson was coerced into signing the statement in support of the apprehended violence order. In the context of other notes which indicate that both Mr Nicholson and Mr Jeskie were visiting Mrs Simpson, I think it more probable that Mrs Simpson's response was influenced by them. 113On 1 December 1999 (after Mrs Simpson had been discharged from Mona Vale Hospital and was in Elizabeth Jenkins Place) Mrs Simpson told Ms Scanlon from the Office of the Public Guardian that she would like to see everyone involved in her life and that she particularly wanted to continue her relationship with Mr Dickman. 114On 7 December 1999 Ms Scanlon telephoned Mr Dickman and told him that Mrs Simpson had said that she thought she had offended him. Ms Scanlon's note was: "He stated that it was nothing that he said and that it was more an issue of the AVO and guardianship and being unsure. Stated that the access plan would hopefully assist in this process. Mr Dickman stated that he would think about the days he would like and let the PG know." 115Mr Dickman could have arranged through the Office of the Public Guardian for further visits to Mrs Simpson. He was understandably hurt by his treatment. Nonetheless, he could have continued to visit her. On 20 January 2000 Ms Scanlon's notes record: "Ms Simpson expressed great distress that Mr Dickman had not been to see her. Explained that I had spoken to Mr Dickman and that he stated that she had not offended him. Stated that there is a lot going on (including guardianship) and this can sometimes make it uncomfortable for people to visit etc. Agreed to contact Mr Dickman again on Ms Simpson's behalf. Ms Simpson stated that she had a really good relationship with Mr Dickman and that she does not understand why he does not come. She stated that he had bought her clothes, that he had never asked her for money, that she had never discussed money with him and that she had never discussed a will with him. All the above statements were not prompted by the Public Guardian." 116Ms Scanlon's notes of 17 February 2000 record a phone call from Mrs Healey saying that Mrs Simpson had stated that she wanted the Public Guardian to see her regarding Mr Dickman. 117Ms Scanlon's note of 19 May 2000 states that Mrs Simpson stated that Mr Dickman had not visited her since she said something to him in French that was quite inappropriate. She said this was a misunderstanding but that Mr Dickman obviously took it to heart and had not visited since. It is not clear to what this refers. It is said to be a visit, but Mr Dickman did not visit her after the events of September 1999. It may have been the telephone call to which Mr Dickman referred, as suggesting that she was quite unstable. Thereafter the notes of the Office of the Public Guardian make no further reference to Mr Dickman. He had dropped out of Mrs Simpson's life.
The application for probate 118Mrs Simpson died on 16 September 2005. On 23 March 2006, Mr Hopper wrote to Mr Kerridge advising that he acted for Mr Holley who had been appointed as executor under the will of the late Mrs Simpson. Mr Hopper asked if Mr Kerridge had any instructions as to whether the purchase price under the contract for sale of the North Balgowlah property had been paid, or whether Mr Kerridge had in his possession any evidence to support a claim made by Mr Dickman in a caveat he had lodged that he had an equitable interest in that property. 119On 2 May 2006, Mr Kerridge, writing on behalf of Mr Dickman and Amarvi Pty Limited, provided information concerning the completion of the contract for the purchase of the North Balgowlah property. He enclosed copies of the withdrawal of caveat signed by Mrs Simpson on 6 August 1991, a copy of a transfer signed by her dated 16 August 1991, and a direction to pay with the handwritten receipt for the sum of $35,000 of the same date. 120On 20 September 1999, Mr Kerridge had written to Mr Hopper stating that Mr Dickman was concerned that duress may have been applied to Mrs Simpson by Mr Nicholson or Mr Jeskie in changing her will and signing other documents (see para [79] above). In his letter of 2 May 2006 to Mr Hopper, Mr Kerridge wrote: "We note from your letter of 21 September 1999 that you acted for Mrs Simpson in relation to the preparation of her current Will (assuming her current Will is that dated 14 September 1999) and we further understand that you acted for the Salvation Army at the time you acted for Mrs Simpson. It would appear that you may have had a conflict of interest in acting for Mrs Simpson in preparing her Will. Our client is concerned about the conflict, as he asserts that he was the sole beneficiary and executor under her prior Will. Please advise: 1. Whether it is unusual for the Salvation Army to refer residents of the hostel to you to prepare a Will for them in circumstances where the resident wishes to bequeath substantial amounts to the Salvation Army, or whether this has occurred previously. 2. Who was present when Mrs Simpson signed her last Will. Further, if the last Will of Mrs Simpson was that dated 14 September 1999, then this Will was made about 3 weeks before the Order of the Guardianship Tribunal that the estate of Mrs Simpson be subject to management under the Protected Estates Act 1983 and that the management of her estate be committed to the Protective Commissioner (this Order was dated 8 October 1999). This would appear to lend support to our client's concern that, at the time she signed the Will in favour of the Salvation Army, Mrs Simpson may have been subject to pressure or undue influence from the Salvation Army or its employees (or other persons) or may not have been aware of the effect of the document she was signing". 121On 11 May 2006 Mr Hopper wrote to Mr Kerridge and advised that he had concluded that the purchase money for the North Balgowlah property had been paid in full. He also wrote: "So far as your allegation of a possible conflict of interest is concerned, we advise that the writer prepared the Will on behalf of the deceased, attended her at the Retirement Village and left it in her hands for execution, and it was subsequently returned to this office. So far as the witnesses are concerned, the handwriting of Brenda Jeskie seems quite clear and the other witness was G. W. Nicholson. We see no reason why the writer had a conflict of interest in the matter and your enquiry about other matters in so far as our instructions are concerned are not disclosed [sic]" 122The last paragraph is gobbledygook. Mr Hopper said that he intended to convey that he was not going to respond to Mr Kerridge's assertions. Mr Kerridge, on behalf of Mr Dickman, asserted that Mrs Simpson may have been subject to undue influence in signing the will and may not have been aware of the effect of the will. He was also complaining that Mr Hopper, who was the solicitor for the Salvation Army, had a conflict of interest (more accurately, a conflict of duties) in acting for Mrs Simpson in preparing her will. 123These matters were not raised in the application for probate. The summons seeking a grant of probate was filed on 2 October 2006. The application was supported by an affidavit of Mr Holley that had been sworn on 7 March 2006. Mr Holley deposed, as he was required to do, that "I am not aware of any circumstances which raise doubt as to my entitlement to a grant of probate of the will of the deceased." There is no reason to doubt that that statement was true at the time the affidavit was sworn. By the time the application for probate was filed, Mr Holley's statement that he was not aware of any circumstances which raise doubt as to his entitlement of a grant of probate was not the whole truth. His solicitor was aware that the beneficiary of a prior will asserted that the deceased may have executed her will under undue influence, or may not have been aware of the effect of the document she had signed. 124Mr Dickman did not lodge a caveat against a grant of probate. Nor did Mr Holley seek a grant of probate in solemn form. The grant was made on 5 October 2006. The estate was distributed to the Salvation Army by 5 December 2006. The parties agree that prior to the distribution of the estate, Mr Hopper placed an advertisement in accordance with s 92 of the Wills, Probate and Administration Act 1898 of the executor's intention to distribute the estate. It is not suggested that Mr Dickman saw that advertisement.
Constructive Trust Claim 125Mr Dickman's claim that the deceased's assets were held on a constructive trust for him is based upon the representations he alleges were made to him by Mrs Simpson in 1991 and in 1996 set out at paras [15] and [17] above. Those representations were to the effect that if Mr Dickman continued to look after Mrs Simpson, she would leave her house (or later, her estate, to him). Mr Dickman pleads that in reliance on those representations, he continued to keep in regular contact with Mrs Simpson and to assist her in various activities as she requested, that he regularly visited her at Elizabeth Jenkins Place and regularly took her out, that he paid various of her expenses, that he spoke to her by phone on essentially a daily basis, and that he maintained a close and supportive relationship with Mrs Simpson until he was prevented from doing so after 13 September 1999. 126The alleged representations were made 19 years and 15 years before the claim was made. There was no contemporary record corroborating the alleged representations. During the correspondence between Mr Kerridge and Mr Hopper in 1999 and in 2006, Mr Kerridge did not raise the claim. 127The court will scrutinise very carefully a claim against the estate of a deceased person that depends on evidence against the deceased which cannot be answered because of the deceased's death (Plunkett v Bull (1915) 19 CLR 544 at 548-549). As McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319: "Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." 128Whilst I accept Mr Dickman as a generally reliable witness, I am not persuaded that he was able to recall with exactitude precisely what was said by Mrs Simpson as long ago as 1991 and 1996 in relation to her testamentary intentions to leave her estate or her house to him. Differences in expression could have significantly different legal consequences. I am not satisfied that there was anything promissory in the statements made by Mrs Simpson as distinct from their being statements of her then intention and expectation that she would leave her estate to Mr Dickman. Such an intention would inherently be subject to a possible future change. 129In this respect it is noteworthy that from September 1999 Mr Dickman knew that Mrs Simpson had made a new will, yet he made no complaint at the time that this was contrary to a representation or promise that Mrs Simpson had made to him in 1991 and 1996. 130Furthermore, I am not satisfied that Mr Dickman assumed that Mrs Simpson would not be free to depart from her promise to leave her estate to him if he continued to look after her. The fact that he made no complaint about her failure to adhere to the asserted promise when he knew she had changed her will suggests that he did not make that assumption. 131Further, it would not be unconscientious for Mrs Simpson, nor her executor, to deny Mr Dickman's assumption that he would be entitled to her estate because he did not continue to look after Mrs Simpson after the events of September 1999. Mr Dickman pleaded that he was prevented from doing so. That was true only for a short period around the middle of September to October 1999. After the appointment of the Public Guardian as Mrs Simpson's guardian, Mr Dickman could have arranged to make further visits to Mrs Simpson, but did not do so. Whilst he was understandably upset by his treatment at the hands of Mr Nicholson, Mr Jeskie and Mrs Simpson's family, the fact remains that he did not fulfil the terms upon which, according to his evidence, Mrs Simpson had agreed to leave her estate to him. 132Nor did the acts of kindness he showed to Mrs Simpson make it unconscionable for her or her executor to leave her estate elsewhere. Those acts of kindness were only partially induced by his expectation that he would inherit Mrs Simpson's estate. Primarily he attended regularly on Mrs Simpson because of the close relationship they had had over many years. The time he spent with Mrs Simpson was primarily due to feelings of love or affection. His expenditures on Mrs Simpson's behalf were substantially reimbursed. Mr Dickman did not suffer a substantial detriment as a result of having spent that time with Mrs Simpson and having assisted her in the ways that he did such that it would be unconscientious for her or her executor to deny his assumption that he would become entitled to her estate. 133For these reasons the claim based on a constructive trust of Mrs Simpson's assets fails. The claims for relief in proceedings 2010/352727, which are based upon the claim for a constructive trust, should be dismissed.
Are the probate proceedings barred by laches? 134Mr Holley applied for a grant of probate in common form. It was to be dealt with ex parte by a registrar on the papers. This was notwithstanding that his solicitor, Mr Hopper, had been advised that Mr Dickman or his solicitor considered that he, Mr Hopper, may have had a conflict of interest in acting for Mrs Simpson in preparing her will and that Mr Dickman asserted that at the time she signed the will in favour of the Salvation Army, Mrs Simpson may have been subject to pressure or undue influence, or may not have been aware of the effect of the document she was signing. It was incumbent on Mr Holley to make full disclosure of any matter relevant to the court's decision as to whether or not a grant of probate in common form should be made to him. The affidavit should have disclosed the fact that the solicitor for Mr Dickman had asserted those matters. It would then have been a matter for the registrar to decide whether the matter should proceed as an application for a grant in common form or whether the defendant should apply for a grant in solemn form with a citation to issue to Mr Dickman (Public Trustee v Guardian Trust and Executors Company of New Zealand Limited [1939] NZLR 613 at 643). 135It is an inherent feature of a grant of probate in common form that the grant is revocable. The grant does not create a res judicata, but is subject to later challenge (Romascu v Manolacke [2011] NSWSC 1362 at [174]-[177]; Geddes, Rowland & Studdert, Wills Probate and Administration Law in New South Wales, LBC Information Services 1996 at [40.58], [40.66]). 136Delay in seeking revocation of a grant of probate in common form can be a bar to such a claim. However, so far as the authorities cited to me show, where a claim for revocation of a grant of probate has been barred by reason of the applicant's delay, there have been other features beyond mere delay. There has been not only delay, but acquiescence in the grant, or, the delay has been such that there would be no utility in revoking the grant. Thus in Newell v Weeks (1814) 2 Phill. Ecc. 224; 161 ER 1126, the applicants for revocation of a grant of probate had been active participants, although not parties, to earlier proceedings in which the grant was made where their opposition had been withdrawn on receipt of a substantial payment. In Merryweather v Turner (1844) 3 Curt 802; 163 ER 907, the applicants in earlier Chancery proceedings had admitted the validity of the will and codicil and they received payment of a legacy under the will. The application calling on the executors to prove the will in solemn form and for the grant of probate to be revoked was brought 14 years after the deceased's death. The application was in substance summarily dismissed on the grounds of the applicant's delay and acquiescence. But in the course of so deciding, Sir Herbert Fust said (at [811], 910): "Now I fully admit that executors are bound to prove a will by solemn form of law, where they are called on to do so by those entitled in case of an intestacy; and that under common and general circumstances neither lapse of time, nor the receipt of a legacy, nor acquiescence in the will, will be sufficient to debar them that right, but after so great a lapse of time as in this case - fourteen years after the transaction in question, and ten years after the will has been declared to be well proved in Chancery - may parties not be barred of their remedy if there be no reasonable ground accounting for the delay?" 137In Mohan v Broughton [1899] P 211; [1900] P 56, letters of administration were granted in 1892. The plaintiff applied in 1898 to revoke the grant, but was barred by laches because she had acquiesced in earlier Chancery proceedings to determine who were the next of kin to whom the estate should be distributed and had allowed the estate to be distributed. 138In Bramston v Morris (Powell J, Supreme Court of New South Wales, unreported, 20 August 1993; BC9303644), probate in common form had been granted in 1987. The cross-claimant disputed the validity of the grant without bringing a claim for revocation. In 1992 the executor, to protect his own position, sought a grant of probate in solemn form. The applicant's cross-claim was filed in 1993. It was summarily dismissed not only by reason of delay, but also on the grounds that the applicant (or the person through whom he claimed) had sought and obtained a family provision order pursuant to a claim that asserted the validity of the will, and that the challenge to the validity of the will was in any event hopeless. 139In Willis v Earl Beauchamp (1886) LR 11 PD 59, the application to revoke letters of administration brought 80 years after the grant was dismissed on the ground that the estate had been distributed and any action to recover the distributions made would be hopeless because of lapse of time. 140Many authorities have held that delay by itself was not a reason for barring a claim to revoke a grant in common form of probate or letters of administration. In Blake v Knight (1843) 3 Curt 547; 163 ER 821, Sir Herbert Jenner Fust dealt with an application to revoke a grant of probate brought three years after the grant and after the estate had been distributed. The right of the deceased's brother to challenge the validity of the will after that lapse of time was said to be unquestionable (at [553], 822-823), although the plaintiff was not entitled to "any indulgence in this cause". 141Of most significance is the decision of the Full Court of the Supreme Court in In re Goode (1890) 11 NSWR (Eq) 281. There the deceased died in 1880. Probate in common form of a will was granted in 1881. In 1890 the deceased's widow sought revocation of the grant on the ground that the will was not duly executed and that the deceased lacked capacity. Manning J, at first instance, summarily dismissed the application because there was insufficient explanation for the delay. The decision was reversed on appeal. Darley CJ held that the lapse of time required the plaintiff to explain the delay, but further evidence adduced on appeal provided that explanation. Innes J, with whom Stephen J agreed, said that the lapse of time, even if unexplained, would not have been sufficient to bar the plaintiff's right to have the will proved in solemn form and that "the cases shew that lapse of time, short of 30 years, is in itself no bar, but that it may be a bar, taken in conjunction with other circumstances, and that the onus lies upon the person to oppose the application of shewing that there are such other circumstances" (at 287). His Honour said that the plaintiff's lying by for even nine years with the knowledge that probate had been granted in common form could not in itself justify refusal of the application, or even call upon the plaintiff to explain the delay. There were other facts that required the delay to be explained, but the explanation was provided. The "other facts" which required the delay to be explained were apparently facts impugning the bona fides of the application, the setting up of a strong case of capacity and freedom from influence, and that the witnesses to the will were either dead or their whereabouts were unknown. The loss of evidence arising from delay was a fact that required the delay to be explained. In the absence of sufficient explanation it could lead to a successful defence of laches. 142In Re Coglan; Briscoe v Broughton [1948] 2 All ER 68 and in In Re Flynn [1982] 1 WLR 310, the Court of Appeal refused to dismiss summarily applications for the revocation of a grant of probate, notwithstanding long delays. In Bowler v Bowler (Young J, Supreme Court of New South Wales, 18 December 1989, unreported; BC8901301), Young J (as his Honour then was) said that (at 37): "It is far more difficult to succeed in a defence of laches in probate proceedings to revoke a grant than it appears to be in proceedings in personam in equity." 143A mere delay of four years would not bar Mr Dickman's claim to revoke the grant. The question is whether the delay has occasioned prejudice to Mr Holley or to the Salvation Army (NSW) Property Trust that makes it inequitable for Mr Dickman to pursue his claim. The fact that estate moneys have been distributed and spent by beneficiaries has not been considered as a ground of prejudice that should bar a claim for revocation of a grant of probate or letters of administration. The possibility of such revocation was inherent in the decision to seek only a grant of probate in common form. 144The ground of prejudice that might bar the claim on the ground of laches is from the possible loss of evidence. Mr Hopper deposed that he closed his practice on 28 March 2008. Unless he destroyed files because they had been completed more than seven years ago, he transferred them to a different firm. Mr Hopper deposed that it is likely that he had a file for the giving of instructions for the making of the will and the power of attorney that was destroyed prior to his transfer of the files to the purchaser of his practice in March 2008. He said that it was not his practice to amalgamate a will instruction file with a subsequent probate file. However, Mr Hopper did not say what his file on the taking of the will is likely to have contained. He did not say that he made file notes of his attendance on Mrs Simpson, or that it would have been his practice to do so. I do not infer that it is likely that his file would have contained any significant material. Mr Hopper professed a good recollection of the events concerning the making of the wills. He was able to recall conversations with Mr Jeskie, Mr Nicholson, Mrs Simpson and Mr Buckner, although I have not accepted his evidence of conversations with Mr Buckner. He professed a clear recollection of the critical instructions from Mrs Simpson. Mr Jeskie and Mr Nicholson also professed a clear recollection of the events concerning the execution of the wills. I do not consider that it is likely that material evidence has been lost as the result of Mr Dickman's delay in commencing proceedings for the revocation of the grant of probate. 145Mr Dickman's explanation for the delay was not satisfactory. In 2006, Mr Dickman assumed that Mr Hopper would take the appropriate steps to obtain a grant of probate. He did not commence proceedings until 20 July 2010. It was not until 2009 that Mr Dickman located either of the 1998 wills. He separated from his wife in December 2006. He did not have general access to the house from then until 2009, apparently as a result of apprehended violence proceedings brought by his former wife. Between December 2006 and 2009 he could only have access to the house when accompanied by a New South Wales police officer for the purpose of collecting his personal property. He found the 23 September 1998 will at the Seaforth property in December 2009. It must have been in the house during 2006 and could have been located then. 146Mr Dickman was not told of the available procedure for lodging a caveat against a grant of probate. Mr Dickman's understanding of his advice from Mr Kerridge was that without the 23 September 1998 will in favour of Mr Dickman, there was little that could be done to challenge the later will. 147The AVO obtained by Mr Dickman's wife was later overturned, but whilst it was in force it effectively prevented his being able to make a thorough search of the Seaforth property for the will. On the other hand, he had had that ability during 2006. Mr Dickman did not give evidence as to where the will was eventually found which explained why it was not found in 2006. However, the delay from 2006 until at least December 2009 was partially explained by the existence of the AVO that prevented his having the kind of access to the Seaforth property that would be required for making a thorough search. At this time Mr Dickman also was feeling depressed which he said made it harder for him to get things done. I accept that evidence. He also suffered an injury from a motor vehicle accident in January 2008 which caused him to suffer depression and anxiety that slowed him down further. 148There was no sufficient explanation as to what searches were made for the will in 2006, nor why no attempt was made to contact Mr Buckner to obtain a copy of the 1998 will from him. But because I do not accept that material evidence has been lost, I do not consider that Mr Dickman's delay in bringing proceedings for revocation of the grant makes it inequitable for him to pursue his claim. That is all the more so having regard to the fact that Mr Holley, through Mr Hopper, pursued a claim for a grant of probate in common form, notwithstanding that Mr Hopper knew that Mr Dickman asserted that there were grounds for querying the validity of the will, but did not disclose that on the ex parte application for the grant of probate. Had proper disclosure been made the court may have insisted that the application be for a grant in solemn form and issued a citation to Mr Dickman to appear. 149The plaintiff's claim is not barred on the ground that even if the grant of probate were revoked, it would be futile to attempt to recover the money that was distributed either from the executor or from the Salvation Army (NSW) Property Trust. Even if the claim against the executor is barred (a matter dealt with below), it could not be said that a claim to recover the money paid to the Salvation Army (NSW) Property Trust was doomed to fail (Ministry of Health v Simpson [1951] AC 251). Indeed, counsel did not suggest that any defence would be available. As a claim against the beneficiary could not be brought until any remedy against the executor was exhausted (Ministry of Health v Simpson at 267; Nudd v Mannix [2010] NSWCA 127 at [26]), even a defence based on the Limitation Act 1969 (NSW) would face difficulty. 150For these reasons Mr Dickman's claim is not barred on the ground of laches.
Testamentary capacity 151Dr Baker attended on Mrs Simpson from 1997 when she became a resident at Elizabeth Jenkins Place. Dr Baker was an experienced general practitioner who held a Diploma in Geriatric Medicine. She had extensive experience in dealing with dementia patients. It was her opinion that Mrs Simpson had testamentary capacity. It was her opinion that as at 22 September 1999 Mrs Simpson was mentally alert for a woman of her age, was not confused, had sound memory, held strong and definitive views, was not suffering from delusions and was not easily influenced. On 22 September 1999, Dr Baker provided a report about Mrs Simpson to the Guardianship Tribunal. In that report Dr Baker said: "I have treated Mrs Simpson for Medical Problems at this Hostel during the last 12 months. Mrs Simpson is Mentally alert for a lady of her advanced age, would have reasonable understanding of financial and legal matters explained to her, and would be able to, and indeed frequently does, express her opinion. However she has very poor eyesight, and would be unable to read documents and other printed or written matter, it would be difficult for her to attend to her own financial affairs. Mrs Simpson suffers from severe Multi joint Osteoarthritis, having special difficulties with her knees - she walks with difficulty with the aid of 2 sticks. Although she has regular simple pain relief with Paracetamol - the constant need to cope with her disabilities makes her physically and mentally fatigued, so that she has problems coping with a large number of visitors asking her to make repeated changes in her financial affairs and documentation. Recently she has become at times irritable and depressed, complaining to staff that she is 'Too Old' 'Unsettled' and 'There is too much going on'. She has some Athersclerotic Heart problems - not more severe than one would expect to find in any person reaching this very advanced age. She suffers from postural hypotension which causes her to be at risk of falling if she stands up too quickly, she has had a number of falls in the past with leg soft tissue injuries. It would be medically advantageous if some definite arrangements could be made so that this lady is no longer being repeatedly approached to make changes to her affairs." 152This contemporaneous assessment by Mrs Simpson's treating doctor of her ability to manage her affairs has considerable weight in determining Mrs Simpson's testamentary capacity. It does not suggest that Mrs Simpson suffered from a disorder of the mind that rendered her incapable of assessing the claims on her estate. But it does suggest that due to her age and physical disabilities, she had problems coping with demands made on her by third parties. 153In a report to the Guardianship Tribunal prepared by a Ms Khoudair, a senior investigation and liaison officer of the Tribunal, dated 6 October 1999, Ms Khoudair said that: "All parties contacted in this matter have raised concerns about the alleged mismanagement of Mrs Simpson's affairs by Mr David Dickman. All parties contacted agree that Mrs Simpson is unable to manage her affairs and is easily manipulated." 154A Ms Kathy Nabb, a registered nurse employed at Elizabeth Jenkins Place, prepared a report to the Guardianship Tribunal dated 1 October 1999. She said: "Vera is legally blind and is a frail aged lady whom [sic] depends upon others in all areas of her life. Vera is emotionally labile due to her old age. It is a great burden for Vera to manage her own financial affairs and she had no family and relatives to care for her. She has been depressed and tearful outbursts have been displayed over the past weeks due to worries regarding her finances. It appears that outside parties whom have interest in Vera also has interest in her finances [sic]. Vera requires assistance in managing her financial affairs and a representative for her wellbeing." 155Associate Professor Carmel Peisah is a consultant old age psychiatrist and a Conjoint Associate Professor in the faculty of medicine at the University of New South Wales. She specialises in the area of old age psychiatry and has a special interest in medico-legal issues related to old age. Associate Professor Peisah, from a review of the documents and the affidavits, concluded that there was "some probability" that Mrs Simpson suffered from a disorder of mind on or around 10 and 14 September 1999 by virtue of emotional lability and depression at the very least, and possibly dementia and paranoid ideation. She concluded that Mrs Simpson had a number of misperceptions about Mr Dickman, one of her potential beneficiaries, some of which appear to be a manifestation of her paranoid thinking and some fuelled by misinformation provided by others. She concluded that as a result of this disorder of mind and misinformation, while Mrs Simpson probably knew what a will was and who her beneficiaries were, she was probably unable to evaluate and discriminate between the claims of her beneficiaries and probably held paranoid ideation or delusions regarding one of her beneficiaries. She also said that Mrs Simpson's knowledge of her estate may have been compromised. 156The basis for Associate Professor Peisah's doubts as to whether Mrs Simpson had a general understanding of the extent of her estate was comments that Mr Nicholson attributed to Mrs Simpson in the conversation he said he had with her on or around 8 September 1999 referred to at para [33] above in which, according to Mr Nicholson, Mrs Simpson said "I don't have any money but one dollar, no pension card ...". Associate Professor Peisah's view that Mrs Simpson suffered from paranoid ideation was also substantially based upon Mr Nicholson's evidence of that conversation (see para [36] above). However, I do not consider that Mr Nicholson was a reliable witness. The conversation to which he deposed would have been out of character for Mrs Simpson. Neither Mr Dickman nor Dr Baker gave evidence of Mrs Simpson ever exhibiting similar strange beliefs. Mr Nicholson was instrumental in procuring Mrs Simpson to change her will in favour of the Salvation Army and was antagonistic to Mr Dickman. Mr Nicholson did not tell the Guardianship Tribunal that Mrs Simpson had accused Mr Dickman of having taken Mrs Simpson's rings as he could be expected to have done if such a conversation had occurred. 157Mr Nicholson was not challenged on his evidence of the conversation. It was not in Mr Dickman's interest to challenge this part of Mr Nicholson's evidence. Notwithstanding the absence of challenge, I think it more likely than not that the conversation did not occur, but that many years after the event, Mr Nicholson persuaded himself that a conversation to that effect did occur, as he thought that such a conversation would reflect adversely on Mr Dickman. 158Associate Professor Peisah said: "It is very clear that [Mrs Simpson] was unable to properly evaluate and discriminate the claims of David Dickman because of her misperception about: 1. His keeping of her pension (which the evidence suggests is a false perception). 2. His failure to pay her for her Serpentine Crescent property (which the evidence suggests is a false perception). 3. His failure to pay her nursing home fees (which the evidence suggests is a false perception). 4. That he had forced her to change her will in September (which the evidence suggests is a false perception). In my opinion her inability to evaluate and discriminate between the respective strengths of the claims of her beneficiaries is probably a manifestation of both the disorder of mind and the misinformation given to her." 159It is often said that the concepts of testamentary capacity and knowledge and approval of a will are distinct, and that the issue of knowledge and approval only arises once it is found that a testator has testamentary capacity (e.g. Hoff v Atherton [2005] WTLR 99 at 108, 117; Petrovski v Nasev [2011] NSWSC 1275 at [255]). But as Powell JA observed in Read v Carmody [1998] NSWCA 182, it does not matter what is the nature or form of the "mental disorder" that detrimentally affects a will-maker's cognition and judgment. The question of testamentary capacity is not whether the deceased did bring to mind her property and those who might have claims upon her, and did evaluate the respective claims on her testamentary bounty, but whether she was able to do so (King v Hudson [2009] NSWSC 1013 at [51]). That question must be answered in the context of the particular will in question (Re Estate of Church [2012] NSWSC 1489 at [52]-[55] and cases there cited). 160The requirements for testamentary capacity are those laid down in Banks v Goodfellow (1870) LR 5 QB 549. There is no dispute that Mrs Simpson would have understood the significance of the act of making a will. As Associate Professor Peisah said, such knowledge is rarely lost unless the testator has extremely severe disorder of the mind. I also consider that Mrs Simpson understood in general terms the extent of her estate. I also consider that if free of pressure, she was capable of assessing what persons or institutions had a claim on her testamentary bounty, of evaluating the strength of those claims and discriminating between them. But owing to her extreme age, her physical weaknesses and what Ms Nabb described as her emotional lability, I do not think that she was capable of standing up to pressure imposed by others. When subject to such pressure I do not think she was capable of evaluating the strength of the claims of Mr Dickman, the Salvation Army or the previous principal beneficiary of her will, the Mona Vale Hospital. I deal with the reasons for this conclusion in the next section.
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.
Grant of probate of 1998 will 174Mr Dickman sought a grant of probate in solemn form of the will of 23 September 1998. It is not possible to make a grant of probate in solemn form. For reasons which were unexplained, citations were not issued to the beneficiaries of Mrs Simpson's previous will of 9 April 1995. By that will Mrs Simpson left pecuniary legacies to nine persons and left the balance of her estate to the Mona Vale District Hospital. However, a grant of probate in common form of the 23 September 1998 will should be made to Mr Dickman.
Claim against Mr Holley to reimburse the estate 175In the absence of statutory protection Mr Holley would be liable to account to Mr Dickman as the beneficiary entitled to the estate for the moneys distributed to the Salvation Army Property Trust as he was on notice that the estate was or might be claimed by Mr Dickman (Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand [1942] AC 115 at 127, 128). There the Privy Council said: "... if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded. ... ... The action was, nevertheless, dismissed by Northcroft J because he was satisfied that the appellants at all material times believed that Miss Smith had testamentary capacity, and that they had acted throughout with perfect honesty. But with all respect to the learned judge, the question is not whether the appellants acted honestly in disregarding the information which they had received. A trustee who has received information of a charge on the interest of his cestui que trust in favour of a third party is not entitled to disregard it merely because he honestly believes the charge to be invalid. Nor can an executor who has information of the existence of a later will act in disregard of such information merely because he honestly believes that his testator was not at the time of making it of testamentary capacity. In all such cases, as in the present one, the question is whether the person acting in a fiduciary capacity has had notice of the claim, and not whether he formed a favourable or unfavourable view as to the prospect of the claim succeeding." 176Mr Kerridge's letter of 2 May 2006 was notice of a claim by Mr Dickman that Mr Hopper had a conflict of interest in acting for Mrs Simpson in preparing her will and that she may have been subject to pressure or undue influence from the Salvation Army or its employees or other persons or she may not have been aware of the effect of the document she was signing. As the court would need to be affirmatively satisfied that Mrs Simpson knew and approved of the contents of the will, the claim that she may not have done so was a claim challenging the validity of the will of which probate was to be sought. In the absence of statutory protection the case falls squarely within the principle in Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand. 177Mr Holley relied on s 40D(2) and s 92 of Wills, Probate and Administration Act 1898. The parties agreed to the following statement of facts: "1. Prior to the distribution of Estate residue to the beneficiary thereby entitled, the executor's solicitor placed a s92 WPPA advertisement to as to comply with that section. 2. No notice of claim by the plaintiff was given to the Executor, his solicitor, or the beneficiary save for the correspondence between solicitors Hopper and Kerridge (and in this regard the defendant does not admit this correspondence constitutes a claim). 3. The entitlement of the beneficiary under the will of the deceased was applied for the purposes set out in the will of the deceased. 4. As at May 2012, Elisabeth Jenkins Place has been demolished and a new facility is being rebuilt and will be occupied at some time in 2013. 5. The Elizabeth Jenkins Place Facility is operated by Aged Care Plus which is funded by government grants and facility income from residents. 6. Aged Care Plus is a business with separate accounts that is operated by the Eastern Territory of The Salvation Army." 178Section 40D relevantly provided: "40D Effect of revoking grant (1) If a grant of probate or administration is revoked, the provisions of this section shall have effect. (2) The executor or administrator under the revoked grant shall be bound duly to account and to pay and transfer all money and property received by or vested in the executor or administrator and then remaining in the executor's or administrator's hands as the Court may direct, but shall not be liable for any money or property paid or transferred by the executor or administrator in good faith under the probate or administration before the revocation. Nothing in this subsection shall affect any commission protection indemnity reimbursement or right to which the executor or administrator is entitled under any other provision of this Act. (3) The revocation shall not invalidate any payment or transfer lawfully made by or to the executor or administrator in the course of administration before the revocation, but nothing in this subsection shall prejudice the right of any person to follow assets into the hands of the persons or any of them among whom the same may have been distributed, or who may have received the same. ..." 179Section 92 relevantly provided: "92 Distribution of assets after notice given by executor or administrator (1) Where the executor or administrator of the estate of a testator or an intestate has published notices in or to the effect of the form prescribed by rules of the Court requiring the claims of beneficiaries (including children conceived but not yet born at the death of the testator or intestate), creditors and other persons in respect of the assets of the estate of the testator or intestate to be submitted to the executor or administrator by or on behalf of those beneficiaries, creditors or other persons, the executor or administrator may, at the expiration of the period for submitting those claims specified in the notices or, as the case may be, specified in the last of the notices, distribute the assets, or any part of the assets, of that estate, among the persons entitled, having regard to the claims of which the executor or administrator has notice at the time of the distribution. (2) An executor or administrator who distributes the assets or any part of the assets of the estate of a testator or an intestate in accordance with subsection (1) is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor or administrator had notice of the claim at the time of the distribution. ..." 180Section 92 is not an available source of protection to Mr Holley for two reasons. 181First, it has been held that the section does not apply to a claim challenging the executor's right to administer the estate, for example, because a person claims as beneficiary under a prior will and challenges the validity of the will of which probate was granted (Guardian Trusts and Executors Company New Zealand Limited v Public Trustee of New Zealand at 125; Bramston v Morris (BC9303644 at 11)). As the section is wide enough to provide protection to an administrator who obtains a grant of letters of administration on intestacy and distributes the estate without notice of the existence of a relative of the deceased who would have been entitled to the grant and who later procures the revocation of the grant (Newton v Sherry (1876) 1 CPD 246), this might be considered anomalous. Nonetheless, it is well established. 182The second reason that s 92 does not provide protection to Mr Holley is that he had notice of Mr Dickman's claim that Mrs Simpson may have signed her will under pressure and under undue influence from employees of the Salvation Army or others and that she may not have known and approved of her will. As a court would need to be satisfied affirmatively that Mrs Simpson knew and approved of the terms of her will, this was a claim that impugned the validity of the will (McGrath v Troy [2010] NSWSC 1470 at [92]-[100]). 183The question then is whether Mr Holley is entitled to protection under s 40D(2). The question under that provision is whether Mr Holley transferred money to the Salvation Army Property Trust in good faith. 184I was not referred to any case that had considered this section or similar provisions in other legislation. The section was not relied on in McGrath v Troy. The legislative predecessor to s 40D was ss 77 and 78 of the Court of Probate Act 1857 (UK). Those sections provided: "77. Where any probate or administration is revoked under this Act, all payments bona fide made to any executor or administrator under such probate or administration, before the revocation thereof, shall be a legal discharge to the person making the same; and the executor or administrator who shall have acted under any such revoked probate or administration may retain and reimburse himself in respect of any payments made by him which the person to whom probate or administration shall be afterwards granted might have lawfully made. 78. All persons and corporations making or permitting to be made any payment or transfer bona fide, upon any probate or letters of administration granted in respect of the estate of any deceased person under the authority of this Act, shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or letters of administration." 185Those sections were repealed, but replaced by a similar provision, namely s 27 of the Administration of Estates Act 1925 (UK). They were considered by the Court of Appeal of New Zealand in Public Trustee v Guardian, Trust, and Executors Company of New Zealand Limited [1939] NZLR 613 whose judgment was affirmed on appeal to the Privy Council in Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand. In the Court of Appeal it was argued that ss 77 and 78 of the Court of Probate Act 1857 was part of the law of New Zealand. The Court of Appeal rejected that submission and it appears not to have been revived in the Privy Council. However, the majority of the Court of Appeal held that those sections were merely declaratory of the law before the statute of 1857 was passed (per Myers CJ at 640, per Ostler J at 660, per Smith J at 667). 186Ostler J (at 662), Smith J (at 669, 674, 675) and Fair J (at 676) said that in s 78 "bona fide" meant acting with an honest mind and honest purpose, and that mere notice of the claim challenging the validity of the will of which probate was obtained and under which the executor acted did not of itself negate good faith. Fair J did not join in the conclusion of the rest of the court that s 78 of the Court of Probate Act was declaratory of the common law. His Honour held that s 78 was not part of the law of New Zealand and that an executor who paid legacies with notice of an interest adverse to the beneficiaries under the will would be liable for the loss caused to the estate by making the distributions on the ground that the executor's actions caused a loss to the estate by his negligence (at 680). Ostler J found that the executor was not liable because its officers acted honestly and therefore in good faith. Smith J was of the view that the executor had not acted in good faith because of untrue statements contained in the application under s 74 of the Trustee Act 1908 (corresponding with s 29 of Lord St Leonard's Act, the substance of which is now found in ss 92 and 93 of the Probate and Administration Act). 187Myers CJ said that the position at common law was that an executor who first obtained the grant of probate was protected from liability to a later executor or administrator on the revocation of the first probate, provided that the grant had been obtained without impropriety or irregularity and that the payments challenged had been otherwise made in good faith (at 642). His Honour said that in this context "good faith" implies the doctrine of notice and does not simply mean acting honestly, but requires the absence of "constructive fraud" or "moral fraud", meaning the breach of the sort of obligation enforced by a court of conscience (at 642, 643). Myers CJ held that the probate had been irregularly and improperly obtained because when the application was made the circumstances relating to the mental condition of the testatrix and the preparation and execution of the will were not disclosed to the court which, if they had been, would have resulted in a refusal of a grant of probate in common form and an order that an action be brought to prove the will in solemn form (at 643). So it is in this case. Myers CJ also concluded that the question of whether the distributions were made bona fide depended upon "the sum total of the information and knowledge that [the executor's] offices had, and how such knowledge should have affected the mind of a reasonable and ordinarily prudent businessman" (at 644). 188The principal authority before the passing of the Court of Probate Act 1857 was Woolley v Clark (1822) 5 B & Ald 744; 106 ER 1363, also reported in 1 Dow & Ry 409. The reports in Barnewall & Alderson and in Dowling & Ryland differed, at least in emphasis. There a grant of probate in common form was made and estate assets sold. At least by the time of sale, and according to one report, prior to the grant being obtained, the executor had notice of a later will. After the grant was revoked the executor of the second will sued the first executor in conversion for selling the estate's assets and also sued the auctioneer. Judgment was given against both defendants. Ostler J treated Woolley v Clark as a case where it was found on the facts that the executor acted in bad faith. On the other hand, Myers CJ treated it as an authority where the liability of the executor and the auctioneer was based on notice of a second will at the time of sale. 189The common law must be taken to be as stated by the Privy Council in Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand that an executor with notice that the estate is or may be claimed by a third party would be liable if he deals with the funds in disregard of that notice which later proves to be well founded, even if he acts honestly. The Privy Council did not comment on whether this was also the effect of s 78 of the Court of Probate Act 1857 or s 27 of the Administration of Estates Act 1925. Neither statute was in force in New Zealand. The only statute that had a close relation to the issue was s 26 of the Administration Act 1908 (NZ) which gave protection to an executor or administrator who distributed the estate without notice of a later will. That section was in quite different terms to s 40D of the Wills, Probate and Administration Act or s 78 of the Court of Probate Act 1857 or s 27 of the Administration of Estates Act 1925. 190The reasons of the New Zealand Court of Appeal are of assistance but do not resolve the present question. An analysis of the judgment of the Privy Council and of the New Zealand Court of Appeal in Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand reveals two conflicting lines of thought. On the one hand, a majority of the New Zealand Court of Appeal held that s 78 of the Court of Probate Act 1857 (UK) was declaratory of the common law and the Privy Council held that the common law was that an executor with notice of a challenge to the will distributed the estate at his peril. If s 40D of the Wills, Probate and Administration Act was intended to be declaratory of the common law, then, as the common law was subsequently declared by the Privy Council, it would not protect an executor or administrator, albeit that he or she acted honestly, if the executor or administrator had notice of circumstances which should have made it plain to an ordinary reasonable and prudent man of business that the payment should not have been made (Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand at 129). This is the view of Geddes, Rowland & Studdert, Wills, Probate and Administration Law in New South Wales (1996) LBC Information Services at 338. The alternative view is that the majority of the New Zealand Court of Appeal considered that a person would come within s 78 in making a payment or transfer "bona fide" upon any probate or letters of administration granted in respect of the estate, notwithstanding any defect or circumstance affecting the validity of the grant if he or she acted honestly. The fact that two of the three judges who adopted this construction also considered this to be in accordance with the common law (which may be taken to have been overruled by the Privy Council) would not affect this construction of the words used in the section. 191There appears to be a surprising paucity of authority on these provisions. In my view the fact that the Privy Council took a different view from that of the majority of the Court of Appeal of New Zealand in Guardian Trust and Executors Company New Zealand Limited v Public Trustee of New Zealand as to the liability of an executor at common law who acted under a grant of probate in common form that was inherently revocable and had notice of a challenge to the will the subject of the grant, does not affect the weight to be given to the view of the majority of the New Zealand Court of Appeal as to the meaning to be given to the words "bona fide" in s 78 of the Court of Probate Act 1857. The Privy Council did not consider that section or its then equivalent. I do not consider that the words "in good faith" in s 40D(2) import an element of "constructive fraud" based on notice. As Ostler J said in Public Trustee of New Zealand v Guardian Trust and Executors Company New Zealand Limited at 662: "There was some argument about the meaning of the words bona fide as used in s 78. It was contended on behalf of the appellant that they meant 'without notice or knowledge,' and that as the respondent company had notice it could not have made the payments of legacies bona fide. The cardinal rule for the construction of a statute is to give to every word its ordinary meaning, no more or no less. The words mean nothing more or less than 'in good faith'-ie 'with an honest mind.' There is a well-worn expression in the law, 'bona fide and without notice,' indicating that they are two different conceptions. Good faith is a subjective matter; it resides in a man's mind. ..." 192Of course notice of a claim that a will is invalid may well affect an assessment of an executor's honesty in making a distribution with notice. But I would not conclude merely from the fact that Mr Holley, through his solicitor, had notice of the claim, that he did not act in good faith in distributing the estate to the Salvation Army (NSW) Property Trust. 193Nonetheless, the onus of establishing good faith for the purposes of s 40D(2) lies on the executor. Mr Holley did not give evidence. I would be very willing to believe that the Financial Secretary of the Salvation Army Property Trust acted in good faith, that is, with an honest mind and purpose, both in obtaining probate and in distributing the estate. But although Mr Holley consented to the late amendment of the statement of claim that sought an order for him to reimburse the estate if the grant of probate was revoked, no evidence was called as to his state of mind. (A possible explanation for this is that Mr Holley might well in any event be indemnified by the Salvation Army Property Trust and it may be that the Salvation Army Property Trust would have no answer to a claim that it reimburse the estate (Ministry of Health v Simpson)). 194I do not think that good faith on the part of the executor can be presumed. The fact that the application for a grant of probate in common form was made without disclosing the notice that had been received from Mr Dickman's solicitor of grounds for challenge to the will raises a question of honesty of purpose, even if the onus of establishing good faith were not on Mr Holley. The agreed facts that were tendered consequent upon allowing the amendment to the statement of claim do not address the issue of good faith. Good faith was not conceded in the course of argument. In the absence of evidence, the defence of having distributed the estate in good faith provided for by s 40D of the Wills, Probate and Administration Act is not made out.
Conclusions 195For these reasons I have concluded that Mr Dickman's claim for a constructive trust of the property has not been established and the Equity proceedings should be dismissed. I have concluded that the grant of probate to Mr Holley should be revoked and that a grant of probate in common form should be made to Mr Dickman in respect of the will of 23 September 1998. Consequential orders for the delivery up to the registrar of the original grant and for the making of a fresh grant should be made. Mr Holley should be ordered to reimburse the estate for the moneys distributed, although this could be subject to any costs order that might be made if it is found that Mr Holley should have his costs of the proceedings out of the estate. I express no view on that question. I will stand over the proceedings to a convenient date for counsel for Mr Dickman to bring in short minutes of order consistent with these reasons and I will hear the parties on costs in relation to both matters. ` 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: 31 January 2013
Dickman
Holley; Estate of Simpson
(1915) 19 CLR 544
(1995) 49 NSWLR 315
(1918) 25 CLR 519