The Parties and Other Witnesses
108So far, I have referred to matters that, for the most part, unless otherwise indicated, were not the subject of any real dispute. I shall now turn to the evidence that was the subject of dispute between the parties, and the parties and other witnesses who gave evidence.
109The Court read, and heard, evidence from a number of witnesses. There were the parties and associated family members, as well as others, to whom the deceased had spoken about the undated document, who were cross-examined. Others (the witnesses involved with the preparation and/or execution of the 2007 Will, or to whom the deceased, or others on her behalf, gave instruction) were not cross-examined. There was a sustained attack, by the Defendant, upon the evidence of a number of the witnesses (to which I shall return).
110Much of the evidence concerned the deceased's conversation with the deponent of the affidavit being read, which deponent recounted the conversation. Neither party took objection to the evidence of the conversations, which, generally, was recorded in direct speech.
111It is clear, as will be read, that s 8(3) of the Act makes admissible statements by the deceased as to the existence, and content, of any alleged testamentary intention, that is, both an intention to dispose of the deceased's property in a specified way by Will and the details of the nature of the dispositions intended. It also permits evidence of relevant statements of other persons. Thus, the evidence, relied upon by the Plaintiff, of conversations that the deceased had with him, and with others, is admissible and material.
112However, evidence in that form is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the fact unless falling within an exception to the hearsay rule: s 59 of the Evidence Act. (Neither party made any submissions concerning the applicability of any exceptions e.g. s 63 (the deceased not available to give evidence about an asserted fact) or s 66A (contemporaneous representations about her health, feelings, sensations, knowledge or state of mind) of the Evidence Act.)
113It is necessary to bear in mind the inherent shortcomings of hearsay evidence. I have borne in mind that the Court must exercise caution in determining whether to accept the evidence, and, if accepted, carefully consider the weight to be attached to it. Also, the version of events spoken of by the deceased to the deponent cannot be tested by cross-examination.
114I bear in mind, also, the need for careful scrutiny to which evidence should be subjected in such circumstances (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; [1881-85] All ER Rep 931, at 931; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, at [20]).
115Furthermore, although in a different context, Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:
"An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
116I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56:
"48 ... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."
117The credibility of a witness and his, or her, veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Ll.R. 1, per Robert Goff LJ at 57.
118I have also found what Lord Pearce, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep. 403, at 431, useful:
"Credibility involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. and lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
119Finally, I refer to what 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."
120With these principles in mind, I turn to the evidence of specific witnesses.
121The Plaintiff was cross-examined for over three days at different times. (By agreement, the Plaintiff's evidence was interrupted with the interposition of other witnesses. He was not present whilst any witness who was interposed gave evidence.) The Defendant was cross-examined for much less, and at one, time (about 3 hours).
122Overall, whilst the Plaintiff had great difficulty answering many of the questions concisely, and at times, responsively, I am satisfied that he did endeavour, throughout his cross-examination, to answer truthfully. He did not depart, in any significant way, in his oral evidence, from the account, given in his affidavits, or otherwise (other than in respect of one matter to which I shall refer).
123Importantly, a significant part of his evidence, like many of the other witnesses, consisted of repeating conversations with the deceased, at most of which, no one else was present.
124Furthermore, the evidence of other witnesses to whom, as well as contemporaneous and other documents to which, I shall refer, corroborates much of the factual content of the conversations that he said he had with the deceased and which he repeated. I shall refer to the other witnesses who gave evidence of similar conversations with the deceased.
125In addition, the fundamental facts in a number of the conversations with the deceased, concerning the undated document, were corroborated by the very existence of the Exercise Book and the terms of the undated document contained in it. In summary, and as the deceased told the Plaintiff, there was a document contained in a book, written by her, in the Italian language, which set out what she wanted to do with her estate, or part of it, which intentions, broadly speaking, appear to have been that each of two identified grandchildren was to receive a unit in Waterloo, that the Plaintiff was to receive the bulk of the remainder of the estate (I say this subject to what is determined in any construction suit), and that the Defendant was to receive no part of the deceased's estate.
126Importantly, I do not find that any of the evidence given by the Defendant and her daughter, Gabrielle, materially undermines the Plaintiff's account of the events that occurred in relation to the undated document or his evidence more generally. (In a number of respects, Gabrielle's evidence relating to her conversations with the deceased corroborates some of the Plaintiff's evidence.)
127Overall, I consider the Plaintiff to be a truthful and reliable witness. In particular, I am satisfied that he gave truthful evidence about the following matters:
(a) His conversations with the deceased about the Exercise Book.
(b) His conversations with the deceased about events that had happened with the Defendant. (This does not mean, however, that what the deceased told him about the Defendant's conduct was true.)
(c) His own observations of the deceased's relationship with the Defendant.
(d) His attendance at the office of Mr Vlahakis following the death of the deceased and the preparation of the inventory with Mr Wong, a solicitor to whom Mr Vlahakis had entrusted the task.
128There was one aspect of the Plaintiff's evidence that, initially, I found troubling. That evidence related to the circumstances in which the Plaintiff located the Exercise Book in the Coogee property.
129The Plaintiff stated, more than once, in his evidence, that the deceased had told him where the Exercise Book was located, namely in between two books located in the white cupboard in the garage.
130He maintained, when asked in cross-examination, that he had gone to the deceased's home, with Mr Vlahakis, after being told by the Police that it was a crime scene, and that he had found the Exercise Book, where the deceased had told him she had left it. He said he did so, on the day following the deceased's death, and before the Defendant and the deceased's husband could find it.
131He also gave evidence that he went to the garage first, located the Exercise Book, but then looked throughout the Coogee property in order to retrieve various other documents and effects. Those items, when retrieved, were immediately placed in a plastic box that he had found in the cellar (also described as "the little room off the garage") of the Coogee property. These items, including the Exercise Book, were then identified in the inventory created at the office of Mr Vlahakis.
132The Plaintiff had sworn an affidavit on 20 September 2012, in support of his application for the grant of administration (which affidavit was not read in the proceedings). In cross-examination, he was referred to Paragraph 40 of that affidavit in which he had said:
"In my mother's plastic box ... I found a further testamentary handwritten statement of my mother".
133The "testamentary handwritten statement" was identified by page numbers of Ex. H1, which was the Exercise Book.
134Importantly, the Plaintiff in his affidavit of 20 September 2012, did not refer to having located the Exercise Book in the white cupboard in the deceased's garage, but rather stated that he had found it in "my mother's plastic box".
135The Plaintiff was also cross-examined on a record of interview in which he participated with the NSW Police Service on 1 November 2012 upon the basis that what he had then said, on this topic, was a prior inconsistent statement. The part of the E.R.I.S.P Transcript, relating to what he had found at the deceased's home on 5 January 2012, was subsequently tendered (Ex. 5) without objection. Having referred to attending the Coogee property, with Mr Vlahakis, the following questions and answers were then recorded in the Transcript:
"Q So then you went downstairs and let George in through the garage.
A Yeah.
Q And then what did you do?
A Well, I went to the places that me mum usually keeps the stuff and told me where she keeps them.
Q And what places were they?
A Well, the first one was obviously the garage, which was her favourite. She has a cupboard in the garage there where she keeps stuff and that's where I found, I found a fair bit of stuff.
Q When you say stuff, what do you mean?
A Books, documents, her purse, her bag, I didn't bring it with me, her bag was ---
Q No, that's O.K.
A I've still got that.
Q All right. So you went to the cupboard in the garage, then where did you go?
A Ah, we checked on the table there, we checked generally in the garage, then we went upstairs. Um, I checked into the kitchen especially in the kitchen cupboards. I checked everywhere but I checked the kitchen um, but there wasn't anything in the drawers in the kitchen, there wasn't anything there. Checked the laundry 'cause she had stuff in the laundry. I found her jewellery, expensive jewellery was in the laundry but I didn't, I didn't touch it, I didn't touch it, I only took what was, was necessary. I found um, a photo album up in one of the bedrooms with all our pictures in it. I wanted to take that but I said, well, no, I can't, it's not relevant at the moment and the authorities, I cant start taking personal stuff.
Q Mmm.
A Um, in her bedroom I found in a large dressing table, I found documents in a dressing table, I found them. Um, I came back downstairs, I went in a little room out just off the garage. That's where the box was and I found the box 'cause I knew, she told me she'd left everything, she kept everything. The exercise book, she'd put that in between two, she told me about that she made a thing and she'd put it in, in between a couple of books.
Q So she'd hidden it?
A yeah, she told me she wrote things down, she told me, she did, it was common, she told me that she'd wrote a new will she told a lot of people that, that she wrote a new will."
136When Mr Vlahakis gave evidence, he stated:
"Q. And when you arrived at the property on 5 January Robert said to you, did he not, words to the effect that "my mother has written a will in a book"?
A. Yes. Well I don't recall whether it was when I got there or in the conversations I had with him prior to meeting there.
Q. But on the 5th?
A. On the 5th or prior, immediately prior to going there, yes.
Q. And he said to you "I am looking for that book, she told me she wrote it down in a book and it's in here"?
A. Yes.
Q. "She said she left everything to me and I want to find it before Jenny and my father find it"?
A. Yes I think so, yes.
...
Q. Do you recall that when you entered the garage Robert went directly to a white cupboard and searched?
A. In the garage?
Q. In the garage a white cupboard on the other side of the lounge room in the sitting area and searched
A. On the same level?
Q. Yes and searched for books?
A. Yes.
Q. Do you recall that?
A. I do recall that, yes.
Q. Do you recall Robert searching in that white cupboard and locating a book tucked in between other books?
A. I can't say with a hundred percent confidence that I recall that.
Q. Do you recall Robert flicking through the book and saying "This looks like it. I think this is it. I think this is what I'm looking for"?
A. I recall him saying that and I recall that I don't recall when he said that but I recall he said that when he found, or words to that effect, when he found a book or document but I don't know now if it was immediately after we entered into the garage.
From memory Laura had a living area that she may have lived on that level or she lived on a lower level even though her bedroom was on an upper level but I don't recall if that white cupboard and that conversation was in the garage or off the garage or above the garage.
Q. But it could have been
A. It was one of the first things that we
Q. One of the first things
A. I think so, yes.
Q. that you located and discussed?
A. I think so.
Q. You then went through the remainder of the house?
A. Yes."
137It seems to me that Mr Vlahakis corroborated the Plaintiff's version of the events that had occurred the day after the deceased's death and that he and the Plaintiff had located the Exercise Book reasonably promptly after entering the Coogee property. Certainly, the answers given by the Plaintiff in the record of interview suggest that the deceased had hidden the book that the Plaintiff located between two books in the white cupboard.
138The evidence, overall, satisfies me that the deceased did tell the Plaintiff where she had hidden the Exercise Book (in the white cupboard between two books) and that he located it on 5 January 2012. I am also satisfied that the Plaintiff's principal purpose for going to the Coogee property on 5 January 2012 was to locate the Exercise Book and that he did so because of what the deceased had told him. There can be little doubt that he wished to retrieve the Exercise Book as soon as possible and before any opportunity was given to any other person to do so.
139Because it was raised by counsel for the Defendant as a matter of significance, I have carefully read the cross-examination of the Plaintiff about when he had the first conversation with the deceased about changing her Will. He maintained that it was at some time between mid 2010 and late 2010. However, he could not remember whether her statement, at that time, was that she had written a new Will (using the past tense) or whether she was going to write a new Will (using the present tense). This is hardly surprising as the conversation took place about three years before the Plaintiff was cross-examined.
140The Plaintiff was also cross-examined about where different conversations about the same topic had occurred. Counsel for the Defendant suggested to the Plaintiff, and he agreed, that it was 8 to 12 times that the deceased had said words to the effect "I have left everything to you".
141He was asked about the evidence, given in one of his affidavits, that one such conversation took place in Albury. He conceded that it might not have been in Albury as he had stated in the affidavit. He said, in my view, unsurprisingly, that he could not say, "for sure it was Albury, or whether it was back in Coogee".
142However, throughout the cross-examination, he maintained that he had been told by the deceased, at various times, that she had written her Will in a book. (He denied that he knew in what sort of book she had written and said that he was not even aware of what the book looked like.)
143I also accept that the deceased, initially told him that she was leaving the bulk of her estate to him and that he was "to look after all the children", and that later, she stated to him that she was going to leave each of Gabrielle and Sean one home unit and that he should look after his own children and Jacqui, to the latter of whom he must give "wages".
144I accept the Plaintiff's evidence that the first time he saw the Exercise Book was on 5 January 2012, the day after the deceased died, although the deceased had told him where it could be located. He did not ask to see the Exercise Book at the time, and the deceased did not show it to him when she discussed what she had done or where she had placed it.
145Similarly, although he was aware, from what the deceased told him, that the deceased made a Will in 2007 and that he was to receive one half of her estate, he had not, at the date of the deceased's death, seen the 2007 Will. Again, he did not ask to see the 2007 Will and the deceased did not show it to him when she discussed it with him.
146I also accept the Plaintiff's evidence that "if [the deceased] wrote something down in Italian, she would go to someone and speak in English basically. She doesn't have any trouble speaking in English. And she doesn't have any trouble writing in Italian and saying it English. She has trouble actually writing it in English, in the actual writing of the words.". The deceased often made notes for herself so that she could go to meetings with people and refer to those notes, and then speak to a person in English after reading her Italian notes.
147Ms Varela, who is in a close personal relationship with the Plaintiff, gave evidence also and was cross-examined. I am satisfied that she had a very close relationship with the deceased for a number of years before the deceased's death, although the relationship "grew even closer towards the end".
148Ms Varela saw the deceased almost every day in the last three years of the deceased's life. She would take the deceased shopping, otherwise do her shopping for her, take her to medical appointments, and would cook for her. The deceased appeared to trust Ms Varela and clearly expressed positive feelings towards her.
149The deceased had spoken to Ms Varela about the 2007 Will and its contents, although she could not remember when that conversation had occurred. That was the first occasion that the deceased discussed her Will.
150It was not until "pretty close to her death" that the deceased again discussed a Will with Ms Varela. However, in early 2011, the deceased told her that she was thinking of changing her Will, but did not provide any details of the changes she proposed to make. Nor did Ms Varela raise the topic with the deceased. She said she would "listen if she tells me something, but I will never ask, or insist on anything of her decisions".
151Ms Varela gave the following evidence in her affidavit:
"42. ... Sometime in December, 2011, [the deceased] said to me:
"I trust you very much. I have changed my will. I wrote it in my own language so no one can deny it. I have also read it to Doug May and he is writing it in English for me. I have left all my money and property to Robert because he is the only one who cares for me. I have also left something for my grandchildren. And I have made sure you are looked after. I also want my solicitor to write it in English for me and keep a copy."
43. I recall that on 15 December I dropped the children off at St Michael's school Daceyville at about 9.30 am. Then, I went to pick up Laura at ... Coogee and we went to Eastgardens. When I picked her up she showed me an exercise book saying, "Look, I got the will here" and she laughed. We parked on the top level, and had a coffee. She told me to wait in the car or come back and pick her up in one hour.
44. Approximately one hour later, I met the Deceased as arranged.
45. When she got in the car, she said to me:
"I read my will out to the Solicitor. He has all the information now. He will write it in English. I will pick up a copy after the Christmas break."
46. We then went to Coles so she could do some shopping and here she also bought a bottle of wine. She used a trolley. When we were finished, we left Coles, and when we were walking outside, I saw Laura move towards and start talking with Yvonne and Kevin Smyth, both of whom were known to us from the school, St Michael's at Daceyville.
47. I heard Laura say to them:
"I have just been to the Solicitor about my will. I wrote it in Italian and he does not understand Italian. I wrote it myself and I read it to him in English and he took some notes. My husband and daughter want to kill me for the money. I have left everything to my son and grandchildren."
49. I took Laura back home and assisted her to take the shopping in as I normally did and then she said to me:
"Lets go to the pizza place for dinner".
Laura brought the bottle of wine with her.
We drove to my mother's place to pick up the kids and then after went to Lino's Pizza in Kingsford for dinner."
152She was asked, in cross-examination, about some of what she had deposed to in her affidavit. Her oral evidence about the events of 15 December 2011 was:
"Q. Now Madam, you have said that when you took Laura to the solicitor's office on 15 December, she showed you an exercise book saying: "Look, I got the will here"?
A. Yes, that's what she did.
Q. Why do you describe the book as an exercise book?
A. Because it was a little book like the ones the kids use to write things. Like school kids use those exercise books to write.
Q. You remember what colour it was?
A. It was white with some colour, some green colour.
Q. Was that the first time you had ever seen that book?
A. No, she used to have these book in other locations, because I used to take her out to shopping for the house she was building, and then I saw her writing measurements and like granite, and what floor she wanted, she wanted in the kitchen, what she wanted in the patio. She wrote things for the house.
Q. She would sometimes take it with her would she when you went shopping for things for the house?
A. Yes, yes she took it with her. She would look at what she was looking for, or what kind of material or things. I don't know what she was there, but in Italian she wrote it herself.
Q. Madam, the occasion when she said, "Look, I got the will here", she just showed you the front of book I take it?
A. Yes, she showed me only the front. I never look inside.
Q. She didn't show you inside either, did she?
A. No she didn't, she only show me the book itself, yes.
Q. And you say when she said that to you that she laughed when she said it?
A. Yes, she had smiled at me.
Q. You said laughed in your affidavit?
A. Well for me it's the same as smile, or I express as a laugh. She smile. Like she gave me a smile face.
Q. On this occasion she didn't tell you what was in the book?
A. No she didn't tell me until later in the day. She only showed me the book and told me this is my will, and then we went to East Gardens.
Q. And you picked her up about one hour later; is that correct?
A. Yes, one hour, or one hour and a bit. She told me to meet her later, so I went to the solicitor's office about an hour and a bit after. And then we came back to do the shopping, she stopped to pick up her bags, because she always had spare bags to put her shopping in from the car. And then we went to do the shopping, and then we went in the car is when she told me that she went to the solicitors. What else she told me ... she told me that she went to the solicitor.
Q. And she didn't tell you what she told the solicitor, did she?
A. Yes she told me I think she told me, yeah, what she told me that she wanted to leave some money to the children's hospital, some money to the grand kids, and most of her money to The Plaintiff.
Q. Was that after she had been to see the solicitor that she told you?
A. Yes after when she came out, yes.
...
Q. And on that occasion when you came back when you say that you had a discussion with her afterwards, and I'm looking at page 421 of the court book you say that Laura Angius said to you, "I will pick up a copy after the Christmas break"?
A. Yes, she told me that.
Q. Did she tell you what date it was to be picked up?
A. No, I don't remember the date, after Christmas break.
Q. And, Madam, did she shows (sic) you or refer to the exercise book again after she came away from the solicitor's appointment?
A. Yes, she told me, "I read it to the solicitor. He was asking information. And then he is writing it in English for me and I come back after Christmas breat to pick that up." But I didn't see the exercise book. After that she had it in her bag, I think.
Q. And did you see it again at any time before she died, the exercise book?
A. No, I don't think so, I don't think so."
153Although Ms Varela was criticised by the Defendant for taking the deceased to meet with Justin Webb (to whose evidence I shall return), I am satisfied that she had no motive for so doing other than to assist the deceased who seemed, to Ms Varela, to be more and more troubled.
154I have no hesitation in accepting Ms Varela's evidence. Whilst there were some difficulties of language, I am satisfied that she was endeavouring to tell the truth. I reject any suggestion that her evidence, particularly about what the deceased told her concerning the Defendant's conduct, was motivated by this case, or by any desire, on Ms Varela's part, to paint the Defendant in a bad light.
155Nor do I consider that Ms Varela was assisting the deceased in order to ingratiate herself and for the purpose of trying to alienate the Defendant from the deceased. The evidence appears to be that whilst she and the deceased became closer in the last years of the deceased's life, they had been close before that time and at the time the deceased made the 2007 Will.
156Furthermore, other evidence that I accept (to some of which I shall refer in more detail) corroborates Ms Varela's evidence of the conversations to which she referred. As I have stated earlier, perhaps the most important piece of corroboration, is the existence of the Exercise Book itself and its contents.
157Another example of the corroboration of Ms Varela's evidence about the deceased having read something to Mr May and that he was writing it in English for the deceased, is the email referred to by Mr Vlahakis to which reference has been made. Yet another example relates to the events of 15 December 2011, namely taking the deceased to the solicitors, then taking her to Eastgardens shopping and then to dinner, each of which individual events is corroborated by another witness or witnesses.
158I found the Defendant to be a witness whose evidence was, at least in part, coloured by the bitterness of this dispute, her relationship with the Plaintiff, and, as importantly, with Ms Varela. I also found that her evidence was far from dispassionate. Clearly, she feels very strongly about certain things, and her evidence, at times, reflected her emotion.
159Furthermore, her attitude to some of the evidence given by other witnesses in the case diminished her credit. She did not shrink from characterising some witnesses as "lying"; others she thought had been misled by what he, or she, had been told, particularly by Ms Varela, which, she asserted, affected the evidence given. It seemed that she left no room for the possibility that each was truthfully repeating his, or her, recollection of the events. I have taken into account the emotion to which I have referred.
160For example, in relation to the Plaintiff, the following evidence was given by her:
"Q. Just going to your brother's evidence. He has given evidence of a number of occasions when he says that you spoke very harshly to your mother, if I can just put it in that fairly neutral term?
A. Well, he would say that, wouldn't he?"
161This was despite her admission that she and the deceased had arguments and that each "yelled" at the other. She also accepted that she had been the subject of an apprehended violence order (for three months commencing in September 2010) and several applications for an apprehended violence order in favour of the deceased that she said did not proceed.
162The Plaintiff had also given evidence, which I accept, that on two occasions he saw the Defendant physically assault the deceased by punching and kicking her and screaming at her: "I'm going to kill you, you fucking bitch". On each of these occasions, he had to physically pull the Defendant away from the deceased and drag her away.
163In relation to Ms O'Hehir and Ms Garces, the following passages of the cross-examination of the Defendant are instructive:
"Q. You heard your counsel ask two of them, Rocio Garces and Rayeleene O'Hehir, if they had been promised money in exchange for giving evidence in the plaintiff's case?
A. I believe he did ask that.
...
HIS HONOUR
Q. I think the question you were asked was, in relation to the two witnesses, did you have any basis for the belief that they had been offered any incentive to give their evidence?
A. Well, both are friends of Jackie well, one has admitted she's a friend of Jackie, a close friend of Jackie. The other lady was receiving cash from my mother to clean her house and now she wouldn't have money anymore. So I think it's possible they may have been offered inducements.
Q. You do, do you?
A. I think it's possible.
...
Q. However, in the case of Rayeleene O'Hehir and Rocio Garces, that direct question was put to them. They were asked whether they were telling the truth in their evidence; you would have heard that too?
A. Yes.
Q. With respect to Ms Garces, the basis upon which you don't accept that she's telling the truth is that she is friendly with Jackie Varela; is that it?
A. That's probably most of it.
164There was no reasonable basis for her belief and, in my view, the suggestion that each may have been offered an inducement should not have been made or persisted with.
165In relation to Mr Abrams and Ms O'Hehir, the Defendant said that each had given inconsistent evidence at the inquest. However, her counsel had not put to either of the witnesses any alleged inconsistencies. Her counsel fairly conceded that he "didn't ask any questions of any witness ... suggesting that the evidence that they gave at the inquest was inconsistent with the evidence given in these proceedings" but the Defendant did say that the transcript of evidence from the inquest had only been recently received.
166Despite these matters, in relation to Mr Abrams, whilst accepting that her counsel had not suggested that he had been lying, the Defendant asserted that it should have been put to him that he had done so.
167In relation to Mr Webb, the Defendant said that she doubted the truthfulness of his evidence:
"Q. He described what you said to him, "although not threatening" he was diligent to say that "quite forceful". Were you quite forceful in what you were saying to him?
A. I was upset that people like people like Jackie Varela were insinuating that I had a hand in my mother's death.
Q. This man didn't take any part in the inquest, did he?
A. No, but I think he had she has circulated this belief among witnesses that my mother's death was suspicious. And she's not being truthful to him. Plus I let him know that his evidence was inconsistent with her evidence. He said she lived around the corner at xx Wild Street. She says in her affidavit she's never lived there at all.
Q. That was a reason to suggest to him that he should not give evidence as to statements that he says were made to him by your mother?
A. I made him understand this was a will dispute. It was not about my mother's death."
168In relation to Mr Webb and other witnesses, there had been no suggestion, made in cross-examination, that he, or she, had been misled as to the nature of these proceedings, or that each was giving evidence based upon a mistaken understanding of the nature of the case being presented by the Plaintiff. In any event, as the Defendant accepted, "as a result of the Coroner's open finding, investigations about the suspicious nature of [the deceased's] death were in fact taking place with the police".
169In relation to Ms Varela, the Defendant said:
"I don't know what my mother was telling to Jackie. I wouldn't believe anything that came out of Jackie's mouth."
170The Defendant also accused the deceased of lying to Mr Abrams as to the cause of the bruising that she had shown to him.
171Of course, the Defendant had not been present during the deceased's conversations about the Exercise Book and the deceased's intention to make a new Will or that she had done do.
172The Defendant denied any abusive conduct towards the deceased. However, there does seem to be evidence, in Police reports, that raises questions about the truth of her denial. Similarly, there is the evidence of the Plaintiff and Ms Varela about his, and her, observations. However, I shall not, in these proceedings, express any view about the veracity of the Defendant's denial.
173The Defendant's daughter, Gabrielle Angius swore an affidavit and was cross-examined. She was aware of the police being called to the deceased's home and that on some of these occasions there were allegations of violence made against the Defendant, and on other occasions, because of allegations made by the Defendant about the deceased.
174Gabrielle also gave the following evidence:
"Q. Now, in 2011 you recall a number of instances where your grandmother had made statements to you about changing her will?
A. Yes.
Q. On one occasion in 2011 you recall where your grandmother said to you, I think I am going to change my will to Robbie, no one is going to disinherit him, I think I will leave your share and Shaun (sic)?
A. On one occasion she did say that to me.
...
Q. There were other instances again when your grandmother on another occasion, you say at paragraph 15, when she again said to you, "I am going to change my will and leave nothing to your mother and I am going to leave Robbie everything." Do you recall that conversation?
A. Yes.
Q. And what did you say to your grandmother on that occasion, if anything?
A. I don't recall, she often would change her mind.
Q. You said you don't recall. On another occasion again in 2011, this is a separate vindication (sic), you recall when your grandmother said to you, "If your mother does not move I will change my will and leave her nothing." Recall that conversation?
A. Yes.
...
Q. What I am suggesting to you is that after those three incidents or conversations you had with your grandmother where she told you that she was going to change her will, that your grandmother on at least one of those occasions or another occasion in 2011 indicated to you that she had, in fact, changed her will?
A. Yes, and would, those times she told me what you just told me, the three occasions, she would change her mind and say something different to me.
HIS HONOUR
Q. Sorry, I just want to understand, so after the three conversations that you mentioned in your affidavit, she did actually tell you that she changed her will?
A. No, no, no, she never said she had changed her will, no, never.
Q. I noticed that the deceased indicated that she had changed the will. I thought you said in answer to Ms Culkoff, the question, that she told you that she had changed her will?
A. No, she never said to me she had changed her will, never said that to me, only gave me her thoughts, what she was going to do with it. That would change literally from week to week.
CULKOFF
Q. I suggest to you, that the answer you gave a short while ago that she had told you that she had, in fact, changed her will is correct and that the answer that you are giving now is not true?
A. No, she, on my life, never said to me I have changed my will, never.
...
Q. When she told you that she was leaving everything to Robbie, because grandfather would disinherit, you said it was not fair to you or your brother?
A. I did not feel it was fair, I felt, so like they were, they were trying to control my grandmother. They already tried to get power of attorney, I felt in a confident woman, you know, they were manipulating her, I didn't like it.
HIS HONOUR
Q. I think the question you were asked was relating to whether or not you told your grandmother in response to her statement that she was going to change the will.
A. Yes.
CULKOFF
Q. That it was unfair?
A. I did say it was unfair, I did.
Q. And your grandmother told you that she feared that her grandfather would leave everything to your mother?
A. She had that fear, yes.
Q. And she told you that she feared that Robbie would get nothing in those circumstances?
A. Yes, she told me that."
175The part of the evidence quoted that I have some difficulty accepting is Gabrielle's denial that the deceased had told her that she had changed her Will. Otherwise, Gabrielle's evidence seems to be consistent with the other evidence in the case. It is quite possible, of course, that the conversations Gabrielle had with the deceased took place before 6 September 2011, that is before the deceased had written the undated document. (This possibility receives some support from Ms O'Hehir, to whose evidence I shall shortly refer.)