First Plaintiff v First Defendant

2 The deceased left a will dated 26 June 2012 ('the June 2012 will') and an unexecuted draft will ('the informal document'). The deceased's solicitor, Mr Robinson, has deposed that in a telephone conversation with him on 1 March 2013, the deceased approved the informal document.

3 The plaintiffs, Mr Robinson and Mr Raleigh, are named as executors in both the June 2012 will and the informal document. Both plaintiffs are principals of Best Hooper, solicitors.

4 The value of the deceased's estate at the date of death was estimated at over $13 million and the value of his superannuation fund was estimated at $615,094.

5 On 11 April 2014, the plaintiffs obtained a limited grant ad colligendum bona granting them the power to:

(a) sell the deceased's real estate in Bayswater;

(b) receive the sale proceeds from the Bayswater property;

(c) pay the costs and expenses associated with the sale and this proceeding;

(d) use the proceeds of sale to meet the liabilities of the deceased and the costs and expenses of the estate; and

(e) invest the sale proceeds of the Bayswater property in an appropriate investment for trust funds.

6 By application filed 29 July 2014, the plaintiffs made application for a grant of probate of the informal document pursuant to s 9 of the Wills Act 1997 ('the Act'), alternatively, the June 2012 will.

7 By amended application filed 5 December 2014, the plaintiffs added Jennifer Lee Jones ('Ms Jones') and Victorian Animal Aid Trust ('the VAAT') as defendants to the proceeding.

8 Ms Jones is named as a beneficiary under the June 2012 will, receiving a 20 per cent of the residue of the estate, but is not named in the informal document. The VAAT and Ms Jones' son-in-law, Mr Robert Couzens, are named as beneficiaries in the informal document with them receiving the 20 per cent share that was previously left to Ms Jones. Mr Couzens is to receive the sum of $500,000 and the VAAT is to receive the balance of the 20 per cent share. Neither Mr Couzens nor the VAAT are named in the June 2012 will.

9 Otherwise, under both the June 2012 will and the informal document, the remaining 80 per cent of the estate is left to the deceased's former domestic partner, Mrs Gloria Parker, her daughter, Mrs Dalene Merrill Ridgewell and her granddaughter, Ms Renee Cynthia Talbot, in various percentages with each of them receiving a life interest and, upon their respective deaths, the capital of the estate is to be passed to various members of their families.

10 In this proceeding, the plaintiffs seek to propound the informal document as the deceased's informal will on the basis that it satisfies the requirements of s 9 of the Act. In the absence of a duly executed will, there is no presumption of capacity in the relevant sense and the onus of proving capacity in relation to the informal document rests with the plaintiffs.

11 There is no issue that the June 2012 will was executed in accordance with s 7 of the Act. Evidence of due execution of a will gives rise to a presumption that the will should be admitted to probate and that gives rise to a presumption of testamentary capacity and knowledge and approval of the will by a testator.[1]

12 If the informal document does not satisfy s 9 of the Act, the June 2012 will is the last valid will of the deceased.

13 Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, for there to be a valid will, it must be signed by the testator in the presence of two witnesses.

14 However, s 9 of the Act allows a will that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:

9 When may the Court dispense with requirements for execution or revocation?

(1) The Supreme Court may admit to probate as the will of a deceased person -

(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or

(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act -

if the Court is satisfied that that person intended the document to be his or her will.

...

(3) In making a decision under subsection (1) or (2) the Court may have regard to -

(a) any evidence relating to the manner in which the document was executed; and

(b) any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.

15 Section 9 of the Act enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. Section 9 of the Act is a remedial provision. Ordinary principles of statutory construction dictate that it should be given a broad construction. However, as observed in Estate of Peter Brock, its remedial nature must be tempered by the acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[2]

16 A document admitted to probate under s 9 of the Act is described as the informal will. In order to admit an informal will to probate, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:

(b) the document must express or record the testamentary intentions of the deceased; and

(c) that document must have been intended by the deceased to be his or her will.[3]

17 In this case, it is clear there is a document that records testamentary intentions of the deceased. The remaining question is whether the deceased intended the informal document to be his will. If the Court can be satisfied that the deceased intended the informal document to be his will, then it is clear that the testamentary intentions recorded in it are those of the deceased. In considering that question, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will.[4]

18 What is required to satisfy the third element was considered by Powell J in Re Springfield:[5]

... the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will...

... while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.

Where, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than 'instructions', or a note of 'instructions', for a will ... I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.[6]

19 In Fast v Rockman, Habersberger J discussed a deceased's awareness of the formalities required for a will and said:

I accept that a deceased's awareness of the formalities required for a will may bear on a court's assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. Further, if a deceased had failed to sign a will or comply with the formalities not by virtue of inadvertence or 'act of God' beyond his or her control, but as a result of a conscious decision not to do so, including a reluctance to do so, the court is likely to decline to admit the document to probate.

In many cases where wills that do not comply with statutory formalities are sought to be admitted to probate, the would be testator, especially where a solicitor had been engaged to prepare one, is likely to have been aware that the document in question had to be executed in accordance with those formalities to have legal effect. But this, in my opinion, is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed.[7]

20 The Court may receive direct evidence of statements made by a testator and what the testator said and did and may also receive evidence surrounding the making of the 'will'.[8] In Application of Becroft, Harper J held that statements of a testator are admissible as evidence of his or her intentions:

In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing testamentary intention.[9]

21 The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances. An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed at whether the deceased intended the document to have effect as a testamentary document. In Hatsatouris v Hatsatouris[10] the Court observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, 'either at the time of the subject document being brought into being, or at some later time'.[11] A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his will. If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that his or her will were overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. [12]

22 For these reasons, issues related to the capacity of the deceased, and the knowledge and approval of the deceased, are relevant factors in considering whether an informal document satisfies s 9 of the Act.

The standard of proof when propounding an informal will

23 The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:

The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[13]

24 The judgment of Dixon J in Briginshaw states that reasonable satisfaction cannot be established independently of the nature of the issue and the facts to be proved. It does not introduce a third standard of persuasion: the standard of proof remains on the balance of probabilities.

25 That was subsequently made crystal clear by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[14] References to the requirement that proof be 'cogent' or 'strict' in cases of fraud, for instance, should not to be taken as modifying the standard of proof, but merely reflecting that a court should not make a finding of such gravity lightly.

26 When an informal will is to be admitted over a formally executed will, Briginshaw dictates that reasonable satisfaction should not be attained by 'inexact proofs, indefinite testimony, or indirect inferences'.[15]

27 The onus of proving testamentary capacity where there is an informal document lies on the party seeking to convince the court that the deceased intended the informal document to constitute his or her will, with the evidence to be evaluated in accordance the Briginshaw principle.[16]

28 The test for determining whether a person possesses sufficient testamentary capacity is well-established and is set out by Cockburn CJ in Banks v Goodfellow.[17] In order for a deceased to have sufficient capacity to make a valid will:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[18]

29 In Timbury v Coffee, [19] Dixon J added that:

in order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.[20]

30 The Banks v Goodfellow test is a question of degree. Cockburn J said 'the mental power may be reduced below the ordinary standard' provided a testator retains 'sufficient intelligence to understand and appreciate the testamentary act in its different bearings.[21]

31 In more recent times, the courts do not require a testator to know precisely that value of his or her assets or even certain classes of assets, particularly where an estate is on the larger side and is complex in its nature. [22]

The involvement of Best Hooper as solicitors for the deceased

32 In his affidavit sworn 28 July 2013, Mr Robinson deposed that his firm had been looking after the legal matters of the family of the deceased for sixty years or more, going back to the time of the deceased's grandfather. The grandfather left a life estate to his widow, then on her death, a life estate to his daughter, who was the mother of the deceased. Upon the death of his mother in 2008, the deceased inherited the estate.

33 Over years, various partners of Best Hooper managed the estate's legal affairs. Upon the retirement of Mr James at the end of 2011, Mr Robinson took over the management of the legal affairs of the deceased.

34 In her affidavit sworn 21 July 2014, Ms Renee Talbot, exhibited a statement dated 28 August 2013 made by her to the Coroner's Office. In that statement, Ms Talbot set out her understanding from what she has been told by others as to the relationship between the deceased and Mrs Parker. When the deceased was aged 19 years, he met Mrs Gloria Parker, a woman then aged 39 years. Notwithstanding that Mrs Parker lived with her husband at that time, the deceased and Mrs Parker 'got together'. She said there were a lot of issues in her family about how the deceased was brought into the family but both Mrs Parker and the deceased liked a drink and both seemed to be alcoholics. Ms Talbot is not sure when Mrs Parker's husband left her or when the deceased ended up living with Mrs Parker. Ms Talbot describes the deceased as being the partner of Mrs Parker for approximately 40 years.

35 Ms Talbot refers to getting to know the deceased when she was a child aged between seven and ten years after he had spent a long period of time in rehabilitation. Ms Talbot said the deceased stayed sober until about four years ago but this caused problems between Mrs Parker as she was an alcoholic.

36 Ms Talbot knew that the deceased had been under the psychiatric care of Dr Shashjit Varma for many years and that he also saw a psychologist, Ms Isobel Moreland.

37 The deceased did volunteer work with the VAAT at their premises in Coldstream.

38 The deceased met a woman at the VAAT in 2008 and their relationship lasted about a year. The deceased's first suicide attempt that Ms Talbot knew about occurred in early May 2009 after this relationship ended. He told Ms Talbot in a telephone call that he had been drinking, was depressed and could not deal with life anymore. He said he had taken a packet of anti-depressants called Dothep. The police were called and the deceased was taken to hospital and then to Delmont Private Hospital, a rehabilitation centre.

39 In her affidavit sworn 21 January 2015, Ms Jones said she first met the deceased in 2005 when she worked at the VAAT. Ms Jones said that it was not until 2010 that their more intimate relationship commenced. After their relationship started, the deceased told her he was bi polar and had attempted suicide in April 2010. In her statement, Ms Talbot described Ms Jones as 'pursuing' the deceased.

40 Ms Jones said that at the time their relationship started, the deceased was still living with Mrs Parker and they only saw each other twice a week. He told her that Mrs Parker suffered from dementia and they had not been in a relationship for the past 10 to 15 years, despite living under the same roof. She said that towards the end of 2011, the deceased moved out of the home he lived in with Mrs Parker to a property he owned next door to Mrs Parker. The deceased and Ms Jones continued to see each other twice a week from June 2010 until April 2011.

41 Ms Talbot said that she knew that, at some stage in the relationship, the deceased stopped living with Mrs Parker and moved to the house next door but he continued to pay Mrs Parker's living and medication expenses and to look after her.

42 During this time the deceased told Ms Jones that he wanted to support her and her family. Ms Jones said she initially resisted but the deceased persisted and he gradually began making financial contributions to her, including paying off a debt owed by Mr Couzens. He also asked Ms Jones to reduce her working hours so they could spend more time together. She agreed to this but said it made her more financially dependent on him.

43 In March 2011 the deceased told Ms Jones he wanted to buy her a house so that she was financially secure and he was prepared to spend up to $1 million. The deceased started researching houses for sale and suggesting houses to her. They eventually chose a house in Wantirna and the deceased negotiated the purchase price at $750,000.

44 The deceased told Ms Jones that he was generous with others that he knew. In all, Ms Jones said the deceased had purchased a farm for Mrs Parker's daughter-in-law for $350,000, a farm for Ms Talbot for $320,000, had given a 'handshake' loan of $100,000 to Mrs Parker's son, Leigh, with a further $50,000 during 2012. He gave Mrs Parker a home worth $500,000, stocks and bonds worth $350,000 to $400,000 as well as money of $130,000 to $150,000. He also gave Mrs Parker's daughter, Mrs Ridgewell, the sum of $12,000 to pay for her legal fees, a motor vehicle and an interest free loan of $36,000-$40,000.

45 In her statement, Ms Talbot confirmed the deceased's generosity with everyone in Mrs Parker's family over the years, including her in 2011, when she purchased her home. Ms Talbot's view was that Ms Jones started hinting to the deceased that she would like a house bought for her after the deceased had bought a home for Ms Talbot. Ms Talbot said the deceased did end up buying a property for Ms Jones, as well as furniture and cars.

46 Ms Jones said that by April or May 2011 she was with the deceased together in the house he bought for her in Wantirna. He did not ever officially move in with her because he was uncomfortable with her daughter living there as well but he would spend almost all day every day at the house and, on occasions, they would spend afternoons or all day at his house. Ms Jones described a warm loving relationship between her family and the deceased during their relationship. In her statement, Ms Talbot set out a contrary view stating that after the deceased bought the house for Ms Jones, she started to put restrictions on their relationship.

47 In June 2011, Ms Jones described an incident that caused problems between the deceased and her. She had agreed with the deceased's suggestion that she have a day to herself. The deceased reacted negatively to her agreement with him, abusing her and saying terrible things to her, such as he had made a massive mistake in buying her a house and car. This shocked and hurt Ms Jones as she thought their relationship was progressing well. Two days later the deceased apologised for his behavior but Ms Jones said she still needed time out. With that, she said the deceased had a 'meltdown' as he was unable to accept it. He told her he had been speaking to others and told them Ms Jones was a 'gold digger'. There was a discussion between them and Ms Jones explained to the deceased that she was not ending the relationship simply because she wanted a day to herself.

48 Ms Talbot described this part of the deceased's relationship with Ms Jones differently stating that around this time the deceased had relapsed back into drinking and was in and out of Delmont Private Hospital because of his mental instability. She said it was during this time, that Ms Jones would coerce the deceased into spending money and buying gifts for her as a way of apologising for not being strong.

49 In the period between January and March 2012, Ms Jones described a happy period in her relationship with the deceased. They went on many trips to the country, each time over three to four days. They sometimes called in to see Ms Talbot at her farm near Shepparton.

50 In April 2012, Ms Jones described the deceased as unsettled and agitated during a trip with her to the country. Ms Jones said this was as a result of him not telling Mrs Parker that he had developed a relationship with her. On the way back to Melbourne, the deceased had a 'meltdown' and he later went back into Delmont Private Hospital, where he stayed for a couple of days. Ms Jones said that, although he said he was all right, she thought he was not.

51 In April 2012, the deceased bought a property in Bayswater and moved into it in May 2012. Ms Jones stayed in that house with the deceased one to two nights a week as well as all day several days a week. They also continued to spend a lot of time together at Ms Jones' home in Wantirna.

52 Ms Talbot had a different version of events stating that Ms Jones convinced the deceased to buy the Bayswater property and to sell his existing home to Ms Jones' daughter, Megan. She also said the deceased continued to drink and his health continued to deteriorate.

53 On 20 June 2012, the deceased executed his June 2012 will which left a 20 per cent share of the residue of his estate to Ms Jones. This will had been prepared by Mr Robinson from a draft prepared by his former partner, Mr James.[23]

54 In August 2012, Ms Talbot received a call from Ms Jones telling her that her daughter and son-in-law had found the deceased who had overdosed and had been taken to hospital. The deceased left Ms Jones with a suicide note as follows:

DEAREST JEN, YOU KNOW HOW MUCH I LOVE YOU WANT TO BE WITH YOU BUT I CAN'T COPE WITH IS CONSTANT, UNRELENTING DEPRESSION ANY LONGER. I HOPE, GIVEN TIME, YOU CAN FORGIVE ME.

EXPLAIN TO THE FAMILY THAT I HAVE A CHEMICAL IMBALANCE IN THE BRAIN THAT APPEARS TO BE INOPERABLE.

ON A MORE PERSONAL NOTE, I'M GOING TO SO MISS MAKING LOVE WITH YOU.

TELL RENEE [Ms Talbot] SOME THINGS CAN'T BE FIXED.

I'M VERY GREATEFUL FOR ALL SUPPORT I'VE BEEN GIVEN BY YOU GUYS, I'M JUST SORRY I CAN'T COME UP TO EXPECTATIONS.

MAYBE WE CAN MEET UP AGAIN IN THE NEXT REALM

55 Ms Jones said that after this suicide attempt, she became the deceased's carer, doing all the cooking, cleaning, washing and shopping. She said the deceased would not get out of bed until the afternoon and when he did he was often difficult to deal with, being excessively grumpy and throwing tantrums.

56 Ms Talbot's version of these events were different to that of Ms Jones, saying that after the deceased came out of hospital, he had another suicide attempt and she put that down to Ms Jones continuing to spend his money and 'going hot and cold' with him.

57 In November 2012, the deceased told his psychologist, Ms Moreland, that he had attempted suicide but did not say when. In his last consultation with Ms Moreland on 13 December 2012, the deceased told her he was very depressed every day and had suicidal thoughts and he was feeling overwhelmed describing to her that 'my life has gone pear shaped. I'm not good enough and I'm a failure'.

58 In December 2012, the deceased and Ms Jones looked after a friend's apartment in Docklands and she described them as having a happy time together. She was shocked 'to the core' therefore when the deceased attempted suicide again. She said they often talked about his suicidal tendencies describing it as his 'suicidal Achilles heel'. His two attempts in 2012 were as a result of medication overdoses. Both occasions were followed by the deceased spending time at Delmont Private Hospital.

The deceased's financial settlement with Mrs Parker

59 According to Ms Talbot, sometime in December 2012, the deceased transferred the ownership of the house that Mrs Parker lived in to her in order that she was financially secure. Ms Talbot said this and the deceased's relationship with Ms Jones escalated the deceased's depression.

60 Mrs Parker's daughter, Mrs Ridgewell, in an exhibit to her affidavit sworn 29 July 2014, also referred to a financial settlement with Mrs Parker being reached in December 2012 and that Mr Robinson acted for the deceased in that regard. Mr Robinson does not specifically refer to acting on behalf of the deceased in relation to a financial settlement with Mrs Parker, although in his letter dated 27 February 2013, he refers to the claim by Mrs Parker.

The ending of the relationship between the deceased and Ms Jones

61 Ms Jones said that around the middle of February, she could no longer cope with deceased's mood swings, and came to the conclusion that she had to leave him. She said that it was in late February, and with a heavy heart, that she told the deceased that their relationship was over. She said he went 'ballistic' sending her a barrage of text messages and calling her on the telephone, almost all of the conversations being abusive and unpleasant.

62 Ms Jones described the behaviour of the deceased following the breakup as inconsistent - he was sometimes abusive and offensive and sometimes apologetic and almost charming. He told Ms Jones that he would change, that he always loved her, would never do anything to harm her and would try hard to make things work with her.

63 A week after the split, the deceased came around to Ms Jones house and they had a coffee. He was eager to resolve the situation and asked for a kiss. Instead, she offered him a hug and he became hostile and left. Then, in late February at 1.30 on a Sunday morning, Ms Jones woke to find the deceased had let himself into her house. Ms Jones described the deceased on that occasion as verbally aggressive and intimidating, dishevelled, unkempt and drunk, repeatedly calling her 'a bitch'. He refused to leave her house and only did so when Ms Jones threatened to call the police. Ms Jones said she was badly shaken up and very scared by the incident. The deceased rang Ms Jones later and apologised for his behaviour and was extremely contrite. He then told her he wanted to see her as he was going to attempt suicide by taking pills.

64 Ms Talbot has a different version of the ending of the relationship between the deceased and Ms Jones. She says that around 20 February, Ms Jones ended the relationship with the deceased abruptly, changed her telephone and house numbers so he would not call her and this caused the deceased to have an 'emotional meltdown'. Ms Talbot said the deceased went to see Ms Jones to find out what was wrong and that she had pushed him out of the house and told him if he came back she would call the police. Ms Talbot said the deceased was devastated and could not work out what he had done wrong and why Ms Jones was behaving in that way. The deceased then started speaking to everyone about the break up, trying to work out why she had broken up with him. Everyone told him that Ms Jones was a 'gold digger' and he had 'been played'.

65 Mrs Ridgewell refers to a conversation with the deceased on 22 February 2013, where she referred to the deceased's relationship with Ms Jones as having ended. She said the deceased also told her that he had arranged with Mr Robinson to book a surprise trip to Europe for six weeks for Ms Jones' birthday. In his evidence, Mr Robinson did not refer to this surprise trip for Ms Jones. Ms Ridgewell said the deceased told her that Ms Jones would not be getting the surprise trip now and that ''I'm even going to see Jim [Mr Robinson] about changing my will and get her out of it ... I'll play her game and get the last laugh ... she will get her comeuppance once she knows I've cut her out of my will'.

The deceased gives instructions to Mr Robinson to amend his will

66 On Tuesday, 26 February 2013, Mr Robinson said he had several telephone conversations with the deceased during that day. The deceased told Mr Robinson that he wanted to delete the gift to Ms Jones in his will because she had recently terminated their relationship. He said he wanted the 20 per cent share that would have gone to Ms Jones to be given as to $500,000 to Mr Couzens, and the balance to the VAAT, a trust he had been involved in for several years.

67 The next day, 27 February 2013, Mr Robinson sent the deceased a letter with a new will based on those instructions, together with a copy of the June 2012 will. In the letter, Mr Robinson stated:

I refer to our discussions on Tuesday. Now enclosed are:

(a) a copy of your will dated 26 June 2012; and

(b) a draft of a proposed new will.

You will note that the main changes are to delete the old sub-clause 3(d) from last year's will, and insert new sub-clauses 3(d) and (e), as well as the mechanical provisions of the new clause 4. The old clause 4 is now number 5.

Please read the new will through carefully. If there is anything you wish to change or query, please contact me to discuss. Once the will is in order, we will make arrangements for you to sign the original.

I confirm the new will should be a stopgap measure, until the claim by Gloria [Mrs Parker] has been resolved. Once that has happened, you may wish to re-think your gifts.

68 Mr Robinson exhibited the original letter and the attachments to his affidavit. The envelope is marked as having been posted to the deceased on 28 February 2013.

69 On 28 February 2013, Ms Moreland deposed that the deceased left her a voicemail message apologising for missing his January appointment, said he had been in Delmont Private Hospital again, things were not good and 'I realise I've been played.' He said he had spoken to his lawyer and was changing his will and he would call Ms Moreland next week.

70 On Friday, 1 March 2013, Mr Robinson deposed that the informal document was 'verbally approved' by the deceased. He said the deceased told him he had the letter and the draft will and 'the draft will was in the form that he wanted'. He also asked whether he could claim against Ms Jones for all the things he had purchased for her during the relationship.

71 Ms Talbot said that on 7 March 2013, the deceased called her at lunchtime. He was upset because the bull bar to his car had not been properly installed. She said 'he had a vent' and then seemed all right. Around dinner time, the deceased called Ms Talbot again. She said he was drunk and was miserable about his break up with Ms Jones. He told her that between lunch and dinner he had six vodka double blacks. They talked and she thought he seemed all right other than he was drunk and upset. She said she did not worry about him. The deceased also called Ms Talbot again between 9.30-10pm and he was angry. He told her he had thrown himself head first off his porch thinking he would kill himself. He said his head hurt and he had kept on drinking. Ms Talbot said the deceased's speech was slurred. He then talked to her about Ms Jones, Ms Ridgewell and Mrs Parker and how he had not done anything right by anyone, how everyone hated him and they would all be better off if he were not there. He did not say anything to her about taking tablets as he usually did when he had taken them in the past. He would not promise that he would answer Ms Talbot's telephone call the next day and he rang off. After the telephone call, Ms Talbot called the ambulance and asked them to check on him. She called the deceased again but did not get an answer.

72 At 3am on 8 March 2013, Ms Talbot received a call from the ambulance service seeking permission to break into the deceased's house. They called back to say they had found the deceased on the kitchen floor. Ms Talbot then travelled to the deceased's home, arriving around 7am. Ms Talbot's husband identified the deceased and the Coroner was called. When Ms Talbot entered the deceased's home, she said that the deceased's recycle bin was three quarters full of squashed alcohol cans: there were cans of vodka double black, Bundy, Johnny Walker and Southern Comfort. Her view was that the deceased had 'obviously been sinking loads of alcohol every day' and 'had obviously not been in a good frame of mind and had started drinking again'.

73 The deceased left a suicide note addressed to Ms Jones as follows:

JENNIFER,

BY THE TIME YOU READ THIS I'LL BE LONG GONE FROM THIS WORLD. YOU OBVIOUSLY HAVE NO UNDERSTANDING OF BI POLAR AND SUICIDAL IDEATION AND CAN'T HANDLE IT. IT'S GENETIC, NOBODY'S FAULT. YOU SEEM TO FORGET OUR GOOD TIMES, GINOS, LUNCHES, STAR OF THE SEA AND ALL OUR TRIPS AWAY.

WE WERE SUPPOSE TO BE "TIGHT" TOGETHER FOREVER THROUGH GOOD TIMES AND BAD, SO MUCH FOR LOYALTY.

NOW RENEE WILL BE LEFT TO PICK UP THE PIECES.

I WAS COMING GOOD TILL YOU GAVE ME THE FLICK.

AT LEAST NOW YOU WON'T HAVE TO PICK UP THE PIECES NOW.'

74 In a further undated note, received by Ms Jones the day after the deceased died, the deceased wrote:

DEAR JENNY, NOW MY MEDS UNDER CONTROL WE COULD'VE HAD THE WORLD AT OUR FEET, WE LOVE OUR FOOD AND OUR TRIPS AWAY (WHICH WERE MANY AND COULD'VE BEEN MORE). I FAIL TO UNDERSTAND YOUR ACTIONS AS I'VE DONE EVERYTHING POSSIBLE FOR YOU. PERHAPS I'M TO [sic] BORING FOR YOU.

REGARDS BRUCE.

75 Although not stated by Ms Talbot, Mr Robinson deposed that Ms Talbot found an envelope on the deceased's kitchen table. The envelope was open and it contained Mr Robinson's letter dated 27 February 2013, the copy June 2012 will and the draft will prepared by him.

The evidence of the deceased's testamentary capacity

76 Dr Varma is a registered medical practitioner and has been a special psychiatrist for 28 years. He works at Delmont Private Hospital. The deceased was Dr Varma's patient for many years. Dr Varma deposed that since November 2008 he saw the deceased one to two times each month. He diagnosed the deceased as suffering from a 'major depressive disorder with anxiety states'. Others in their evidence and the deceased himself have described his medical diagnosis as 'bi polar'.

77 Although no issue of testamentary capacity arises in the context of the June 2012 will, Dr Varma expressed his view of the deceased's testamentary capacity at 26 June 2012. He said he saw the deceased on 20 and 27 June 2012 and on the basis of those two sessions stated:

I can confidently say he had testamentary capacity on 26 June 2012.

78 Of the deceased's testamentary capacity at 1 March 2013, Dr Varma said he saw the deceased on 28 February 2013 and on the basis of that session stated:

I am of the opinion that he had testamentary capacity on 1 March 2013.

79 Mr Robinson deposed that he knew the deceased had a history of mental illness for some thirty years or more and was an inpatient in psychiatric facilities from time to time but he did not know the deceased's full medical history. He said that whenever he spoke to the deceased, he was not an inpatient in a psychiatric facility.

80 Mr Robinson has no medical qualifications but deposed that he was the main legal adviser to the Nurses Board of Victoria and its predecessor from 1982 to 2002. Mr Robinson deposed as to his view of the deceased's capacity in February and March 2013 stating:

When I spoke with Mr Andrews by telephone on 26 February 2013 and again on 1 March he appeared to me to have the necessary capacity to provide the instructions that he did.

81 Some of the lay witnesses deposed to the mental stability of the deceased generally. Their evidence of the lay witnesses is that the deceased was mentally unstable, was an alcoholic, was in and out of Delmont Private Hospital and suffered emotional 'highs and lows' with five, perhaps six, suicide attempts between May 2009 until he died on 8 March 2013.

82 As the plaintiffs are the executors under the June 2012 will and the informal document, they say that as determined by the Court of Appeal[24] they should take a neutral position as to whether the June 2012 will or the informal document should be admitted to probate. At trial, the plaintiffs contended that there appears to be adequate evidence to support the admission of the informal will to probate under s 9 of the Act.

83 In her written submissions, Ms Jones contends the informal document should not be admitted to probate however, at trial, Ms Jones did not appear as a result of a settlement being reached with the plaintiffs. Nevertheless, the remaining parties agreed that her submissions should be before the Court.

84 The VAAT contends the informal document ought be admitted to probate as the Court ought be satisfied that the deceased intended the informal document to be his will, having regard to the facts and circumstances of the case. It submits that the facts and circumstances evidence that the deceased had sighted and read the informal document, acknowledged that it embodied his last will and evidenced no reluctance to sign the informal document when given an opportunity to do so. The VAAT submits that the facts and circumstances of this case are analogous to the following three cases: Mitchell v Mitchell,[25] Dolan v Dolan[26] and Deeks v Greenwood.[27]

85 In Mitchell v Mitchell, the deceased died unexpectedly after collapsing in the morning. He had organised to sign his will later that day. He had discussed the contents of the will with his solicitor and had indicated that he was happy with its contents. E M Heenan J admitted the will for probate, holding that:

All the evidence is to the effect that the deceased was, by the morning of 6 November 2008, satisfied with the will as drafted and was intent upon executing it formally as soon as possible. To defer doing so, at the suggestion of the second defendant, until he had completed his morning ablutions is by no means inconsistent with the expression of purpose and, indeed, seems to be a very practical thing to do. Unfortunately, neither the deceased nor the second defendant had any reason to believe that he was at risk of sudden collapse and death and I am satisfied that the probabilities are that but for this sudden and unexpected intervention of fate, he would have executed the will formally in its then form later that morning. This is a conclusion on the facts as established which also means and finds that the deceased intended the draft will as submitted to him for execution to constitute his last will and that the document embodied his testamentary intentions even though it had not been executed in the manner required by s 8 of the Wills Act. This means that the document being propounded by the plaintiff amounts to an informal will of the deceased within the meaning of s 32(1) of the Wills Act and that [the] plaintiff is entitled to a grant of probate in solemn form of law of that document.[28]

86 In Dolan v Dolan, a wife had seen an unsigned will filled out by her husband, the deceased. Immediately afterwards, she and her husband discussed how it was to be executed. The wife thought it had to be signed before a justice of the peace. The deceased said he would do it next time he had the opportunity but he died soon after without signing the document. The unsigned document was admitted to probate. Murray J said:

For the defendants, it is argued that on that ground alone s 34 may not be satisfied. It is submitted that the Court may not find that the deceased intended the document in its form at that time and as it ultimately remained to constitute the will of the deceased. However, as I have indicated, in my view the fact that the document was unexecuted but was intended to be executed, on the assumption that the planned manner of execution would satisfy the requirements for formal validity of the will, does not negate an intention that the document, so far as it made a testamentary disposition, was, in the terms in which it was drawn, intended by the deceased to constitute his will.[29]

87 In Deeks v Greenwood, the deceased gave instructions to his solicitor to draft a will in late 2007, which he did not sign at this time. In May 2008 the deceased found the draft will and told the plaintiff that it set out what he wanted to happen with his estate. The deceased then organised for a new will on the same terms to be drawn by his solicitors and for that will to be brought to him for execution. The solicitor organised to attend his home on 20 May 2008 to have the will signed, but was waylaid and had to cancel the appointment and make a new date. However, on the evening on the 20 May, the deceased had a fall and was hospitalised and died soon after. E M Heenan J admitted the draft will to probate, finding that the evidence linked the deceased:

... unambiguously to the contents of the propounded will and demonstrates his satisfaction with it and his wish that full testamentary effect be given to those expressions by whatever appropriate measures were needed. There is no suggestion in the evidence that by May 2008 the deceased may have contemplated making some different testamentary disposition of his estate or that he was contemplating doing so or desired further time or opportunity to give reflect to such a possibility.[30]

88 His Honour was satisfied that the draft will was in fact intended by the deceased to be his final will and testament:

All the evidence is to the effect that [the deceased] remained of the one mind that he had settled finally upon his testamentary intentions, he had conveyed them to his solicitors, he was satisfied with the terms of the draft will submitted to him in November 2007, and had given instructions for a final will in those terms to be prepared. Only his sudden decline in health prevented that from being executed.

Accordingly, I am satisfied that, although it was never executed and although it was obviously intended that it would be executed, the document referred to as the draft will of November 2007 was finally adopted as embodying the deceased testamentary intentions. Accordingly, I am satisfied that it should be accepted as an informal will expressing the concluded testamentary intentions of the deceased.[31]

89 In written submissions, the VAAT referred to many other cases. In oral submissions, it referred to other cases, one being In the Estate of TLB[32] where the deceased committed suicide by hanging when she was aged 31 years, leaving two young children. From a body of documentary evidence filed, the Court was satisfied that the will instruction sheet expressed the testamentary intentions of the deceased and that she intended to make a will to give effect to the testamentary intentions expressed in the instruction sheet. A relevant factor taken into consideration by the Court was that the deceased had called her solicitors to ascertain whether the will was ready to be signed and had made an appointment for the purpose of executing the will.[33] The evidence was that the deceased had testamentary capacity at the relevant time. In his decision, Gray J said, relying on Re Hodges; Shorter v Hodges:[34]

Suicide, by itself, will not give rise to a presumption that the deceased lacked the requisite testamentary capacity.

...

In the present case, the fact that B committed suicide is only a consideration in determining whether B had the requisite mental capacity. It is not an indication of itself that she was not of sound mind when she gave instructions for the preparation of the will or that she lacked testamentary capacity at the time of her death. [35]

90 Other cases referred to by the VAAT in oral submissions were Frizzo v Frizzo,[36] Estate of Barry Leaney[37] and Re Spencer deceased.[38]

91 After the hearing, the VAAT forwarded short written submission relating to the recent decision of Veall v Veall referring to the principles of testamentary capacity and knowledge and approval.[39] Counsel for the VAAT submits that the circumstances of the unexecuted informal document are not suspicious as they were in Veall v Veall. He submits that, in the circumstances of this case, whilst Mr Robinson failed to keep a file note of his conversation on 1 March 2013 with the deceased, the informal document is 'not inexplicable and is not irrational', that Mr Robinson's evidence is not contradicted by the evidence of other witnesses and the medical evidence is not to the effect that the deceased lacked testamentary capacity.

92 Whilst the many cases referred to provide guidance as to whether the evidence before the Court will satisfy the burden of proof, the determination of the issue ultimately depends on the facts and the evidence of each case.

93 Although nine affidavits in total were filed in the proceeding,[40] the evidence contained in the affidavits comprised, in part, conclusions and opinions without any underlying facts set out by the relevant deponent which ultimately affect the weight the Court can place on that evidence. I will return to these evidentiary issues when considering the evidence of particular witnesses in the context of the issues to be determined but, for present purposes, three examples suffice. The first is the affidavit of Ms Talbot, the second is the affidavit of Ms Ridgewell and the third is the affidavit of Ms Bell, who works as a manager at the VAAT.

94 Ms Talbot exhibited a long statement made by her to the Coroner's Office about the deceased's death. Many matters referred to in her statement were either not of her own knowledge or were her opinion, with no proper basis being given for them.

95 Mrs Ridgewell exhibited a statement made by her that she says is a telephone conversation with the deceased on 22 February 2013 lasting for 4 hours and 45 minutes, although the conversation is set out in only five pages. The document appears to be an extremely truncated version of the conversation produced as a result of a request from Mr Robinson for her to set out her contact with the deceased during the last two or three weeks of his life. The document is in the form of a transcript of a conversation but Ms Ridgewell says nothing about the origins of the document or its accuracy. Most of the five pages consists of Ms Ridgewell's views. Neither party appearing before the Court objected to it being read; however, the fact is that little weight can be placed on the document.

96 Ms Bell's affidavit comprised matters of little relevance to the issues to be determined in this proceeding.

97 In his affidavit sworn 15 December 2014, Mr Robinson deposed that he had recently re-read his affidavit and exhibits and he 'noticed for the first time a feature which had not previously come to my attention'. What he noticed was that in the copy June 2012 will, clause 3(d) (being the gift to Ms Jones) had been crossed out and next to the crossing out were initials, either 'BDA' or 'BA'. He then deposed:

Over the years, especially after 2011, I frequently saw Mr Andrews sign his name to, and initial documents. I recognise the initials on the copy will as being in his hand.

98 Mr Robinson then said that he and his co-plaintiff 'invite the Court to consider whether this document, or part of it, should be admitted to probate along with the informal [document]'. It is not clear what Mr Robinson means by this 'invitation' to the Court and no application was before the Court to amend the plaintiffs' originating motion to take account of this issue.

99 In their written submissions, the plaintiffs put the issue slightly differently by submitting:

If the informal will does not satisfy section 9 of the Wills Act 1997 then the formal will should be granted probate.

A residual question arises as to whether the [June 2012] will might be accepted into probate in all respects except with the deletion of clause 3(d) [of the June 2012 will].

100 Although Mr Robinson deposed to seeing the deceased initial documents frequently, he did not provide any documents initialled by the deceased nor did he discover any documents as examples of the deceased's initials and known to have been by the deceased's own hand. As Mr Robinson has been the deceased's solicitor since the end of 2011, when he took over from Mr James, this could easily have been done by him.

101 Even without expert evidence on this point, a cursory study of the initials on the copy June 2012 will show little similarity to the capital letters in the deceased's signature in his June 2012 will or with the notes in evidence that were written by the deceased, all of which are in upper case script.

102 There is no evidence before the Court to enable a conclusion to be made as to who did the crossing out of clause 3(d) on the copy June 2012 will and or when it was done, as there is no date on the document. Mr Robinson has no relevant knowledge as to these two issues.

103 As well as not making any attempt to sign or date the draft copy will, the deceased did not communicate to anyone that the draft copy will was to have effect as a will. This is in contrast to his actions before he committed suicide when he made the effort to place a note in an envelope, seal and stamp the envelope and post it to Ms Jones.

104 The deceased was in receipt of Mr Robinson's letter dated 27 February 2013 from 1 March 2013, as evidenced by his telephone conversation with Mr Robinson on that date. If the crossing out and initials on the draft copy will were done by the deceased, it could have been done at any time between that date and 8 March 2013. In that last week of his life, the deceased's mental state was poor, the deceased being described by Ms Talbot as depressed, very low and he 'had obviously been sinking loads of alcohol every day'. On the night he died, she said he suffered a head injury, was very upset, was slurring his speech and told her he had drunk ten cans of vodka.

105 There is also no evidence of the deceased's testamentary capacity in the last week of his life, save for 1 March 2013, a matter I will address when I consider the evidence of the deceased's testamentary capacity as at 1 March 2013.

106 The deceased had also made a prior will or wills and had recently been informed by Mr Robinson in his letter dated 27 February 2013 of the need to sign the original of the copy proposed will. Even if the copy June 2012 will was marked and initialled by the deceased at a time when he had testamentary capacity, in my view, it is unlikely that he would consider that by marking and initialling the document alone would be capable of creating a valid amendment to his June 2012 will.

107 To the extent that the plaintiffs now seek to propound the copy June 2012 will in all respects, except with the deletion of clause 3(d), the plaintiffs have not discharged the burden of proof on this issue.

Mr Robinson and the conversations with the deceased on 26 February and 1 March 2013

108 Mr Robinson was the deceased's solicitor since the end of 2011. He was the deceased's solicitor when the deceased made his June 2012 will. His evidence suggests that the deceased had made arrangements with Mr Robinson's predecessor, Mr James, to make a will in 2011. I say suggests because Mr Robinson deposed that the June 2012 will was based on a draft drawn by Mr James. The evidence also suggests that Mr Robinson also did other work for the deceased, such as booking the surprise trip to Europe for Ms Jones' birthday and dealing with the financial settlement with Mrs Parker although Mr Robinson has not referred to this in any of his affidavits.

109 Mr Robinson gives evidence of two conversations with the deceased about his will, the first on 26 February 2013 and the second on 1 March 2013. In respect of each conversation, Mr Robinson has not produced file notes. His evidence of both conversations and lack of file notes suggest that they were brief conversations of little significance.

110 In respect of the conversation on 1 March 2013, Mr Robinson deposed that the deceased said 'the draft will was in the form that he wanted'. There is no evidence of the actual words spoken by the deceased or any other details of the conversation, including whether the deceased confirmed that he wished to execute the will exactly as drafted. Mr Robinson's letter dated 27 February 2013 specifically refers to 'a draft of a proposed new will' and the need to make arrangements for the deceased to sign the original document. There is no evidence as to why arrangements were not made in that conversation by the deceased or Mr Robinson for the signing and witnessing of the original of the draft will, particularly if the deceased did express such a concluded view as to the draft.

111 Contrary to the submissions of the VAAT that the deceased 'evidenced no reluctance to sign the informal document when given an opportunity to do so', there is no evidence that the deceased intended to sign the original of the draft proposed will by, for example, making an appointment with Mr Robinson to do so. Importantly, Mr Robinson did not provide him with the opportunity to sign it on 1 March 2013 or shortly thereafter as no appointment was made for him to do so. The deceased did not sign the informal document at all despite having it from 1 March 2013 until his death a week later.

112 Having previously made his June 2012 will and having possibly made a will before that, the deceased knew that his will had to be signed and witnessed to be valid. He also knew this by having been recently informed by Mr Robinson in writing of the need to sign the original of the draft proposed will. A consequence of having a will drawn by a solicitor is that there is an obvious intention on the part of the intending testator that the document be properly executed and that it take effect once it is properly executed. Consistent with the conclusion of Habersberger J in Fast v Rockman,[41] the deceased is to be taken to be a person who was likely to have been aware of the formalities required for a will to have legal effect. It is unlikely in the circumstances that the deceased would consider that by telling Mr Robinson that the 'will was in the form that he wanted' that this would be sufficient and capable of creating a valid will.

113 Further, the deceased's June 2012 will had been executed before witnesses. Knowing this, he made no effort to sign the copy draft will before witnesses.

114 This case is not a case where the deceased has failed to sign the original of the draft will through matters beyond his own control. From the date of the conversation on 1 March 2013, there was the opportunity for the deceased to sign the original of the copy proposed will. The deceased committed suicide and his death, therefore, was not sudden or unexpected thereby preventing him from executing the proposed new will. This is in marked contrast to the circumstances of the three cases relied on by the VAAT.

The deceased's discussions with people about making a will.

115 In addition to the matters referred to above, the evidence before the Court supports the conclusion that the deceased was a person who talked about making wills but those wills did not necessarily eventuate.

116 Ms Moreland deposes that at some time between 22 June 2009 and 9 January 2010, the deceased was concerned about setting up a will such that Ms Parker's son would be less likely to access Ms Parker's money. There is no evidence that the deceased in fact made a will in such terms around this time.

117 The deceased is then said to have stated to her in a consultation on 29 June 2012 that he had made a will and he 'felt better for having done so'. The will referred to was the June 2012 will where provision was made for Ms Jones.

118 Ms Moreland deposes that on 14 September 2012, the deceased discussed altering his will to leave Ms Jones out. No will was made at this time removing her from the June 2012 will.

119 Ms Bell deposed that the deceased would confide in her and, since about 2005, he would say to her that 'if anything were to happen to him, there would be funds in his will for the cattery'[42] and that 'he would make sure that the cattery was looked after in the event of his death'. The June 2012 will was made during this time and it makes no provision for the cattery despite what the deceased was telling her.

Whether the deceased told anyone he had finalised his will?

120 Whilst there is evidence of the deceased's testamentary intentions around the time of giving instructions for the informal document, there is no evidence of the deceased stating to anyone that he had finalised the changes to his will. In my view, this evidence supports the conclusion that the deceased himself did not consider that his will was finalised.

121 Ms Moreland deposes that in a telephone message on 28 February 2013, the deceased stated that he 'was changing his will', not that he had changed his will.

122 The deceased also spoke to Ms Bell after his relationship with Ms Jones ended. Although she dates the conversation as occurring in mid-February 2013, the preponderance of evidence supports the fact that the relationship ended later in February. Ms Bell states that she had a conversation about the breakup but in that conversation he said nothing to her about his will or that he had finalised a new will in the days before his death.

123 Ms Talbot had a number of conversations with the deceased towards the end of his life and says that since the breakup with Ms Jones, the deceased had arranged to have Ms Jones removed from his will but she does not refer to the deceased telling her that he had finalised a new will.

124 The long conversation between Ms Ridgewell and the deceased on 22 February 2013 includes references to an intention to change his will but the deceased did not ever tell her that he had finalised a new will.

125 Ms Jones deposed that the deceased did not ever tell her that he changed his will by leaving her out of it. She said he did tell her about his June 2012 will and that she knew that under that will she would receive 20 per cent share of his estate. The deceased left a suicide note that made no reference to the informal document or any changes to the June 2012 will. His second note to Ms Jones, received by her the day after his death, made no reference to the informal document or any changes to the June 2012 will. The deceased did not leave any notes or letters to any other person.

126 There is no evidence that the deceased told Mr Robinson that he considered that he had finalised his will. It would be unusual to conclude that to be the case because whilst the deceased told Mr Robinson 'that was what he wanted', the deceased knew from the letter dated 27 February 2013 from Mr Robinson that arrangements to sign the original had to be made once the will was in order.

Did the deceased have testamentary capacity on 1 March 2013?

127 In embarking on an examination of testamentary capacity, opinion evidence may be led, but courts are not obliged to give it a great deal of weight. In Bailey v Bailey, the High Court summarised the effect of the existing authorities on testamentary capacity and said that 'the opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue' and 'while, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions'.[43]

128 The plaintiffs, who bear the onus of establishing the testamentary capacity of the deceased, filed an affidavit by Dr Varma as to the deceased's testamentary capacity. The VAAT submits that the evidence is not to the effect that the deceased lacked testamentary capacity. Mr Robinson also deposed as to the testamentary capacity of the deceased in a limited way.

129 Dr Varma expressed two views as to the capacity of the deceased: the first as at 26 June 2012 when he could 'confidently say' that the deceased had testamentary capacity and the second as at 1 March 2013 when he was 'of the opinion that [the deceased] had testamentary capacity'. This second opinion was based on seeing the deceased on 28 February 2013.

130 In this second opinion, Dr Varma does not use the word 'confidently' as to the capacity of the deceased but his opinion is that he did have capacity. Dr Varma has not addressed the legal test for testamentary capacity and he has not provided any factual basis for his conclusion, apart from stating that he saw the deceased on 28 February 2013. In my view, no weight can be given to Dr Varma's opinion evidence.

131 Mr Robinson's evidence as to the testamentary capacity of the deceased carries little weight for a number of reasons. First, although he deposes to his role as legal adviser to the Nurses Board, it is unclear how this assists in giving his view as to the deceased's testamentary capacity. Secondly, he states a conclusion as to testamentary capacity without giving any basis for it, save for the two conversations referred to by him: the conversations on 26 February 2013 and the conversation on 1 March 2013. He provides no factual basis for his conclusions and he does not address the legal test of testamentary capacity at all. Thirdly, considering that Mr Robinson knew the deceased had a long history of mental illness, as well as the fact that he was taking instructions for a will, it would have been prudent for him to make file notes of his conversations with the deceased, rather than simply rely on his memory. Fourthly, his description of his conversations with the deceased suggest they were short conversations. It is from his memory of those communications that he has formed his view as to the deceased's testamentary capacity. In short, his conclusion as to capacity as at 1 March 2013 is based on a short telephone conversation on 1 March 2013 in which he relies on his memory and in which he did not have any conversation with the deceased concerning the requisite factors that form the basis of the legal test for testamentary capacity.

132 Finally, the evidence of the lay witnesses supports the conclusion that the deceased was erratic and mentally unstable well before 1 March 2013 and until his death on 8 March 2013. In his relationship with Ms Jones, particularly after it ended but also beforehand, the deceased exhibited inconsistent behaviour, alternating between being loving and charming to being abusive and offensive. In his last years, he was drinking and spending time at Delmont Private Hospital. During their time together, Ms Jones spoke of the deceased being difficult to deal with, his excessive grumpiness and throwing tantrums. Ms Talbot refers to the deceased relapsing back to drinking and being in and out of Delmont Private Hospital because of mental instability. The deceased himself spoke about his feelings to others of not being good enough, for example, to Ms Moreland in December 2012, in his notes to Ms Jones and in his telephone call to Ms Talbot the night before his death. When speaking about Ms Jones, Ms Ridgewell and Mrs Parker, the deceased lamented 'how he hadn't done anything right by anyone and how everyone hated him'. Ms Talbot also said the deceased 'felt that no matter what he did to try and help [family members], it was never good enough and no one was ever happy or grateful'.

133 I am not satisfied on the evidence that the deceased had testamentary capacity as at 1 March 2013 or after that date.

134 Although not relevant to this conclusion on testamentary capacity, I note that during the trial the Court was informed that the plaintiffs had reached a settlement with Ms Jones, which included a potential Part IV claim by her against the estate of the deceased. If that is the case, such a settlement may confirm that the deceased lacked testamentary capacity as it would mean that the deceased had failed to understand and appreciate Ms Jones' claims to which he ought to have given effect.

135 For the reasons set out, I am not satisfied that the deceased intended the informal document to be his last will. Accordingly, the application for a grant of probate of the informal document is refused.

136 The plaintiffs seek, in the alternative, a grant of probate of the June 2012 will. The necessary affidavits in support of that application were produced at the hearing. I consider that, subject to any further requirements of the Registrar of Probates, probate of the deceased's will dated 26 June 2012 should be granted to the plaintiffs.

137 I will hear the parties as to the costs of the application. On this issue, the parties should take into consideration the concerns expressed in this judgment regarding the quality of the affidavit evidence filed in the proceeding and the overarching obligation of the parties, as contained in s 24 of the Civil Procedure Act 2010, to ensure that the costs of the proceeding are reasonable and proportionate.

138 I also wish to hear the plaintiffs about one further matter arising from this proceeding. As stated, the Court was informed of a settlement with Ms Jones. Considering the plaintiffs are currently administering the estate of the deceased under the limited ad colligenda bona grant made on 11 April 2014, I wish to understand the basis of and the power of the plaintiffs to enter into the settlement with Ms Jones.

[1] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283; [1941] HCA 22 (Dixon J); Re Grey-Smith [1978] VicRp 56; [1978] VR 596, 604; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706; Re Griffith; Easter v Griffith (1995) 217 ALR 284, 295.

[2] [2007] VSC 415 (24 October 2007) [19]-[20], [23].

[3] Fast v Rockman [2013] VSC 18 (7 February 2013) [45] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [54] (McMillan J). See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]-[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).

[4] Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [55] (Powell JA, with whom Priestley and Stein JJA agreed); Fast v Rockman [2013] VSC 18 (7 February 2013) [114] (Habersberger J); Re Rosaro [2013] VSC 531 (4 October 2013) [37]-[40] (McMillan J); Re Stuckey [2014] VSC 221 (23 May 2014) (McMillan J).

[5] (1991) 23 NSWLR 535 (discussing the equivalent NSW provisions).

[7] Fast v Rockman [2013] VSC 18 (7 February 2013) [112]-[113] (Habersberger J).

[8] Re Springfield (1991) 23 NSWLR 535 at 539.

[9] [2009] VSC 481 ( 15 October 2009) [10] (Harper J).

[10] [2001] NSWCA 408 (30 November 2001) (Priestly, Powell and Stein JJA).

[11] Ibid, [56]. See also National Australia Trustees Limited v Fazeat the estate of Nancy Elaine Lees [2011] NSWSC 559 (10 June 2011) [17] (Windeyer AJ).

[12] Re Stuckey [2014] VSC 221 (23 May 2014) [40]-[41] (McMillan J).

[13] [2013] VSC 18 (7 February 2013) [48] (citations omitted).

[14] [1992] HCA 66; (1992) 110 ALR 449.

[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).

[16] As that standard is applied under s 140(2) of the Evidence Act 2008.

[17] (1870) LR 5 QB 549.

[19] [1941] HCA 22; (1941) 66 CLR 277.

[20] Ibid, at 283, citing Hood J in Re Wilson (1897) VLR 197, 199.

[21] (1870) LR 5 QB 549, 565.

[22] Frizzo v Frizzo [2011] QSC 107 (12 May 2011) [22]; Simon v Byford [2014] EWCA Civ 280 (13 March 2014) (Lewinson LJ).

[23] No earlier wills of the deceased were before the Court.

[24] Victorian Animal Aid Trust v Robinson [2014] VSCA (Unreported, ex tempore judgment, 28 November 2014) [8]-[15] (Neave JA, Ginnane and Sloss AJJA).

[25] [2010] WASC 174 (22 July 2010).

[26] [2007] WASC 249 (29 October 2007).

[27] [2011] WASC 359 (22 December 2011).

[28] [2010] WASC 174 (22 July 2010), [36].

[29] [2007] WASC 249 (29 October 2007), [43].

[30] [2011] WASC 359 (22 December 2011), [57]

[32] [2005] SASC 459 (6 December 2005).

[34] (1988) 14 NSWLR 698

[35] In the Estate of TLB [2005] SASC 459 [44],[47].

[36] [2011] QSC 107 (12 May 2011).

[37] [2014] NSWSC 2014 (7 November 2014).

[38] [2014] QSC 276 (6 November 2014).

[39] [2015] VSCA 60 (16 April 2015).

[40] Further affidavits not in the court book were also relied on by the plaintiffs in relation to proof of matters concerning the June 2012 will.

[41] [2013] VSC 18 (20 March 2012) [112]-[113].

[43] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 572 (Isaacs J