28 On 16 January 2004, the deceased executed an enduring power of attorney prepared by Mr Ryan appointing Ms Gardner as her attorney. (Subsequently, on 29 July 2004, the deceased executed an Appointment of Enduring Guardian prepared by Mr Richardson, appointing Ms Gardner as her guardian.)
29 In or about July 2004, Ms Gardner became concerned that her siblings were intending to throw her out of the family home after her mother's death and were going to take everything and leave Ms Gardner with nothing (T 375). Ms Gardner gave evidence that she was told by a family member that her sisters and brother were out to get her and that they had had a meeting in which this was discussed. (It seems from what was put to Mrs Evans in cross-examination that this meeting was said to have taken place prior to 7 July 2004 - see T 250-252 and T 253.) Ms Gardner admits that she told her mother that this was what she had been told.
30 It seems impossible not to conclude that it was this event which precipitated the making of the 2004 codicil, since Ms Gardner was emphatic that her mother had said she wanted to change her will or to change things to "protect" her. The only thing from which it could be suggested that Ms Gardner, or her mother, thought she needed protection at this stage was the alleged family plan to throw Ms Gardner out of the home.
31 The alleged existence of such a plan first emerged after a number of the siblings had already been cross-examined. Mr Lawson says that he had only then received instructions in relation to the matter (though presumably his client could have raised this at any time from the commencement of the proceedings or indeed the hearing during much of which she was in court). During the cross-examination of Mrs Evans it was put to her that there had been a meeting between the siblings prior to 7 July 2004 (though it is not clear if all were present). She could not recall if Mrs McLeod (her niece) had been present, nor if Ms Gardner had been present (though I note there was no suggestion by Ms Gardner that she had in fact been at that meeting).
32 Although there was some confusion as to whether Mrs Evans was denying the allegation that the siblings had decided to throw Ms Gardner out of the home, or could not recall what had been put to her as to that having been said, ultimately my observation of the manner in which she gave her evidence was that when she said she "swore on the Bible that I did not say that", that was a firm denial of the allegation that the siblings had such a plan (T 251). Mrs Lipscombe, when recalled for further cross-examination on this point, was adamant in her denial (T 253). Instructions were sought by Mrs Bridger from her clients and it was noted for the record that if the same question were to be put to each of the siblings they would similarly deny that there had been a discussion as alleged.
33 I note (as the transcript records I noted at the time) that my observation of the reaction of each of the siblings then in the court room (Mr Gardner being the only one not then present as he had needed to return interstate) when the relevant question was put to Mrs Evans was that there was visible disbelief and indignation at that allegation. The reaction of the siblings was immediate and clearly apparent from the bench, and could not have been rehearsed. I have no doubt this was a genuine reaction.
34 It is significant in my view that it seems that it must have been almost immediately after Ms Gardner conveyed to her mother the information she said she had received as to what was being planned that she contacted Mr Ryan to make an appointment for him to see her mother (and that this was in relation to her mother's will).
35 On 7 July 2004, Mr Ryan visited the deceased and was apparently given instructions about changes to her will. Mr Ryan was not called to give evidence. Ms Gardner admitted that she was present at the house and at the meeting when Mr Ryan met with the deceased. She says this was at the deceased's request. When put to Ms Gardner (at T 376.10) that the deceased had over the years until she died wanted the house to go to all her children, Ms Gardner's response was "Not till she died", perhaps suggesting that she was aware that this had at one time been her mother's intention but in any event indicating that she was certainly aware that her mother did not hold that intention when she died.
36 The most curious part of events was that the following day, 8 July 2004, Ms Gardner contacted another solicitor, Mr David Richardson, and informed him that the deceased wanted to change her will. It is admitted that Ms Gardner made all the telephone arrangements with Mr Richardson (and that she had made most if not all telephone calls on behalf of her mother since 1994). There is no suggestion that the deceased (or Ms Gardner) had had any dealings with Mr Richardson prior to this. Mr Richardson's note of his initial telephone conversation with Ms Gardner (Annexure E to his affidavit) records that the deceased (or perhaps Ms Gardner) had been referred to him by a Jeanette Robertson but Ms Gardner denied any knowledge of a woman by that name (as indeed she denied having conveyed to Mr Richardson almost all the information recorded in his file note which could only have come from her and which he deposed had come to him from her).
37 Ms Gardner gave no explanation in her affidavit as to what had happened on 7 July 2004 nor as to why there should be a change of solicitors in such a fashion. Mr Richardson says he was not told of any such reason. It is not suggested that Mr Richardson knew, until later in the month when he received a letter from Mr Ryan's office forwarding the deceased's will as requested, that Mr Ryan had had a meeting with the deceased the very day before she had given Mr Richardson instructions in relation to the same topic - a change of her will. Nevertheless, I note that when he did learn of this perhaps surprising coincidence of events he did not see any reason to raise a query as to this with the deceased. Mr Richardson's explanation for the fact that this was not a matter of concern to him was that people change solicitors and perhaps she wasn't happy with the advice.
38 However, it does seem to me a matter which might reasonably have put a solicitor experienced in testamentary matters, as he was, on enquiry as to the circumstances in which there had been an apparent overnight change of heart as to who should draft the will (particularly when, as it emerged, the only substantive change which ultimately seems to have been required was to omit Ms McLeod from the gift over provision - a matter not apparently discussed with him on his first meeting with the deceased on 13 July 2004 and therefore presumably not the cause of the desire to change solicitors) at least in circumstances where (by then) he was aware of concerns within the family as to Ms Gardner's influence over the deceased and there had been an unexplained change in direction in terms of his instructions from amending the will to preparing a real property transfer for the sum of one dollar. Mr Richardson clearly had in his mind the potential for a challenge to be made by Ms Gardner's siblings - since he not only says he advised the deceased and Ms Gardner as to the operation of the notional estate provisions of the Family Provision Act, but also took steps (which I detail below) to obtain a medical certificate for use in any such challenge.
39 Mr Richardson's notes do not suggest, and he does not believe, that in Ms Gardner's initial telephone conversation with Mr Richardson any transfer of the family home to Ms Gardner was mentioned.
40 Mr Richardson met with the deceased on 13 July 2004 at the deceased's home. Contrary to what Ms Gardner's affidavit deposed (and to her evidence in the witness box), Ms Gardner must have been present during at least part of the meeting, since Mr Richardson's evidence was that some of the instructions recorded in his file note (in relation to an RB White valuation of the family home (T 196-170; T 183-184) and details of the proposed new executor, Mr David Gumley (T 172/T 187)) were given to him by Ms Gardner.
41 I should note that Ms Gardner's evidence differed from that of Mr Richardson in a number of respects. First, as to what was said to him in the first telephone call arranging the meeting with her mother; secondly, as to where the first and all subsequent meetings at the home took place (Ms Gardner placing these meetings in the kitchen, Mr Richardson in the lounge room); thirdly as to whether Ms Gardner was present for more than the introduction and farewell; fourthly as to whether Ms Gardner had given any instructions or information at all during the meeting; and, crucially, as to whether Ms Gardner was aware of her mother's then expressed desire to transfer the house to Ms Gardner (or had discussed it with her beforehand). Ms Gardner's evidence (on this and other matters) was confused and contradictory. While some of the confusion (as to where the meeting took place or as to how many times Mr Richardson or Mr Ryan had visited the house) may well be explicable as a function of her memory, the adamant denial that Ms Gardner was aware of the proposal to transfer the house to her at any time before 12 August 2004 (as deposed to in her affidavit and both repeated and contradicted in the witness box) defies belief. I regard this as significant because it seems to me that Ms Gardner was at pains to deny anything she thought might damage her denial of the undue influence claim by distancing herself from knowledge that on any view of the matter she must have had prior to 12 August 2004.
It is inconceivable, for example, that Ms Gardner cannot have known that steps were being taken for her mother to transfer the house to her, when Mr Richardson was, among other things, advising her to contact CentreLink to see if this would affect her or her mother's pension arrangements.
42 Given those inconsistencies, I would accept Mr Richardson's evidence (his recollection largely being based on his contemporaneous records and assumptions derived from his usual practice) wherever it conflicted with that of Ms Gardner. It also causes me to be more sceptical of Ms Gardner's evidence generally where it conflicts with that of other witnesses, though ultimately I think nothing turns on the conflicts of evidence between Ms Gardner and her siblings.
43 It was at the meeting of 13 July 2004 that the suggestion was first made to Mr Richardson that the family home was to be transferred to Ms Gardner. If Mr Richardson found it surprising that he had arrived to take instructions in relation to a will and was now being told that the only asset which might devolve under the will was to be disposed of in advance by way of inter vivos transfer, Mr Richardson gave no indication of this. Mr Richardson gave evidence that at the meeting on 13 July 2004 Ms Gardner said words to him to the effect, "My mum wants me to have the house" and that the deceased said, "I want Joy to have the house" (T 187.45). Ms Gardner's evidence, when pressed, was that her mother had said she wanted to "protect her".
44 Relevantly, Mr Richardson's notes record that Ms Gardner had already sought (she says on her mother's instructions) or was arranging a valuation of the house and expected it to come in at $340,000. Ms Gardner says this was the price her mother had put on it (her mother, from all accounts, being someone who had only ever owned one house and there being no suggestion as to the basis on which she might have formed such a view - the only evidence as to discussions with the deceased as to the potential sale of the house being general in nature). Therefore, there is force in Mrs Bridger's submission that someone may already have advised Ms Gardner or her mother as to the steps to be taken for the house to be transferred (which, presumably, would have included setting a value for stamp duty purposes). In any event, it seems apparent that prior to 13 July 2004 some thought had been given by at least Ms Gardner to the possible transfer of the home to her (since there seems no logical reason why a valuation of the home would otherwise have been sought at that stage).
45 In any event, by the end of the meeting on 13 July 2004, Mr Richardson understood that his instructions were to prepare documentation in relation to the will (as to which he says he did not seek full instructions pending receipt from Mr Ryan of the existing will) and as to the transfer of the home to Ms Gardner, hence his query as to whether she had ever previously owned a home (relevant when considering the applicability of a first home buyers' stamp duty exemption).
46 At that meeting, Mr Richardson says he asked the usual questions he would ask in order to satisfy himself as to the testatrix's testamentary capacity and that he formed the view that the testatrix did have testamentary capacity because the answers to his questions were clear and lucid. The questions seem to have related to the testatrix's family members and family matters. Nevertheless, Mr Richardson formed the view that it would be prudent to obtain a medical certificate as to capacity and he says he advised the deceased as to the potential for the transfer to be designated as notional estate. The precise content of the advice and the deceased's response were not in evidence. Mr Richardson said he was satisfied that the deceased understood his advice. Pausing there, it would seem from Mr Richardson's evidence that at that stage the question to which he had turned his mind was the deceased's testamentary capacity. That is not in issue in the proceedings before me. What is in issue is how the deceased's testamentary intention was formed. Similarly, the confidence expressed by Mr Richardson in relation to the lack of any undue influence seems to me to be of little assistance in the task I have to perform, particularly since that confidence is attributed almost solely, it would seem, to the evidence that before the deceased signed the codicil Mr Richardson asked her (in the absence of Ms Gardner) was she absolutely sure that this is what she wanted to do - and the deceased said it was.
47 There was some confusion in relation to the provision of the doctor's certificate on which Mr Richardson apparently placed some reliance at the time in considering capacity. Mr Richardson said he personally attended on the doctor to discuss the matter. Ms Gardner on the other hand was adamant that she had attended the doctor to obtain a certificate. The explanation for this confusion was clarified by Mr Lawson, in that it emerged that there were in fact two certificates (obtained at different times). There is therefore no conflict on the evidence between Mr Richardson and Ms Gardner in this regard. There is, however, an interesting question which arises from the fact that the doctor's certificate obtained by Mr Richardson incorrectly dated the time from which Ms Gardner had been the deceased's companion as being from 1976 (an error which was later repeated in the statutory declaration prepared by Mr Richardson and recorded in his file note of the instructions he said had been given to him by the defence in his meeting with the deceased on 29 July 2004). The initial instructions (Exhibit E) had recorded the date more accurately as being 1988 (though in fact the evidence was that it was 1985, a discrepancy of a few years is not remarkable in the circumstances). What is not clear is from where the doctor obtained the incorrect information recorded in the certificate. Ms Gardner surely could not have been the source of the information as she accepted it was clearly wrong. Mr Richardson had not recorded any such information from the first meeting. Yet by the time of the certificate being issued on 15 July 2004 the date is incorrect and then Mr Richardson apparently either obtains instructions to that effect from the deceased on 29 July 2004 when he next visits her or confirms his understanding of her instructions to that effect on that occasion. I do not know that I should draw from that that the deceased was not as clear and lucid as Mr Richardson deposed, but it does suggest that there was some cross-over of the information between the doctor and Mr Richardson, the effect of which was to overstate the position in the deceased's statutory declaration as to the length of the live-in relationship between the deceased and Ms Gardner. That said, I place no weight on this.
48 By letter of 16 July 2004, Mr Ryan sent to Mr Richardson a copy of the previous will, from which it would presumably have been apparent to him that there was no objective need to change the will in order to "protect" Ms Gardner's right of occupation of the home (since that was already provided for under the 2003 will) and, as noted earlier, that Mr Ryan had had a meeting with the deceased in relation to her will only the day before he had first been contacted by Ms Gardner.
49 On 14 July 2004, Mr Richardson's office received a telephone message (Exhibit E) from Mr Gardner to the effect that he was concerned that his mother was being unduly influenced by his sister. Two things are of interest here. First, it is by no means clear to me how it was that Mr Gardner (based in Queensland) had become aware of the proposal to change the will or knew that Mr Richardson was involved in any way. As that was not explored in the hearing, it is not possible for me to comment further on that or to draw any useful inference therefrom. Secondly, Mr Richardson seems to have done nothing to satisfy himself as to whether there was any foundation for that concern. He does not recall returning Mr Gardner's call, although he assumes he would have done, but more importantly he does not convey to the deceased the concerns which had been conveyed to him in relation to the arrangements.
50 On 29 July 2004, Mr Richardson attended the deceased's home to take instructions in relation to the will, having by then received her earlier will from Mr Ryan. His file note of that meeting (Annexure G) was in narrative form (almost as if summarising the attendance for inclusion in an account). There was a suggestion that the information recorded in it had been supplied by Ms Gardner (from the deletion of the word "her" to "you" in the sentence "Noting that for many years Joy has been the only one of your family to show any real care or concern for you"). While I doubt that too much can be read into this error, it does raise a concern as to whether the matters subsequently recorded in the statutory declaration as to the deceased's relationship with the siblings reflect the deceased's view of events uninfluenced by Ms Gardner's views on the matter.
51 On this occasion Mr Richardson advised that "Joy Gardner should check with Centrelink to ascertain how (if at all) your pension would be affected by any transfer". Presumably that related to the deceased's pension, although the slip-up between "her" and "you" later in the note might raise a doubt as to whether there was advice given as to any effect on Ms Gardner's own pension.
52 There was evidence that on 3 August 2004 a telephone message had been recorded on Mr Richardson's file from Ms Gardner chasing up the will. There was no evidence as to what the objective urgency could have been at this date. While this fact is of little weight it does add to a picture of there being a desire (whether on the part of one or both of the deceased and Ms Gardner) to have the documentation concluded quickly.
53 On 5 August 2004, there was a further meeting at the deceased's home. Mr Richardson's file note (Annexure H) records this as being an attendance "re transfer of home to Joy Gardner". Noted against that is an indication that on 10 August 2004 Ms Gardner had confirmed that enquiries of Centrelink had indicated that the deceased's pension would not be reduced by more than $70 if the home was transferred to Ms Gardner; and that the transfer and codicil were to be signed and ready on 12 August. (It is submitted by Mrs Bridger, and this seems to be the case, that there is no evidence that the deceased knew about any reduction in her pension because of the transfer of the property or was consulted as to whether she could manage on a reduced pension.)