HORNSBY -v- HORNSBY [No 2] [2014] WASC 434 (21 November 2014)

Supreme Court of WA|2014-11-21|Before: Heenan J

1 EM HEENAN J: Colleen June Hornsby, late of 8 Unit Street, Wagin, Western Australia, library officer and farmer, died on 25 April 2009 at the Regional Hospital in Narrogin. She was then aged 68 years, having been born on 8 April 1941. She was a widow, her husband, Alan Leonard Hornsby, having predeceased her on 7 June 1978. She never remarried. There are two children of the marriage, Craig Leonard Hornsby, the defendant, who was born on 7 June 1965, and Sharon Judith Hornsby, the plaintiff, born on 1 June 1968.

2 Three wills of Mrs Colleen Hornsby are, variously, being propounded for probate in this action. They are, in chronological order:

will dated 28 July 1988 appointing Craig Leonard Hornsby and Beverley Irene Cheriton (a sister of the deceased) as co-executors

3 By a motion filed in this court in its non-contentious probate jurisdiction on 14 August 2009, the plaintiff applied for proof in common form of her late mother's will of 1 December 2008, being the third and latest of the three wills. This application was supported by an affidavit of 14 August 2009 of the applicant as the executor deposing to all the matters required by Non-Contentious Probate Rules r 8. The rule 9B statement accompanying that application disclosed assets of the deceased valued at $384,536 and liabilities of $34,836, so revealing a net value of the estate of $349,699. The assets included moneys in a superannuation account and other investments located outside the State to a total value of $91,547 and the deceased's house and land at 8 Unit Street, Wagin, estimated to be worth $130,000. They do not include Quinns Farm or the former shareholding in Wesfarmers Ltd for reasons which will soon appear.

4 This non-contentious application did not continue because Craig Hornsby lodged a caveat on 24 September 2010 against any grant, claiming to be a beneficiary under a prior will of his mother dated 29 May 1996 and, to the extent that there might be an intestacy or partial intestacy, as a person entitled to distribution on such an intestacy as a child of the deceased. Various submissions were made by the parties in the noncontentious proceedings but, in view of the claims made by the defendant, these present proceedings for proof in solemn form of the last will of the deceased became inevitable.

5 By the statement of claim, as amended, Sharon Judith Hornsby seeks a grant of probate of the will dated 1 December 2008 on the grounds that it is the last will of the deceased. Alternatively, if proof of the 2008 will is not established, she seeks a grant of probate of the will of 29 May 1996 on the grounds that, in this alternative, that is the last valid will.

6 Craig Leonard Hornsby opposes any grant of probate of either the alleged will of 2008 or the alleged will of 1996 on the grounds that:

(a) his mother lacked testamentary capacity at the time she made each will;

(b) his mother was in a position of special disadvantage in relation to the plaintiff and she was induced to execute the wills and other specified documents (to be mentioned later) by reason of unconscionable conduct of the plaintiff or, alternatively, of an accountant, Debbie Keillor, acting on behalf, and for the benefit, of the plaintiff; and

(c) further or alternatively, the deceased was induced to execute the two wills by reason of the undue influence of the plaintiff or, further or alternatively, of the accountant, Debbie Keillor, acting on behalf of and for the benefit of the plaintiff.

7 The defendant counterclaims for a grant of probate for himself alone of his mother's will of 28 July 1988 with leave being reserved to the named coexecutor, Beverley Irene Cheriton, to come in and to prove.

8 As to the practice of a court of Probate to grant to one only of several executors named in a will, reserving the power to make a like grant to those others who are competent to act and who have not renounced if any seeks to come in and prove, see generally: Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (dec) v Lilburne [2010] WASC 152 [44] - [49] where the bases for making a second or double grant of probate are described, together with the factors which might allow a court to decline to make such a double grant. No issue of that nature has arisen in the present case.

9 The plaintiff opposes her brother's counterclaim on the grounds that her mother's will of 2008 is the last valid will of the deceased or, alternatively, that her last valid will was the will of 29 May 1996. The plaintiff accepts that the will which her brother seeks to propound by his counterclaim, namely the will of 28 July 1988, was valid when made but pleads that it was revoked by the mother's subsequent will of 1996, which in turn was revoked by the will of 2008, which itself was effective to revoke all former wills.

10 Various members of the Hornsby family had been farming in and around Wagin for very many years. There are two properties which feature prominently in these proceedings. The first is 'Quinns Farm' which, until shortly before the death of Colleen Jean Hornsby, was owned solely by her. The second is 'Lake View Farm', which never formed part of the deceased's estate but, in circumstances which will be more fully described later, was owned for a time by a company which Craig Hornsby controlled. Lake View was sold long before his mother's death.

11 The deceased also owned a block of land with a house upon it in which she had been living in Wagin for some years before her final hospitalisation. That is situate at and known as 8 Unit Street, Wagin. The deceased and her daughter, Sharon, the plaintiff, also owned, as joint tenants, a house and land situate at and known as 2A Bristol Avenue, Bicton, in Perth, which was bought for Sharon with financial assistance from her mother in or about 1991. The whole of that property passed to Sharon by survivorship on her mother's death.

12 The paternal grandparents of the plaintiff and the defendant, John Leonard Frederick Hornsby ('Jack') and his wife, Mary King Hornsby, had acquired the original portions of Quinns Farm in 1957. On the death of Jack Hornsby, that property passed to the father of the plaintiff and the defendant, Alan Leonard Hornsby, and was registered in his name in July 1964. Then in August 1976 those lands were transferred by the plaintiff's father to himself and the deceased as tenants in common in equal shares. Then on the death of Alan Leonard Hornsby on 7 June 1978, the whole of that portion of Quinns Farm was transferred to the deceased in April 1979, following the grant of probate of the will of Alan Leonard Hornsby.

13 The parents of both the plaintiff and the defendant purchased two additional blocks which then became part of Quinns Farm as unimproved land the subject of Crown grants. They were progressively developed and cleared by the plaintiff's parents following their purchase. All that land, less a number of small portions resumed from time to time, became known as and has consistently been referred to as 'Quinns Farm'. It is situated at 89 Urquart Road, Jaloran, in the Shire of Wagin. The deceased and the late Alan Leonard Hornsby were living there when each of the plaintiff and the defendant were born and the family continued to live there and farm the property until Alan Hornsby died in 1978, after which the family stayed on and while it was farmed and managed by the deceased and then, for a period, by the defendant and his wife.

14 In 1995 Sharon Hornsby returned to live at Quinns Farm with George Bolt, whom she later married. The plaintiff and George Bolt then assisted the deceased in running Quinns Farm and did so continually until Mrs Colleen Hornsby's death in April 2009. They have continued to live at and work Quinns Farm since then and now live and work on the property which has been transferred into Sharon's name in circumstances which will be described in detail later. That transfer and Sharon's continued ownership of Quinns Farm is the subject of challenge by the defendant, again for reasons which will be described later.

15 The great-great-grandfather of the plaintiff and the defendant had purchased the land known as 'Lake View Farm' in or about 1901. That is the land situate at and known as 'Lake View' on Dumbleyung Road. The parties' grandfather, John Leonard Frederick Hornsby, inherited Lake View in 1950. It comprised approximately 1,000 acres of high quality farming land about half an hour's drive distant from Quinns Farm. Under a contract of sale dated 11 August 1969 Jack Hornsby sold that land to a family company, J Hornsby & Co Pty Ltd but the land was not actually transferred to that company until November 1994 but, nevertheless, was subject to the control of J Hornsby & Co Pty Ltd since the contract of sale of August 1969. The shareholding of J Hornsby & Co Pty Ltd was, during those years, divided into A, B and C-class shares and ordinary shares with the control resting with the A-class shareholder for his life, and then the B-class shareholder for her life, and then the C-class shareholder for his life with those A, B and C-class shares reverting to ordinary shares on the deaths of each such shareholder. The A-class shareholder was John Leonard Frederick Hornsby and on his death his widow, the grandmother of the plaintiff and defendant, Mary King Hornsby, the B-class shareholder, had control of the company. The Cclass shareholder was Alan Leonard Hornsby (the father of the plaintiff and the defendant) but because he predeceased his mother, Mrs Mary Hornsby, his share never conferred control of J Hornsby & Co Pty Ltd. Some 20,000 ordinary shares in J Hornsby & Co Pty Ltd were held by the defendant.

16 The Lake View Farm was leased by John Leonard Hornsby and Mary King Hornsby (the plaintiff's and defendant's grandparents) in 1987 to Mrs Colleen Hornsby and the defendant. In 1994 a dispute arose between the defendant and his grandmother over the lease of the Lake View Farm which resulted in court proceedings, which will be described later. Those proceedings were eventually settled and under the settlement the defendant and his mother were granted a new lease of the Lake View Farm by Mrs Mary Hornsby, through the company, J Hornsby & Co Pty Ltd, for her life. On the death of Mrs Mary Hornsby in December 2000 control of J Hornsby & Co Pty Ltd passed to the defendant, Craig Hornsby. He then leased Lake View successively to tenants and later sold the property.

17 At various times the deceased and her late husband, with the plaintiff and the defendant as their children, had lived on the Lake View property while Jack and Mary Hornsby, lived at Quinns. Also, at times when the deceased and her late husband, Alan Hornsby, and the family had been living at Quinns Farm both properties had been farmed together or Craig Hornsby had assisted his father and mother in working on Lake View as well as running Quinns. The details of these earlier operations of the two farms are rather intricate but need not be determined or recorded further here in view of the ultimate sale of the Lake View Farm by J Hornsby & Co Pty Ltd, then under the control of the defendant.

18 The house and land at 8 Unit Way, Wagin, was left to the deceased and her sister, Mrs Beverley Irene Cheriton, by Irene Georgina Alsford (the plaintiff's and defendant's maternal grandmother) on her death on 28 July 2004. The deceased later acquired her sister's interest in the property and moved to live there from Quinns Farm. That was her principal residence at the time she received her cancer diagnosis in December 2007 and before she began her cancer treatment culminating in hospitalisation for palliative care in about March 2009.

19 In or about 1995 the defendant bought land at Denmark, near Albany, and he and his wife and family moved there after earlier leaving the Lake View Farm. They remained there for some years before moving to Bunbury, where the defendant now lives and works as a real estate agent. The defendant's move to Denmark followed efforts by him to persuade his mother, the deceased, to sell Quinns Farm and pay him 'his half-share' of the proceeds, which would allow him to purchase the Denmark property. In outline, the defendant demanded that his mother should sell Quinns and give him half the proceeds to buy a property in Denmark. That fell through, because his mother refused to sell Quinns Farm. Instead she provided financial assistance in money and in kind (in stock and plant given or transferred to the defendant) to enable him to buy a different property in Denmark.

20 It must be said that neither in 1995, nor at any other, time did the defendant have any proprietary interest in the Quinns Farm, nor did he assert one. Rather, his position was that in view of all his efforts over the years in helping to work both Quinns Farm and Lake View he believed that he should have a share in the property eventually and that he wished and hoped that his mother would then sell Quinns and pay him his share in order to establish himself and his family in the different venture which the first Denmark purchase proposed. It is enough to say, at this point, that the evidence discloses, and I find, that these demands of the defendant of his mother caused resentment which exacerbated the embarrassment and regret that she felt over having been drawn into litigation with her mother-in-law, Mrs Mary Hornsby, over the dispute concerning the lease of Lake View in 1994.

21 It is the fact that from 1995 onwards the relationship between the deceased and her son changed and that they only saw or communicated with one another infrequently. The evidence satisfies me that the assistance which the deceased provided to the defendant, as a mixture of money and other property (stock, machinery and farm supplies), in the eventual solution to his demands for assistance to buy a property in Denmark represented, in her mind, about half of all that she was worth at the time. That contention was strongly contested by the defendant in his evidence and by his counsel in cross-examination of the family accountant when the defendant contended that the value actually provided by his mother was less than she had promised and was, at least for many years, carried as a debt in the family and company books rather than being treated as a gift.

22 The counter-explanations provided by the accountant and appearing from the materials are that the book value of the assets transferred, machinery, stock, etc, was less than their market value at the time and that as the dispositions were gifts and not sales there was no occasion or necessity to fix their market value at the date of disposition. Furthermore, the submissions for the plaintiff and the explanations by the accountant were that the financial assistance provided by the deceased for her son was also associated with a series of steps to be taken by him involving his resignation as director from various family companies and variations of the terms of various family trusts to record the defendant's disengagement from the existing family companies and trust structures. According to the family accountant, the defendant was refusing or delaying to complete these various formalities and their resolution lingered on for quite some time during which the moneys paid by the deceased to, or to the order of, her son were recorded as advances in the books of account.

23 It is neither necessary nor possible to determine in these proceedings whether the payments made by the late Mrs Hornsby to her son, Craig, associated with his eventual move to Denmark represented or approximated half of her then estate, or whether the deceased resiled to some degree from the performance of the promises which she had made, or whether the entries in the various books of account accurately reflected the value of the assets which were transferred, or the nature of the transaction giving rise to them. None of those issues bears on the validity of any of the wills which is being propounded in this action. They do, however, show that from about 1995 onwards the relations between the deceased and her son were, sadly, distant and troubled.

24 Much of the Hornsby family business and/or ownership of the family property came to be conducted or held through various companies and trusts. An appreciation of these is necessary to follow the dispositions in the wills and the contentions of the parties, particularly the submissions by the defendant that the second and third wills are invalid or connote a lack of testamentary understanding and appreciation by the deceased at the time they were made.

25 The company, J Hornsby & Co Pty Ltd, which eventually became the proprietor of the Lake View Farm has already been mentioned, together with an explanation of how, with the successive deaths of the paternal grandparents of the plaintiff and the defendant and the early death of their father, its A, B and Cclass shares became converted to ordinary shares, leaving the defendant, Craig Hornsby, as its controlling shareholder. That company was deregistered in 2004 after Lake View had been sold. It does not feature further in these proceedings.

26 Hartsdale Pty Ltd is a family company which continues in existence and which is, or was, trustee of four separate family trusts.

27 However, there are five trusts of relevance in the action, which are:

28 As will be seen, the control of Hartsdale Pty Ltd, and the trusts of which it was from time to time a trustee, has been affected by a number of changes or variations together with dispositions in the wills being propounded.

29 Another company, Hornsby (WA) Pty Ltd, has been incorporated and substituted as the trustee for certain of the family trusts. Hornsby (WA) Pty Ltd has at all material times been controlled by the defendant, Craig Hornsby.

30 The Hornsby Family Trust was established by a deed of settlement dated 12 April 1978 (exhibit 3). The settlor was one Raymond Peter Johnson, a Wagin farmer, and the trustee is Hartsdale Pty Ltd. It is a typical discretionary trust with primary and general beneficiaries and a guardian and appointor with powers prescribed by the deed of settlement. The guardian and appointor was the deceased, Colleen June Hornsby, and the primary beneficiaries were the children of the marriage of Alan Leonard Hornsby and Colleen June Hornsby and those two parents themselves. It was due to vest on 30 June 2000. General beneficiaries included primary beneficiaries and brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers and sisters, spouses, children and grandchildren and certain others, including other trusts, corporations or other entities in which any general beneficiary had an interest.

31 That deed of settlement was varied on 4 January 1998 by a deed of variation of trust (exhibit 68) by conferring on the trustee additional powers in relation to the accounting of income for the trust; by appointing Hartsdale Pty Ltd as an additional member of the class of general beneficiaries, and by extending the vesting date to 30 June 2057.

32 The Hornsby Family Trust was again varied by a second deed of variation dated 1 December 2008 (exhibit 40). By this deed, the plaintiff, Sharon Judith Hornsby, was appointed as joint appointor and guardian together with her mother, Colleen June Hornsby, and it was further provided that on the death of Colleen June Hornsby the plaintiff, Sharon Hornsby, would become the sole appointor and guardian and on her death her children would become the joint appointors and guardians to act in conjunction with her husband, George Bolt, if they were under 25 years of age but with restrictions on the amount of income which could be allocated by George Bolt.

33 This second variation of the deed of settlement of the Hornsby Family Trust was executed on the same day as the latest will of the deceased and is one of several transactions documented at the same time as the will and is also challenged by the defendant as being invalid and ineffective for similar reasons.

34 The Lake View Trust was established by a deed of settlement dated 4 October 1994 (exhibit 4). The settlor was John Durham Pascoe, an accountant of Kojonup, and the trustee was Hartsdale Pty Ltd. It nominated the defendant, Craig Leonard Hornsby, as guardian and appointor with the powers conferred on those offices by the deed of settlement and further provided that Craig Leonard Hornsby could appoint another or other persons as either guardian or administrator 'by will or instrument in writing revocable or irrevocable' and failing any such appointment then, upon his death, Sophia Anne Hornsby (the defendant's wife) or any other person whom she may by will or instrument in writing appoint and failing such appointment, such of the primary beneficiaries as then should be living. The primary beneficiaries identified in that deed of settlement are the children of Craig Leonard Hornsby and additional members of the class of general beneficiaries as Sophia Anne Hornsby and any spouse of that person or person related by blood or marriage to her or to her spouse. The general beneficiaries are defined widely by cl 1 of the deed and extend to brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and others, including corporations, trusts or entities in which any general beneficiary may have an interest.

35 The Lake View Trust deed of settlement was itself varied by a deed of appointment of new trustee dated 6 August 1996 (which while not in evidence has been referred to in the oral evidence of the parties without objection). That deed to which the defendant, Craig Leonard Hornsby, is a party, removes Hartsdale Pty Ltd as trustee and appoints as new trustee Hornsby (WA) Pty Ltd.

36 The Urquart Trust was established by a deed of settlement dated 4 October 1994 (exhibit 6). The settlor was one John Durham Pascoe, an accountant of Kojonup, and the trustee was Hartsdale Pty Ltd. The vesting day was nominated as being 30 June 2073 and the guardian and appointor were named as being Craig Leonard Hornsby, the defendant, or such other person or persons as he may by will or instrument in writing, revocable or irrevocable, appoint and, in the event of the failure of such appointment upon his death Sophia Anne Hornsby and Colleen June Hornsby, acting jointly or the survivor of them acting alone or such other person as they or one of them may by will or instrument in writing, revocable or irrevocable, appoint and failing any such appointment then upon the death of the second named person such primary beneficiaries as should then be living acting jointly.

37 The primary beneficiaries of the Urquart Trust are the children of Craig Leonard Hornsby and the additional members of the class of general beneficiaries are Craig Leonard Hornsby and Colleen June Hornsby and any spouse of either and any person or persons related by blood or marriage to that person or that person's spouse. The general beneficiaries are defined widely to include the primary beneficiaries and brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers and sisters and any other entities including trusts, unit trusts, corporations or other legal entities in which any of the general beneficiaries has an interest.

38 The deed of settlement of the Urquart Trust was in turn varied by a deed of appointment of a new trustee dated 6 August 1996. (This deed is not in evidence but was referred to without objection in the oral evidence at the trial and I have been expressly referred to it by written submissions filed with the consent of both parties immediately after the trial.) By this deed, to which Craig Leonard Hornsby is a party in his capacity as appointor of the Urquart Trust, Hartsdale Pty Ltd was removed as trustee and Hornsby (WA) Pty Ltd appointed as the new replacement trustee.

39 The Quinns Trust was established by a deed of settlement dated 4 October 1994 (exhibit 5). The settlor is the same John Durham Pascoe, accountant of Kojonup, and the trustee is Hartsdale Pty Ltd. The deed specified 30 June 2073 as the vesting date. The named primary beneficiaries are the grandchildren of Colleen June Hornsby (that is, the children of Craig and/or Sharon). Additional members of the class of general beneficiaries were named as Sharon Judith Hornsby, Craig Leonard Hornsby and Colleen June Hornsby and any spouse of any of those persons and any person related by blood or marriage to those persons or to their spouses. The deed of settlement appointed as guardian and as appointor, with the powers designated in the deed, the deceased, Colleen June Hornsby, or such other person as she may by deed revocable or irrevocable appoint, and failing any such appointment then, upon the death of Colleen June Hornsby, Craig Leonard Hornsby or such other person as he may by will or deed appoint and failing any such appointment upon his death such primary beneficiaries as shall then be living acting jointly.

40 For reasons which will appear, it is significant to note that the power of appointment of a new appointor or guardian granted by this deed of settlement to Colleen June Hornsby was exercisable by deed and not by will, although the subsequent power of appointment to Craig Leonard Hornsby, in default of appointment by his mother, was exercisable by deed or will.

41 The general beneficiaries of the Quinns Trust are defined extensively by cl 1 to include the primary beneficiaries, brothers, sisters, spouses, widows, widowers, children and grandchildren of primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers and sisters, spouses, children and grandchildren and any other entities, including trusts, will trusts, unit trusts, corporations or other legal entities in which any general beneficiary has an interest.

42 The Quinns Trust deed of settlement was in turn varied by a deed of appointment of a new trustee dated 11 February 2011 (this deed was not in evidence but again the effect of it was referred to without objection in oral evidence at the trial and I have been referred to it by further written submissions filed shortly after the trial with the consent of the parties). By that deed Hartsdale Pty Ltd was removed as trustee and a new trustee, Hornsby (WA) Pty Ltd, was appointed instead.

43 The Hornsby Farming Trust was established by a deed of settlement bearing the date 26 November 2008 (exhibit 29). The settlor is Debbie Lee Keillor, accountant of Kojonup (a witness at the trial) and the sole trustee is Sharon Judith Hornsby, the plaintiff. The vesting date nominated is 30 June 2088. The deed nominates as guardian and appointor in each case the plaintiff, Sharon Judith Hornsby, or such other person as she may by will or instrument in writing appoint and, failing any such appointment, then on her death such primary beneficiaries as shall then be living, if more than one, acting jointly, provided that if not all of the primary beneficiaries shall then have attained the age of 25 years then George Alexander Lesley Bolt shall act as guardian and appointor until the date the youngest primary beneficiary shall attain the age of 25 years, subject to certain restrictions specified in the deed.

44 The primary beneficiaries are the children of Sharon Judith Hornsby. The general beneficiaries are defined widely to include the primary beneficiaries and brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries, and the spouses, widows, widowers, children and grandchildren of such brothers, sisters, spouses, children and grandchildren and a range of other entities including charitable foundations and other entities including trusts, unit trusts, corporations or other entities in which any of the general beneficiaries has an interest.

45 This deed of settlement also provides for a transferor who is nominated as being the deceased, Colleen June Hornsby. The deed of settlement does not appear to specify the role or obligation of this transferor but no issue was raised about it by either party and I shall, therefore, not pursue that matter.

46 The Hornsby Farming Trust, of which Sharon Hornsby was appointed the sole trustee, was established at about the same time as the last will of the deceased. There is some controversy over whether or not it was actually executed on 26 November 2008 or whether it was not executed until 1 December 2008 but it, also, is one of a series of transactions occurring at or about that time which are relied upon by the defendant as pointing to testamentary incapacity of the deceased at the time that will was made and pointing to other factors suggesting invalidity of that will.

47 Consequently, it will be seen that of the five trusts named, by the date of the deceased's death Hartsdale Pty Ltd remained trustee only of the Hornsby Family Trust. The newest or most recent trust, Hornsby Farming Trust, has as sole trustee the plaintiff, Sharon Judith Hornsby.

48 The litigation concerning the family dispute over the lease of the Lake View Farm which occurred in 1994 has already been briefly mentioned. This litigation (CIV 1488/94) involved an initial claim by Mrs Mary King Hornsby (the paternal grandmother of the plaintiff and the defendant) against the defendant Craig Hornsby by which the plaintiff Mrs Mary King Hornsby was seeking to have declared terminated the right of Craig Hornsby and his mother to farm Lake View under a lease of March 1987. It resulted in a counterclaim brought by Craig Hornsby, his mother and Hartsdale against Mrs Mary King Hornsby personally and against her as executrix and trustee of the estate of her then late husband John Leonard Frederick Hornsby (deceased), the company J Hornsby & Co Pty Ltd. and a Mr and Mrs Baxter, apparently the proposed lessees of the land. The details of the litigation are more fully set out in exhibit 147, an affidavit of the present defendant's solicitor seeking admission of the litigation to the expedited list.

49 The litigation included claims that the late John Leonard Frederick Hornsby had sold the land to J Hornsby & Co Pty Ltd under a contract of sale in August 1969 and that that company had agreed to lease the land to Hartsdale Pty Ltd under a lease of 17 October 1994. Control of J Hornsby & Co Pty Ltd passed to the defendant on the death of his grandmother and the consequent reversion of her B class shares to an ordinary share as previously described. There was then an assignment of the October 1994 lease by Hartsdale Pty Ltd to Hornsby WA Pty Ltd and a further lease to J Hornsby & Co Pty Ltd of May 1997.

50 The litigation was eventually settled on the basis that the attempt to lease Lake View to the Baxters did not proceed and that Craig, and then J Hornsby & Co Pty Ltd took a lease of that land for the remainder of his grandmother's life on agreed terms. The details of the litigation and its ultimate settlement need not be more fully described. The eventual result was that the defendant Craig succeeded in securing for his company a further lease of Lake View for the remainder of his grandmother's life and, through his control of J Hornsby & Co Pty Ltd, eventual ownership of Lake View. This enabled Craig by his company to sublease the land to other tenants before eventually selling it. The significance of the episode, insofar as the present proceedings are concerned, is to identify this litigation as a cause of embarrassment to the deceased because she was named as a party in the litigation aligned with her son against her motherinlaw resulting in at least the partial defeat of Mrs Hornsby's initial intentions. The second aspect of the significance of this litigation is that it resulted in Craig, through his company, succeeding to eventual control of Lake View and his ability to sell that valuable farm in his own interests.

51 The original of this will has been lost or destroyed, yet it is the will which the defendant propounds by his counterclaim.

52 The evidence establishes that on or about 24 June 1988 the late Mrs Colleen Hornsby met with her solicitor, the late Mr Peter B Marks, at Wagin, to discuss and give instructions for the preparation of a will. Mr Marks replied to her by letter of 24 June 1988, enclosing a draft will for consideration (exhibits 127 and 162). That draft, after revision, was sent to Mrs Hornsby for final approval by letter of 5 July 1988 (exhibit 129) and it was then executed by her at Wagin on 28 July 1988 (exhibit 129). The witnesses to the will were Mrs Diane Lyn Davidson, then of Wagin, receptionist, and Mr P B Marks, deceased.

53 Mrs Davidson gave evidence about the execution of the will and its witnessing by herself and Mr Marks at his Wagin office on 28 July 1988. Mr Marks died in 2007 but his handwriting on the manuscript drafts of this will and instructions for it and the annotated copy of the letter from his firm to the deceased of 5 July 1988 were all confirmed by Mrs Davidson. In evidence she gave an account of being familiar with the process of execution and witnessing of wills prepared by Mr Marks, which she did frequently when in his employ. She also confirmed that she remembered Ms Hornsby at Wagin and remembers her visiting Mr Marks' office there, although she did not have any specific recollection of the occasion when this will was executed. Her evidence also was that it was Mr Marks' practice after wills had been executed to give the original to the client rather than to keep it among his firm's records. Accordingly, I accept the evidence that a will of the deceased in the form drafted and witnessed by Mr Marks on 28 July 1988 was duly executed by the deceased on that date and given to her for safe keeping.

54 Mrs Hornsby was, by all accounts, a systematic and experienced businesswoman, having successfully managed Quinns Farm since her husband's death on 7 June of 1978. She regularly kept the books of accounts of the family business and dealt with the family accountants. I accept that she was systematic in the keeping of records and that she kept important papers and documents at her home at the farmhouse at Quinns Farm.

55 It has clearly been established that that homestead was destroyed by an accidental fire on 18 August 1998 and that many, if not most, of Mrs Hornsby's records and documents kept at the home were destroyed in that fire, including, probably, two of the several duplicate certificates of title to Quinns Farm.

56 As set out in Powell v Dinwoodie [2012] WASC 139 and Hansen v Hansen [2013] WASC 268, there is a presumption of fact, one which is therefore rebuttable, that the original of a duly executed will which was last known to be in the custody of the testator and which, after a careful and appropriately comprehensive search, cannot be found, was destroyed by the testator with the intention of revoking it. If there is no evidence to rebut the presumption and no other will can be located, the testator is treated as having died intestate. In Powell v Dimwoodie [32] I observed:

The law has long recognised a presumption that a will which is shown to have been in the possession of the testator but which cannot be found after his death has been destroyed animo revocandi and hence revoked - Welch v Phillips (1836) 1 Moo PC 302; 12 ER 824 and McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434. This presumption has been recognised and considered in a series of cases, including Orifici as Executor of the Estate of Rosaria Giuseppe Orifici v Orifici [2007] WASC 74 (Hasluck J); Dalton v Dalton (Unreported, WASC, Library No 970479, 24 September 1977) (Parker J); and by myself in Scarpuzza v Scarpuzza [2011] WASC 65; Sawyer v McKenzie [2011] WASC 215; and even more recently in Proud v Proud [2012] WASC 134. Having reviewed those authorities in Sawyer v McKenzie I observed in that case [36] - [37]:

It has been said that where the will makes a careful and complete disposition of the testator's property and there are no other circumstances to point to a probable destruction animo revocandi by the testator, the presumption is so slight that it may be said not to exist; Sugden v Lord St Leonards (supra) and Finch v Finch (1867) LR 1 P&D 317, cited by Powell J in Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, SCNSW, 13 May 1993 [26] - [27]). Nevertheless the presumption exists and if there are circumstances implying that it is improbable that the will would have been destroyed by the testator animo revocandi, then it will be rebutted but, if not, it will be given such weight as the particular facts and circumstances suggest.

The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention; Re Hampshire [1951] W.N. 174. The presumption may also be rebutted by evidence that the testator lacked the necessary capacity to revoke the will by destroying it

57 See also Curley v Duff (1985) 2 NSWLR 716, 718 - 719 (Young J) and Smith v Pitcher [2010] WASC 352 (Murray J).

58 I have no hesitation in concluding that the destruction of the deceased's will of 28 July 1988 by the fire at Quinns in August 1998 was not a destruction animo revocandi. The fire was not the result of any deliberate or intentional act by the testator and was wholly unexpected and destructive of her interests. Accordingly, the loss of the will was entirely accidental, unaccompanied by any intention to revoke it. For the reasons which follow the will had, in any event, by the time of the fire, already been revoked by the subsequent testament of 1996 or, if not, by the still later testament of 2008.

59 By this 1988 will Mrs Hornsby appointed her son, Craig Leonard Hornsby, and her sister, Beverley Irene Cheriton, as her executors and trustees. Subject to the payment of all her funeral and testamentary expenses and other debts, the will makes the following dispositions:

(a) all Mrs Hornsby's farming land to the defendant, Craig Leonard Hornsby;

(b) in relation to all moneys owed to her by the Hornsby Family Trust, she forgave the said trust the payment of those moneys provided that the trustee of that trust transfer to the plaintiff, Sharon Judith Hornsby, investments having a value at the time of transfer of $100,000 within one year of the date of her death;

(c) all her shares in Hartsdale Pty Ltd were given to the defendant, Craig Leonard Hornsby, and he was appointed as the guardian and appointor of the Hornsby Family Trust in her place;

(d) all items of jewellery and personal use and adornment were given to her daughter, Sharon Judith Hornsby;

(e) all the rest and residue of her estate was given to her two children as tenants in common in equal shares.

60 The reference to all the deceased's farming land being given to the defendant by that will is a reference to Quinns Farm, it being the only farming land then owned by the deceased, she never having had any personal ownership of the Lake View Farm.

61 At the time that will was made the deceased had not acquired her mother's property at 8 Unit Street, Wagin, nor had she acquired with her daughter, Sharon, the joint interest subsequently acquired in the house and land at Bicton. If this will were the last valid will of the deceased then, of course, the disposition of the land at Wagin would form part of the disposition of the residuary bequest, equally to her two children, but the land at Bicton would still go solely to Sharon by survivorship.

62 The evidence shows that in 1988 there were only two shares issued in Hartsdale Pty Ltd and that one each was held by the deceased and by the defendant, Craig Hornsby. That position later changed. Craig's share was later transferred to Sharon and then the deceased's share was still later transferred, with the result that by December 2008 the only remaining shareholders of Hartsdale Pty Ltd were the plaintiff, Sharon, and her husband, George Bolt.

63 As previously noticed, the power of Colleen June Hornsby as appointor under the deed of settlement of the Hornsby Family Trust to appoint another person as appointor could be exercised by deed or will. Consequently, the provisions in the will of 28 July 1988 appointing Craig Leonard Hornsby as appointor of the Hornsby Family Trust in place of the deceased would have been effective, were that the last valid will of the deceased.

64 In short, therefore, the basic effect of the deceased's will of 28 July 1988 was to appoint two executors and trustees, give Quinns Farm to the defendant, forgive all debts due to the deceased by the Hornsby Family Trust on condition that its trustee transfer to the plaintiff investments to the value of $100,000, and that Craig Hornsby be given the deceased's share in, thereby giving him full control of, Hartsdale Pty Ltd, and be appointed as guardian and appointor of the Hornsby Family Trust. All personal items of jewellery, etc, were left to the plaintiff. The residue was to be shared equally between the plaintiff and the defendant.

65 As already noted, the defendant has counterclaimed for a grant of probate of this will to himself alone but with liberty for the named co-executor, his aunt, Mrs Cheriton, to come in and prove. No advance notice by the defendant of his intention to seek a grant of probate of his mother's will of July 1988 to himself alone was ever given to his aunt, the co-executor, Mrs Cheriton. At one time it was not necessary for one of several executors seeking a grant to himself alone, on the basis that the coexecutor or coexecutors could come in and prove, to give notice to the other named executor or executors, although that is now a requirement for common form grants in this court: see Practice Direction 9.1.4.

66 Mrs Cheriton was not aware of the significance of her nephew's application in this regard until she gave oral evidence. When asked whether she would be content for her nephew to obtain a sole grant of her sister's will in the event that the 1988 will proved to be the last valid of the deceased, she said that she would not be willing to consent to any such course and would wish to have a role in the administration of her sister's estate for various reasons, including the sense of responsibility which she had towards her sister arising from having been chosen for this role.

67 In these circumstances, I do not consider that, if the 1988 will were the last valid will of the deceased, a grant of probate should be made to the defendant alone without further investigation occurring. Rather, if this eventuality were to come to pass, I consider that the application for probate of this will should be adjourned so that sufficient notice could be given to Mrs Cheriton to apply for probate of the will to be granted to herself and to her nephew together, rather than being left in a position where she only had liberty to come in and prove but in the meantime the defendant had a full grant of representation of the estate.

68 That result could be achieved by declaring, were that to be the correct result, that the will of 28 July 1988 was the last valid will of the deceased and that the two persons entitled to a grant of probate were the defendant and Mrs Cheriton, and that the proceedings should be adjourned to give notice of these findings to Mrs Cheriton and to allow her a sufficient period to join in the application for the grant of probate or, should she wish to do so, object to any grant being made to the defendant alone or jointly. That could then be the subject of directions and case management and, depending upon the outcome, a grant could be expected to follow.

69 The early part of 1995 involved time and attention being given by Mrs Colleen Hornsby to the defendant's demand that she should sell Quinns Farm and give half the proceeds to her son, allowing him to purchase the property which he wanted at Denmark. When Mrs Hornsby eventually decided against the selling of Quinns Farm, or at least selling it immediately for that purpose, she explored the prospects of raising money and making payments to Craig together with the provision of plant, machinery and stock to allow him to proceed with the purchase of land at Denmark. This process involved terms requiring Craig to resign as director of Hartsdale Pty Ltd and to transfer his share in that company to Sharon. It seems that the option of selling Quinns Farm was kept open by Mrs Colleen Hornsby, at least in the short term, pending consideration of whether Sharon and George Bolt were willing and able to assist in or take over the running of Quinns, which they later agreed to do.

70 Throughout this period of difficult negotiations and anxious consideration, Mrs Colleen Hornsby was constantly dealing with and taking advice from her accountant, Mrs Keillor, who, by February 1996, had advised her that she needed to do a new will (exhibit 85). By then Mrs Keillor was aware of the contents of the earlier 1988 will, although her means of knowledge of its contents was in issue, but nothing turns on that. Mrs Keillor's understanding of the contents of that will was that, by it, the deceased left all the farming property to Craig and, in view of the recent financial rearrangements, that disposition needed to be revised.

71 This led Mrs Keillor to prepare preliminary drafts of a deed of appointment of a new trustee for the Quinns Trust (exhibit 93), a deed of variation of the Hornsby Family Trust (exhibits 81.1 and 81.2) and a deed of appointment of subsequent appointor and guardian for the Quinns Trust (exhibits 79.1 and 79.2) but there is nothing to show that those drafts were finalised or executed.

72 On the same date, 29 May 1996, Mrs Keillor prepared a handwritten or manuscript will for the deceased, making different dispositions, and this was executed by Mrs Colleen Hornsby that day. This will (exhibits 1.1 and 1.2) is on a standard stationer's will form with the operative provisions being written in manuscript by Mrs Keillor. That will was executed on 29 May 1996 in the offices of John Pascoe & Associates Accountants on Albany Highway, Kojonup, where Mrs Keillor was also an accountant. The will was executed by Mrs Hornsby in the presence of two witnesses, Mrs Debbie Keillor and Ms Glenys Estelle Russell, who was the personal assistant of Mr John Pascoe, a principal of the firm, and who knew Mrs Hornsby as a client of the firm. The two witnesses each then subscribed their names as attesting witnesses to the instrument, which has a standard attestation clause. Both Mrs Keillor and Ms Russell gave evidence at this trial of the due execution of that will and those formalities were not in any way challenged. I find that this will was executed in conformity with the requirements of s 8 of the Wills Act 1970.

73 By the will of 29 May 1996 the late Colleen June Hornsby appointed her daughter, Sharon Judith Hornsby, the plaintiff, as her sole executor but provided that if she should fail to survive her that she appointed Beverley Irene Cheriton to act in her place. As the plaintiff has survived her mother, she is the sole executor named by this will.

74 After making provision for the payment of all debts, funeral expenses and any death duties, Mrs Hornsby by this will gave, devised and bequeathed her property as follows:

(a) Any interest I have in farming land or any other real estate to the Quinns Trust settled by John Durham Pascoe on 4th October 1994.

(b) Any moneys owed to me by the Hornsby Family Trust settled by Raymond Peter Johnson on 12th April 1978 I forgive to that trust subject to the payment by that trust of $50,000 to my son, Craig Leonard Hornsby, and a further $50,000 to be divided equally between the children of Craig Leonard Hornsby. Such payments are to be indexed from 1 July 1996 at the CPI rate or similar and are payable in five (5) equal annual instalments free of interest with the first instalment due twelve (12) months after the date of my death.

(c) I appoint my daughter, Sharon Judith Hornsby, to act as appointor and guardian of the Hornsby Family Trust.

(d) I appoint Sharon Judith Hornsby to also act as appointor and guardian of the Quinns Trust.

(e) Any shares I hold in Hartsdale Pty Ltd to Sharon Judith Hornsby.

(f) All items of my jewellery and of personal use and adornment to my daughter, Sharon Judith Hornsby.

(g) The rest and residue of my estate to Sharon Judith Hornsby provided she should survive me by fifty six (56) days. If she should fail to so survive me, I leave the rest and residue of my estate to be divided equally between my grandchildren.

75 At the date of that will the interest which the deceased had in farming land or other real estate comprised the Quinns Farm and the house and land at 8 Unit Street, Wagin. She did, of course, have a joint interest with the plaintiff in the house and land at Bicton but because of the joint tenancy that property did not devolve by her will.

76 Also at the date of that will Hartsdale Pty Ltd was the sole trustee of the Quinns Trust of which, as already set out, the primary beneficiaries were the grandchildren of the deceased and the general beneficiaries were Sharon Hornsby, Craig Hornsby and the deceased herself. The variation of that trust by the appointment of the new trustee, Hornsby (WA) Pty Ltd, did not occur until February 2011, as already mentioned. However, by the other changes made in or after February 1996 Craig's share in Hartsdale had been transferred to Sharon with the remaining share in that company held by the deceased which, under this will, would pass to Sharon, giving her control of Hartsdale, as the appointor and guardian of the Hornsby Family Trust. This meant that all distributions of capital and income arising from Hartsdale's ownership of the farming lands and other real property of the deceased would be at the discretion of the trustee with the power of appointment of that trustee in the sole hands of Sharon.

77 The forgiveness of debts due by the Hornsby Family Trust to the deceased was on condition that payments of $50,000, subject to indexation, would be paid to Craig and his children, thereby making provision for him under this testament, to the opposite effect of the corresponding disposition contained in the 1988 will, under which Craig got the farming land and Sharon was to be paid $100,000 as a condition of the release of the debt due by the Hornsby Family Trust to the deceased.

78 The will also purports to appoint Sharon as the appointor and guardian of the Quinns Trust. However, the deed of settlement of the Quinns Trust (exhibit 5), as already noted, provided that those powers of appointment were exercisable by the deceased by deed without any reference to them being exercised by will. For this reason, the defendant submits that even if this will were valid it would not constitute an effective exercise of the power of appointment by the deceased of Sharon to the role of either appointor or guardian of the Quinns Trust, with the result that upon a failure of the deceased to exercise that power of appointment in her lifetime, Craig would succeed to the office of appointor and guardian of the Quinns Trust under the provisions of the deed of settlement.

79 However, the principal submission of the defendant arising from this controversy over the validity of the attempted testamentary exercise of the deceased's power of appointment to the office of appointor and guardian of the Quinns Trust is of a more far-reaching nature. The defendant contends that this defective exercise of that power of appointment was due to an error or lack of understanding by Mrs Keillor, who drafted the will, and that this establishes, or at the very least suggests, that Mrs Colleen Hornsby would not have then understood the nature and significance of the testament, was acting under the direction or influence of Mrs Keillor, and did not have a proper appreciation of the property and powers which she could dispose of or exercise by her will, leading to the conclusion that this will was never valid.

80 As set out, the will provides for the residue of the estate to be distributed to Sharon on her surviving the deceased by 56 days or, if not, to be divided equally between her grandchildren, being all the children of Sharon and Craig. No specific criticism or challenge is made of this part of the will but the challenges which have been made by the defendant seek to invalidate the whole testament.

81 The importance of these challenges to the deceased's will of 29 May 1996 are vital for Craig because otherwise the May 1996 will would have had the effect of revoking the 1988 will which he is propounding in his counterclaim: Wills Act s 15(a). Furthermore, the 1988 will contains an express clause revoking all previous wills and testamentary dispositions made by the testator.

82 The significance of the contention by the defendant that the 29 May 1996 will is ineffective to appoint Sharon Hornsby to the positions of appointor and guardian of the Quinns Trust, with the result that the defendant succeeds to those positions in default of appointment, was not advanced on the basis that it made any material change in the control of significant assets of the deceased or over which she had a power of appointment. The actual assets held by the trustee of the Quinns Trust were not specifically identified or valued or in any way singled out for attention in the submissions of the parties. Rather, this proposition advanced by the defendant was put forward on his behalf as demonstrating a lack of understanding by the deceased of her testamentary role and powers, a reflection of her acting at the direction of her accountant without comprehending fully what that entailed and a consequent lack of testamentary capacity and validity of the instrument.

83 A further challenge by the defendant was made to this will of 29 May 1996. The defendant pointed to uncontested evidence of Mrs Keillor that at the time this will was made both she and Mrs Hornsby realised that the will would need further refinement and change in the near future and that, as a consequence, it was not a valid testament because it was only provisional, not intending to reflect the final testamentary choices of the testator.

84 This raises the question of whether the document of 29 May 1996 was intended by the deceased to be her will or, as it was frequently expressed in the past, whether it was made animo testandi. For a will to be accepted as valid, the court must be satisfied that it was executed by the testator with the intention that it should take effect as her will - that is, that it should be accepted as recording the settled intentions of the testator at that time as to the distribution of her property in the event of death and that it should not be tentative, provisional or merely an expression of proposals which had not, at that time, been finally and unequivocally adopted by the testator. So, for example, a will instrument which although apparently valid on its face is shown to have been executed in jest without the intention that it should operate as recording the testator's intention for the disposition of her property on death will not be granted probate - Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113; or where it appears that the testator's intentions are not finally settled because he made two inconsistent wills on the same day, indicating a lack of decision about the final disposition of his property, such a will will also be refused probate: Re Horner (deceased) [1965] VicRp 24; [1965] VR 177.

85 The question of whether a particular instrument records the final settled testamentary intentions of the deceased frequently arises in cases dealing with applications to admit to probate an alleged informal will under pt X of the Wills Act. I have discussed the requirements for the necessity for any such proposed informal will to embody the final expression of testamentary intentions upon which the testator was then resolved in many cases, including Deeks v Greenwood [2011] WASC 359 [71]. However, this requirement is just as indispensable in cases of formal wills if it should appear from the surrounding facts or circumstances that the testator may not have been finally settled upon the intentions for the disposition of his or her property which are recorded in the instrument when it was executed.

86 Nevertheless, the possibility that at the time a will was executed the testator may have contemplated or even intended that at some future time, even possibly in the near future, he or she may need to revise or alter the will by making a subsequent will or codicil is not inconsistent with the first instrument being valid, having been made animo testandi. All wills are revocable by the testator during his or her lifetime so long as testamentary capacity is retained. Any will is ambulatory, that is, that it has no effect and confers no benefit on any person unless and until the testator dies with that will unrevoked - see generally Re Full Board of the Guardianship & Administration Board [2003] WASCA 268; (2003) 27 WAR 475, especially at [58] - [62]. It is an inevitable and commonplace eventuality that people change their wills at intervals during their lifetimes because of changing circumstances: their own prosperity or misfortune; developments within the family involving the birth of children or further children or grandchildren; and many other obvious circumstances.

87 Sometimes a will will be made in haste because the testator is about to embark upon some perilous enterprise, such as a serviceman or woman about to depart for active service. Such instances include patients about to undergo some serious surgical operation and the dire effects of receiving news of a diagnosis of some fatal disease. The urgency which such situations may produce will often result in a testator deciding, quite unconditionally and intentionally, that his or her will should be changed to a new will made in particular terms even if, at the same time, the testator harbours the thought that if he or she survives for any length of time a more fully considered testament might later be made. It is not uncommon for wills of this kind to be made immediately by a spouse following the break-up of the marriage and before any existing will is revoked by eventual divorce, as will now occur by virtue of s 15(2) of the Wills Act.

88 A will made in those circumstances will not be regarded as provisional, tentative or conditional: In the Goods of Cawthron (1863) 3 Sw & Tr 417; In the Estate of Vines [1910] P147; and Re Govier [1950] P237, although those circumstances may give rise to the need for close scrutiny.

89 In the present case, the defendant submits that the will of 29 May 1996 was not valid and effective and, therefore, not capable of revoking the will of 1988 which he is propounding because it did not embody the final expression of testamentary intentions. He also submits that this appears because it contained an ineffective exercise of the power of appointment of Sharon Hornsby as appointor and guardian of the Quinns trust, that being a power not exercisable by will. This latter contention, so it was submitted, demonstrates that Mrs Hornsby was misled as to the effect of the will by wrong advice from the draftswoman, Mrs Keillor, and that the document thereby failed to give effect to her intentions. There is, however, a difference between the absence of any settled intention by a testator to make a will in particular terms and a mistake or misapprehension by the testator as to the legal effect of terms expressed in the document. There is no reason to doubt that Mrs Hornsby executed the May 1996 will intending that it should then operate as her last will according to its terms. If she was mistaken as to the legal effect of the terms of the testament, then that would not invalidate a will. There are many instances of provisions in wills failing to have effect or full effect but such results do not detract from the validity of the remaining provisions of the testament: In the Estate of Beech (dec) [1923] P46 [53] - [54] and Collins v Elstone [1893] P1.

90 The plaintiff's position in this regard, however, is that although it was contemplated or realised that it would be desirable, even necessary, for the will to be changed at some time in the near future, or be replaced by a more fully considered testament, that did not in any way detract from the intention that this particular will should stand and have full effect if Mrs Hornsby were to die before making any further will. The urgency, from the perspective of Mrs Keillor and the deceased at that point, was to revoke the 1988 will which provided that the farming property was, in effect, to go to Craig and instead provide that it should be under the control of Sharon, who should also be in full control of the Hornsby Family Trust and of the Quinns Trust.

91 The plaintiff's position in relation to the alleged ineffectiveness of the exercise of the power of appointment to the role of appointor and guardian of the Quinns Trust is that if this is inefficacious, then this does not in any way diminish or invalidate the other dispositions of this will.

92 It is, of course, well established, subject to certain statutory relaxations as to formalities, that every circumstance required by an instrument creating a power to accompany its execution must be strictly observed - Halsbury's Laws of England, vol 36 [264] and Rutland v Doe d Wythe (1843) SC 10 Cl & Fin 419; [1843] EngR 986; 8 ER 801. So, a power of appointment exercisable by deed cannot be exercised by will and its purported exercise will be ineffective. There is, however, an acknowledged jurisprudence that if the execution of a power is invalid at law through failure to comply with all the requirements of the power, equity will in certain cases aid the execution: Halsbury op cit [359]; Sugden on Powers (8th ed) 532. In Halsbury the learned authors there observed:

The principle is that whenever a person who has power over an estate, whether or not a power of ownership, shows an intention to execute the power in discharge of some moral or natural obligation, equity will act on the conscience of those entitled in default of appointment and compel them to perfect the intention. Provided there is an intention to pass the property to the persons to be benefited, an intention to do so by an exercise of the power is not essential. However, in addition to the intention, it is essential to establish the amount of the benefit, and good consideration; and a lack of any of these suffices to prevent the court from aiding the invalid execution. (footnotes omitted)

93 Those principles were examined in Alison v Alison [1934] HCA 33; (1934) 51 CLR 653 where the defect in the exercise of the power of appointment was that the document purporting to exercise the power had been written out by the donee but not signed and the alleged exercise of the power was held to be ineffective because it was case of non-execution of the power rather than ineffective execution of the power. Dixon J said (661):

When the donee of the power exhibits an immediate intention to exercise it, but fails to take the formal steps necessary to do so, an equity arises against those who take in default of appointment, in favour of those who would have taken under the attempted exercise of the power, but for its irregularity, if they afford a good or valuable consideration, or are persons for whom the donee of the power is under a greater obligation to provide than for the persons taking in default of its exercise.

94 The power of appointment in question in Alison was a power of appointment associated with a marriage settlement and, as to this, Dixon J also said (661):

The appellant's marriage constitutes a good consideration. Moreover, as the wife of her husband whose children were provided for, she was, in the view of a Court of equity, the object of a natural obligation on the part of her husband to make some provision for her, a meritorious consideration.

95 However, in that case the court did not come to aid the defective exercise of the power of appointment, not because of absence of merit, but because the evidence established that the donee of the power had not made any attempt to exercise it in her favour. This non-execution of the instrument intending to exercise the power could not be regarded as a defective attempt to exercise the power.

96 An extensive discussion of the exercise and requirements of a power of appointment and the interests of the objects of the power is to be found in the judgment of Barwick CJ in Lutheran Church of Australia South Australia District Inc v Farmers' Co-operative Executors & Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628; [1970] ALR 545, 634 - 635. However, that does not conduce to show that Sharon Hornsby had any equity in the office of guardian or appointor of the Quinns Trust which should be assisted or protected by the remedial role of equity in aiding an ineffective exercise of the power of appointment contained in the deed of settlement for the Quinns Trust or, even if she did, that it was in any way superior to the interests of her brother, Craig Hornsby, who took as appointor and guardian in default of the valid exercise of the power.

97 It may be open to question whether this remedial doctrine of equity is still available. This is because of academic observations to the effect that it probably has little if any relevance in modern conditions - Thomas On Powers (2nd ed, 2012) 8.37, where the learned author refers to Breadner v GranvilleGrossman [2000] EWHC Ch 224; [2001] Ch 523; [2001] 2 WLR 593 where Park J observed at 548 that it was a doctrine last applied in 1908 and was falling into disuse. For earlier examples of the exercise of the power see Chapman v Gibson [1778] EngR 49; (1791) 3 BRO CC 229; 29 ER 505; Lowson v Lowson [1791] EngR 1406; (1791) 3 BRO CC 272; 29 ER 532; and Holmes v Coghill [1806] EngR 123; (1806) 12 VES Jun 506; 33 ER 79.

98 These niceties need not be pursued because counsel for the plaintiff expressly disavowed any attempt to seek the intervention of equity to remedy what, otherwise, was a defective exercise of this power of appointment and frankly conceded that the attempted exercise of the power by that clause in Mrs Hornsby's will was ineffective.

99 The significance of this equitable doctrine, therefore, is that it points towards the remaining provisions of the will being valid and effective rather than suggesting that an ineffective exercise of the power of appointment would invalidate the entire testament. As already stated, however, the defendant's submissions go further than this because they contend that the inefficacy of this exercise of the power of appointment shows a lack of appreciation by the testator of her testamentary powers and obligations and, in misunderstanding them, it establishes want of testamentary capacity or invalidity on wider grounds.

100 This will was drafted by Mr M J Rogers, solicitor, of the firm Michael Rogers & Associates of Mead Street, Kalamunda, which for many years had a branch office at Albany Highway, Kojonup, where, in fact, Mr Rogers had lived and worked full-time until 1985 and thereafter commuted to Kojonup on Thursdays and Fridays of each week. Mr Rogers had been providing advice to clients in the Kojonup area, especially clients of the accounting firm Pascoe & Partners, since 1982 and he knew Mrs Debbie Keillor as an accountant and partner of Pascoe & Partners. She had called upon him at his Kojonup office on 27 November 2008 to give instructions to prepare a new will for Mrs Colleen Hornsby and also a deed of variation of the Hornsby Family Trust. He was told by Mrs Keillor that Mrs Hornsby had cancer and that her condition was terminal and that those and other documents which she mentioned were required as a matter of great urgency.

101 These instructions had been obtained by Mrs Keillor from Mrs Hornsby directly at a meeting which she had with Mrs Hornsby at her home in Wagin on 26 November 2008 - the previous day. They are contained in the letter from Mrs Keillor to Mr Rogers of 26 November (exhibit 22) the appendix to which details the instructions. In view of its importance, I set it out in full:

ATTACHMENT A

Colleen Hornsby 26 November 2008

The Hornsby Family Trust (Settled by Raymond Peter Johnston on 12 April 1998

Deed of Variation to add Appointer/Guardian: Sharon Judith Hornsby to join Colleen June Hornsby as joint Appointor and Guardian. On the death of Colleen June Hornsby then Sharon to act solely and to have power to appoint by deed or will and failing such appointment then such of the children of Sharon that survive her acting jointly subject to the condition that should the youngest child not yet be 25 then her husband George Alexander Lesley Bolt is to act as Appointor/Guardians until such time as the youngest child turns 25 years.

Settle new family trust - special Stamp Duty Exempt Part IIIAAB [sic] III BAA.

Name: Hornsby Farming Trust

Settlor: Debbie Lee Keillor, accountant of RMB 311 Kojonup WA 6395

Settled sum: $10

Settlement date: 26 November 2008

Primary Beneficiaries: The children of Sharon Judith Hornsby, Farmer of 'Quinns', 89 Urquart Road, Wagin, WA

Additional Beneficiaries: Sharon Judith Hornsby and George Alexander Lesley Bolt

Appointor/Guardian: Sharon Judith Hornsby and whoever she by Deed or Will appoints and failing such appointment then on her death such of her children as survive her acting jointly subject to the condition that should the youngest child not yet be 25 then the husband George Alexander Lesley Bolt is to act as Appointor/Guardians until such time as the youngest child turns 25 years.

Trustee: As per provisions for Appointor/Guardian

Will - Colleen June Hornsby

Executor

Her daughter Sharon Judith Hornsby, farmer of 'Quinns', 89 Urquart Road, Wagin and if she fails to survive Colleen then her sister Beverley Irene Cheriton, 11 Nenke Street Wagin to act in her place

Provisions

1. All debts and expenses to be paid.

Any debt owing to her by any family trust to be forgiven to that Trust.
Any interest in any farming lands to the Hornsby Farming Trust settled by Debbie Lee Keillor on 26 November 2008.
Any shares in Hartsdale Pty Ltd to her daughter Sharon Judith Hornsby.
Residence at 8 Unit Street, Wagin to her daughter Sharon Judith Hornsby.
Proceeds of any superannuation as follows:

$50,000 to my son Craig Leonard Hornsby Businessman of Mandurah 2. $25,000 each to her grandchildren Jennifer Hornsby and Emily Hornsby

$40,000 to The Colleen Hornsby Testamentary Trust to be established for the benefit of the children of Sharon Hornsby being Brittany Pearl Bolt and Lloyd Hornsby Bolt

Remainder to The Hornsby Family Trust
Any shares to The Colleen Hornsby Testamentary Trust for the benefit for the children of Sharon Hornsby.
The rest and residue of my estate including all personal effects, household furniture, motor vehicle, bank accounts or proceeds of insurance policies to her daughter Sharon Judith Hornsby.
Should her daughter Sharon predecease Colleen then any bequests that Sharon would otherwise have received are to go to the Golleen Hornsby Testamentary Trust for the benefit of Sharon's children.

Debbie Keillor

Pascoe Partners

26 November 2008

102 Mr Rogers has explained that at this conference he discussed with Mrs Keillor the purpose for the establishment of the new trust under the provisions of Part IIIBAA of the Duties Act 2008 (WA) and because, in his view, the only purpose of such a trust would be to allow the transfer of the farming land to take place by way of family change free of stamp duty - in this case, from Colleen to her daughter Sharon. At the end of the meeting Mrs Keillor informed Mr Rogers that she would take further instructions from Mrs Hornsby in relation to the transfer of the farm to Sharon by contract of sale and, secondly, for the gifting of moneys owed to her by Hartsdale Pty Ltd as trustee of the Hornsby Family Trust.

(a) a deed of variation of the family trust (which became exhibit 40);

(b) the unexecuted copy of the will for Mrs Colleen June Hornsby (which, after execution, became exhibit 35);

104 Mr Rogers had not seen Mrs Colleen Hornsby nor received the instructions for the will or for any of the other documents directly from her. He enquired of Mrs Keillor whether he should accompany her to visit Mrs Hornsby at her home on the occasion when the will was to be executed. Kojonup is about an hour's drive or so from Wagin and it would have involved considerable time and, by implication, expense, for Mr Rogers to attend on Mrs Hornsby for the execution of the will. Mrs Keillor responded that she would seek instructions from Mrs Hornsby about the proposal but assured Mr Rogers that the client was of undoubted mental capacity. Later she informed Mr Rogers that Mrs Hornsby did not require him to attend at her home for the execution of the will.

105 The full details of the circumstances of the execution of the will and the other documents by Mrs Hornsby at her home in Wagin on 1 December 2008 will be described later. For the present it is enough to say that I find that the will was executed by Mrs Hornsby at her home at 8 Unit Street, Wagin by Mrs Hornsby signing each page in her own handwriting and in the presence of two witnesses, Mrs Julie Mangalavite and Mrs Yvonne Reece Hamersley, who were neighbours requested to call in for the occasion to witness the document. Mrs Debbie Keillor was also present at the time the will and other documents were signed and witnessed but she did not witness the will. Both Mrs Mangalavite and Mrs Hamersley were called to give evidence and were cross-examined at this trial. I am satisfied that their evidence and, for that matter, also the evidence of Mrs Keillor, establishes due execution of this will.

106 The will itself is in orthodox form, typed, and obviously drafted by a lawyer. It begins with a provision revoking all former wills and testamentary dispositions and then appoints as sole trustee Sharon Judith Hornsby but provides that if she should predecease her or otherwise be unable to act that Mrs Colleen Hornsby's sister, Beverley Irene Cheriton, should act as trustee in her place. There is then a clause forgiving all debts due to Mrs Colleen Hornsby at the date of her death by the trustee of any family trust with which she was associated. Other dispositive provisions in the will are as follows:

I GIVE any interest I may have at the date of my death in farming land to the trustee of the HORNSBY FARMING TRUST settled by Debbie Lee Keillor on 26 November 2008.
I GIVE to my daughter SHARON JUDITH HORNSBY:

(a) my shares in Hartsdale Pty Ltd and

(b) any interest I may have in the residence at 8 Unit Street, Wagin.

I DIRECT that if my superannuation member benefits are paid to my estate then but not otherwise I GIVE:

(a) to my son CRAIG LEONARD HORNSBY the sum of FIFTY THOUSAND DOLLARS ($50,000);

(b) to each of my grandchildren JENNIFER HORNSBY and EMILY HORNSBY the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000);

(c) to my Trustee the sum of FORTY THOUSAND DOLLARS ($40,000) to be held upon and subject to the trusts contained in the Schedule to this my Will; and

(d) to the Trustee of the Hornsby Family Trust the remainder of my superannuation benefits.

I GIVE any shares other than those in Hartsdale Pty Ltd which I may own at the date of my death to my Trustee upon and subject to the terms of the COLLEEN HORNSBY TESTAMENTARY TRUST established in terms of the Schedule to this my Will.
I GIVE the rest, residue and remainder of my estate, including my personal effects, household items, interest in motor vehicles, bank accounts and proceeds of insurance to my Trustee UPON TRUST to pay my just debts, funeral and testamentary expenses and to stand possessed of the residue of my estate then remaining UPON TRUST absolutely for my said daughter SHARON JUDITH HORNSBY.
I DIRECT that if my daughter SHARON JUDITH HORNSBY shall predecease me leaving a child or children shall survive me then such child or children shall take and if more than one in equal shares between them a share of my estate which is, her or their mother would otherwise have taken.

107 Then follows annexure C, being 'Rules Containing Testamentary Trusts Terms and Conditions'. This is the testamentary trust referred to in cl 7 of the will and it runs to some nine pages and 17 clauses (all included before the attestation clause of the will and the signature of the testatrix and witnesses). It provides that the name of the trust so constituted is 'The Colleen Hornsby Family Trust' and it appoints Sharon Judith Hornsby as trustee and upon her death her children acting jointly. The 'trust' is identified as being:

the Trust created by Clauses 6(c) and 7 of the Will

(a) the cash property and investments transferred and conferred upon the Trustee pursuant to Clauses 6(c) and 7 of the Will of the Testator;

(b) all moneys, investments and property paid or transferred to and accepted by the Trustee as additions to the Trust Fund;

(c) all accretions and additions to the Trust Fund from whatsoever source; and

(d) the investments and property from time to time representing the money, investments, property, accumulations and accretions of the Trust Fund.

109 The trust is constituted as commencing on the death of the testator, to continue until the vesting day on 30 June in the year 80 years after 30 June immediately preceding the date of death of the Testator, subject to the vesting day being as specified earlier by the trustee in his absolute discretion with the consent of the guardian. The appointor and guardian are each separately defined as being Sharon Judith Hornsby and upon her death her children acting jointly.

110 The trust estate is to be held for the benefit of primary beneficiaries and general beneficiaries. The primary beneficiaries are the children of Sharon Judith Hornsby and the general beneficiaries are defined as being and including the primary beneficiaries, the brothers, sisters, spouses, widows, widowers, children and grandchildren of the primary beneficiaries and the spouses, widows, widowers, children and grandchildren of such brothers, sisters, spouses, children and grandchildren. The appointor has the power to remove and replace the trustee. The guardian is the person who is required to consent to all major decisions concerning the trust and whose consent is essential for a valid determination by the trustee as prescribed by cl 10. The rules contain details relating to trusts and income and for trusts of capital. There are ample powers of investment and general powers for the trustee and other provisions relating to the conduct of the financial accounting rules of the trust.

111 It is significant to note that neither Sharon Judith Hornsby nor her husband is a primary beneficiary under this testamentary trust. It follows from this that if, at the date of her death, Mrs Colleen Hornsby had owned any farming land and, in particular, the Quinns Farm, then by this will that farm would be devised to the trust for the benefit of the primary and general beneficiaries on the terms contained in the testamentary trust but without any beneficial interest actual, contingent or expectant being conferred upon Sharon Hornsby or her husband.

112 The disposition of the testator's shares in Hartsdale Pty Ltd provided for by the will would mean that Sharon became the sole shareholder in Hartsdale, which itself was the trustee of the Hornsby Family Trust. Sharon would also receive the house and land at 8 Unit Street, Wagin, and, by survivorship, the whole of the estate in the house and land at Bristol Avenue, Bicton.

113 Craig Leonard Hornsby, and his two daughters, the grandchildren of the testator, were to receive legacies totalling $75,000 but only from superannuation benefits which may be paid to the deceased's estate. Neither Craig nor his family were to receive any other benefits under this will.

114 This is the will which is being propounded by the plaintiff. In view of her survival of her mother and her willingness to act as trustee, Sharon is the sole person entitled to any grant of probate and the substitute executor, Mrs Cheriton, is not presently entitled to any form of grant of representation.

115 As earlier mentioned, the defendant opposes any grant of representation in relation to this will, contending that it is not valid. That contention is based on lack of testamentary capacity by his late mother due to the effects of the illness from which she was then suffering and her treatment, including chemotherapy, which she was periodically receiving. The history of Mrs Colleen Hornsby's illness, medical and hospital treatment and the hospital and medical evidence relating to her condition over the last year or so of her life will be examined later.

116 The defendant also contends that this will is invalid because it was executed as a result of the undue or unconscientious influence by the accountant, Mrs Debbie Keillor, to such a degree that it did not represent the true and considered wishes of the deceased; further, the defendant contends that this is an 'inofficious will' (see Brown v M'Encroe [1890] NSWLawRp 34; (1890) 11 LR (NSW) Eq 134, 135 per Owen J) but, as I observed in The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [195] there may be circumstances in which one can understand how a deceased may have decided to make such a will without being driven to the conclusion that the deceased was deluded or devoid of testamentary capacity.

117 The defendant further contends that there are suspicious circumstances associated with the making and execution of this will such that a heavy burden will be cast on any propounder of the will to dispel any doubts which the court may entertain about the validity of the will or the propriety of the influences which may have led to the testator's choice of testamentary provisions, and unless such suspicions are dispelled the court should refuse to make any grant of probate in respect of it.

118 If a will is duly executed and witnessed in accordance with the requirements of s 8 of the Wills Act by a testator apparently of sound mind and competence, there is a presumption of knowledge and approval by the testator of the contents of the will and, hence, its validity: Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 [24]. Three presumptions arise from due execution: testamentary intention; testamentary capacity; and knowledge and approval of the contents of the will: Fisher v Kay [2010] WASCA 160 [85]. In such circumstances, if there is any evidence to the contrary, the onus remains on the propounder to establish affirmatively that the testator was of sound mind at the time of the execution of the will: West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144 or that the will was not the product of fraud, undue influence or any other factor which would deprive it of validity.

119 However, this presumption does not apply where there is reason for the court to be suspicious of the circumstances relating to or surrounding the execution of the will and, in that case, for the suspicion to be removed, there must be affirmative proof of the testator's knowledge and approval or capacity as the case may be: Baker v Batt (1838) 2 Mood CC 317, 321; [1838] EngR 643; (1838) 12 ER 1026; Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528; McKinnon v Voigt & Anor [1998] 3 VR 543, 556; and Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453.

120 The position was set out by Isaacs J in Nock v Austin at 528 in some detail which (omitting references) is as follows:

The relevant law is not doubtful. It may be thus stated -

(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.

(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.

(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate.

(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.

(5) But the rule does not go further than requiring vigilance in seeing that the case is fully approved. It does not introduce a disqualification.

(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.

(7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it.

121 The defendant submits that the circumstances surrounding the making and execution of the wills of Mrs Hornsby of 29 May 1996 and 1 December 2008 and, indeed, the contents of both wills, give rise to suspicion and prevent the application of any presumption as to the knowledge and approval of the contents of the will by the deceased or otherwise as to its validity.

122 The defendant's submissions are to the effect that in each case those two wills were made largely, if not entirely, as a result of action by the accountant, Mrs Keillor, and that the effect of each was to exclude almost, if not completely, the defendant from any substantial benefit from his mother's estate and instead to confer, either directly or indirectly, significant benefit upon the plaintiff or upon trustees who would hold the benefit of the testamentary dispositions for the benefit of herself or her family largely to the exclusion of her brother.

123 As will be seen, Mrs Keillor did have a prominent role in the preparation and execution of both those wills and, generally speaking, the effect of them was to dispose of the estate largely for the benefit of the plaintiff and to the exclusion of the defendant, although, as previously set out, the defendant and his family receive minor benefits under each testament. The case as conducted on behalf of the defendant originally entailed the contention that these wills had been drafted and executed, at least to a significant degree, as a result of urgings by the plaintiff upon her mother to make wills substantially to those effects but, as the evidence unfolded, there was little direct evidence to support those contentions but they were never actually withdrawn. Nevertheless, the defendant's case as maintained was that each of those wills contained provisions making substantial benefit for the plaintiff, her family or interests associated with them and that in itself attracted the doctrine of suspicious circumstances.

124 While those submissions were maintained in relation to both the will of 29 May 1996 and that of 1 December 2008, they were pursued with greater strength in relation to the latest will. In addition to the factors already identified, the defendant contended in relation to the will of 1 December 2008 that the testament was made by his mother at a stage at which she had an advanced terminal illness, was subject to bouts of chemotherapy which significantly affected her health and wellbeing, and that there were occasions at about that time when her behaviour or thinking was noted by medical observers as being disordered, thus creating doubts about her actual mental testamentary capacity.

125 Furthermore, the defendant submits that the various inter vivos transactions also purportedly entered into by his mother in late November or early December 2008 relating to the establishment of a new trust for the plaintiff's family, the sale of the Quinns Farm on conditions to that trust, the relinquishment of any debt due to the deceased in the event that the sale of the farm could be completed without attracting significant stamp duty liability, and the sale of the Wesfarmers shares, together with other associated transactions, revealed a major plan to put the deceased's principal assets beyond the reach of any testamentary challenge and to do so to the advantage of the plaintiff, and that these transactions are all invalid and ineffective and should be set aside.

126 It will be necessary to examine these contentions and the circumstances in some detail for I am satisfied that circumstances do exist which call for the vigilant and scrupulous scrutiny by the court of the circumstances relating to and surrounding the execution of both these wills and that the validity of neither can be assumed or presumed simply from the evidence of apparent capacity and of due execution of each testament.

127 The defendant also contends that the Hornsby Farming Trust referred to in cl 4 of the 2008 will as the beneficiary of any farming land held by the deceased at the date of her death was not properly constituted as at 26 November 2008 or, indeed, until after the death of the testatrix. This forms the basis for a submission that the will was made by the deceased without realising the effect which its provisions would have (in relation to cl 4 - inefficacy) and that this also reveals such a want of knowledge and understanding as to demonstrate lack of testamentary capacity because of lack of compliance with one of the four criteria in Banks v Goodfellow (1870) LR 5 QB 549, 565. However, the plaintiff cites In the Estate of Beech (dec) as authority for the proposition that the testator cannot make an approval of the words which have been put into his intended will conditional upon their having in law the effect he desires. As held by Salter J in that case, if a testator executes a will knowing and approving the words used, the court cannot afterwards exclude from probate the words which have been put into the will on the ground that the testator has taken a view of their legal effect which turns out to be mistaken.

128 The defendant also submits that the will of 1 December 2008 does not, in its terms, nominate or appoint an executor. Rather, it nominates the plaintiff or, alternatively, Mrs Cheriton as trustee.

129 As set out in Williams On Wills (8th ed, 2002) at [25.2]:

Where a testator fails to nominate a person to be his executor any person upon whom the terms of the will has been appointed to perform the essential duties of an executor is called an executor according to the tenor and is entitled to a grant of probate: Re Adamson's Goods (1875) LR 3 P&D 235 and Wankford v Wankford (1699) 1 Salk 299 at 309

130 And numerous examples of nominated beneficiaries entitled to be appointed executor according to the tenor and so obtain a grant of probate are there mentioned. See also generally, Williams Mortimer & Sunnocks, 'Executors, Administrators & Probate' (20th ed, 2013) [8-12] - [8-14]; The Estate of Ryan (1987) 139 LS JS 42 (Legoe J); and The Estate of Fairlie-Jones (Dec) [2013] SASC 59; (2013) 116 SASR 172 (Gray J).

131 For an example of where an estate is left to a trustee on trust for a specific purpose with no executor named not giving rise to an entitlement to that trustee to obtain probate as an executor according to the tenor see In the Goods of Jones (1861) 2 Sw & Tr 155; 164 ER 952. However, in the present case I am satisfied that the terms of the December 2008 will in setting up the testamentary trust prescribed by cl 6(c) and cl 7 contemplated that Sharon Hornsby would administer those trusts and, further, by cl 8 of the will as beneficiary of the residuary estate, Sharon Hornsby as trustee, was directed to utilise such residuary estate to pay her mother's just debts, funeral and testamentary expenses.

132 Such a direction requiring a person so appointed to pay all just debts of the testator, or where a person named as trustee is directed to pay such debts, will be regarded as appointing that person as an executor according to the tenor: In the Goods of Baylis (1865) 1 LR P & D 21; and In the Goods of Cook [1902] P 114. See also In the Estate of Williams (dec) (1984) 36 SASR 423, 423 (Legoe J) and Tsagouris v Bellairs (2010) 5 ASTLR 403; [2010] SASC 147 [34] (Gray J).

133 I consider that in the context of this will the use of the term 'trustee' is clear designation of intention by the testatrix that the person so specified should act as both executor and trustee and be authorised to obtain a grant of probate to the will. Even if I were wrong in that respect and this will fails to nominate any executor, it is nevertheless clearly a will in the sense that it contains the expression of the intention of the deceased as to the disposition of her property on death. The absence of a nominated executor in these circumstances would mean no more than that the court would be empowered to grant letters of administration with the will annexed to an administrator who had the standing and interest to seek a grant of representation. There appears to be no doubt that, in the present circumstances, as a beneficiary under this will, indeed, the nominated trustee for the administration of the estate of the deceased once it has been realised and all debts have been discharged is the plaintiff, making her the obvious choice for administratrix were she to seek a grant in that role. However, I am satisfied that this situation does not arise and that under the terms of this will the deceased has clearly evinced an intention that the plaintiff should be her executor.

134 The defendant also submits that this will and the contemporaneous transactions demonstrate that his mother has failed to give due consideration to providing testamentary benefits for him or his family, being persons who the deceased could be expected to have in mind for consideration when determining the distribution of her estate. So that the small provision made for the defendant and his family in contrast to the ample provision made for the plaintiff and her family demonstrates that the deceased did not have a proper appreciation of, or was not in a condition to give due consideration to, the claims of her son and his family on her bounty, this being another demonstration of want of testamentary capacity.

Inter vivos transactions of November/December 2008

135 As already indicated, a number of other transactions or documents were executed by Mrs Colleen Hornsby at about the time that she executed the will of 1 December 2008. It is possible that some of these transactions may have occurred on 26 or 27 November 2008, at or immediately following the occasion when Mrs Hornsby met with Mrs Keillor to give instructions for her will and other matters, and that all the others occurred on 1 December 2008, at the same meeting at which the will was executed. There is some uncertainty about whether or not any of the transactions occurred on 26 or 27 November 2008 and upon this the evidence is conflicting. However, nothing turns on the ascertainment of the precise dates of any of these transactions because it is obvious, and I find, that they all resulted from decisions made or instructions given by Mrs Colleen Hornsby at her conference with Mrs Keillor on 26 November 2008, or soon afterwards.

(a) 1 December 2008: a contract for the sale of land being the Quinns Farm by the deceased to Sharon Judith Hornsby as trustee for the Hornsby Farming Trust;

(b) 1 December 2008: a transfer of the land comprising Quinns Farm by the deceased to Sharon Hornsby pursuant to the contract of sale;

(c) 1 December 2008: a deed of release by the deceased of the debt due of $2,797,680, being the price payable by Sharon Hornsby for the purchase of the Quinns Farm the subject of the contract of sale and transfer but on condition that the plaintiff assume the liability existing under the mortgage over the Quinns Farm;

(d) 1 December 2008: a deed of release by the deceased of Hartsdale Pty Ltd as trustee of the Hornsby Family Trust of the debt due to her of $348,596 on the deceased's loan account in that trust;

(e) 1 December 2008: a deed of variation of the Hornsby Family Trust appointing Sharon Hornsby as co-appointor and co-guardian and the sole appointor and sole guardian after her mother's death;

(f) 1 December 2008: various resolutions and associated documents for Hartsdale Pty Ltd resulting in the transfer of the deceased's shares in Hartsdale Pty Ltd to Sharon Hornsby with the result that Sharon Hornsby became the sole shareholder of Hartsdale Pty Ltd.

(g) On or about 1 December 2008 a transfer of 6,075 shares held by the deceased in Wesfarmers Ltd to the plaintiff Sharon Judith Hornsby for a price of $112,388.

137 In the other action (CIV 1268 of 2011) the defendant challenges the validity of each of these inter vivos dispositions or transactions on the grounds that Mrs Hornsby lacked capacity to enter into the transactions, that in the case of the disposition of the Quinns Farm to Sharon Hornsby the transaction was, effectively, a gift and it was not effective because the deceased was unable to deliver all the certificates of title to the property, at least two of which had by then been lost, with the result that the gift was imperfect and would not be assisted or completed in equity to a plaintiff who is a volunteer; that the transactions were the result of instructions given by Debbie Keillor without the knowledge or approval of the deceased; that the deceased, then in a feeble condition and afflicted by her illness, did not have the benefit of independent legal advice about the documents; that the deceased was induced to execute the documents by reason of unconscionable conduct by Sharon Hornsby or, alternatively, by Debbie Keillor acting on her behalf, or as the result of the undue influence of Sharon Hornsby or Debbie Keillor, In that action the defendant is seeking relief effectively to set aside all these transactions and to restore the status quo for the benefit of his mother's estate as it existed immediately before these transactions.

138 Earlier that other action (CIV 1268 of 2011) had been ordered to be tried at the same time as the present action but, for the reasons given in my decision in Hornsby v Hornsby [2014] WASC 256 before the commencement of this trial I set aside that order, severed the two consolidated actions and directed that this trial should proceed only in relation to the probate claims.

139 As a consequence, this action does not permit or require any decision to be given about the validity or efficacy of any of those inter vivos transactions but, nevertheless, the defendant points to them as demonstrating the alleged unconscionability, undue influence and impropriety of the plaintiff and of Debbie Keillor in inducing the deceased to enter into these transactions, and as demonstration of the deceased's lack of testamentary capacity because of her alleged lack of perception of the true nature and effect of those transactions and, in particular, in failing to recognise or to give account to the need to identify the defendant and members of his family as persons who deserved consideration when determining how to dispose of her estate. As a consequence, it is necessary to describe briefly the effect of those transactions both at the time and in relation to the disposition of the estate of the deceased by her will of 1 December 2008 at death.

140 The plaintiff further contends that several of these contemporaneous transactions, namely the contract for the sale of Quinns Farm and consequent transfer; the transfer of the shares in Hartsdale Pty Ltd to the plaintiff, and the transfer to the plaintiff of the Wesfarmers shares rendered corresponding provisions in the will superfluous because they necessarily meant that those particular items of property were no longer owned by the deceased at the date of the will or shortly afterwards and would hence not comprise any part of her estate which could be disposed of by her will at the time of her later death.

141 The defendant disavowed any plausibility for the occurrence of this consequence by resort to the doctrine of ademption by submitting that although the doctrine of ademption would serve to explain why assets owned by a testator at the time of the will but disposed of by her later before death would not be available to satisfy any testamentary devises, bequests or legacies, at the time of the testator's death this could not be a persuasive explanation of what occurred in this instance. This was because, as I understand the effect of the submission, a will containing provisions to dispose of certain specified assets made at the same time as transactions by the testator disposing of those same assets and putting them out of the reach of the will is more consistent with a lack of appreciation by the testator of the true nature of the will and the transactions and hence a sign of lack of understanding or want of testamentary capacity than a course of conduct which is rational and consistent in dealing with the estate available for distribution when the will is made.

142 Assuming the validity of each of those inter vivos transactions, without so deciding, it is timely to consider their effect in relation to distribution of the estate of the deceased and the situation which existed in December 2008.

143 The parcel of Wesfarmers shares held by the deceased was valuable although it is common ground that the consideration for which they were sold at that point was low, explicable probably because of the effects of the global financial crisis prevalent at that time. Before then and in the years which followed the value of that parcel of shares was much higher but it is not disputed by any of the parties that at the time of this transfer the consideration expressed was their then market value or close to it. They had been held by the deceased for many years and had, apparently, been kept as a reserve of capital to which recourse could be had, if necessary, at times when financial requirements for the operation of Quinns made that essential. They were, in a sense, an asset of last resort or one to be kept for a rainy day. Putting to one side her entitlements, discretionary or otherwise, from a superannuation fund and the house and land at Wagin, the Wesfarmers shares and the Quinns Farm were the most valuable disposable assets of the deceased.

144 Another factor for consideration is that by December of 2008 Mrs Colleen Hornsby was well aware that she had a fatal inoperable disease and that her remaining life expectancy was very limited. By that point, as the subsequent examination of the medical evidence will reveal, her cancer could not be cured nor its progression significantly delayed. Consequently, Mrs Colleen Hornsby's financial requirements for the future were to be measured in the short term rather than the long term. In other words, this meant that the need for her to preserve assets or income earning investments for her own requirements was much less than it had been in the past and was, in all probability, only short lived. There is no doubt that Mrs Colleen Hornsby was aware of her plight and the consequences of her disease as these had been fully explained by her treating onconologist, as I will describe later. She was, therefore, in a position where her plans for the future should, for practical and realistic reasons, take into account her short remaining life expectancy.

145 The effect of the inter vivos transactions was to dispose of, subject to one qualification, all her most valuable assets before death so that none would be a part of her estate. This would mean that any challenge to the efficacy or validity of her will of December 2008, even if successful, would be of little advantage to a challenger, clearly anticipated to be the defendant, because there would be little in the estate of major value by the time of her death. Similar observations apply in relation to any claim which might be made by her son under the provisions of the Family Provision Act 1972 (WA). The evidence discloses that the deceased clearly had in mind the possibility that her son might make a claim to her estate or against the validity of her will after her death and that these dispositions were measures which should result in any such claim, even if successful, being comparatively fruitless.

146 These inter vivos transactions had the effect of making Sharon Hornsby the sole shareholder of the shares in Hartsdale Pty Ltd and hence in control of the Hornsby Family Trust of which she was also made joint and then surviving appointor and guardian. Similarly, the transactions discharged the debt of $348,596 then due by Hartsdale as trustee of the Hornsby Family Trust to Mrs Colleen Hornsby, with the consequence of increasing the net assets of the Hornsby Family Trust by that amount to the advantage of the primary and general discretionary beneficiaries who might be selected to benefit by the trustee then under the control of Sharon.

147 The only qualification about the immediate effect of putting the principal assets of the deceased beyond the reach of her estate by the inter vivos transactions of December 2008 was the conditional nature of the sale of Quinns to Sharon and the associated deed of release of Sharon from her obligation to make payment of the purchase price. However, there was a reason for this, being the desire to avoid ad valorem stamp duty liability on the consideration of nearly $2.8 million for the sale of the farm - an expense which neither Mrs Hornsby nor her estate could easily afford. Consequently, the contract of sale and transfer of Quinns to Sharon was made conditional upon the transaction being accepted for exemption from duty under the special provisions relating to the disposition of farming properties to family and associated entities, pt IIIBAA of the Duties Act, s 99 - 106 and, if no exemption from duty were granted then neither the contract of sale nor the transfer would take effect.

148 In the event, an application for exemption of duty on that transaction was made and was accepted so the contract of sale and consequent transfer took effect, but only after the death of the deceased - but that did not mean that Quinns formed any part of the estate of the deceased at death. Had this not happened, then Quinns would have remained as an asset of the deceased and, unless otherwise disposed of before death, would have devolved to the Hornsby Farming Trust pursuant to cl 4 of the will (that being the new trust also created in November/December 2008 for Sharon and her family). The other inter vivos transactions were either for a similar purpose or parts of steps necessary to implement this obvious strategy.

149 The consequences of the decisions taken by the deceased in November and December of 2008, and implemented by her will and the inter vivos transactions, are clear and plain. That is, they were to ensure that all the major assets of Mrs Colleen Hornsby, and in particular Quinns Farm and the Wesfarmers shares, went to Sharon or to trusts which she controlled for the benefit of the members of her family largely to the exclusion of Craig and members of his family. The only benefits available for the defendant as a result of these various transactions are the legacies nominated in the December 2008 will to be sourced, if available, from the deceased's superannuation entitlements.

150 The plaintiff and her counsel did not in any way seek to contest or modify this obvious conclusion to be drawn from the evidence. The submissions for the plaintiff were that all this was a careful, deliberate and intentional plan resulting from decisions made by Mrs Colleen Hornsby as a result of her own free will. This is not the occasion to consider whether or not those conclusions or the effects of the plan were justified, reasonable or appropriate. This is an occasion only to identify what were the testamentary intentions of the deceased as expressed in any valid will which took effect upon her death.

151 An understanding of the late Mrs Hornsby's attitude towards her cancer diagnosis, at least initially, is assisted by her experience of her own husband's final illness. The late Alan Leonard Hornsby was diagnosed with cancer in 1971 but he made a determined effort to fight the disease and submitted to intensive medical treatment, with the result that he survived for seven years after initial diagnosis, passing away, as already noted, on 7 June 1978.

152 Mrs Colleen Hornsby was first diagnosed with cancer on 10 December 2007, when her consultant oncologist, Dr Siobhan Ng, made a diagnosis of colon cancer with liver, pulmonary and bony metastases. Over the ensuing period of about 15 months Mrs Hornsby had resolved that she would fight the cancer as her husband had done and expressed her wish to prolong her life as long as possible. Unfortunately, by the time of her diagnosis the disease was well advanced and it appears that there had been long-standing symptoms which Mrs Hornsby had not regarded as significant or which she attributed to other factors which she presumed were innocuous. At a CT scan in December 2007 there was a diagnosis of metastatic descending colon adenocarcinoma with liver metastases, pulmonary metastases and bony metastases. A colonoscopy revealed a stenosis so immediate surgery was undertaken which, unfortunately, resulted in a bowel perforation. Postsurgical CT scanning showed extensive pulmonary metastatic disease, hepatic metastatic disease, osseous metastatic disease with associated compression fracturing of T3 and L1 and other pathology.

153 Dr Siobhan Ng commenced treating Mrs Hornsby on 10 December 2007 on referral from her treating general medical practitioner who, by then, had administered a series of tests which were positive for bowel cancer with liver, lung and bone metastases. At the point of Dr Ng's diagnosis Mrs Hornsby's cancer was incurable and the proposed course of future treatment, chemotherapy, was to preserve quality of life and prolong life because, by then, elimination of the disease was not possible. From December 2007 onwards Dr Ng met Mrs Hornsby approximately once a fortnight before her chemotherapy sessions. When she was in hospital undergoing chemotherapy she was seen by Dr Ng every day. The chemotherapy was conducted at St John of God Hospital Subiaco but Mrs Hornsby also attended hospitals at Narrogin and Wagin when she was ill following chemotherapy sessions and as support for side-effects - principally nausea.

154 Chemotherapy commenced in January 2008 and was conducted, on average, at intervals ranging between once a fortnight and once a month. Each session of chemotherapy involved Mrs Hornsby being at inpatient at St John of God Hospital for about two and a half days. However, because her disease was resistant to the original chemotherapy, she went on to a clinical trial with different agents in early 2009.

155 According to Dr Ng, Mrs Hornsby presented as being of normal mental state throughout the entire period from December 2007 to 27 October 2008 and no signs of any cognitive incapacities were noticed. In her evidence, Dr Ng identified the typical signs of impairment of cognitive capacity which may emerge in cancer patients and which, as a specialist oncologist, she was trained and experienced in recognising, but none of these was noticed. Dr Ng observed that in her dealings with Mrs Hornsby she noticed that Colleen was, from first until last, very independent. When the doctor enquired about assistance which might be available from relatives Mrs Hornsby informed her that she had a sister and a daughter keen and able to assist but that she herself wanted to live independently for as long as possible and did not wish to be a burden on anyone. Her preference was to get help from hospitals and like services when occasion made that necessary, rather than to impose on friends and relatives.

156 There was an admission of Mrs Hornsby to St John of God Hospital on 27 October 2008 for pain control. This was associated with a pathological sternal crush fracture which in her case was due to osteoporosis. For some time she had been using a Duragesic patch (narcotic) the side-effects of which can include nausea, other symptoms, and a rapid change in the level of the drug administered can result in hallucinations. At the admission on 27 October 2008 Mrs Hornsby's duragesic patch strength was increased from 25 to 50 micrograms to help control her pain, which was a substantial increase on the dose that she had been receiving over previous months. She was also given morphine liquid for 'breakthrough pain'. On 31 October 2008 the duragesic patch strength was further increased to 100 micrograms. She remained in hospital until 12 November 2008 and shortly before her discharge Dr Ng informed her that, notwithstanding her treatment, the cancer was progressing and that she may need to add an alternative drug to her chemotherapy regimen. Dr Ng enquired whether she would be interested in participating in a clinical trial being conducted. At that point, Mrs Hornsby responded by saying that she was reasonably comfortable on the 100 microgram patch and continued to receive 'breakthrough' morphine treatment but at a reducing frequency.

157 At one point during that admission, on or about 10 November 2008, Colleen complained that she had woken at night in the hospital and thought that she was in a storm at Bunbury but realised that this was not the case. There is a note in the nursing observations at about that time that she may have been undergoing hallucinations. Dr Ng explained that this episode was most likely hypnopompic hypnagogic hallucinations which are common and do not denote any reduction in normal mental status, usually dissipating within a few seconds or minutes. It was the only occasion upon which Mrs Hornsby reported any hallucination until her final hospitalisation in Narrogin in late March 2009.

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