Roberts v Moses and Palmer [2018] NSWSC 1145
Fairweather v Fairweather (1944) 69 CLR 121
[1944] HCA 11
Kerr v Bardan [2004] NSWSC 735
Mekhail v Hana [2019] NSWCA 197
Nock v Austin (1918) 25 CLR 519
[1918] HCA 73
Tobin v Ezekiel (2012) 83 NSWLR 757
Source
Original judgment source is linked above.
Catchwords
Roberts v Moses and Palmer [2018] NSWSC 1145
Fairweather v Fairweather (1944) 69 CLR 121[1944] HCA 11
Kerr v Bardan [2004] NSWSC 735
Mekhail v Hana [2019] NSWCA 197
Nock v Austin (1918) 25 CLR 519[1918] HCA 73
Tobin v Ezekiel (2012) 83 NSWLR 757
Judgment (12 paragraphs)
[1]
Solicitors:
Brydens Lawyers (Plaintiff/Cross-defendant)
Eakin McCaffery Cox Lawyers (First Defendant/Cross-claimant and Second Defendant)
File Number(s): 2018/125504
[2]
Introduction
These proceedings are concerned with a codicil signed by the late Hope Linney (the Testatrix), who died on 16 August 2017. On 25 October 2017, probate was granted to the first defendant/cross-claimant, Gayle Maria Linney (Gayle), in respect of three testamentary instruments signed by the Testatrix being:
will dated 14 July 1993 (the Will);
codicil dated 1 September 2001 (the First Codicil); and
codicil dated 29 August 2011 (the Impugned Codicil).
Gayle is the younger daughter of the Testatrix, who had three children, each of whom survived her. The other children are the plaintiff/cross-defendant, Maureen Micallef (Maureen), and the second defendant, Denis Linney (Denis). For convenience, I shall refer to parties and witnesses by their first names without intending any disrespect.
By amended statement of claim filed on 11 February 2020, Maureen seeks revocation of probate of the Will granted on 25 October 2017, the First Codicil and the Impugned Codicil and the grant of probate in respect of the Will and the First Codicil. By cross-claim filed on 25 May 2018, Gayle seeks an order that probate in solemn form be granted to her in respect of the Will, the First Codicil and the Impugned Codicil.
By the Will, the Testatrix appointed Gayle as her executor and gave to Gayle any motor vehicle registered in the name of the Testatrix. The balance of the estate of the Testatrix was to be equally divided between Maureen, Denis and Gayle. The Will was handwritten on a pre-printed will form. I draw the inference that it was prepared without any legal advice or assistance.
By the First Codicil, the Testatrix said that she was adding instructions "re the sale of the family home" to assist Gayle in her duties as executor. The First Codicil said that a period of three months after probate has been granted would be allowed for Maureen and Gayle to remove all their personal possessions from the family home, which was then to be placed on the market. Each of Maureen and Gayle, in conjunction with Denis, was to receive an equal share from the sale. The First Codicil said that, if that deadline was not met by either Maureen or Gayle, their possessions would be placed in storage at their personal expense or the amount extracted "from their share of the home sale". It appears that the First Codicil was also prepared without the assistance of formal legal advice. There is no dispute about the Will or the First Codicil. I shall refer later to the alleged justification for the First Codicil.
The present dispute relates to the Impugned Codicil. The Impugned Codicil was prepared by Mr Martin Kuskis (Martin), who is Gayle's partner, although they are not married. Martin has some familiarity with legal documentation, having worked in the Department of Justice and elsewhere in the public sector. However, he was not formally retained to prepare the Impugned Codicil. He did so at the request of the Testatrix in his capacity as a de facto member of her family.
By the Impugned Codicil, the Testatrix said relevantly as follows:
"I add or change said last will in the following manner:
All of my personal possessions on my property at … are bequeathed to [Gayle].
All of my liquid assets … are bequeathed in equal share to [Gayle] and [Denis]. Should either of [Gayle] and [Denis] predecease me then the other shall become the sole beneficiary of my liquid assets.
All expenses for my funeral are to be paid out of the proceeds of the sale of the property at …
[Gayle] is to have the sole use and occupation of the property at … until the sale of that property.
Otherwise I hereby confirm and republish my will dated 14th July 1993 in all respects other than those herein mentioned."
The Impugned Codicil was witnessed by Ms Roslyn Black (Roslyn) and her husband Mr Peter Black (Peter). At the time of witnessing the Impugned Codicil, Roslyn and Peter lived opposite the home of the Testatrix in Mona Vale, New South Wales.
The significance of the Impugned Codicil is the provision whereby all of the "liquid assets" of the Testatrix were bequeathed to Gayle and Denis in equal shares, to the exclusion of Maureen. The inventory of property lodged with the Court by Gayle in the affidavit filed with her summons for probate on 12 October 2017 disclosed the following property owned by the Testatrix:
House and land at Mona Vale $1,980,000.00
Motor vehicle $1,500.00
Electrical appliances $2,500.00
Furniture $1,000.00
Jewellery and personal possessions $1,000.00
Bank accounts $1,277,076.85
Income fund $91,891.55 and
Shares in public companies $853,863.45
Total $4,208,831.85
The Mona Vale property was transferred to Gayle in her capacity as executor by transfer dated 3 December 2017. However, the Mona Vale property has not yet been sold. The publicly listed shares were transferred into the names of Gayle and Denis as the beneficiaries entitled under the Impugned Codicil. The monies standing to the credit of bank accounts in the name of the Testatrix were subsequently transferred to accounts of Gayle and Denis.
The effect of the Impugned Codicil is that Maureen's interest in the estate of the Testatrix was a one third share in the proceeds of the sale of the Mona Vale property valued at $1,980,000, as at the date of death, after deducting the testamentary expenses whereas, under the Will and the First Codicil, her share in the estate of the Testatrix would have been one third of the sum of $4,207,331.85 less testamentary expenses.
[3]
The Pleadings
By her amended statement of claim filed on 11 February 2020, Maureen sought an order that probate granted on 25 October 2017 be revoked. The allegations made in support of that prayer for relief may be restated as follows:
At the time of the execution of the Impugned Codicil the eyesight of the Testatrix was poor, Gayle played a part in its execution and received a significant benefit from it;
Gayle and/or Martin caused the Impugned Codicil to be prepared without the assistance of a legal practitioner and Gayle received a material benefit from the Impugned Codicil;
The Impugned Codicil was not read by the Testatrix when it was prepared or when it was executed and it was not read over to the Testatrix when it was executed;
The Testatrix did not obtain legal advice from a legal practitioner on the effect of the Impugned Codicil before she executed it;
The Testatrix and Maureen had a good relationship where there would be no reason for the Testatrix not to grant Maureen her bounty or change any disposition to her under the Will;
A niece of the Testatrix wrote to Maureen on 26 July 2012 saying that she had spoken to the Testatrix who said that she had not changed her Will;
At the time of the execution of the Impugned Codicil, Maureen and Gayle had had a breakdown in their relationship and were not on good terms with each other;
Gayle was involved in the execution of the First Codicil and the Impugned Codicil reduced the benefit to Maureen;
By reason of the above there are suspicious circumstances surrounding the preparation and execution of the Impugned Codicil;
By reason of the above, Gayle is required to affirmatively prove that the Testatrix knew and approved the contents of the Impugned Codicil and comprehend the effects of the Impugned Codicil, including in the context of the Will and First Codicil;
By reason of the above, the Testatrix did not know and approve the Impugned Codicil and did not comprehend its effects;
Prior to the preparation and execution of the Impugned Codicil, Gayle and/or Martin made allegations about Maureen to the Testatrix that were not true such that the Testatrix executed the Impugned Codicil thereby;
When the Impugned Codicil was executed:
the Testatrix was 91 years old;
the Testatrix was physically fragile and frail;
the Testatrix wanted to remain living in the Mona Vale property and did not want to move to a nursing home;
the Testatrix relied on Gayle to drive her to doctors' appointments and other appointments; and
the Testatrix relied on Gayle to care for her so that she could remain living in the Mona Vale property.
Gayle required the Testatrix to execute the Impugned Codicil;
By reason of the above, when the Testatrix executed the Impugned Codicil, her will was overborne; and
By reason of the above, the Testatrix executed the Impugned Codicil subject to the undue influence of Gayle.
In their defence to the amended statement of claim, also filed on 11 February 2020, Gayle and Denis:
admit that the eyesight of the Testatrix was poor but say that she was not completely blind at the date of signing the Impugned Codicil and retained the capacity to read slowly in good light;
admit that Gayle played a part in the execution of the Impugned Codicil and received a material benefit from it but say that Gayle was not present when instructions were given by the Testatrix for the Impugned Codicil or during its preparation or when it was executed;
deny that Gayle prepared the Impugned Codicil or caused it to be prepared and say that Martin prepared it under instruction from the Testatrix and that it was prepared without assistance of a legal practitioner;
do not admit that the Impugned Codicil was not read by the Testatrix when it was prepared or executed;
admit that the Impugned Codicil was not read over to the Testatrix when it was executed but say that it was read over to her after it was prepared and before it was executed;
admit that the Testatrix did not obtain legal advice from a legal practitioner on the effect of the Impugned Codicil;
deny that the Testatrix and Maureen had a good relationship such that there would be no reason for the Testatrix not to grant Maureen her bounty or change any disposition to her under the Will;
do not admit that the niece of the Testatrix sent a letter to Maureen;
admit that at the time of the execution of the Impugned Codicil, Gayle and Maureen were not on good terms with each other, deny that Gayle was involved in the execution of the Impugned Codicil and admit that the Impugned Codicil reduced the benefit to Maureen;
do not admit that there were suspicious circumstances surrounding the preparation and execution of the Impugned Codicil;
deny that the Testatrix did not know and approve the Impugned Codicil or comprehend its effects and deny that, prior to the preparation and execution of the Impugned Codicil, Gayle and/or Martin made allegations about Maureen to the Testatrix that were not true;
admit that the Testatrix was 91 years old when the Impugned Codicil was executed but do not admit that the Testatrix was physically fragile and frail;
admit that, when the Impugned Codicil was executed, the Testatrix wanted to remain living in the Mona Vale property, did not want to move to a nursing home, relied on Gayle to drive her to appointments and to care for her so that she could remain living in the Mona Vale property and that Gayle received a significant benefit under the Impugned Codicil;
deny that Gayle required the Testatrix to execute the Impugned Codicil, that the Will of the Testatrix was overborne or that the Impugned Codicil was executed subject to undue influence on the part of Gayle; and
assert that all three of the testamentary instruments were made by a free and capable person, being the Testatrix.
By her statement of cross-claim, Gayle seeks an order that probate in solemn form be granted to her in respect of the Will, the First Codicil and the Impugned Codicil. Maureen relies upon the allegations made in her amended statement of claim in answer to the relief claimed in the cross-claim.
[4]
The Witnesses
Evidence was taken over five days in the first two weeks of February 2020. At the end of the evidence, there was no time available for oral submissions. Accordingly, directions were given for the preparation of written submissions, the original intention being that the parties would have the opportunity of speaking to those submissions. In the events that have occurred, the parties complied with the directions for written submissions but agreed that, in the circumstances, it was appropriate for the matter to be determined on the basis of the written submissions without any further oral argument.
Viva voce evidence was given by Maureen, Gayle and Denis and each was cross examined. Viva voce evidence was also given by Martin and by Roslyn and Peter, each of whom was also cross examined. Viva voce evidence was also given by several other witnesses whose evidence was somewhat tangential to the real issues in the proceedings. I shall refer to their evidence where necessary. Considerable time was taken up in the hearing by evidence as to matters that were at best marginal and, at worst, irrelevant.
As a witness, Maureen was quite unhelpful. She consistently failed to answer questions. She regularly volunteered information that was not responsive to questions put to her. She insisted on making argumentative assertions when in the witness box. She gave the impression of being very much instilled with the righteousness of her case. She was invariably reluctant to answer questions where she perceived the answer might be unfavourable to her understanding of her case. To the extent that her evidence is directly material to any issue in the proceedings, I would have some reservation in accepting it.
Gayle was not much more impressive as a witness than her sister. She gave the impression of deliberate discourtesy in the witness box by refusing to look at counsel who was asking her questions. She created the impression of being anxious to give the answer to questions that she perceived to be favourable to her case. I have reservations about accepting her evidence where it is relevant to any critical question in the case.
Roslyn appeared to me to be a credible and honest witness who made a genuine effort to give a fair recollection of the matters about which she gave evidence and was cross examined. Peter appeared to me to be an honest and straightforward witness and also made an effort to give a fair recollection of matters within his knowledge. Both were cross examined. I accept their evidence as credible and reliable.
Denis also gave viva voce evidence. He appeared to me to be a credible and reliable witness.
Finally, of the principal witnesses, Martin also gave viva voce evidence and was cross examined. I considered him to be an honest and credible witness.
The evidence of Roslyn and Peter was directly relevant to the circumstances of the execution of the Impugned Codicil. The evidence of Martin was directly relevant to the preparation of the Impugned Codicil and the understanding of the Testatrix of its contents and effect. Gayle and Denis contend that, if the Court accepts the evidence of Roslyn and Martin that the Testatrix knew the words on the page of the Impugned Codicil, that would be sufficient to establish knowledge and approval on her part. Maureen contends, on the other hand that the question of knowledge and approval is more "nuanced", and that it is not necessary, for her to succeed, that the evidence given by Martin and Roslyn be rejected or for the Court to make findings about their credibility. She contends that, even were their evidence to be accepted, it is not sufficient to prove affirmatively that the Testatrix knew and approved of the Impugned Codicil.
Maureen contends that there are inconsistencies between the evidence of Martin and the evidence of Gayle. Martin said that, generally speaking, he visited Gayle at the home of the Testatrix on weekends and that the Testatrix gave him instructions on a weekend. He said that he then prepared the Impugned Codicil at work during the following week and gave it to the Testatrix on the following weekend, shortly before she executed it on Monday 29 August 2011. Therefore, Maureen contends, Martin gave the typed document to the Testatrix during the weekend of 27 and 28 August 2011. It follows that the Testatrix must have given instructions during the weekend of 20 and 21 August 2011. Gayle, on the other hand, says that she had a discussion with the Testatrix about her will and that the Testatrix proposed giving the house to Gayle but that Gayle suggested that she did not want the house because she had too much money tied up in real estate. Gayle was asked specifically about the date of the discussion with the Testatrix and said that it was on or about 27 August 2011.
Next, Martin said that the Testatrix gave instructions for a list of items because of what Maureen had requested at the Local Court. However, Martin acknowledged that Maureen's list of items was not in any way related to the list of items in the Impugned Codicil. Maureen says, is not clear that the Testatrix heard about the list of items at the Local Court or saw Maureen's list of items. There is some question about the extent to which the Testatrix attended the Local Court. Maureen said that the Testatrix attended only once, on 10 June 2011, when she was cross examined by Maureen. Gayle initially said that the Testatrix was present at all of the Local Court appearances but later conceded that she only attended "for proper hearings" and not on mere mention days. The Testatrix was cross examined in the Local Court on 10 June 2011, when she sat with the court officers and Gayle. The Testatrix prepared the notice of 26 July 2011 and sat with court officers and Gayle and prepared the submissions of 23 August 2011. [1] Therefore, Maureen says, the Testatrix was not present on 20 June 2011, when the list of items was discussed and prepared by Maureen.
The matter of the list of items was raised in the Local Court on 20 June 2011, as appears from the fact that it was after 14 June 2011, when Maureen attempted to attend the Mona Vale home of the Testatrix to collect her asthma sprays and medical things. Maureen signed an application to recover her property after a directions hearing in the Local Court on 20 June 2011. Maureen points to the fact that Gayle admitted that the Local Court suggested such a list and Maureen made the list at the Local Court on 20 June 2011. Maureen asserts that Gayle said that the Testatrix listed the personal items in the Impugned Codicil because that would stop Maureen from harassing Gayle after the death of the Testatrix. However, Maureen says, all of the items on the list were under the garage at the Mona Vale home or in Maureen's room in the home and are clearly personal items and completely unrelated to the items in the Impugned Codicil.
Thirdly, Maureen contends, the face of the Impugned Codicil suggests that the Testatrix did not give instructions for it to Martin. Thus, the Impugned Codicil says "I add or change said last Will". Maureen contends that the reason that Martin included the words "add or change" was because he was drafting the document rather than obtaining instructions from the Testatrix, in circumstances where Martin did not know what was in the Will because he had not seen it. Therefore, he used the words "add or change" to "cover all bases", as Maureen contends.
Next, the Impugned Codicil included a gift to Gayle of the car. However, the Will had already provided a gift of the car to Gayle. Maureen asserts that Martin did not know that the Testatrix had already given the car to Gayle under the Will because he did not have a copy of the Will and that is the reason for Martin referring to the car in the Impugned Codicil unnecessarily. In addition, the Impugned Codicil does not refer to the First Codicil. She asserts that that was because Martin was drafting the Impugned Codicil rather than obtaining instructions from the Testatrix and had forgotten about the First Codicil. Maureen contends that, if Martin read the Impugned Codicil to the Testatrix, including the bequest of the car to Gayle without any reference to the First Codicil, it would be surprising that the Testatrix did not say to him that that the Will already gave the car to Gayle and did not ask Martin why he had not mentioned the First Codicil.
Maureen contends that, if Martin had read the Impugned Codicil to the Testatrix, it would be surprising that he would mention in his affidavit, which was tendered, that, when he read the Impugned Codicil, he said that the funeral expenses would be paid out of the estate notwithstanding that the Impugned Codicil actually said that the funeral expenses would be paid out of the proceeds of the sale of the house. Maureen contends that, if Martin read the Impugned Codicil to the Testatrix, as he asserted, the Testatrix would have noticed the difference and would have said something. She says that it is suspicious that Martin's oral evidence was different from his sworn affidavit. He offered no reason as to why his evidence was different although, when asked in cross examination, he conceded that he read the Impugned Codicil again and may have been mistaken. Maureen asserts that the fact that Martin changed his position when he read the document again and realised he had made a mistake cast doubt on the reliability and credibility of his evidence.
Maureen emphasised that the Testatrix was a private person and that Roslyn knew that she was a private person and had already declined to provide information about the contents of the Impugned Codicil in two discussions. Nevertheless, Roslyn persisted and asked the Testatrix a third time about the contents of the Impugned Codicil.
Maureen asserts that there are anomalies in Roslyn's evidence that make it implausible. First, Roslyn said that she asked the Testatrix three times about the document that she witnessed and that the Testatrix told her, on the third occasion, about the contents of the Impugned Codicil in circumstances where Roslyn acknowledged that the Testatrix was a private person yet she persisted in asking her about the contents of the Impugned Codicil. Roslyn already knew that the document that she witnessed was a testamentary instrument because the Testatrix told her it was a will and Roslyn, as a Justice of the Peace, did not need to know the contents of the document that she witnessed. Maureen asserts that Roslyn had no reason to make sure that the Testatrix knew exactly what she signed. She contends that Roslyn gave three different reasons at different times.
First, in her examination in chief, the only reason that Roslyn gave for continuing to make sure that the Testatrix knew what she was signing was because of the friction between Maureen and Gayle and she did not want one of them to be influencing the Testatrix one way or the other. Maureen points out that, at the time when Roslyn was asking questions of the Testatrix, in September 2011 or October 2011, Maureen had already moved out of the Mona Vale house and the AVO proceedings had concluded on 23 August 2011 so that there was no longer friction between her and Gayle.
Secondly, Roslyn said in cross examination that she wanted the Testatrix to be fair in her decisions and was making 100% sure that the Testatrix knew what she was doing. However, Roslyn acknowledged that she never asked the Testatrix whether anyone had asked her to change the Will or had coerced her. Thirdly, in subsequent cross examination, Roslyn said that she was trying to make sure that the Testatrix was making the right decision. However, later, she said that it was the Testatrix's decision and Roslyn did not really care if it was unfair. Maureen asserts there was no need for Roslyn to visit the Testatrix a third time to ensure that she knew what she was doing because, on the second occasion, Roslyn asked whether the Testatrix was happy and confident with what she had signed and the Testatrix had said "yes".
Maureen also points to the fact that, although Roslyn said that she was impartial between Maureen and Gayle and was friendly with both of them, she acknowledged that she never visited the home of the Testatrix during the day and only visited at night even though she was not working, she did not have any contact with Maureen after Maureen left the Testatrix's home in June 2011 and did not feel awkward about Maureen not having been informed that her mother had died.
Maureen asserts the following matters give rise to doubts as to the credibility of the evidence given by Roslyn. First, Roslyn said that she was close to Maureen, even though there was a five-year difference in their age whereas Maureen and Roslyn's sister said that Roslyn was never close to Maureen. Maureen points out that, although Roslyn said she was a regular visitor to the house of the Testatrix, she did not know the layout of the house and that the fact that Maureen's bedroom and all the bedrooms were upstairs. Maureen gave evidence that she and the Testatrix watched television upstairs and Gayle watched television downstairs in the flat whereas Roslyn said that Maureen was in her flat downstairs and that when she visited Gayle, Gayle was always upstairs. In addition, Maureen gave evidence that she never saw Roslyn at her mother's house and Roslyn was not aware that Maureen had visited the Testatrix in May 2013 for a week. Ms Glynis Hannam occupied a house opposite the house of the Testatrix from approximately 1995. Ms Hannam said that she never observed the Testatrix with Roslyn and that the Testatrix had warned her about Roslyn and did not approve of her lifestyle.
Finally, Maureen points to the evidence given by Roslyn that, because of privacy reasons, she did not look at the Impugned Codicil when she witnessed its signature by the Testatrix. Nevertheless, after she had witnessed the signature of the Testatrix, she persisted in asking the Testatrix, on three separate occasions, about its contents.
In response to Maureen's complaints about the credibility of Martin and Roslyn, Gayle pointed to the fact that the evidence was given more than eight years after the events in question. Martin said that he prepared the Impugned Codicil on the basis of precedent documents he found online and was not challenged on that evidence. The Testatrix was not a lawyer and had not used lawyers for the preparation of any of her testamentary instruments. Further, neither Martin nor Roslyn was legally qualified, although Martin had had some involvement with legal matters. Most importantly, Gayle says, each of Martin and Roslyn maintained their positions under cross examination on the critical issues. Thus, Martin maintained his evidence as to the taking of instructions from the Testatrix and reading and explaining the contents of the document to the Testatrix. Roslyn maintained her evidence as to the circumstances in which the Impugned Codicil was executed and the subsequent conversations that she had with the Testatrix concerning its nature, content and effect.
The assertions put on behalf of Maureen that Roslyn's evidence was implausible are not made out and ignore the fact that Roslyn was an independent, disinterested witness. They also ignore the fact that her cross examination proceeded largely on the basis there were in fact three separate conversations with the Testatrix. When it was put squarely to Roslyn that the three conversations never happened, she strongly, and credibly, maintained that they did. No evidence was adduced on behalf of Maureen to support the many matters put to Roslyn and other witnesses called on behalf of Gayle.
Further, the cross examination of Martin proceeded largely on the basis that he did in fact take instructions from the Testatrix and it was not put to him that he drafted the Impugned Codicil without the benefit of instructions. In addition, the cross examination of Martin proceeded largely on the basis that he read the Impugned Codicil to the Testatrix. When it was put to Martin that "mistakes", "errors", "typos" and "issues" would have been evident to him and the Testatrix if he had read the Impugned Codicil to the Testatrix, Martin maintained that he had in fact read it to the Testatrix and said that there was no "mistake" in what had been drafted and intended.
[5]
Circumstances Surrounding the Execution of the Impugned Codicil
I set out below my findings concerning the preparation and execution of the Impugned Codicil. Those findings are based on the evidence of Martin and of Roslyn and Peter, which I accept, for the reasons indicated above. It will be necessary to refer to other surrounding circumstances concerning the relationships between Maureen and the Testatrix, between Maureen and Gayle and between Gayle and the Testatrix. Those matters were the subject of substantial swathes of evidence where it is difficult to have any degree of certainty as to the true facts.
On 16 January 2011, the Testatrix signed a typed letter addressed to Maureen. Gayle typed the letter, although she said that the Testatrix dictated it to her. The letter contained the following in part:
"I am disappointed I have brought such a daughter into the world. Clearly I have failed as a mother. I can no longer put up with your behaviour and accordingly I am setting out rules for you to follow. This is my house not yours and I set the rules. These rules are designed for you and you alone. If you do not follow them, move out or I will have you moved out on 1 July 2011, or thereabouts.
I acknowledge you do help in the house but you could do considerably more as the majority work falls to your sister who works full time. There is no reason for you not to change and create harmony in my house. There has always been a place for you to be part of the family. Now more than ever I need your support and consideration but your current behaviour defies belief."
The letter then sets out rules for Maureen to follow under the following headings:
Do not put any wet clothes in my bathroom;
No physical or verbal assaults;
No bundles or bags in the garage;
Only one towel, costume and rashie on the garage clothes line;
You are not to put up Christmas decorations;
Access to a one half shelf in the fridge upstairs; and
Fridge downstairs.
The letter then went on to say:
"These rules are not necessarily exhaustive and from time to time it may be necessary to add to them if you still residing in my house.
You have previously been advised that within 3 months after my death you will be required to leave my house and remove all your objects. If I leave my house prior to my death you will be required to move out within three months or when I nominate (whichever is the lesser). I am now requesting you have your personal belongings ready to move at short notice. Consider yourself, on probation living in my house.
If you show consideration to the other occupants living in my house there will not be an issue. I would like to quickly resolve these problems and get back to living a harmonious life. I thank you in anticipation for your help."
Maureen said that the Testatrix told her that she had signed that document because Gayle had asked her to sign it and that she had signed it "to keep the peace". Maureen accepts that the AVO and related incidents to which brief reference has been made placed a lot of stress on the Testatrix. She accepts that it is not surprising that she often saw the Testatrix crying and being upset.
A considerable part of the evidence related to proceedings in the Local Court involving the Testatrix and Maureen. Gayle and Maureen were clearly on very bad terms. Maureen asserts that the proceedings did no more than confirm that there was real tension between Maureen, on the one hand, and Gayle and Martin, on the other and that the Testatrix was "stuck in the middle".
Maureen contends that it was Gayle's imminent retirement at the end of May 2011, which would result in Gayle spending more time in the Testatrix's home with Maureen that was the source of the problems that resulted in litigation in the Local Court.
Shortly before Gayle retired, she and Martin went on a holiday and discussed the steps they could take to require Maureen to leave the Testatrix's home.
On 30 May 2011, Gayle called the police about a verbal argument between her and Maureen about Maureen living in the Testatrix's home. The police attended and recorded that they spoke to the Testatrix as the "mother of the victim and POI".
On 30 May 2011, Gayle applied to the Local Court for an apprehended domestic violence order (AVO) against Maureen. That did not cover the Testatrix but only Gayle.
On 31 May 2011, Gayle called the police again. The police spoke to the Testatrix and Maureen separately. The Testatrix said that she had not been in an argument with Maureen and did not know why the police attended.
On 31 May 2011, Roslyn witnessed the signature of the Testatrix on a handwritten letter which said:
"I, Hope Marie Linney of the above address would like my daughter Maureen Micallef to leave my home with all her possessions by 21 days being 21st June 2011. My daughter Gayle to stay in my house until it is sold."
Below that, Roslyn wrote:
"Signed before me on the thirty first day of May 2011."
Roslyn was a Justice of the Peace and wrote her registered number and her address on the letter. She then endeavoured to hand the letter to Maureen, who would not sign it. Roslyn then wrote the following at the foot of the letter:
"Delivered 6.40pm 31/5/11.
This is a copy of the original letter given to Maureen Micallef, who read the letter in front of me on 31st May 2011 at 6.40pm. Maureen Micallef would not sign this to say she had received the original copy."
Roslyn then signed the letter again. Roslyn saw the Testatrix approximately once a week after 31 May 2011 because she was worried about her health and her state of mind.
Proceedings were commenced in the Local Court seeking apprehended violence orders against Maureen. A police record of 5 June 2011 records that the Testatrix said that Maureen had always had a domineering and somewhat aggressive nature but that over the last few years had become increasingly aggressive towards the Testatrix and Gayle. The Testatrix said that as a result of Maureen's aggressive behaviour, she no longer felt safe in her home. The Testatrix said that Gayle protects her and that, without her, she felt scared and intimidated by Maureen who often told her what she could and could not do. The Testatrix also told the police that Maureen had changed the locks on her bedroom without the Testatrix's permission as the sole owner of the house. The Testatrix also said that her son, Denis, was too scared to visit her while Maureen was residing in the house. She said that that made her feel upset and lonely as she felt that Maureen had control over who came to visit her. The Testatrix said that if she is left alone with Maureen, she feared that Maureen may become violent towards her and hit her. The Testatrix said that she wanted to feel safe in her own home where she had resided for over 60 years and did not feel safe with Maureen in the home.
[6]
Relevant Legal Principles
A grant of probate in common form is inherently revocable. [2] I am satisfied from the admissions made in the defence to the statement of claim that the circumstances surrounding the execution of the Impugned Codicil are such that it is appropriate to revoke the grant of probate in common form and require Gayle to prove affirmatively that the Testatrix knew and approved the contents of the Impugned Codicil. It is therefore a matter for Gayle to show, on the balance of probabilities that the Testatrix knew and approved of the contents of the Impugned Codicil. There is no challenge to the Will or the First Codicil.
Specifically, it is necessary for Gayle to establish, on the balance of probabilities, that the Testatrix comprehended the effect of what she was doing. [3] The Testatrix must be shown not only to have had knowledge and approval of the words of the Impugned Codicil but also knowledge and approval of the effect of those words in the context of the Will and the estate of the Testatrix.
While knowledge and approval of an instrument that has been duly executed may be presumed, that presumption may be displaced if there are circumstances that create a well-rounded suspicion or doubt as to whether the instrument expresses the mind of the Testatrix. Thus, the circumstances that relate to the preparation or execution of a testamentary instrument or its intrinsic terms may create a well-grounded suspicion or doubt as to whether the testamentary instrument expresses the true will of the testator. [4]
Maureen contends that Gayle needs to prove affirmatively that the Testatrix knew and approved the contents of the Will, that is to say, comprehended the effect of what she was doing," [5] understanding the effect of the Will and the effect of what she was doing. [6]
That, she contends, involves two questions:
1. whether the Testatrix knew and approved the words on the page of the Impugned Codicil; and
2. whether the Testatrix knew and approved the effect of the words on the page of the Impugned Codicil.
The second question is further complicated by the fact that the Impugned Codicil is a second codicil to the Will and the First Codicil. The execution of the Impugned Codicil republished the Will and the First Codicil. [7] Thus, the Testatrix needed to know and approve the Impugned Codicil in the context of the Will and the First Codicil, and needed to comprehend the effect of changing the Will and the First Codicil.
Maureen contends that that is an orthodox application of the principle that a testator comprehends the effect of his or her will. [8] A testator cannot know and approve the effect of his or her will, and cannot comprehend the effect of the will unless he or she has sufficient knowledge about his or her beneficiaries and sufficient knowledge of his or her assets to comprehend the effect of the will and how the will ultimately operates. Thus, Maureen says, Gayle must establish that the Testatrix knew and approved the words on the page of the Impugned Codicil and she knew and approved the effect of those in the context of the Will and the first Codicil.
[7]
Suspicious Circumstances
Gayle formulates the dispute as involving two questions as follows:
whether the Testatrix knew and approved the contents of the Impugned Codicil; and
whether the Testatrix was unduly influenced, in the probate sense, to execute the Impugned Codicil.
Gayle accepts that, subject to Maureen establishing suspicious circumstances, she has the onus in respect of the first question but Maureen bears the onus in respect of the second question.
Maureen contends that the preparation and execution, as well as the content, of the Impugned Codicil involved suspicious circumstances and that Gayle is not entitled to rely on any presumption. Accordingly, Maureen asserts, Gayle has the onus of proving affirmatively that the Testatrix knew and approved the contents of the Impugned Codicil. Maureen contends that, at its highest, Gayle as executrix may have the benefit of a presumption in circumstances where the Impugned Codicil was properly executed, such that in which case Maureen has an evidential onus to show suspicious circumstances to displace the presumption and to move the evidential onus to Gayle. Nevertheless, Maureen contends, Gayle, as executrix, always has the legal onus of establishing that the Testatrix knew and approved of the contents of relevant testamentary instruments.
Maureen contends that, if there is a two-stage process, the Court, at the first stage, must simply decide whether there were suspicious circumstances in the preparation and execution and in the content of the Impugned Codicil. She contends that it is not necessary in the first stage to decide whether each suspicious circumstance relied upon is true and it is sufficient for the Court to decide, at that stage, whether the cumulative effect of the proven allegations establishes sufficient suspicious circumstances to dispel the presumption and move the evidential onus to Gayle.
It may be that the analysis of a two-stage approach, involving presumptions, may be artificial and that the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether or not Gayle, as the propounder of the Impugned Codicil, has discharged the burden of establishing that the Testatrix knew and approved the contents of the Impugned Codicil. [9]
Maureen relies on a series of circumstances. The first is that the Testatrix was partially blind. There was no dispute that the Testatrix was completely blind in her right eye from end-stage age related macular degeneration. Further, in October 2011, the Testatrix had glaucoma and early-stage age related macular degeneration at high risk progression in her left eye. The Testatrix needed to see her ophthalmologist for injections in her left eye every six weeks. Gayle asserted that the Testatrix could recognise the type of document that she looked at but conceded that, if the printing was small, the Testatrix would ask Gayle to assist her in reading a document.
Second, Martin, Gayle's de facto partner, prepared the Impugned Codicil. Martin also had some involvement with the First Codicil. Martin told Gayle about the Impugned Codicil after he prepared it. Further, Gayle received a materially improved benefit under the Impugned Codicil and played a part in its execution by arranging for the attesting witnesses.
Third, the Testatrix did not read the Impugned Codicil when it was prepared by Martin. Roslyn said that the Testatrix picked the document up and looked at it. Peter said that the Testatrix did not read the document to his knowledge. The Impugned Codicil was not read over to the Testatrix at the time when it was executed. However, Martin said that he read the draft Impugned Codicil over to the Testatrix after he had prepared it.
Fourth, the Testatrix did not obtain legal advice from a qualified legal practitioner on the effect of the Impugned Codicil before she signed it. In that regard, it is relevant that the Testatrix had not used a solicitor in relation to the Will or the First Codicil.
Fifth, there was a significant change in the effect of the testamentary dispositions by the Testatrix as a consequence of the Impugned Codicil. Under the Will, the estate of the Testatrix was split equally amongst her three children and it was not until she was 91 years old that she changed her testamentary intentions in the way indicated above. Maureen asserts that that is suspicious in circumstances where the relationship between her and the Testatrix had not changed significantly. Gayle, on the other hand, contends that the relationship between Maureen and the Testatrix had deteriorated because of Maureen's behaviour. Maureen's response is that her personality and behaviour had not changed for many years and that the Testatrix, as her mother and someone with whom she had lived since 1988, was well aware of her personality and behaviour.
Sixth, it was common ground that the Testatrix relied upon Gayle, who was the only person in the household who could drive. The Testatrix relied on her to drive her to the ophthalmologist, to the Bank and to rock pools where she enjoyed swimming. Gayle did more housework than Maureen and was better at providing care for the Testatrix than Maureen.
Seventh, at the time of the signing of the Impugned Codicil, the relationship between Gayle and Maureen had broken down and they were on bad terms. Gayle admitted that she did not like Maureen and that they had had difficulties "all my life". Gayle's antipathy to Maureen is demonstrated by the fact that she would not drive the Testatrix to see Maureen at the Pittwater RSL Club after Maureen had left the Mona Vale house. Gayle made no attempt to communicate with Maureen after the Testatrix died and Maureen did not know for quite some time. Maureen only discovered that her mother had died when the police rang her to advise her that the AVO hearing would not proceed.
If a two-stage process is required to be undertaken, I am satisfied that Maureen has demonstrated circumstances such that Gayle must establish positively that the Testatrix knew and approved the contents of the Impugned Codicil. For reasons that follow, I am satisfied that she did.
[8]
Knowledge and Approval
Maureen contends that the Testatrix is a reasonable person and, while she may have considered it "fair" to give Maureen only a share of the Mona Vale house if the cash and shares had amounted to no more than a modest amount, it would not have been "fair" to reduce Maureen's share by nearly $900,000.
Maureen accepts that it is not necessary to establish that the Testatrix knew precisely the value of her shares and cash. However, she says, it is necessary to establish that she had some positive awareness. Roslyn told the Testatrix that she wanted to make sure that she knew what she had signed. The Testatrix responded "yes" but was not forthcoming about anything else other than the fact that she had signed the document.
Maureen contends that, even if the evidence of Martin and Roslyn were fully accepted, Gayle has nonetheless failed to establish that the Testatrix knew and approved the Impugned Codicil and knew and understood its effect. She asserts that that their evidence was not sufficient because they gave no evidence about any discussion concerning the effect of the Impugned Codicil. Maureen contends that, since the execution of the Impugned Codicil constituted a republication of the Will and the First Codicil, Gayle has the onus of establishing that the Testatrix knew and approved of the contents of the Will, the First Codicil and the Impugned Codicil, not just the contents of the Impugned Codicil. She asserts that Gayle must prove that the Testatrix comprehended the effect of what she was doing, understanding the effect of the Impugned Codicil in the context of the Will and the First Codicil, comprehending the change effected by the Impugned Codicil.
Maureen points to the significant difference in the effect of the Will and the First Codicil, on the one hand, and their effect together with the Impugned Codicil, namely, the change from splitting the estate of the Testatrix equally between three children and giving two of them, Gayle and Denis, nearly three times as much as Maureen. Thus, Maureen received, after the effect of the Impugned Codicil, nearly $900,000 less than she would have received but for the Impugned Codicil. Each of Gayle and Denis received more than $1.3 million more than Maureen.
Maureen contends that Gayle has not established, on the balance of probabilities, that the Testatrix knew and comprehended that that would be the effect of the Impugned Codicil. That is to say, she did not know and comprehend that the effect of the changes she was making was to give Gayle and Denis nearly three times as much as Maureen. Maureen asserts that there is no evidence that the Testatrix sufficiently knew how much cash and shares that she had, such that she would be in a position to know and comprehend that the effect of the Impugned Codicil was to change radically the equal distribution under the Will, as modified by the First Codicil.
There is no evidence that the Testatrix disclosed to Martin or Roslyn how much cash or shares that she had. There is no evidence that she disclosed to Gayle or Denis the value of her cash and shares. Accordingly, Maureen contends, no inference can be drawn that the Testatrix knew the value of her cash and shares.
The Testatrix had given power of attorney to Gayle, who carried out banking on her behalf. Many of the bills that the Testatrix paid were by direct debit. While the Testatrix may have received bank statements through the post, there was no evidence that she read her bank statements, particularly in light of the evidence that her sight was failing. There was no evidence that anybody ever discussed with the Testatrix the contents of her bank statements such as to demonstrate that she actually read them.
While Maureen accepts that the Testatrix had the capacity to understand the nature and extent of her assets, she says that that does not demonstrate that she actually knew the nature and extent of her assets. Maureen asserts that the Court should not draw any inference that the Testatrix actually knew the nature and extent of her assets because there was no evidence from which such an inference can be drawn. Further, Maureen contends that the evidence suggests that the Testatrix did not know that she was reducing the benefit to which Maureen would be entitled by nearly $900,000 and did not know that she was radically changing the equal distribution that was the effect of the Will, by giving Gayle and Denis more than three times what she was giving to Maureen.
Denis said that the Testatrix told him that she was giving Maureen "a bit less". Gayle said that the Testatrix told her that it will be "fairer for Denis and yourself" because of all of the assistance that the Testatrix had provided to Maureen when Maureen did nothing to help her. However, Maureen says, the only evidence of financial assistance given by the Testatrix to Maureen was a maximum of some $150,000. That was made up by the forgiving of board up to a maximum of $40,000, a gift for an overseas tour of $25,000 and a cash gift of $70,000 when Maureen purchased a house. On the other hand, Maureen contends, most of that financial assistance had been provided many years earlier. The house was bought in 1988 and Maureen had not been paying regular board since 1988. Yet the Will, made in 1993, provided an equal share in the whole of the estate among the three children and no change was made under the First Codicil.
Maureen asserts that the Testatrix was a reasonable woman and, while she may have considered it "fair" to give Maureen a third of the house if her cash and shares amounted to a modest amount, it would not have been "fair" to reduce Maureen's share of the estate by nearly $900,000 simply because Maureen had received, at most, $130,000. Similarly, Maureen says, it may have been "fair" for the Testatrix to give her only a share of the Mona Vale house in circumstances where the Testatrix and Maureen had recently had "some issues", but again, only where her cash and shares amounted to a modest amount.
Maureen says that the Testatrix expressly wanted her to know that she was "very fond" of her. The Testatrix told her hairdresser of many years and her neighbour that she missed Maureen. Maureen says that it would not be reasonable or plausible that the change in the relationship between her and her mother would lead to such a drastic and radical change in her testamentary intention. Alternatively, Maureen says, if the relationship had changed so radically and had so seriously deteriorated, it would be odd that the Testatrix would continue with the gift of a third share of her house.
Maureen says that the better view is that the Testatrix had no idea of the value of her cash and shares or believed that she only had a modest amount such that, when she signed the Impugned Codicil, she did not know what the true effect of the change in her testamentary disposition was going to be and did not know that she would reduce Maureen's share by nearly $900,000. Maureen accepts that the Deceased did not need to know precisely what the value of her asset holdings might be. However, it was necessary for her to have sufficient knowledge of her assets and their value to know approximately how much her gift to Maureen would be reduced and the relative shares that Maureen, Gayle and Denis would receive from her estate.
There was no evidence as to when the Testatrix acquired her shares and cash or over what period she accumulated those assets. There is no doubt as to her capacity to understand the document that she signed on 29 August 2011. While she may not have been conscious of the precise value of her assets, there is no evidence to suggest that she had insufficient knowledge or understanding to give rise to an inference that she had no relevant understanding of their value. While it is fair to say that a testatrix must have knowledge of the extent of her estate, that does not necessarily require knowledge of each particular asset or knowledge of the value of that asset even of a particular class of assets. [10] The power to dispose freely of one's assets by will is an important right. A determination that a person lacked or has not been shown to have possessed a sound disposing mind, memory and understanding is a grave matter. [11]
In circumstances where there is no dispute as to the capacity of the Testatrix, Gayle, as propounder of the Impugned Codicil, is entitled to the benefit of a presumption that the Testatrix had sufficient knowledge of her assets to comprehend the effect of the Impugned Codicil, in the context of the Will and the First Codicil. There is no evidence to suggest that the Testatrix had any misapprehension of the extent of her assets. In any event, there is no suggestion in Maureen's statement of claim or her defence to the cross-claim that the Testatrix did not know the nature or extent of her assets or that she did not appreciate the difference between the provisions being made for Maureen under the Will and under the Will as modified by the Impugned Codicil.
[9]
Undue Influence
In support of her contention that the Testatrix was unduly influenced by Gayle or Martin in executing the Impugned Codicil, Maureen points to the evidence that the Testatrix was frail, vulnerable and stressed, was partially blind requiring the use of a walker and was involved in the proceedings in the Local Court. She points to the hostility between herself and Gayle and her expression of concern to the police about "constant domestics" and to Roslyn about the friction between "the two girls". Roslyn visited the Testatrix because of her concern about her health and her state of mind.
Gayle threatened to leave the home if Maureen stayed there because she could not live with Maureen. The Testatrix relied on Gayle, who did most of the house work and was the only person in the household who could drive. The Testatrix did not want to go into a nursing home and wanted to stay in her own home but she could not stay there by herself. Gayle was more capable of looking after the Testatrix and, if she was going to choose one person to stay in the home, the Testatrix would have chosen Gayle.
Maureen contends that the discussion between the Testatrix and Gayle, when the Testatrix proposed giving Gayle the Mona Vale house, should be scrutinised with care. She says that Gayle's response was more forceful than a mere request and Gayle required and insisted that the Testatrix leave her more cash. Maureen acknowledges that there was no violence but asserts that Gayle applied pressure to her mother, as a vulnerable and frail woman who wanted to remain in her own home and who relied upon Gayle. Maureen asserts that the Testatrix was induced "for quietness sake" to succumb to the pressure brought by Gayle for the sake of a quiet life to such an extent that her free judgment was overborne in signing the Impugned Codicil. Maureen asserts that that had happened previously when the First Codicil was constructed and typed by Gayle because she wanted it to be easier to sell the house when the Testatrix died. Maureen contends that, even if the Testatrix knew and approved the contents of the Impugned Codicil, she did not execute it "freely and voluntarily".
A finding that a testamentary document was produced by undue influence requires a finding of coercion. The onus of establishing undue influence rests with the person asserting it. If a case of coercive undue influence is to be advanced, it must be articulated. [12] Thus, a person might be subjected to social pressures that fall short of coercion in the making of a will.
None of the matters now relied upon by Maureen as constituting undue influence was pleaded as such. The alleged threats by Gayle to leave the family home, the alleged involvement of Gayle in procuring the signature of the Testatrix and the discussion in August concerning what would be left to Gayle from the estate do not amount to coercion. None of those matters is referrable to the Impugned Codicil. Indeed, there is no evidence to suggest that Gayle required and insisted that the Testatrix leave her more cash. The evidence does not support a finding that the Testatrix was induced "for quietness sake" to execute the Impugned Codicil or that her will was overborne.
No explanation was offered by Maureen as to why Gayle and Martin could exert influence on the Testatrix to exclude Maureen from some rather than all of the estate of the Testatrix. I am not persuaded that the mind or will of the Testatrix in the making of the Impugned Codicil was overborne by any conduct on the part of Gayle, Denis or Martin.
[10]
Conclusion
I am satisfied that the Testatrix had sufficient understanding and knowledge of the assets that would fall into her estate such that she had a clear understanding of the effect of the Impugned Codicil. I am firmly satisfied that the Impugned Codicil was signed by the Testatrix in circumstances where she understood its effect, in the context of the Will and the First Codicil. I am satisfied that the Impugned Codicil was not induced by any coercion or undue influence on the mind or will of the Testatrix.
It follows that Gayle is entitled to a grant of probate in solemn form in respect of the Will, the First Codicil and the Impugned Codicil. Having regard to the conclusion that I have reached concerning suspicious circumstances, I consider that the appropriate order for costs is that the costs of the parties be paid out of the estate of the Testatrix. I propose to direct Gayle to bring in short minutes to give effect to my conclusions.
[11]
Endnotes
The nature of those documents is not relevant for present purposes.
See Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [8] ("Tobin v Ezekiel"').
See Tobin v Ezekiel at [44].
See Mekhail v Hana [2019] NSWCA 197.
Tobin v Ezekiel at [44] (Meagher JA; Basten and Campbell JJA agreeing) citing Barry v Butlin (1838) 2 Moo PC 480 at 484; 12 ER 1089 at 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin (1918) 25 CLR 519 at 522, 528 (Barton and Gavan Duffy JJ); [1918] HCA 73.
DJ Singh v DH Singh [2018] NSWCA 30 at [174] and [177] (Gleeson JA; White and Leeming JJA agreeing).
Fairweather v Fairweather (1944) 69 CLR 121; [1944] HCA 11; Estate Reid; Roberts v Moses and Palmer [2018] NSWSC 1145.
Tobin v Ezekiel at [44] (Meagher JA; Basten and Campbell JJA agreeing) citing Barry v Butlin (1838) 2 Moo PC 480 at 484; 12 ER 1089 at 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin (1918) 25 CLR 519 at 522, 528 (Barton and Gavan Duffy JJ); [1918] HCA 73.
See Mekhail v Hana [2019] NSWCA 197 at [165] (Leeming JA).
See Kerr v Bardan [2004] NSWSC 735 at [49].
See Easter v Griffiths (Court of Appeal (NSW), 7 June 1995, unrep).
See Boyce v Bunce [2015] NSWSC 1924 at [196].
[12]
Amendments
05 August 2020 - Citation corrected
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 August 2020
In the course of the proceedings in the Local Court, Maureen cross examined the Testatrix, then aged 91 years. Maureen asserted that the Testatrix "didn't care less" about being cross examined by her and that the cross examination made "no difference" to their relationship. That seems highly unlikely. It is much more likely that the Testatrix would have found that experience somewhat distressing.
On 5 June 2011, Gayle took the Testatrix to the police station where she made a statement in support of an AVO.
In June or July 2011, Denis had a conversation with the Testatrix about her will. Only he and his mother were present. The Testatrix told Denis that she was changing her will in favour of him and Gayle and that Maureen was going to get her third share of the house but no more. The Testatrix said that the shares and cash were to be split between him and Gayle and that the Testatrix's personal possessions, watches, rings and things were to go to Gayle. Denis said that he told his mother that Maureen would be angry about those changes and that she responded that she was not worried about Maureen being unhappy or angry about it.
On the weekend of 20 August 2011 and 21 August 2011, the Testatrix had a conversation with Martin, alone, in which the Testatrix said that she would like to make some changes to her will and asked whether Martin could help her with that. Martin said that he had had some experience with preparing legal documents and asked the Testatrix what she wanted to change. The Testatrix said that she did not want to change anything in relation to the Mona Vale house, which was still to go equally among her three children. She said, however, that she would like all of her money and assets to go to Gayle and to Denis.
Martin asked the Testatrix what she meant by her "assets" and whether that included the contents of the Mona Vale house, such as furniture, appliances and the car, her personal possessions and that sort of thing. He asked her whether she wanted to split those things evenly between Gayle and Denis. The Testatrix replied that all of that should go to Gayle unless Denis had a use for it. Martin then asked the Testatrix whether she recalled the long list that was presented at the Local Court by Maureen. Martin said that it consisted of page after page listing a whole lot of things that Maureen said were hers even though they were not. Martin told the Testatrix that it might be useful to include a list of that sort of thing in the proposed codicil. The Testatrix responded that it would be important to list all that sort of thing. She said that, other than that, she wanted everything, whatever is left, to go equally between Denis and Gayle.
Martin then asked the Testatrix what was to happen if either of them passed away before she did. The Testatrix responded that all would then go to the one that was left, the remaining one of the two. Martin asked the Testatrix whether there was anything else she wanted in the proposed codicil. The Testatrix responded that she wanted to change it so that Gayle could remain in the Mona Vale house until it was sold and that the expenses or the costs of her funeral were to be paid out of the sale of the Mona Vale house. The Testatrix had no documents with her when she had the conversation with Martin and Martin was not given a copy of any earlier will.
Martin said that he would download some examples from the Internet and get some guidance material and draft a codicil for consideration by the Testatrix. Martin then accessed something on the Internet and told the Testatrix that he would take that away with the notes that he had made. He did not keep a copy of the notes that he made on the occasion in question.
Over the following week, Martin prepared a document and printed it. He brought it around to the Mona Vale house on the following weekend and told the Testatrix that he had prepared the codicil. He asked whether they could go through it. The conversation took place in the dining room of the home of the Testatrix. There was no one else present at that time.
Martin read the draft document to the Testatrix slowly. He said that he made sure that the Testatrix understood. After reading each paragraph or section of the document, Martin paused and explained in his own words what the meaning of that paragraph or section was and why he had used that particular form of words. He gave no evidence of the precise words that he used on the occasion in question. As Martin explained each paragraph or section, the Testatrix nodded or gave signs of approval. There was no conversation other than the Testatrix saying "yes" or "I understand" or words to that effect. The discussion took about 15 minutes. When that ended, Martin asked the Testatrix whether she was happy with the document and she replied "yes". Martin left the document with the Testatrix. Martin identified the form of the Impugned Codicil as the document that he prepared and explained to the Testatrix on that occasion.
Martin subsequently explained in his evidence in chief that the reason for having the long list of items in the Impugned Codicil was to avoid doubt as to what constituted the personal possessions of the Testatrix. He also said that he explained to the Testatrix that "liquid assets" referred to the financial assets that were listed. He also mentioned the part that provided that if either Gayle or Denis pre-decease the Testatrix, the other became the sole beneficiary and "gets all the money". Martin also said that he told the Testatrix that the beginning of the Impugned Codicil was "the standard opening clause" declaring who was making the codicil and what it was. He said that he explained to the Testatrix that the words "otherwise …" located near the end of the document meant that the document changed the Will but otherwise the Will remained as before.
On 29 August 2011, Gayle came across the road to Roslyn's house and asked if she, as a Justice of the Peace, and Peter, as a witness, could witness a document for her mother. Roslyn responded along the lines "yes, not a problem". Gayle and Peter then went across the road to the Mona Vale house with Gayle. The Testatrix was in her usual chair sitting by the window near the dining room table. Roslyn and Peter went into the room with Gayle but Gayle then left the room.
The Testatrix had a document on her table. Roslyn told the Testatrix that she believed that the Testatrix wanted her to witness a document as a Justice of the Peace and for Peter to witness it. The Testatrix responded "yes", picked up the document, looked at it in front of her and then put it back down on the table. Roslyn said that she did not look at the document herself and asked the Testatrix to sign it in front of her, which she did. Roslyn then signed the document. Peter also signed the document. Roslyn was then shown a copy of the Impugned Codicil, which she said was, to the best of her recollection, the document that she witnessed on that occasion. The Impugned Codicil bears the signature of the Testatrix. In blank spaces, Roslyn completed the date, 29 August 2011, and her name and Peter's name as witnesses. She wrote her full name underneath her signature and wrote Peter's full name under his signature. She also included her registered Justice of the Peace Number.
The Impugned Codicil has a second page headed "Attest" and containing the following:
"On the date last above written, Hope Marie Linney, known by us to be the person whose signature appears at the end of this codicil, declared to us, Roslyn Annette Black and Peter Forbes Black, the undersigned, that the foregoing instrument, consisting of one page, was the codicil to the will dated 14 July 1993; who then signed the codicil in our presence and now in the presence of each other, we now sign our names as witnesses."
The spaces for the names of the witnesses were completed by Roslyn with her full name and Peter's full name. There then followed again the signatures of Roslyn and Peter, together with their home address, all of which was completed by Roslyn on that occasion.
Peter recalled being asked to witness a document in 2011 but he could not remember the exact date. Roslyn asked him to witness the document. He and Roslyn went to the house of the Testatrix. He said that they went upstairs and there was a table at which the Testatrix was sitting. There was some paperwork. He said that he signed it and left. He could not recall any conversation that occurred on that occasion. Peter identified his signature on the copy of the Impugned Codicil. He saw the Testatrix sign and saw his wife sign.
A few days after the conversation between Martin and the Testatrix on 27 or 28 August 2011, Martin had another conversation with the Testatrix in her home. He and the Testatrix were alone. The Testatrix had the Impugned Codicil, which had been signed, and handed it to Martin, asking him to make a scan of the document and return the original to her. She had no other documents with her at that time. Martin took the document, scanned it and returned the original to the Testatrix a few days later.
Martin and Gayle subsequently had a conversation about the Impugned Codicil. Martin told Gayle that her mother had asked him to prepare a codicil for her. Gayle responded "oh that's good".
Roslyn saw the Testatrix about a week after the document was signed. A week or so later, Roslyn went to see the Testatrix again, because she was deeply concerned about the friction between Maureen and Gayle and did not want one influencing one way or the other. She said that she wanted to play a neutral role in the situation and was concerned for the Testatrix.
On this occasion, Roslyn waited for Gayle to leave the house and went over into the Mona Vale house, where she had another conversation with the Testatrix. She reminded the Testatrix that she had asked her last week about the document and said that she was deeply concerned because "the girls aren't getting on" and she did not want to take sides. Roslyn said to the Testatrix that she wanted to know what she had done in that document. The Testatrix responded "I have made changes to my Will". Roslyn asked her whether she was happy and confident with what she had signed. The Testatrix responded "yes".
After a further two weeks, Roslyn went to see the Testatrix a third time after the signing of the Impugned Codicil. Once again she was sitting by the dining room table in her usual chair. There was nobody else present. Roslyn told the Testatrix that she was a very, very private person and that she hated to interfere with her decisions. Roslyn said that if the Testatrix had made changes to her will could she tell Roslyn what the changes were. The Testatrix replied that she had left the Mona Vale house to her three children and her assets and belongings were going to two of the children, being Denis and Gayle.
Roslyn said that that was going to cause a lot of trouble with Maureen and the Testatrix responded, "[y]es I know but I have given Maureen money and the other two have never ever asked me for money". The Testatrix said that she had had a lot of trouble with Maureen not just in the last few months but for a long, long time and that she was very embarrassed about the whole scenario. She told Roslyn that the changes she had made to her will was that the Mona Vale house would go to the three children and her assets would go to Denis and Gayle. Roslyn again said "This is not going to go well".
At around the time of the signing of the Impugned Codicil, the Testatrix asked Gayle to take her to the Mona Vale branch of the Commonwealth Bank to retrieve the Will, which was kept in safe custody at the Bank. About a week after retrieving the Will, the Testatrix returned to the Commonwealth Bank with Gayle and returned an envelope marked "Will" to her safe custody packet. She told Gayle that that was her will.
On 3 December 2011, police visited the Testatrix's home. Gayle initiated the visit and the police narrative describes the interaction between Gayle and Martin and refers marginally to the Testatrix at the end of the narrative, where the Testatrix is reported as saying that she does not want Maureen to visit "due to the constant domestics". Maureen had moved out of the Testatrix's home. Maureen said that the reason why the Testatrix asked her to move out and involved the police was because Gayle would not remain in the house and look after her if Maureen continued to live there and the Testatrix needed Gayle to remain in her house.
Maureen said that, at a meeting with the Testatrix at Pittwater RSL Club in February 2012, the Testatrix said "I'm not changing my will" or "[I] haven't changed my will". There was no corroborative evidence of those statements. In any event, it would not be unusual for a person in the position of the Testatrix to tell Maureen what she wanted to hear, particularly if the Testatrix had some fear of Maureen, as she said the police.
Sue Shaw, the niece of the Testatrix, wrote to Maureen on 26 July 2012 saying that she had spoken to the Testatrix who said that she had not changed her will. The Testatrix and Sue Shaw were relatively close confidants. Ms Shaw has since died and the precise communication between her and the Testatrix is therefore not the subject of any evidence.