Nicholson & Ors v Knaggs & Ors [2009] VSC 64

INTERNATIONAL LAW - Role in development of the common law - Convention on the Rights of Persons with Disabilities 2006 [2008] ATS 12 - Use of travaux préparatoires - Construction of Article 12

1 Elsbeth Jean Dyke, or "Betty Dyke" as she was commonly known, died on 25 May 2004 aged 84 years. She left a large estate. She made her last will on 12 January 2001 (the "2001 Will"). Probate of this will was granted on 11 October 2004. The principal asset of her estate was her farm known as "Sefton Grange" in Craigie Road, Mount Martha on the Mornington Peninsula in Victoria.

2 At the time of her death the farm had potential for immediate subdivision into residential allotments. The property subsequently achieved a sale price of $15,100,000 on the open market. She also had $877,804 invested in various accounts with the National Australia Bank at Mornington, together with household items, farming equipment, a car and other such items valued at $9,000.

3 Ms Dyke was a single child with no brothers or sisters. She never married and had no children of her own. Her closest family living at the time of her death were her cousins.

4 In her 2001 Will, Betty Dyke made a number of monetary gifts of between $10,000 and $30,000 to a number of individuals. These included some members of her family and other people who were meaningful in her life. She also left $10,000 to the Cat Protection Society and $100,000 to the RSPCA. She left the remainder of her considerable estate to three couples who were neighbours living in the vicinity of her farm at Mount Martha. These people were Tim Knaggs and his wife Denise Knaggs, Robert Allen and his wife Sandra Allen, and Gary Smith and his wife Diane Smith. Each couple received $4,859,782 as a distribution from the estate. Additionally, three years before her death, Betty Dyke gifted $413,320 to each couple, which was derived from the proceeds of the sale of a parcel of the land she owned.

5 She made an earlier Will in 1999 which was broadly to similar effect (the "1999 Will").

6 She also made a much earlier will in 1985. In contrast to the two later wills, this left the bulk of her estate to a group of nominated charities, which provide care to animals and services to deaf and blind persons.

7 Betty Dyke suffered from two major disabilities that increased in severity as she grew older. She was in acute and constant pain caused by curvature of the spine (thoraco-lumbar kypho-scoliosis). Later she developed dementia caused by the onset of Alzheimer's disease. In the latter years of her life, when she made the wills, she had become a frail, vulnerable and anxious old lady.

8 While many older people have the capacity to look after themselves, some require help because of diminished physical or mental capacity. Betty needed the support of caregivers who were drawn from her neighbours. The caregivers at the time Betty Dyke made the 1999 Will were Denise Knaggs, Robert and Sandra Allen, and Gary and Diane Smith. She called these people her "Friends". In particular, Denise Knaggs was her main caregiver and Betty Dyke came to depend on her heavily. She said to her solicitor in early September 1999 when she was giving instructions for her Will:

Denise, Robert & Sandra Allen and the Smiths are very important to me - they are my best friends - they look after me, & my property & animals. Denise helps me more than anyone. They get paid but not much and they help me enormously. They are my friends. They do what needs doing.

9 Whether or not her "Friends" fulfilled her expectations to the degree that she desired or was perhaps entitled to expect, she certainly acknowledged their work in supporting her.

10 In this case, challenges are made to both the 2001 Will and the 1999 Will, and to two codicils made in the intervening period. The challenges are made by members of Betty Dyke's family, who stand to gain little in monetary terms from the litigation, and by a number of charities which stand to gain a good deal, if successful.

11 The grounds relied upon in these challenges are: first, that Betty Dyke lacked testamentary capacity at the time she made the relevant wills and codicils; second, that she was subjected to undue influence in the making of the relevant wills and codicils; and, finally, that she lacked the necessary knowledge of the contents of, and therefore did not approve of, the relevant wills and codicils. If the 1999 and 2001 wills are set aside, the 1985 Will, which is not under challenge, should operate as the valid will of the late Betty Dyke.

Ageing, Vulnerability and Testamentary Capacity

12 In Australia, as in most developed countries, an increase in life expectancy has led to a sharp increase in the number of elderly people in the population. The ageing population is likely to give rise to an increase in the number of Australians who are currently living with a disability.[1] As Fiona Burns states in her article "Elders and Testamentary Undue Influence in Australia":[2]

It is well known that social demography is changing and that elderly persons comprise an increasing proportion of the population. Therefore, it is likely that there will be a larger number of persons making or changing wills in their old age.

Increasing longevity has several other important consequences in the will making process, generally, and for undue influence, in particular. Longevity leads to greater susceptibility to mental and physical diseases associated with old age. The process of ageing may lead to significant physical and/or mental decline, so that elders may be unable to care for themselves and make decisions about their life and the distribution of their assets after death.

[Footnotes deleted]

13 Growing concern for the rights of persons with disabilities, including the elderly, has been reflected in the United Nations sponsored Convention on the Rights of Persons with Disabilities 2006 (the "CRPD").[3] The CRPD marks a paradigm shift in approaches to persons with disabilities. It reflects a movement from treating persons with disabilities as objects of social protection towards treating them as subjects with rights, who are capable of claiming and exercising those rights and making decisions based on free and informed consent as active members of society.

14 Addressing the Resumed 8th Session of the Ad Hoc Committee on the Convention on the Rights of Persons with Disabilities[4] Mr José Antonio Ocampo, Under-Secretary-General for Economic and Social Affairs said:

The text before us is truly of historical significance. It takes to a new height the process initiated two decades ago by the United Nations of moving from the treatment of persons with disabilities as "objects" of charity towards their consideration as "subjects" with rights who are capable of claiming those rights and making decisions for their lives, as well as being active members of society.

This convention is intended as a human rights instrument with an explicit social development dimension. It calls for a series of development interventions, and sets forth the principles on which those actions should be based to create the material conditions necessary for persons with disabilities to enjoy and exercise their rights.

15 The shift to a human rights based approach to disability, which is sought in the CRPD, calls for signatory States to effect fundamental changes in government programmes and policies, and undertake changes and development of domestic law as it affects the disabled.[5]

16 Australia was an active participant in the development of the CRPD, which it signed when it opened for signature on 30 March 2007. The CRPD entered into force generally on 3 May 2008 and it was ratified by Australia on 17 July 2008.[6] It has not yet been incorporated into Australian domestic law.

17 Article 1 of the CRPD declares its purpose to "promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity".[7] Article 1 also defines persons with disabilities to include those who have "long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others".

18 One of the chapeau[8] texts of the CRPD is Article 3. The first of the eight defined general principles of the CRPD is stated to be "Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons". This has been described as one of the "guiding principles" of the Convention and provides a context for the definition of rights in the CRPD which follow.[9]

19 Article 12 of the CRPD is relevant to this case. It endorses the concept that people with disabilities should have the capacity to exercise legal rights on an equal basis with others in all aspects of life.[10] The article is capable of applying to the making of wills by persons with disabilities.

Testamentary Freedom: The Common Law and Human Rights

20 The freedom to dispose of property after death in the way a person chooses has been recognised for centuries under the common law. It is a freedom which is limited only by the "Family Provision" legislation (previously called "Testator's Family Maintenance" legislation) which was introduced at the beginning of the 20th century. Freedom of testamentary disposition now has a legitimate limitation. A testator has an obligation to make adequate provision for persons, who are usually family members, to whom a testator owes responsibility.[11]

21 Subject to the "Family Provision", the common law has traditionally recognised the rights of individuals to freely dispose of their estates after their death in whatever way they choose. The concept of testamentary freedom is of very long-standing and has remained in Anglo-Australian jurisprudence as a powerful guiding principle in succession law. Indeed, freedom of testamentary disposition has been recognised in the common law as a human right. In Grey v Harrison,[12] Callaway JA (with whom Tadgell and Charles JJA agreed), in the context of an appeal from a decision under the "Family Provision", said that:[13]

[I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else.

22 While the right to freedom of testamentary disposition is not expressly recognised in the Charter of Human Rights and Responsibilities Act 2006, the Charter does not detract from rights and freedoms recognised under international law or the common law. Section 5 provides that:

A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

23 The growing issue of care for the elderly has given rise to questions as to who should share the care giving burden. Individual carers are not necessarily confined to family members, and yet may have a considerable moral claim to the estate of the testator. As Rosalind Croucher observed:[14]

Where an individual lacks capacity, whether the person has lost it through illness or incapacity, or never had it, the burden of caring for that individual may fall disproportionately on one person's shoulders. The moral claim of such a care giver, who may or may not be a family member, may be high and may continue to grow over the period of disability. The incapable person may be dependent on their carer, physically and financially. The lack of capacity means that the person may never be able to say 'thank you'; to repay the moral obligation for the caring.

24 In this context, and subject to provision being made in accordance with the "Family Provision" legislation, there is no reason why a competent testator should not be in a position to reward in a will persons who have carried most of the care giving burden, whether they be members of the testator's family or not, provided that the will is freely made and the inclinations of the person are expressed without undue influence or tainted with fraudulent conduct.

25 The common law has developed a number of safeguards to ensure that people who make wills can do so in a way that reflects their true wishes. The will must satisfy the formal requirements for the making of a valid will; it must be made by a person with testamentary capacity; the will-maker must approve of and have relevant knowledge of the contents of the will and must not be subjected to the undue influence of other persons. If any of these safeguards are violated, the will must be declared invalid, because it does not reflect the true wishes of the person making it.

26 The law of undue influence fulfils an important function in buttressing the right to freedom of testamentary disposition. The common law recognises the necessity for safeguards which protect the freedom, will and preferences of a person making a will from undue influence. It works to protect the autonomy and freedom of choice of a testator by providing a facility to strike down wills or parts of wills which do not reflect the person's untrammelled preferences free of the undue influence of others.

27 The protection is particularly important where elderly testators are concerned. This is so given the likely increase in the number of elderly people who, although possessing testamentary capacity, do not possess the physical or mental independence or resilience to withstand the influences of family, friends, and carers. Such elders may be vulnerable to the undue influence of others who may be tempted to exercise it. As Fiona Burns observes:

Adult relatives may face the prospect of the delayed inheritance of family assets. Adult relatives or carers may consider that they have a "right" to what remains of an elder's assets because of their relationship with the elder and/or the care and assistance which has been given over a long period of time. They may exercise persuasion, pressure and coercion on the elder in order to ensure that they are beneficiaries under the elder's will or codicil, particularly as the elder may have accumulated significant and valuable assets over a long period of time.[15]

28 The trial of this action extended over 34 sitting days from 27 October through to 17 December 2008. 38 witnesses were called. There were 3250 pages of transcript and over 5000 pages of documents. Early in the trial I gave the parties another chance to resolve their differences. I ordered a second mediation. In spite of this opportunity, the parties could not reach agreement.

29 Evidence in chief at the trial proceeded by way of affidavits, supplemented in most cases by short oral evidence. There were a very large number of objections taken by both parties to the admissibility of portions of the trial affidavits relied upon by the opposite party. It soon became clear that many of these objections, although arguably technically correct, went to factual issues which were peripheral to the central issues in dispute in the proceeding, and ultimately would likely have little or no bearing on the resolution of those matters. An example was the objection taken to the evidence of Julie Nicholson where she said: " ... I had telephoned Betty in 1991 when Salt was unwell". Salt was a duck. Objection was taken as to the qualifications of the witness to diagnose the health of farmyard poultry and express an admissible opinion on the subject. However, and thankfully, the wellbeing of Salt the duck was never a serious issue in the case requiring the determination of the Court.

30 It became clear that dealing with all of the objections during the trial would occupy an inordinate period of time and increase costs for the parties, in many cases where the objection taken was of little or no benefit to the ultimate resolution of the case.

31 In Aktiebolaget Hassle v Alphapharm Pty Ltd[16] Gleeson CJ, Gaudron, Gummow and Hayne JJ in their joint judgment, observed that in order to provide procedural fairness, "the parties should know, before addresses are taken, the final state of the evidence".[17] Their Honours considered that the trial judge's failure to make express rulings at trial in that case was "unfortunate".[18]

32 In adapting these principles to the present case, at my suggestion senior counsel for both parties took a sensible course. While objecting to the admissibility of segments of the affidavits, they expressly acknowledged that they did not seek rulings on all those objections at trial. Rather, having taken objections in the form of written schedules provided to the Court together with objections made orally, only where it was considered necessary on central evidentiary issues did the parties request specific rulings to be made in the course of the trial, which I gave.

33 Further, at the close of the evidence, and before final addresses were delivered, the parties mutually exchanged further schedules of objections on evidence considered to be of importance to their respective cases. The schedules were in tabular form and in each case detailed the portion of affidavit evidence objected to, the basis of the objection, and the principle on which the evidence was admissible. Rather than occupying considerable time in court dealing with all of these objections, the parties consented to me providing rulings in electronic form. The schedules were marked by me in each case either "A", which represented my ruling in favour of admissibility, or "NA", which represented my ruling against admissibility. The parties dispensed with reasons being provided by the Court on these rulings. The marked up schedules were then transmitted to the parties electronically in "Portable Document Format" (or "pdf").

34 This procedure provided a cost saving to the parties and facilitated an efficient disposition of many of the evidentiary issues.

35 Issue was taken by the Defendants as to the admissibility of evidence from witnesses about statements made by the testatrix from time to time. The statements were said to be hearsay. The Plaintiffs contended that such statements were admissible, not to prove the facts stated, but to show the knowledge, intention, and mental state of the testatrix at the time of making her wills and codicils. A number of the statements also showed the attitude of the testatrix to some of the persons referred to in her wills. As such, it was contended that the statements were admissible as original evidence as part of the res gestae or as evidence of the state of mind of the testatrix reflected in the statements. Post-testamentary statements were included in this category, as well as pre-testamentary statements and statements made contemporaneously with the giving of instructions for a will or codicil and at the time of execution of those instruments.

36 Oral or written statements of a testator as to the contents of his or her will, for example in the case of a will which cannot be found, may be admitted into evidence. Post-testamentary statements of this kind may be admitted under a recognised exception to the hearsay rule.[19]

37 However, in this case, I admitted evidence from witnesses as to statements made by the testatrix from time to time, on a different basis. I did so, not under any exception to the hearsay rule, because in my opinion the rule had no application. Rather, such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state of the testatrix at various times. The statements are not admitted to prove the facts which they might evidence.

38 Such was the approach of Owen CJ in Eq. in Brown v M'Encroe.[20] The testator in this case was John Brown of Emu Hall. He was an elderly man who suffered failing health and chronic intemperance for some time before his death. He left a large fortune. His third wife who had survived him was more than 40 years his junior. Mr Brown made meagre provision for his wife in his will, which she challenged on the basis of lack of testamentary capacity. This was founded on allegations that at the time of making his will the testator suffered from insane delusions and a "softening of the brain". A witness was permitted to give evidence as to a conversation had with the deceased after he had made his will during which the witness had "expostulated with Brown as to the smallness of the provision he was making for his wife".[21] The witness was permitted to provide evidence of the ensuing conversation with Mr Brown, in which the deceased described to him the suspected infidelity of his younger wife at Emu Hall. The evidence was admitted, "not to prove adultery, but such levity of conduct as would justify an old man with a young wife to entertain suspicions, and so negative any idea of an insane delusion" which may have been present at the time that Mr Brown made his will.

39 The parties called expert neuro-psychiatrists, Professor Peisah and Dr Lloyd, as witnesses in this case. In relation to medical opinion on the question of testamentary capacity, I accept that it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first-hand. The expert, who has not met the testator, is by necessity compelled to rely on secondary evidence in making his or her assessment, such as the untested affidavits of other witnesses, medical records and other relevant documents.

40 Consistently with the approach of Judd J in Foster & Ors v Mellor[22], I respectfully adopt what was said by Windeyer J in Revie v Druitt.[23]

As I have pointed out quite recently in Kerr v Badran lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased.

41 In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.

42 Nevertheless, Professor Peisah and Dr Lloyd both contributed useful insights into the disorder of dementia, its effects on testamentary capacity and the susceptibility of sufferers, particularly the aged, to undue influence.

43 Many will cases exhibit the themes described by Scarmen J in the Estate of Fuld, dec'd (No. 3); Hartley v Fuld[24] where it was essayed:

Those who know are not prepared to reveal the whole truth. Darkness and suspicion are common features in will cases.

Because the principal actor is dead, circumstantial evidence usually assumes great importance.

44 In a civil case, when a court is asked to infer a fact from various items of circumstantial evidence, whether the inference is to be founded upon a chain of sequential reasoning and or an accumulation of circumstances from which the fact may be inferred, it must consider the combined or cumulative effect of the evidence and the totality of circumstances. This approach was emphasised by the Court of Appeal of Victoria in Nolan v Nolan[25] in the joint judgment of Chernov and Eames JJA (Ormiston JA concurring):

Although the observations [as to the assessment of the totality of the circumstantial evidence] made by the High Court in Chamberlain (No. 2) and Shepherd were expressed in the context of criminal proceedings, the principles also have application in civil cases. Indeed, Tadgell JA explained in Longmuir[26] that, both in the civil and criminal law context, the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain "whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details".

Reference should also be made to the observation of Buchanan JA (with whom Phillips CJ and Charles JA agreed) in R v Huisman & Shiells that "the distinction between the evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9 para.2487, as the distinction between links in a chain and strands in a cable. See Shepherd v R" and in R v Ng the Court of Appeal held: "It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality". [Citations omitted]

45 This process of assessing circumstantial evidence is a matter of ordinary logic as much as common sense, just as much as it is the subject of authority.

46 In the present case, I have applied this approach wherever it is necessary to determine an issue of fact which depends upon circumstantial evidence for its resolution.

47 Betty Dyke executed her first will on 10 May 1985 ("the 1985 Will"). In that will she made a number of relatively small gifts to members of her family and her friends. Amongst the friends were Denise Knaggs, Gary and Diane Smith and Robert and Sandra Allen. However, she excluded Tim Knaggs as a beneficiary under this will. The bulk of her considerable estate was bequeathed to various charities.

48 Her long time friend, Judith Bailey, described the 1985 Will in the following terms:

The Will which Betty made in 1985 reflects Betty's real character and her interests. Her gifts to various specific charities and social welfare organisations clearly show this. At this point she was an alert, smart, independent woman who was interested in international events and had compassion for those less fortunate than herself. She knew her own mind.

49 In the years leading up to her death, Betty Dyke made two further wills. These wills departed considerably from the intentions reflected in the 1985 Will. In the two later wills she left the vast bulk of her estate to her neighbours. The testamentary instruments which purported to give effect to this result comprised: a will dated 20 September 1999 ("the 1999 Will"); a codicil to the 1999 Will dated 28 March 2000 ("the March 2000 Codicil"); a further codicil to the 1999 Will dated 18 December 2000 ("the December 2000 Codicil"); and a will dated 12 January 2001 ("the 2001 Will").

50 Probate of Ms Dyke's 2001 Will was granted on 11 October 2004. The Plaintiffs seek the revocation of this grant of probate. The Plaintiffs contend that the 2001 Will should be revoked because Ms Dyke:

(a) lacked testamentary capacity at the time she executed the 2001 Will on 12 January 2001;

(b) was unduly influenced in giving instructions for and executing the 2001 Will; and

(c) lacked knowledge of and did not approve the contents of the 2001 Will.

51 The Defendants oppose the revocation of the grant of probate in respect of the 2001 Will. However, and in the alternative, in the event that the 2001 Will is declared invalid, they seek the grant of probate of the 1999 Will. This alternative application is opposed by the Plaintiffs on the same grounds relied upon in respect of the 2001 Will.

52 The Plaintiffs also contend, on the same grounds, that the March 2000 Codicil and the December 2000 Codicil are invalid and of no effect. If the contentions of the Plaintiffs are made out, and the 2001 Will, the two Codicils and the 1999 Will are set aside, the remaining will which is not under challenge is the 1985 Will.

53 The Plaintiffs seek a grant of probate to National Trustees Executors and Agency Company of Australia Ltd or an appropriate executor nominated by the Court in respect of the 1985 Will.

54 The comparative table in the annexure sets out the disposition of the estate of Ms Dyke in schematic form under the 1985 Will, the 1999 Will and the 2001 Will. The table shows a dramatic change from the dispositions under the 1985 Will, when contrasted with the dispositions under the 1999 Will and the 2001 Will.

55 Under the 1985 Will the Plaintiffs were to receive relatively modest gifts of money. Denise Knaggs was to receive the sum of $20,000; Gary and Dianne Smith were to receive the sum of $40,000, together with a car and some chattels; and Robert and Sandra Allen were to receive the sum of $20,000. Apart from some other relatively minor pecuniary bequests to relatives and others, substantial gifts were made to nominated charities, with the residuary estate bequeathed to three charities associated with the welfare of animals, the Blind and the Deaf.

56 However, under the 1999 Will and the 2001 Will, the entire residuary estate was bequeathed to the Neighbours with a third to Denise and Tim Knaggs, a third to Gary and Diane Smith and a third to Robert and Sandra Allen. Although some substantial gifts were made to some charities, for example $100,000 to the RSPCA and an amount to the Cat Protection Society, the total amount gifted to charities had been substantially reduced. Significantly, the charities referred to in the 1985 Will, which were designated to receive the residuary estate, disappeared from the 1999 and 2001 Wills, their places taken by the three groups of neighbours, who then took the residuary estate in its entirety.

57 There were further notable changes in the constitution of the executors in the three wills. The National Trustees Executors & Agency Company of Australia Ltd was appointed as the executor under the 1985 Will. Mr Wadeson, Ms Dyke's accountant, was appointed under her 1999 Will, with Mr Moffatt, the solicitor who prepared that will, appointed as an alternate executor. Under the March 2000 Codicil a male person drawn from each of the three groups of Neighbours, was appointed as an executor (namely, Gary Smith, Robert Allen and Tim Knaggs). In the December 2000 Codicil and the 2001 Will the solicitor who prepared the 2001 Will, Mr Brian Kollias, was appointed as an executor in addition to the male representatives of the Neighbours.

States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.

60 Article 12(5) of the CRPD concludes with the imposition of the following obligation:

Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

61 Article 12 of the CRPD is not without difficulties of construction. International conventions are not always expressed in terms that are capable of precise definition. The High Court recognised this shortcoming in Project Blue Sky v Australian Broadcasting Authority[27] in which McHugh, Gummow, Kirby and Hayne JJ observed:[28]

Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language as a result of compromises made between the contracting State parties. Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed.

62 Nevertheless, the meaning of Article 12 is capable of being interpreted using the tools provided for the interpretation of treaties found in the Vienna Convention on the Law of Treaties 1969 ("the VCLT").[29]

63 As was observed by McHugh J in Povey v Qantas Airways Ltd[30], in construing an international convention, a court in Australia should not approach the issue by reference to presumptions and technical rules of interpretation which should be applied in the construction of domestic legislation or contracts. Instead, as McHugh J observed: "an Australian court should apply the rules of interpretation of international treaties that the Vienna Convention on the Law of Treaties has codified."

64 The Concept of "Legal Capacity", as it is employed in Article 12 of the CRPD has a particular meaning which is distinct from the commonly used concept which endows a person with recognition in the legal order. The common law traditionally recognises that a person with legal capacity is a person who possesses rights and obligations, and in such capacity may, for example, sue or be sued or enter into legally binding contracts. On the other hand, the idea of "legal capacity", as it is used in Article 12 of the CRPD, is a wider concept which entails the capacity to exercise rights and undertake duties in the course of individual conduct. This construction becomes clear from the application of the rules for interpretation provided in the VCLT. In particular this interpretation is revealed when the Convention is construed in accordance with Article 31(1) of the VCLT and the ordinary meaning to be given to its terms, as used in their context, is applied in the light of the object and purpose of the Convention. The meaning arrived at by the application of Article 31(1) of the VCLT is confirmed by reference to the travaux préparatoires[31] of the Convention, which may be used as a supplementary means of interpretation under Article 32 to confirm a meaning arrived at from the application of Article 31.

65 In A v Minister for Immigration and Ethnic Affairs,[32] McHugh J[33] (with whom Gummow J agreed[34]) delivered a comprehensive analysis of the use of Article 31 of the VCLT in construing treaties incorporated into Australian domestic law. The same principles may be applied in the construction of treaties such as the CRPD which have been ratified but not yet been incorporated. McHugh J said at the commencement of his analysis:[35]

The first paragraph of the article [Article 31 of the Vienna Convention] contains three separate but related principles. First, an interpretation must be in good faith, which flows directly from the rule pacta sunt servanda.[36] Second, the ordinary meaning of the words of the treaty are presumed to be the authentic representation of the parties' intentions. This principle has been described as the "very essence" of a textual approach to treaty interpretation. Third, the ordinary meaning of the words are not to be determined in a vacuum removed from the context of the treaty or its object or purpose.

66 In Povey v Qantas Airways Limited[37] McHugh J in the course of construing Article 17 of the Warsaw Convention 1929[38] said in reference to Article 32:[39]

Article 32 declares that resort may be had to extrinsic sources to confirm the meaning in certain circumstances. Those sources may be consulted to confirm the meaning that results from applying Art 31. They may also be used to ascertain the meaning where the application of Art 31 results in a meaning that is manifestly absurd, unreasonable, ambiguous or obscure. As I pointed out in Great China Metal industries Co Ltd v Malaysian International Shipping Corporation Berha:[40]

"[The] extrinsic sources include the travaux préparatoires and the circumstances of the conclusion and history of the negotiation of the treaty. Primacy must be given, however, to the natural meaning of the words in their context ..."

67 Although these Articles have been the subject of considerable academic analysis, and are not beyond controversy,[41] in this case the supplementary means of interpretation strongly supports a wide construction of the concept of "legal capacity" as it is used in Article 12 of the CRPD.

68 One of the most debated issues during the fifth session of the Ad Hoc Committee[42] held in New York from 24 January to 4 February 2005, was the concept of "legal capacity" as it appeared in an earlier draft of Article 12[43]. A paper entitled "Background Conference Document Prepared by the Office of the United Nations High Commissioner for Human Rights" was subsequently prepared for the sixth session of the Ad Hoc Committee.[44] The paper concluded that the concept of "legal capacity", as subsequently employed in Article 12, "is a wider concept that logically presupposes the capability to be a potential holder of rights and obligations, but also entails the capacity to exercise these rights and to undertake these duties by way of one's own conduct".[45]

69 The "safeguards" contemplated by Article 12(4) are required to ensure that "measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free from conflict of interest and undue influence, are proportional ..." Although this text is not perfectly expressed, after considering the ordinary meaning of these terms in their context and in the light of the object and purpose of the Convention, and the travaux préparatoires[46], the meaning becomes clear. The article recognises that some people with disability need support to make decisions in the exercise of their legal rights. If a State Party implements a mechanism of supported decision making to assist such persons, the State is obliged to ensure that appropriate and effective safeguards are in place which respect the rights, will and preferences of the person with disabilities, so that those rights, will and preferences are, amongst other things, free of conflict of interest and undue influence, and are proportional.

70 International law, as reflected in international conventions to which Australia is a party, may be used by the courts as a legitimate guide in developing the common law. In Minister for Immigration and Ethnic Affairs v Teoh[47] Mason CJ and Deane J said:[48]

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.

However, a cautionary note was sounded in the following terms:[49]

But courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.

71 Maxwell P in Royal Women's Hospital v Medical Practitioners Board of Victoria,[50] in an authoritative exposition of the subject, echoed a similar approach in the course of summarising the ways in which international instruments, and the associated learning, can influence the resolution of disputes under domestic law. The President said:

That there is a proper place for human rights-based arguments in Australian law cannot be doubted.[51]

He then alluded to the specific example of the provisions of an international convention to which Australia is a party - especially one that declares universal human rights - which, as he said "may be used by the courts as a legitimate guide in developing the common law".[52]

72 As is made clear from its preamble, the CRPD declares fundamental human rights. In particular paragraphs (b) and (e) of the preamble to the CRPD provide:

(b) Recognising that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, ...

(e) Recognising that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others, ...

73 Further, States Parties which ratify the CRPD, undertake by Article 4 to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake "to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention".[53]

74 The obligation assumed by States Parties expressed in Article 12(2) of the CRPD to recognise that "persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life" includes the capacity to exercise relevant rights on an equal basis with others. The expression "in all aspects of life" emphasises the breadth of the obligation. Since natural persons in Australia, subject to the law, enjoy freedom of testamentary disposition, the CRPD has application to the exercise of will making by persons who suffer from disabilities in this country. The Convention therefore warrants a role in the development of Australian common law of will making, subject to a considered application of the mandated caution.

75 The effect of Article 12(2) in the present context is to provide for an obligation on Australia to recognise that persons with disabilities enjoy the exercise of the right to freedom of testamentary disposition on an equal basis with all other persons. Undue influence in the will making process may impose a significant barrier to the free expression of the testator's preferences. Persons with disabilities, including the elderly who suffer from disabilities, are uniquely vulnerable to the exercise of undue influence on the part of others. Accordingly, the common law protection provided by the concept of undue influence, as it has developed in this country, may legitimately be engaged by the CRPD.

Application for Revocation - the Threshold Question

76 Application is made by the Plaintiffs for revocation of the grant of probate in respect of the 2001 Will. As such, the Plaintiffs, in their capacity as challengers to the grant, are required to explain their failure to caveat and to demonstrate that there is a question about the validity of the relevant will.

77 The Defendants accepted, as is the case, that once that has occurred, the Defendants (as propounders) are in the same position as they would have been in had the grant been contested in the normal way.

78 However, the initial onus rests with the Plaintiffs to move through the first gateway by explaining their failure to prevent the grant by caveat and to establish a prima facie case in opposition to the validity of the Will. To achieve this they must establish that there is at least a prima facie case, demonstrating that there is "something to go on" in opposition to the issue of probate, and that their opposition is "not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation".[54]

79 Having crossed the first threshold, the Plaintiffs must satisfy the Court that its discretion ought to be exercised in favour of revoking the grant. Revocation is, after all, a discretionary remedy.[55]

80 Once the Court is satisfied that an order for revocation is warranted, the propounders of the will bear the same onus as they would otherwise have had in propounding the will and seeking a grant of probate.[56]

81 I am satisfied that an order for revocation of the grant of probate of the 2001 Will should be granted.

82 The complex array of facts leading up to and surrounding the making of the 2001 Will and its predecessor testamentary instruments would not, in all likelihood, have been known to the Plaintiffs at the time of the grant of probate, at least in the detail which would have justified the issue of a caveat restraining the grant. A very clear case for investigation has since emerged.

83 Further, no evidence was adduced, and no submission was made to the effect that the Defendants will suffer any prejudice if an order for revocation was to be made.

84 In the circumstances, I am satisfied that the discretion of the Court ought to be exercised in favour of the revocation of the grant of probate of the 2001 Will.

85 Scarmen J said the following in the Estate of Fuld, dec'd (No. 3); Hartley v Fuld:[57]

Because it is often difficult, and sometimes impossible to discover the truth, the law insists on two types of safeguard in will cases.[58] The first type of safeguard referred to by Scarmen J is part of the substantive law relating to valid execution of the will, which he described as the "first line of defence against fraud upon the dead".[59]

86 If a will appears to have been regularly drawn on its face and duly executed, then the prima facie case of the propounder will usually be sufficient to justify a grant of probate.

87 However, there remains the second type of safeguard which Scarmen J described as "the second line of defence".[60] This is invoked when there are circumstances which give rise to suspicion surrounding the making of the will. In such a case, the safeguard takes the form of an imposition of a burden of proof upon the propounder that the testator had the requisite capacity to make the will. In such a case the propounder assumes the burden of affirmatively proving, to the satisfaction of the Court, that the instrument propounded is the last will of a free and capable testator.

88 As Ormiston JA said in Kantor v Vosahlo [61]:

There has never been the slightest doubt that those who seek to propound a will for probate bear the burden of establishing to the court that probate should be granted to them and that this ultimate burden remains upon them throughout the trial, although particular circumstances may in practice make that burden harder or easier to satisfy: see generally Bailey v Bailey; Landers v Landers and Timbury v Coffee.

From time to time it may be sufficient to show by the calling of appropriate evidence that the will was duly executed and that it is rational on its face: see Symes v Green as cited by Dixon J in Timbury.

On the other hand, if circumstances are shown to have existed which throw doubt on the capacity of a testator or testatrix validly to have executed a will, whether raised by evidence of old age, mental infirmity, suspicion of undue influence or of fraud, or the like, then that prima facie case of the propounder will be held not to be sufficient to justify a grant to the propounder. As the High Court said in Worth v Clasohm:

A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. [Footnotes omitted]

89 If I am satisfied that a doubt has arisen as to the testamentary capacity of the testatrix at the time she gave instructions for and executed any of the testamentary instruments which are under challenge, then the propounders of those wills and codicils, who are the surviving executors and who are all Defendants to this proceeding, bear the burden of establishing that probate should be granted to them.

90 In these circumstances, in the event that the Defendants fail to show that they continue to be entitled to the grant, the Plaintiffs would have the right to the revocation of the probate.[62]

91 Once the propounders of the will have assumed the burden of proof, they must then address the standard of proof which is to apply.

92 The question as to the standard of proof which the propounders must satisfy in order to obtain a grant, where there are suspicious circumstances as to the capacity of the testator in the making of the will, was addressed by Ormiston JA[63] in the Court of Appeal in Kantor v Vosahlo. Following a detailed analysis, Ormiston JA[64] expressed the principle in Kantor v Vosahlo in the following way:

For purposes such as the present, where the Court has to be satisfied affirmatively of the capacity of the testatrix to make a valid will, the burden of proof or, more precisely, the standard of proof therefore remains the same, that is, upon the balance of probabilities, but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence. If that process results in the Court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will, then a grant of probate should be made.

93 The High Court last examined the issue in Boreham v Prince Henry Hospital,[65] (coram Williams, Fullagar and Kitto JJ). After first stating the well accepted proposition that a will made in "advanced age" is "always carefully scrutinised by the court", the Court proceeded:[66]

The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.

94 As is made clear, in approaching such cases by applying a closer scrutiny of the evidence than is usual in the course of reaching a decision on the balance of probabilities, the Court is not imposing a higher standard of proof. The standard remains that of affirmative satisfaction on the balance of probabilities. What is required, however, is a consideration of the evidence as a whole coupled with the application of a degree of caution which is appropriate to each factual issue which is placed under scrutiny, before applying the standard.

95 If testamentary capacity is in issue, and it becomes necessary to prove that a testator was of sound mind, memory and understanding at the relevant time, the question becomes, what is required to be proven to establish the required mental capacity? The mid-nineteenth century case of Banks v Goodfellow,[67] provides a classic statement of testamentary capacity. Cockburn CJ[68] explained the law in the following terms:

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

96 Just over half a century later, Dixon J in Timbury v Coffee[69] provided a further account of the concept. His Honour said:[70]

Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner (per Hood J, In the Will of Wilson). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J, Symes v Green) - Cf. per Holroyd J, In the Will of Key. "In the end the tribunal - the court or jury - must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v Tebbitt (1867) LR 1 P & D 398, at p.436; Sutton v Sadler [1857] EngR 738; (1857) 3 CB (NS) 87 at p.97 [1857] EngR 738; [140 ER 671 at p.675].)" (per Rich J, Landers v Landers).

97 However, in comprehending the nature of what the testator was doing, and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is plainly not necessary. However, it does need to be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.

98 In addition, the following elements summarised in Hardingham, Neave & Ford, Wills and Intestacy[71] need to be considered:

... in demonstrating the testator's ability to realise the extent and character of the property being dealt with, it is not necessary to establish that there existed a "specific and accurate knowledge of every atom of his property" (Waters v Waters [1848] EngR 1039; (1848) 64 ER 263 at 276). The testator ought to have had a general knowledge of the state of the property and what it consisted of (McDonald v Watson (1871) 11 SCR (NSW) 4 at 33.) Finally, the testator, it must be shown, should have been able to weigh the claims which naturally pressed upon him. That is, the testator must not have suffered from some malady "reasonably calculated to affect the view which [he] would take of his relations to those who might be regarded naturally as the probable recipients of what he had to leave". (Re Kilpatrick (1904) 10 ALR (CN) 61). [Emphasis in the original]

99 As to understanding the nature and extent of a testator's property, a recent statement by Windeyer J in Kerr v Badran[72] is instructive in the contemporary context:

In dealing with the Banks v Goodfellow test it is, I think necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at an advanced age, problems which arise with age such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing "the extent" of the estate is considered. This does not necessarily mean knowledge of each particular assets or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life.

100 In short, in order to establish that the testatrix was of sound mind, memory and understanding when she executed the will or, if instructions for the will preceded its execution, when the instructions were given, a propounder must show that the testatrix knew what she was doing and understood the effect of her will, including the effect of the principal clauses within it; she had a general knowledge of the nature of her property and its value; and she knew what persons might have a legitimate claim upon it.

101 A third safeguard which exists in the common law for protection against impropriety in the will making process is the principle of testamentary undue influence. This principle originated in the ecclesiastical courts and was subsequently developed by the common law.

102 Testamentary undue influence is to be distinguished from the modern principle of common law duress in the law of contract[73] and the equitable doctrine of undue influence. The latter principle operates in respect of inter vivos dispositions and emanated from the Court of Chancery. It is a broader in its application than testamentary undue influence.

103 Essentially two classes of equitable undue influence are identified in the case-law: actual undue influence and presumed undue influence. Actual undue influence requires proof that it was in fact exerted in a manner which negatives the consent of the donor, grantor or transferor. The onus of proof rests with the party alleging the undue influence. Presumed undue influence in equity, however, does not require such proof. Once the relevant relationship of trust and confidence between the parties is established, a rebuttable presumption that undue influence was exercised arises. The burden then shifts to the defendant to prove that the inter vivos transaction was free of undue influence and was the product of independent and fully informed intention.

104 It is testamentary undue influence which is alleged by the Plaintiffs in this case.

105 As it has developed to date in the common law, the modern principle of testamentary undue influence, when compared with equitable undue influence, has in most cases been difficult to prove, rendering it questionable as an adequate safeguard. Fiona Burns[74] traces the development of testamentary undue influence from its initial formulation in 19th century Australian cases, as it applied to elderly testators, and describes how the impact of English case law came to significantly limit the nature and scope of the principle.

106 Recent criticism of the law of undue influence as it applies to wills has focused on the lack of adequate protection offered by this branch of the law to the elderly, the frail and the vulnerable testator.[75] Roger Kerridge in his article "Wills Made in Suspicious Circumstances: The Problem of the Vulnerable Testator"[76] makes the following observations:

English law has never provided adequate protection in this area; and the problem is getting worse. The standard vulnerable testator is old and frail. He is generally single, childless and not in close contact with his next-of kin. [The people who would benefit if the elderly person was to die intestate]. He owns property of which he is free to dispose when he dies. People are now living longer than ever before and a higher percentage will reach an age when they lose some part of their mental capacity than would have been the case, say, a hundred years ago. A much higher percentage are likely not to be in close contact with their next-of-kin because, largely as a result of working practices, people move away from where their close relatives live, much more than they used to.

107 This is not the place to suggest reform in this area of the law. However, Australia's recent ratification of the CRPD suggests that review is now overdue, particularly in the light of Article 12 of the CRPD.

108 The party or parties who make the allegation of undue testamentary undue influence, which in this case are the Plaintiffs, bear the evidentiary onus of making good the claim.[77] The reason for this was alluded to by Ormiston JA in McKinnon v Voigt:[78]

The matter is perhaps best expressed in the American work, Page on Wills (Bowe-Parker ed) vol 3 p.584 (para 29.79) as follows: "The justification for placing the burden of proof upon the contestant, upon the issue of undue influence, is that this defence, like the defence of fraud in the inducement, ... concedes capacity and formal execution, and offers new matter to prevent these conceded facts from having their normal legal effect. This is true even though the issue takes the form of a general denial that the instrument in question is the last will and testament of the testator".

109 The fact that there are circumstances which arouse the Court's suspicion about the will does not affect the issue of undue influence. At all times, the onus remains on the Plaintiffs, as the parties alleging the undue influence.

110 In order to establish undue influence to vitiate a will it is not sufficient to establish merely a prima facie opportunity for its exercise. Late in the nineteenth century, the English Probate Courts confirmed that the presumption of undue influence which arises in courts of equity founded upon the relationship of the parties, was not open to be applied in probate matters. In Parfitt v Lawless[79] the testator left the bulk of her estate to her live-in priest, who also served as her confessor. The Court held that functions undertaken by the priest and his position in the household were alone not enough to prove undue influence because "undue influence cannot be presumed".[80] There is thus no room for any presumption of undue influence in the application of the principle.[81]

111 It is for a party making the allegation of undue influence to demonstrate on the balance of probabilities that there has been such undue pressure which has been brought to bear that the will can be said to have been a the product of this conduct.[82]

112 The principle which to date has been considered as governing the standard of proof in a case founded on circumstantial evidence had its origin in the nineteenth century decision of the House of Lords in Boyse v Rossborough.[83] In Boyse it was claimed that a wife had exercised undue influence over her husband in the execution of his will. To put the matter in its historical context, the testator Mr Colclough was born in the year 1766 and spent much of his life in France. On recommencement of the war (the one with Napoleon Bonaparte), he was detained as a prisoner of France. After his return to England, in 1824 he made his will. In considering whether there had been a misdirection given to the jury in the trial at first instance, the House of Lords, in the course of its reasoning, made an observation which subsequently came to be regarded as the guiding principle in applying the standard of proof. Lord Cranworth said:[84]

[I]n order to set aside the will of a person of unsound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with the contrary hypothesis.

113 The facts of Boyse demonstrate that it was a case where undue influence was sought to be established by circumstantial evidence. Indeed, where undue influence is alleged in will cases where the testator is dead, circumstantial evidence is usually the only evidence which can be advanced in support of the allegation.

114 In Boyse, the evidence in support of the allegation was weak, to the point where the Lord Chancellor was compelled to observe:

The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence.[85]

115 It was in this context that Lord Cranworth uttered his seminal statement on the standard of proof.

116 However, where direct evidence of influence is relied upon, there is no room for the application of the Boyse approach. The question in such cases will be whether or not the will of the testator was overborne to the requisite degree by conduct which is proven by direct evidence.

117 The principle of Boyse, has been consistently applied as the standard of proof in cases in which testamentary undue influence has been alleged, and is noted in the leading texts. The Privy Council in Craig v Lamoureux[86], in an appeal from the Supreme Court of Canada, mirrored the approach of the House of Lords in Boyse. The judgment of their Lordships was delivered by Viscount Haldane who[87] set out the requirements for assessing indirect evidence in proving testamentary undue influence in the following formulation:

[I]t is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. [Emphasis added]

118 It may be observed that in this formulation, Viscount Haldane substitutes the word "a" [contrary hypothesis] for the word "the" [contrary hypothesis] in Lord Cranworth's statement in Boyse. The change, though on its face subtle, provided a shift which broadened the potential application of the approach to embrace "any" contrary hypothesis. In Victoria, Byrne J recently adopted and applied Viscount Haldane's statement in Craig v Lamoureux in Smallwood & Anor v Smallwood & Anor.[88] The passage was also cited by the Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker.[89] In both cases, it appears that the Court did not have the benefit of argument as to whether the principles in Boyse and Lamoureaux should continue to be followed.

119 The Boyse formulation imports a formidable standard of proof and imposes a significant constriction on the capacity of the principle to provide an effective remedy in cases where testamentary undue influence may arise. It not only goes beyond the accepted civil standard of proof applied in Australia in cases sought to be made out by circumstantial evidence, but the formulation equates to the criminal standard, and arguably even goes beyond that standard.

120 There is, however, no justification for applying the criminal standard to the civil cause of action constituted by testamentary undue influence. Isaacs and Rich JJ in Hicks v The King,[90] in the course of a discussion on the standard of proof note: "But our law draws a great distinction between civil and criminal cases". There are important reasons for the difference. Principal among these are the interests of an accused in a criminal case being of such magnitude that they are protected by a suitably high standard of proof which has the object of avoiding an erroneous conviction, as far as it is possible to do so. Burger CJ of the Supreme Court of the United States in Addington v Texas[91] described this interest in the following terms:

The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free.

121 In my opinion, the approach in Boyse to the assessment of circumstantial evidence in civil cases in which undue influence is alleged as a basis for setting aside a testamentary disposition, which hitherto appears to have been followed, finds itself in conflict with the general law as it currently applies in Australia.

122 The High Court considered the assessment of circumstantial evidence in a civil case in Luxton v Vines.[92] This case involved a claim for damages for personal injuries where the plaintiff was struck by an unidentified car. On the question of proving negligence arising from circumstantial evidence, Dixon, Fullagar and Kitto JJ said:[93]

But this is a civil and not a criminal case. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise. [Citations omitted]

123 Luxton v Vines was followed in Chamberlain v R (No 2) ("Chamberlain case").[94] In the joint judgment of Gibbs CJ and Mason J[95] the following was said of the approach to the assessment of circumstantial evidence which should be applied in this country:

It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence. [Citations omitted]

124 Luxton v Vines was followed by the Court of Appeal in Victoria in Transport Industries Insurance Co Ltd v Longmuir.[96]

125 Neither the High Court nor the Court of Appeal of Victoria, in stating the principles to be applied to the assessment of circumstantial evidence in civil cases, made any exception in cases where testamentary undue influence has been alleged, nor in my opinion is any exception justified. Given that there is an apparent conflict between the principles as to the standard of proof in Boyse and Lamoureaux on the one hand and the High Court in the Chamberlain case on the other, I am bound to follow the latter. English decisions, including those of the House of Lords and the Privy Council, while they may be influential, are no longer binding on Australian courts.[97]

126 Further, and consistently with Article 12 of the CRPD, in my opinion, the common law test for the assessment of circumstantial evidence in cases where testamentary undue influence is alleged ought to be the test as stated by the High Court in the Chamberlain case in the joint judgment of Gibbs CJ and Mason J. In adopting this approach, greater practical effect is likely to be afforded to the principle of testamentary undue influence in the common law of Australia. As such, the approach would be consistent with the recognition of the right to exercise testamentary freedom of persons with disabilities on an equal basis with others in conformity with the spirit and intention of Article 12(2) of the CRPD. Concordance would be achieved by providing a greater measure of protection to those testators who are most vulnerable to undue influence, namely those who suffer from disabilities, and the increasing numbers of elderly persons who fall into this class.

127 The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.

128 To this should be added the approach laid down in Briginshaw v Briginshaw[98] where Dixon J said:[99]

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

129 More recently, the majority (Mason CJ, Brennan, Deane & Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[100] crystallized the Briginshaw approach in the following statement:[101]

[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

130 An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.

131 If I am wrong about my approach in assessing circumstantial evidence in cases where testamentary undue influence is alleged, and the Boyse principle has become entrenched in the common law, in my opinion, an unstated moderating element is nevertheless present in its application. In showing that the circumstances attending the execution of a will are inconsistent with a contrary hypothesis [to that of undue influence], an element of reasonableness must be present. To suggest that the rule operates to prevent undue influence from being found in all will cases unless a contrary hypothesis is excluded, however implausible that contrary hypothesis might be, would render the concept of testamentary undue influence impotent. What is in contemplation is that any reasonable contrary hypothesis, as opposed to any possible hypothesis, must be excluded, before undue influence may vitiate a will in cases where circumstantial evidence is relied upon.

132 This approach is consistent with the approach taken by the High Court in the Chamberlain case. This was a criminal case in which circumstantial evidence was relied upon by the Crown. The High Court held that in order to found a conviction the circumstances must be shown to exclude any reasonable hypothesis consistent with innocence.

133 The meaning of the expression "reasonable hypothesis" in the context of a criminal trial based on circumstantial evidence was considered by the Western Australian Court of Criminal Appeal in Burke v The Queen.[102] In approving his Honour's own earlier observations in R v Parker,[103] Malcolm CJ said:[104]

To be "reasonable" an hypothesis must possess some degree of acceptability or credibility. An hypothesis cannot be reasonable if it is contrary to proved facts or if it is obviously fanciful, impossible, incredible or not tenable or too remote or tenuous. [Citations omitted]

134 In my opinion, there is no proper basis for applying a standard of proof which is higher than the criminal standard in a civil action where testamentary undue influence is alleged.

135 The alternative approach of importing a concept of reasonableness into the Boyse and Lamoureaux tests would in itself provide a modest step towards serving the principles underlying the CRPD, and in particular the rights set out in Article 12 of the CRPD.

136 Indeed, this approach is borne out in Boyse where Lord Cranworth considered that the testator, Mr Colclough:

might, without any undue influence, operating on his mind, desire to make a will, giving everything to his wife, is a proposition that cannot be controverted. She had been the partner of his life for twenty-four years. He had no children. His nearest relative was a first cousin of his father, with whom, from whatever cause, he had never had more than a slight and casual intercourse. His heir presumptive was a second cousin, of whose very existence he does not appear to have been aware, being the daughter of another and elder first cousin of his father, who had died very many years previously. That he should in these circumstances wish to give everything to his wife could surely afford no ground for surprise.[105]

This was at the very least a reasonable hypothesis on the facts of the case, which could not be, and was found not to have been, excluded.

137 Analysed in this way, the alternative test founded on the Boyse approach may be restated as in a case of testamentary undue influence, where circumstantial evidence is relied upon, when confronted with a hypothesis which is consistent with undue influence, and a reasonable hypothesis which is not, has it been demonstrated on the balance of probabilities that the circumstances attending the execution of the will are inconsistent with the contrary hypothesis which is reasonably open? If the answer is "yes", the alternative test will be satisfied, and undue influence proven.

138 Again in the application of the alternative test, the approach suggested by Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, cited above, should be applied to the assessment of the relevant evidence and in arriving at the ultimate conclusion.

139 Undue influence in a probate suit, where it is invoked for the purpose of seeking revocation of probate of a will, has commonly been expressed in terms of "coercion", resulting in the will of the testator being overborne. In this vein the Defendants submitted that the plea of undue influence can only be made out where the Plaintiffs "prove actual coercion of the testatrix which actually caused her to make a will she did not want".

140 However, "coercion" as used in this context has a wide meaning. It is not confined to conduct involving the persuasion of an unwilling person by some kind of threat or force.

141 The concept of "coercion" in this context, appears to have had its modern origin in Boyse. The Lord Chancellor said on the subject:[106]

[I]nfluence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or fraud. [Emphasis added]

142 However, in defining the rule in this way, the Lord Chancellor recognised that some latitude must be allowed. His Lordship continued:[107]

In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not of unsound mind, may be such as to excite terror and make execute as his will an instrument which, if he had been free from such influence, he would not have executed. Imaginary terrors may have been created sufficient to deprive him of free agency. A will thus made may possibly be described as obtained by coercion.

Two observations may be made about this passage. First, the Lord Chancellor recognised that undue influence is a relative concept, which may more easily be found to arise in the case where the subject of the influence is a vulnerable person. Second, his use of the word "terror", although at first glance conveying a picture of extreme fear, has been redefined and softened in later judicial pronouncements.

143 The issue was taken up by Sir James Wilde (later Lord Penzance) in Hall v Hall[108] where the following observation was made:[109]

On the other hand pressure of whatever character whether acting on the fears or the hopes if so exerted as to overpower the volition without convincing the judgment is a species of restraint under which no valid will can be made. Importunity or threats such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort these if carried to a degree in which the free play of the testator's judgment discretion or wishes is overborne will constitute undue influence though no force is either used of threatened. In a word a testator may be led but not driven; and his will must be the offspring of his own volition and not the record of some one else's.

144 Not all pressure which may be brought to bear on a testator is regarded as "undue". It is clearly recognised that there is an area of legitimate activity which is considered to be legally acceptable. An example is again provided by Hall v Hall[110] where Sir JP Wilde said:[111]

To make a good will, a man must be a free agent; but all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate, and may be fairly pressed on a testator.

145 Viscount Haldane in Craig v Lamoureux[112] later expressed[113] the principle in terms of the lack of free and autonomous will of the testator when he said:

Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express the testator's mind, but which really does not express his mind, but something else which he did not really mean.

146 The approach of Lord Haldane in Craig v Lamoureux mirrored a similar liberal development in the United States of America. Until early in the twentieth century, American case law was strict in providing that it was only in cases where actual coercion or fraud was proven that influence could be considered as undue for the purposes of setting a will aside. For example, in Gardner v Gardner[114] the Court, in rejecting a claim of undue influence against the wife of an inebriated testator, asked rhetorically: "Was there fraud?" "Was there terror?" "Was there harassing importunity, and a compliance for the sake of peace in the dying hour?" To similar effect was the case of O'Neall v Farr[115] which was decided a few years later. In this case a female slave who was the lover of the testator received a large portion of his estate upon his death. A challenge to the bequest in her favour on the ground of undue influence was rejected by the Court, even though it was found that "she derived from her situation a certain degree of influence, and that she was indulged in her wishes in the management of the domestic affairs". Standard American texts of the early twentieth century referred to the need to prove coercion or fraud before a will could be set aside on the ground of undue influence, where "coercion" was expressed to consist of "actual violence, of threats expressed or implied, or of harassing importunity".[116]

147 However, during the course of the twentieth century, the law of undue influence as it applied to will making came to be liberalised in America such that, by the 1920's, although physical coercion or threats could still constitute undue influence, the:

more common kind of undue influence ... [was] where the mind and the will of the testator have been overpowered and subjected to the will of another, so that while the testator appeared to execute willingly and intelligently, it was really the will of another.[117]

[w]hen Atkinson wrote his famous handbook on wills in the 1940s concepts of "coercion" are deemphasised, and undue influence is explained as "destroy[ing] the free agency of the testator" and "substitut[ing] another's volition for" the testator's. The ordinary case of undue influence, according to Atkinson, occurs not in the case of explicit coercion, but in the case in which the testator executes a will that merely "does not represent his true wish or desire".

148 The approach adopted by Atkinson in his description of the American principles of undue influence has been reflected in modern Australian case law. The principles governing a finding of undue influence in the context of probate law, which I accept, were recently discussed by the New South Wales Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker.[119] In the leading judgment, Mason P drew the important distinction between undue influence in the probate context and fraud as a ground for the invalidation of a testamentary instrument. The two are fundamentally different concepts.[120] Undue influence in the probate context was described by the President as follows:[121]

Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will.

The President went on to emphasise[122] that it was in this sense that "coercion" needed to be established. His Honour said further on the matter:

The point was put succinctly in Wingrove v Wingrove (1885) 11 PD 81 by Hannen P (at 82):

"[i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence".

See also Hall v Hall (1868) LR 1 P & D 481 where Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment.

The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh.

149 The degree and nature of pressure which has the effect of invalidating the will making process will vary according to the particular vulnerability and susceptibility of an individual testator. As was said by Santow J in Ridge v Rowden:[123]

[T]he essence of undue influence is that it goes beyond the permissible or legitimate, having regard to the degree of pressure brought to bear and the evident susceptibility of the person concerned to such pressure from factors such as mental frailty.

150 The key concept is that of "influence". The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle. The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event. It may be achieved by the conduct of one person or several, whether acting in concert or quite independently. Further, the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator. Mens rea has no place as an element calling for proof, although more often than not an intention to bring about a desired result which is contrary to the true will of a testator will be present in cases where conduct amounting to undue influence is found.

151 A fourth safeguard provided by the common law against the abuse of the will making process is the requirement that a testator must have knowledge, and approve, of the contents of the will. Similar to the position with proof of testamentary capacity, the issue of knowledge and approval of the will only arises in the event that suspicious circumstances surround its making.

152 Isaacs J in Nock v Austin[124] conveniently set out the principles which apply to this day. His Honour said:[125]

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 (Barry v. Butlin; Fulton v Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the propounders 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 (Baker v. Batt; Tyrrell v. Painton; Shama Churn Kundu v Khettromoni Dasi). (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 (Baker v Batt; Fulton v Andrew). (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 (Barry v Butlin and Fulton v Andrew; per Lord Shaw in Low v Guthrie). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v Guthrie). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v Butlin). (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 (Lord Loreburn LC in Low v Guthrie). [Footnotes omitted]

153 Tadgell JA in Robertson v Smith[126] (with whom Phillips and Kenny JJA agreed) summarised the principle:[127]

The essential feature of the principle, where it applies, is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testator executed it in the presence of witnesses after it had been read to or by him. [Emphasis added]

154 Thus, the due execution of the testamentary documents justifies a presumption that the testatrix in this case knew and approved its contents. Indeed, where there is no question of fraud, the fact that a will has been read over to or by a capable testator affords a strong presumption that he or she knew and approved of its contents.[128]

155 However, where the proven facts give rise to suspicious circumstances, that is "a well-grounded suspicion engendered in the mind of the court acting judicially"[129] that the testatrix might not have known and approved of its contents, the presumption will be rebutted. Where the presumption is rebutted, knowledge and approval must be affirmatively established by the propounders and cannot be presumed. In such a case, in order for the propounders to be granted probate, they must affirmatively satisfy the Court that all such suspicion has been dispelled.[130] Further, and importantly in this case, in order to achieve this the propounders must more than merely establishing that the testatrix executed the will or codicil in the presence of witnesses after it had been read to or by her.

156 With these legal principles in mind, an examination of the intricate web of facts in the present case is undertaken.

157 Betty Dyke was the only child of Arthur and Eval Dyke, who in the late 1920's, settled on the family farm known as "Sefton Grange" situated in Craigie Road on the Mornington Peninsula in Victoria. Betty Dyke's father died in 1968; her mother died in 1978.

158 She had only been educated to eighth grade at the local school and during her life had never been far from her property. Betty's conversation was unsophisticated and her observations about life and events was uncomplicated and straightforward.

159 Betty Dyke had no siblings, and had never married nor had children. She was once fond of a young man called Tom who as a soldier saw active service in the Second World War. Tom was killed during war.

160 Following the war she continued to manage the farm on her own with the help of Joseph Nolan, who she called "Joe". He was a farm hand who had lived on the farm since the early 1940's until his death in late 1983. She described Joe to her solicitor in 1999:

I was once close friends with a man called Joe. Never lived together. He had no children. I've never had children. Joe and I were old fashioned mates.

161 Betty had always had an eccentric and simple lifestyle. One of her best friends, Judith Bailey, described Betty as living "a very Spartan lifestyle" and "her needs were very frugal". Betty was however extremely generous and liked to help people.

162 In spite of her loneliness and grief over Joe's death, Betty Dyke had many very good friends during her life. These included John and Judith Bailey, and Margaret Harrop, a neighbour who was one of Betty's closest friends before her death in 1995. Ron Raymond, who was Betty's stock agent, was a lifelong friend. Cathy Loch and Pat Hibbert who lived nearby also visited Betty for many years.

163 A number of witnesses described her personality. They said that Betty Dyke was a strong and independent woman. She continued to run the farm by herself after Joseph Nolan's death in 1983. Until about 1996 she made regular trips to the Dandenong Market where she sold her produce and caught up with friends. With the help of her stock agent Ron Raymond, she bought and sold her own cattle. She also bought and sold poultry. Betty Dyke was a forthright, somewhat feisty individual, with strong opinions, who would usually speak her mind. She was set in her ways and was generally insistent that things should be done as she wanted. Colin Nicholson, the son of a cousin to Betty Dyke, described her values in the following terms: "Betty's values and views about life belonged to the 1950's and did not change from that period".

164 Betty Dyke was passionate about animals. She devoted herself completely to her farm and to her animals which she treated as her companions and which were the principal focus of her life. Betty worked hard in caring for the farm and her animals, on occasions late into the night.

165 She kept a large number of birds. She had large aviaries full of up to 80 birds, including many exotic and rare species. She cleaned the aviaries daily, cared for sick birds herself and maintained a cage of up to four or five recuperating birds in the porch area. She treated up to three or four sick birds in the kitchen at any one time.

166 During the 1980's Betty Dyke had five pens with about 40 muscovy ducks in each pen. She regularly sold the ducks at the Dandenong market. By the late 1990's Betty had stopped breeding domestic ducks. Her property was frequented by wild wood ducks which she encouraged to visit of their own accord.

167 Betty sold her milk contract quota in the late 1970s. She replaced her milking cows with about 15 to 20 Angus or Poll Hereford grazing cattle. She engaged in a modest cattle breeding enterprise which, in her later years, evolved into a small scale cattle fattening business.

168 She kept dogs and several cats. In the 1980s Betty had 3 or 4 border collie dogs. As the larger dogs died Betty replaced them with smaller Pomeranian dogs which she kept inside and came to call "her children". In her later years she kept a favourite Pomeranian dog called "Honey" which slept on her bed.

169 In this section of the judgment I set out a description of the natural persons referred to in Betty Dyke's wills and codicils. Most of these persons gave evidence at the trial. Where necessary, findings as to the credit of those witnesses are made.

The Knaggs - Destruction of Diaries by Denise Knaggs and Credit Issues

170 Denise Knaggs is married to Tim Knaggs. They have two children who are now adults. She lives at the family residence at 330 Craigie Road, Mount Martha in Victoria, from where she and her husband operate a Christmas tree farm. Betty Dyke's farm "Sefton Grange" is situated close by.

171 In about 1995 Betty Dyke engaged Denise Knaggs to perform light gardening jobs, to clean the bird aviaries and to run errands one morning each week. Betty Dyke paid her $10.00 per hour for her services.

172 Between 1998 and 1999 Betty Dyke's back condition was causing her increasing pain. She became more dependent on Denise Knaggs for assistance with her fowls, cleaning out her chook sheds and doing her gardening. During this period Betty Dyke had no one else to turn to for the type of assistance she was receiving from Denise Knaggs. Without that assistance, she would have had to drastically cut down on her workload if she was to remain on her farm, which would have included cutting down on the number of animals she cared for.

173 At the same time Betty Dyke's overriding concern was that she would remain on her farm for the rest of her life. She rejected the idea of going to a nursing home. Her desire was to live out her days in her house and eventually die there. Betty Dyke well understood that, in order to achieve this, she needed the assistance of Denise Knaggs, and her dependence upon her became significant.

174 Denise Knaggs was left a pecuniary benefit of $20,000 under the 1985 Will. Under both the 1999 Will and the 2001 Will, the benefit conferred on Denise Knaggs was increased very considerably to one third of the residuary estate.

175 Denise Knaggs was a central witness in the case. However, for the reasons which will follow in this judgment, I do not accept her evidence, save to the limited extent to which I shall refer. She was not frank with the Court in giving much of her oral evidence. Moreover, she tended to provide answers which she perceived would advance her case rather than engaging in a genuine endeavour to provide truthful responses.

176 There were four principal matters which damaged her credit to the point where I am unable to accept her as a witness of truth, except to a limited extent.

177 The first was making a false declaration about the value of Betty Dyke's estate, at the time when she was seeking Ms Dyke's admission to the Carrum Downs Nursing Home. The statutory declaration was signed by Denise Knaggs on 16 October 2002. The amount of net assets of Elsbeth Jean Dyke was stated in the declaration to be $1,200,000 "incl. Home". The only purpose of the declaration was to state the amount of the net assets of the proposed resident to be used "in calculation of the accommodation charge" payable to the nursing home. The amount expressed in the declaration by Denise Knaggs was manifestly inadequate, and was known by her to be false at the time when she signed the declaration. Her explanation for this conduct - that it was "for Betty's benefit because she had to live there" - is unacceptable.

178 The second principal matter was the destruction of Denise Knaggs' diary for the period between 1995, when the diary was commenced, to a time prior to July 2001. This includes the critical period when the 1999 Will was made, the year 2000 when the two codicils were made, and the period early in 2001 when the 2001 Will was made.

179 Denise Knaggs deposes in an interlocutory affidavit in this proceeding sworn 21 August 2006 that she once had possession of a diary, but it was destroyed by her when she placed it in the fire at her home. This she said occurred on 5 August 2005, immediately following the completion of a mediation in a Part IV ('Family Provision') application brought by Geoffrey Edwards in relation to Betty Dyke's estate. She swore that at this time she was not aware that Julie Nicholson or Colin Nicholson intended to commence any further proceedings in relation to the wills of Betty Dyke. Nevertheless, one of the present Plaintiffs, Colin Nicholson was present at the mediation, and a short time later the Plaintiffs commenced this proceeding by summons dated 29 August 2005.

180 A copy of parts of the diary of Denise Knaggs has survived. These parts were exhibited to an affidavit sworn by Denise Knaggs in the Part IV ('Family Provision') proceedings instituted by Geoffrey Edwards. However, sections relating to the years 1999, 2000 and early 2001, which were potentially relevant to the making of the 1999 Will and the 2001 Will have been destroyed. Only two pages for the year 2001 remain, being an entry for Friday 13 July, and some pages devoted to a period in September 2001. Then follow extracts commencing January 2002 from the years 2002 and 2003, concluding in May 2003. The parts of the diary which have not been destroyed were admitted into evidence.

181 Tim Knaggs knew of the destruction of the diary because his wife Denise Knaggs had told him about it. He denied that he appreciated the potential significance of the diary at the time and went on to suggest that he lacked knowledge of the contents other than to say that it recorded appointments. The transcript records the following answers of Mr Knaggs in cross-examination:

You were aware of the contents of the diary weren't you?---No not overall.

But some of them?---I were - I was aware that Denise kept a diary of appointments.

182 Those parts which have survived did not contain "appointments" for practical use as suggested by Mr Knaggs. The samples of the diary which remain are written in a narrative style and contain a detailed running account of daily occurrences concerning Betty Dyke. They were written after the event intended as a permanent record and would have been useless as a working diary containing notations of forward appointments. Denise Knaggs confirmed the nature of the document when she said in her examination in chief:

Can you tell the Court when it was that you started to make extensive observations about your relationship with Ms Dyke and the things you did for her?---Well she was entertaining, so I, it was becoming a story.

Pardon?---Betty was entertaining to be with, so it was, it became a story.

When did you start writing the story so to speak?--- Probably in the mid 90's as things became more entertaining.

183 The surviving parts of the diary record, amongst other things, the mental decline of Betty Dyke. It makes revealing reading, and in my opinion provides an accurate description of, and insight into, the life and physical and mental condition of Betty Dyke in her final years. The complete diary would have potentially been a valuable evidentiary tool in this proceeding.

184 The forensic value of the diary was well appreciated by Denise Knaggs. She was prepared to use parts of it as an exhibit to the affidavit which she swore in the Part IV ('Family Provision') proceedings instituted by Geoffrey Edwards. In cross-examination Denise Knaggs said:

You kept this diary in order to, as it were, justify your contribution to helping Betty, didn't you?---Yes, it was a guide or a help, something to refer to if need be. But it was just private - my own thoughts.

185 During the course of her oral evidence, Denise Knaggs offered two principal explanations for her conduct in destroying the diary.

186 She claimed that she destroyed the diary after the Part IV claim had been settled because she felt there would be no more use for it and that she was "led to believe that there was not to be any further contest" by her solicitors Hunt McCullough Kollias and Co.

187 She also relied upon what she asserted a number of times in her evidence to be the "private nature" of the diary. She said in her oral evidence:

You indicated to the court that the diary was a good story, was there any other reason why you destroyed it?---Well it was our story, not everybody else's.

She said in cross-examination in response to the question "And why did you destroy the diary?":

Well the Geoff Edwards case had finished and the diary was about Betty and I and that was it, it was no further use and I didn't want to remember things because they weren't all that good. [Emphasis added]

The part of the explanation given by Denise Knaggs for the destruction of the diary because it was "about Betty and I and that was it" alludes to the "private nature" of the document which had already been emphasised in her evidence.

188 The only likely way in which the diary could have been made available to other persons and lost its private quality, was through a future court proceeding in which the diary was the subject of discovery or an order for production. The answers given by Denise Knaggs to the question "Why did you destroy the diary?", to which I have referred, reveal her consciousness at the time that, unless the diary was destroyed, it could have been compulsorily produced at a future court hearing by court order. The answers also reveal her consciousness at the time that further court proceedings in relation to Betty Dyke's will were either likely or possible.

189 Such a belief on Denise Knaggs part was amply justified by circumstances which arose prior to and during the mediation on 5 August 2005.

190 A caveat against the 2001 Will had previously been filed by Enid Nicholson on 11 June 2004. The caveat was in standard form and prohibited anything being done in relation to the will without notice being given to the caveator. Notice of the caveat was given by the Registrar of Probates of this Court to the solicitors for the executors of the 2001 Will, which included Denise Knaggs' husband, Tim Knaggs, by notice dated 2 September 2004. It is likely that Denise Knaggs came to know of the caveat.

191 Denise Knaggs was an articulate witness and is obviously an intelligent person. Although the caveat was subsequently withdrawn, in all likelihood she did appreciate that, although the Part IV claim of Geoffrey Edwards had been settled, there remained an appreciable risk that proceedings on grounds such as lack of testamentary capacity and undue influence could still be commenced by one or other of the living relatives of Betty Dyke. The risk of this occurring would have been highlighted by the attendance of Enid Nicholson's son, Colin Nicholson, at the mediation of the Geoffrey Edwards Part 1V claim which was also attended by Denise Knaggs. The present proceeding was commenced shortly after the conclusion of the mediation. Colin Nicholson is a plaintiff in this proceeding.

192 I also find that Denise Knaggs appreciated that, if further proceedings were to be commenced, the contents of her diary had the potential to be relevant evidence and could be compulsorily produced by court process for examination. I find that at least one of the reasons which operated on her mind when she determined to destroy her diary was to avoid this occurring.

193 The Plaintiffs submitted, in the alternative, that Denise Knaggs destroyed her diary in the course of the present proceeding following an order for discovery of the diary being made. The plaintiffs made an application for an order for discovery of Denise Knaggs' diary, amongst other things. This application was opposed by Denise Knaggs. Orders were made by Master Efthim on 24 July 2006 which included an order that the Defendants make discovery of and provide for inspection by the Plaintiffs:

Any diary or other record kept by ... (ii) Denise Anne Knaggs ... to the extent that it contains any information concerning the property of, care of, state of health of or testamentary intentions of the testatrix during the period commencing January 1995 until her death.

The diary kept by Denise Knaggs which she destroyed fell precisely within this description. However, in the course of her opposition to its production, Mrs Knaggs did not contend that the diary had been destroyed before the application was heard. Nor did she state this fact in any affidavit filed before the Master who heard the application. Her evidence was that she did not refer to the destruction of her diary during the application because she was not aware that it was the diary being sought.

194 Although these matters give rise to suspicion, I am unable to be satisfied on the evidence before me that Denise Knaggs destroyed her diary after 24 July 2006, the date Master Efthim's order for discovery was made. The diary was destroyed on 5 August 2005 in the circumstances I have already described.

195 In Allen v Tobias,[131] the High Court (Dixon CJ, McTiernan and Williams JJ) cited[132] the doctrine of omnia praesumuntur contra spoliatorem, and the statement of Sir Arthur Channel, who delivered the opinion of the Privy Council in The Ophelia[133] with respect to documents which have been damaged or destroyed. This may be regarded as a classic statement. It is formulated as follows:[134]

If anyone by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.[135]

196 The High Court in Katsilis v Broken Hill Pty Co Ltd,[136] summarised the consequences of a deliberate destruction of documents by a party who has an appreciation of the significance of the documents in the case. Barwick CJ said:[137]

Ordinarily, though a case is normally better tried on the evidence which is produced than on that which is not, it can properly be said that the failure of a party to give or produce evidence which, in the circumstances of the case, that party in its own interest would be expected to give or produce, warrants the conclusion that, if given or produced, the evidence would not support that party's case. Indeed, in some circumstances it might be inferred that it would support the opponent's case; but, if so, it must depend very much on the circumstances. But, in any case, the inference would depend upon some element of conscious repression or withholding of the evidence. The warrant for the inference must depend upon the deliberation with which the evidence is withheld and the appreciation or likely appreciation of the party of its significance in the case.

197 To this may be added the observations of Eames J in McCabe v British American Tobacco Australia Services Limited,[138] who after citing from the passage from the Privy Council in The Ophelia, said:

Wigmore identifies two distinct inferences which may be drawn from the destruction of a document. In the first place, the destruction of a document may be regarded as demonstrating a consciousness of the weakness of the party's cause, in general, and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit. The second inference which may arise is that the specific document is unfavourable to the cause of the party who has destroyed it. For the latter inference to be raised there must be some evidence of the contents of the destroyed document.

198 In the light of my findings, and having had the advantage of reading those parts of her diary which have survived, which describe in some detail the physical and mental condition of Betty Dyke during selected periods, I infer that, had the diary been produced in its complete form, it would not have supported the case which Denise Knaggs sought to advance on the question of Betty Dyke's mental condition at other relevant and critical times, namely the periods when Betty Dyke was giving instructions for her wills and codicils. This was plainly likely to have been an issue in any proceeding commenced after she had destroyed her diary. However, given that this event occurred shortly prior to the issue of proceedings, Denise Knaggs would not have known the details of the case subsequently put against her. Consequently, I am not in a position to infer from her conduct that she had a consciousness of the weakness of her cause and that her case suffered from that defect.

199 The third principal reason for doubt being cast on the credit of Denise Knaggs arises from the answers she gave in cross-examination when questioned about handwriting which appeared on a typewritten letter dated 17 August 1999, from Ms Dyke's solicitor, Mr Moffatt, to his client about her instructions for a new will.

200 This document was discovered in the course of the trial on the file of a solicitor, Mr Lumb, who was called as a witness in the case. Denise Knaggs was recalled on 4 December 2008. She was shown the typed letter with the handwriting on it, but repeated her earlier claim that she had never before seen the letter until she was shown a copy of Mr Moffatt's affidavit in 2006. Upon being referred to the handwriting on the letter she at first denied it was hers. After being pressed on the matter at some length and upon being shown another document which she had previously conceded was in her handwriting, Denise Knaggs finally conceded that the writing on the typed letter was hers and that it was done when instructions were being given to Mr Moffatt for the will at a time well prior to 2006.

Trial Affidavit Not the 'Whole Truth' Concerning Betty Dyke's Mental Condition

201 The fourth principal reason for not accepting the evidence of Denise Knaggs arises from her trial affidavit. Denise Knaggs devoted twelve paragraphs to "Betty's Health" and "Betty's Illness". Denise Knaggs swore to the truth of this section of her affidavit in her evidence given at the trial, and she did so without qualification. She concludes this section with the observation: "As I have said above over the years Betty's physical health deteriorated". These important sections of her affidavit were not the whole truth. Not once does Denise Knaggs mention any cognitive or mental deterioration in Betty Dyke prior to or indeed after her hospitalisation in June of 2002 when she is diagnosed with severe Alzheimer's disease.

202 This omission is significantly at odds with what Denise Knaggs recorded in the portions of her diary which have survived, and an important letter which she wrote to the Guardianship Board dated 4 July 2002 in support of her application for guardianship of Betty Dyke. The diary records depression suffered by Betty Dyke commencing in September 2001 and her suffering significant bouts of confusion commencing in January 2002. In her letter to the Guardianship Board Denise Knaggs said: "During Betty's later years her interest in housekeeping became non-existent and her hygiene levels dropped". In the light of the foregoing, I am unable to believe Denise Knaggs when she swore in her trial affidavit that:

[U]ntil her hospitalisation in 2002 I did not notice any change in her conversation or behaviour. She was always forthright and capable of a good conversation and this did not change over the years. Over the years there was no change in her dress and hygiene.

203 With his wife, Denise Knaggs, Tim Knaggs operated a Christmas tree farm on their property. He developed this business following his retirement as a Police Inspector with the Victoria Police in 1985.

204 Prior to August 1999, Tim Knaggs offered little practical assistance to Betty Dyke. He subsequently played a significant part in the making of Betty Dyke's 1999 Will. Beyond that, there was no evidence of his involvement with the affairs of Betty Dyke until January 2000. At this time, he began to become involved in managing Betty Dyke's financial affairs.

205 Betty disliked Tim Knaggs, and it appears, disliked him intensely. Although this was denied by Tim Knaggs, I accept the substance of the evidence of Enid Nicholson when she said:

Betty had told me on many occasions during the late 1990's that she did not like Tim Knaggs. Betty said to me many times between 1995 (when Denise had started to work for Betty) and 1999 that "I do not like Denise's husband". On many occasions during the late 1990's Betty made statements about Tim Knaggs to me such as: "I do not like him and I do not trust him". " I do not like the look of him". "I do not have any time for Tim Knaggs". "I do not like him at all". "People are after him". "I do not want him coming around my house". "I hate the man". Betty told me that Tim Knaggs had "killed a dog". Betty detested any unkindness to animals. Betty was so distressed about this man visiting her home that I asked her if she wanted me to phone him and tell him not to come around to her house. Betty replied, "No you had better not".

206 Evidence to similar effect was provided by Judith Bailey. In 1998 Betty Dyke told her that she did not trust Tim Knaggs.

Betty told me that she did not like Tim Knaggs. Betty had a dog named Timmy during the 1990's but she did not tell me that it was named after Tim Knaggs. Betty referred to Tim Knaggs as "a policeman" in a disapproving way and said she didn't like him.

208 Yet a further witness, Jane Leech, who was the daughter of a cousin of Betty Dyke's, said:

Betty also told me on many occasions in the late 1990's that she did not like Denise's husband Tim. Betty said to me words to the effect "I can't stand the man. There is something funny about him. They kicked him out of the police force. I don't know why. There's something funny about a man who hides behind a beard".

209 Colin Nicholson gave evidence to similar effect:

In about August of 1999 Betty first mentioned Tim Knaggs to me. She said he was Denise's husband. Betty said to me on this occasion and on many subsequent occasions that she did not like Tim Knaggs. Betty made statements in this conversation and in subsequent conversations such as "I do not like him and I don't trust him, I am scared of him, I am afraid of him". In about May of 2000 when I was speaking with Betty on the telephone, Betty said to me "Colin, that Tim Knaggs gives me the creeps! He is hiding from someone. He was kicked out of the Police Force. He is in disguise. He works at the sewerage farm". I said "What do you mean Betty? She said. "He has an earring and a pony tail and a beard. He is a scruff". Betty told me in this conversation in May of 2000 that she had heard that Tim Knaggs "had shot a dog which had wandered onto his property". Betty said that "She did not want Tim Knaggs coming on to her place''. In further conversations with Betty in about late 2000 Betty again said to me in a telephone conversation that "Tim Knaggs is a cow of a man and gives me the creeps!" Betty told me that Tim Knaggs would ring her of an evening and say things to her such as "Your dogs will never be able to protect you Betty". I said to Betty that she should tell Denise about her concerns and Betty said, "I could not do that, I need Denise's help with chores!" I was totally shocked when at Betty's funeral the funeral director introduced Tim Knaggs to the congregation as "Betty's Executor". I had never heard Betty speak in such consistently negative terms about anyone other than Tim Knaggs. Since 1997 Betty made statements and repeated them over and over again in the same conversations. She did this repeatedly in the statements she made about Tim Knaggs.

Betty always told me that she did not like Tim Knaggs. Betty said to me words to the effect "I hate him annoying me".

211 Betty Dyke's attitude to Tim Knaggs was reflected in her 1985 Will. Under that will, pursuant to the pecuniary legacies to be given under clause 2, Denise Knaggs was to receive $20,000, Gary and Diane Smith were to jointly receive the sum of $40,000 and Robert and Sandra Allen were to jointly receive $20,000. Pointedly, Tim Knaggs was to receive nothing under this will, either in his own right or jointly with his wife, Denise Knaggs.

212 It was Denise Knaggs, the wife of Tim Knaggs who attended Betty's farm and helped her with various chores, took her shopping and to the doctor. Tim Knaggs did not help on the farm very often and his contribution in this respect was comparatively insignificant. Shirley Huyton who lived nearby from 1974 regularly visited Betty Dyke's property. She observed that Betty was helped by various people on the farm, namely Denise Knaggs, Robert Allen and the Smiths. However she never saw Tim Knaggs on Betty's property.

213 Indeed, Tim Knaggs expressed little interest in Betty Dyke and had no detailed knowledge about her circumstances. When asked whether, in 1999 Betty Dyke was dependent on help from Denise Knaggs and the Smiths and the Allens so that she could stay living in her house on the farm and have her animals about her, Tim Knaggs demonstrated his ignorance of her circumstances. He said: "I am unable to say whether she was dependent or not ...". When he was asked whether by 1999 Betty Dyke found it difficult to get around physically and do her daily tasks of looking after her birds and animals generally, he answered: "She was always on the go so I am unable to say whether she found - had difficulty".

214 I am satisfied that Tim Knaggs had little practical involvement with her life prior to August of 1999 when Betty Dyke commenced the process of making her 1999 Will. However, Tim Knaggs' involvement in the life of Betty Dyke changed during this time. He became involved in the preparation of the 1999 Will, in the circumstances which will be described, and in fact came to be included, along with his wife Denise Knaggs, as a joint beneficiary of one third of her residuary estate under that will. Although Tim Knaggs said that he did not see the 1999 Will until after Betty Dyke was admitted to hospital on 19 June 2002, he learned much earlier that he was to receive part of the residue of her estate under the 1999 Will.

215 After the making of the 1999 Will, when his place as a joint beneficiary under that will was secured, Tim Knaggs became closely involved in the management of Betty Dyke's financial affairs. Between 2000 and 2001 he also managed the land subdivision of Betty Dyke's farm and the sale and the distribution of the proceeds to himself and his wife, the Smiths, and the Allens which Betty Dyke had gifted to them inter vivos. Tim Knaggs also visited Betty Dyke when she was admitted to hospital on 19 June 2002 at which time he distributed copies of the 2001 Will to the Allens and the Smiths.

216 Tim Knaggs was also an important witness in the case. However, I do not accept his evidence unless it was corroborated by other witnesses or inferences which could be drawn from other evidence. Generally I found his evidence evasive, and tailored to advance his position rather than providing a truthful and accurate account of events to the Court.

217 Tim Knaggs did not receive any benefits under the 1985 Will.

218 In contrast, under the 1999 Will he was to receive one third of the residuary estate jointly with his wife Denise Knaggs. The benefit conferred on Tim Knaggs by the 1999 Will continued to apply under the 2001 Will.

Robert Allen, Norman Allen, Sandra Allen, and Steven Allen

219 Robert Allen grew up near Betty Dyke's farm and had a long-standing relationship with her. His earliest memories of Betty Dyke and Betty's mother were their regular visits to his family's home in 1958 on Tuesdays and Fridays on their trip home from the Dandenong Market, and on Fridays shopping in Mornington. These visits continued until about 1969. Robert Allen had a brother, Norman Allen. When he was a child from about the age of 12, Robert Allen used to ride his bike to Betty Dyke's farm with his brother Norman and participate in farming activities on the property.

220 From about 1965 until about 1983 Robert Allen helped with farm jobs on Betty Dyke's property such as carting hay and storing hay in the hay shed, fencing, maintaining chook yards, calving and chopping fire wood.

221 In 1968, Robert Allen married his present wife, Sandra. They lived in the Mornington area for over 35 years at 7A Ruth Road, Mornington, which was about 3 kilometres from Betty Dyke's farm. Robert Allen continued to help Betty and her partner Joe with the farm duties at "Sefton Grange" on a regular basis. In 1975, when Robert and Sandra Allen did some travelling, Robert's brother Norman took over his role in his absence and continued to help Betty and Joe on the farm.

222 In 1978 Robert Allen started a trucking business but continued to help Betty Dyke's friend and farm hand Joe with the farm duties when needed. Both Robert Allen, his wife Sandra and their children regularly visited the farm.

223 In 1983, after Joe passed away, Robert Allen undertook an increased level of farm duties for Betty Dyke, as well as operating his trucking business. He visited the farm three or four times a week. He also visited Betty Dyke if she telephoned him and asked for his help. He helped with managing the cattle, calving, hay cutting and carting, fencing, maintaining the chook yards, chopping fire wood, management of the pasture and other similar activities. He was usually paid an hourly rate.

224 Robert and Sandra Allen had a son, Steven Allen. When Robert Allen was unable to visit the farm, his son Steven filled his role.

225 Robert Allen continued to assist Betty Dyke in operating her farm through the 1990s. Indeed, by early 1997, Betty Dyke was completely dependent on Robert Allen to do this work.

226 In her later years Sandra Allen helped out Betty Dyke by doing her shopping and running errands and by providing some company for her, often just by having a cup of tea. However, she only helped Betty in this manner occasionally. Sometimes, when Betty Dyke rang in the middle of the night, both Robert and Sandra Allen went to the farm to sit with her for a while to reassure her that someone was around. Sandra Allen did not ask to be, nor was she, paid for any of the work that she did for Betty Dyke.

227 Sandra Allen, along with her husband Robert Allen, received a monetary benefit of $20,000 under the 1985 Will. They were bequeathed one third of Betty Dyke's residuary estate under the 1999 Will and the 2001 Will together with the farm machinery which was left to Robert Allen.

228 Steven Allen, son of Robert and Sandra Allen, was left a pecuniary legacy of $20,000 under the 1999 Will and $10,000 under the 2001 Will, as was Robert Allen's brother, Norman Allen.

229 In about the late 1980's Betty Dyke befriended Gary Smith and his wife Diane Smith. They lived close by at 150 Racecourse Road Mount Martha.

230 Gary or Diane Smith's family owned a bird shop in Mornington. Betty Dyke purchased bird seed from them. Gary Smith was also a tiler by trade. During the late 1990's he laid some tiles in the hallway of Betty's house.

231 In the latter half of the 1990s Mrs Dyke also commenced to pay Diane Smith to do minor outside chores for her and to run errands for her. This activity appeared to continue through to Betty Dyke's hospitalisation in mid-2002.

232 Gary Smith, along with his wife Diane Smith, received a monetary benefit of $40,000 under the 1985 Will, together with Betty Dyke's car and some chattels. They were bequeathed one third of Betty Dyke's residuary estate under the 1999 Will and the 2001 Will.

233 Betty Dyke had no fewer than fourteen first cousins on both her mother's and father's sides. She was closest to Enid Nicholson.

234 Enid Nicholson is married to Rod Nicholson and is the mother of the first Plaintiff, Julie Nicholson and Colin Nicholson. She was born on 28 September 1924 and is now 81 years of age.

235 Enid Nicholson knew Betty Dyke well and had a continuous and close relationship with her all her life. The records of telephone calls made to Betty demonstrate that Enid had regular telephone contact with her. They enjoyed a lifelong friendship, which Betty Dyke recognised by pecuniary legacies in all of the wills executed.

236 She swore two affidavits for use in the trial. However, at the time of the trial Enid Nicholson fell ill with a serious respiratory infection and was admitted to hospital. She recovered sufficiently to give evidence and be cross-examined at her bedside, but was not well enough to attend at Court. Accordingly, I made an order for her to be examined and cross-examined by counsel before my Associate who was commissioned to conduct the examination upon my satisfaction of the requirements of s.4 of the Evidence Act 1958. The examination was undertaken pursuant to rule 41 of the Supreme Court (General Civil Procedure) Rules 2005. A deposition of her evidence was taken by transcript writers and was admitted into evidence.

237 Having read the deposition of the evidence of Enid Nicholson, I am satisfied of the truth and accuracy of that evidence. Enid Nicholson had no pecuniary interest in the outcome of the proceeding in favour of the Plaintiffs. Indeed the opposite is the case. Under the 1985 Will, she was gifted $10,000. However, under the 1999 Will and the 2001 Will she was to receive $20,000 in each case. Thus if, pursuant to the applications of the Plaintiffs, the 1999 Will and the 2001 Will are set aside, and probate was to be granted in respect of the 1985 Will, she would stand to lose.

238 Even though Betty Dyke was 5 years older than Enid, they shared their childhoods, teenage years and adult life together. Enid Nicholson's family visited Betty's family at "Sefton Grange" on the Mornington Peninsula. After she was married and had children, Enid Nicholson and her husband Rod regularly visited Betty on her farm with their children Colin and Julie Nicholson. During the 1980s and early 1990s Enid Nicholson and Rod visited Betty at "Sefton Grange" several times a year. On occasions, Enid Nicholson would also visit Betty without her husband. In 2000 Enid Nicholson's brother Doug was admitted to a nursing home in Rosebud. She was accustomed to visiting him about once a fortnight. Enid Nicholson always called at Betty's farm on the way down to see him. Sometimes Enid took Betty with her to see her brother. On several occasions in 2000, 2001 and 2002 Betty accompanied Enid Nicholson to Doug's house to visit Doug's wife Wilma. During the 1980s and early 1990s Betty also visited the Nicholson family florist wholesale business conducted by Enid Nicholson's son and daughter Colin and Julie Nicholson in Glen Waverley. Betty was driven by friends for these visits. Enid Nicholson continued to visit Betty regularly right up until her death and kept in close contact by telephone. They spoke on the telephone regularly and more often if the need arose.

239 Enid Nicholson's daughter, Julie Nicholson, is the first Plaintiff in this proceeding. In seeking to set aside the 1999 Will and the 2001 Will and the accompanying codicils, Julie Nicholson had a fervent belief in her cause, so much so, that it coloured much of her evidence.

240 Julie Nicholson did not receive anything under the 1985 Will, she was left $10,000 under the 1999 Will, and was struck out of the 2001 Will.

241 Geoffrey Edwards was the only son of Douglas Edwards, who was Enid Nicholson's brother. Douglas Edwards died in 2004. Geoffrey Edwards was very close to Betty Dyke. Douglas and his wife Wilma lived at 58 Chadstone Road, Malvern East. They built a house in Rosebud in the early 1960s and one in Dromana in the early 1970s. After Douglas Edwards retired in about 1985, he spent every weekend at Dromana. Geoffrey Edwards frequently called in on Betty Dyke when he was on his way to or from his parents' house in the 1990s.

242 Douglas Edwards was to receive nothing under the 1985 Will, $10,000 under the 1999 Will and was struck out of the 2001 Will. Geoffrey Edwards was to receive nothing under the 1985 Will, $20,000 under the 1999 Will and $20,000 under the 2001 Will.

243 In or about July 2001 Geoffrey Edwards lived at his parents' former home in Malvern East. He planned to undertake a redevelopment of the property by demolishing the existing dwelling on the site and constructing two units in its place. His aim was to live in one property and rent out the other. In or about October or November 2001 when visiting Betty Dyke, he talked about his plans with her. At that stage he thought that the units would cost approximately $200,000.00 each to construct. On or about 22 April 2002 Betty Dyke offered to give Geoffrey Edwards $200,000.00 towards his project to build the two units on the family property in Malvern East. However, Betty Dyke subsequently revoked the gift.

244 Following the grant of probate of the 2001 Will Geoffrey Edwards made an application pursuant to the provisions of Part IV of the Administration and Probate Act 1958 (Vic) seeking further provision out of the estate of Betty Dyke. On 5 August 2005 that proceeding was settled by the executors for $500,000. Following the settlement the estate was distributed to all beneficiaries in accordance with the terms of the 2001 Will.

245 Shortly after the distribution of the estate the plaintiffs commenced this proceeding by summons dated 29 August 2005.

Berniece Parfitt, Wendy Parfitt, Maida Pitchford and Jane Leach

246 Betty Dyke also had two cousins on her mother's side of the family - Berniece Parfitt and Maida Pitchford, the daughters of Betty's maternal aunt. Although they both lived in Melbourne, they did visit Betty Dyke occasionally.

247 Berniece Parfitt had a daughter, Wendy Parfitt.

248 Maida Pitchford had a daughter, Jane Leech. Throughout her childhood during the 1950s and 1960s Jane Leech, her mother Maida and her father Wal, visited Betty two or three times a year on a Sunday for a hot roast lunch and to spend the afternoon with Betty Dyke at her farm at Mornington. Jane Leech visited Betty less frequently in the 1980s and early 1990s.

249 During the late 1990s Jane Leech occasionally drove her parents to visit Betty Dyke as her father was aging and was unable to cope with the drive to Mornington as well as he had done in the past. She also visited Betty Dyke by herself on a few occasions during the late 1990s.

250 Maida Pitchford was to be given $10,000 under the 1985 Will, $20,000 under the 1999 Will and $20,000 under the 2001 Will.

251 Berniece Parfitt was to receive nothing under the 1985 Will, $20,000 under the 1999 Will and $20,000 under the 2001 Will.

252 Jane Leech was to receive nothing under the 1985 Will, $30,000 under the 1999 Will and $30,000 under the 2001 Will.

253 Wendy Parfitt was to receive nothing under the 1985 Will, $10,000 under the 1999 Will and $10,000 under the 2001 Will.

254 John and Judith Bailey are the second and third Plaintiffs in this proceeding. They have been married for 34 years.

255 Judith has had training in aged care and other areas directly related to aged care, including attending workshops and seminars on Advocacy Guardianship and Administration, Counselling Skills, HACC Assessment and Case Management,[139] Aged Abuse and Geriatric Psychiatry. She has worked for some 20 years with children with disabilities and with adults requiring home support. From 1989 to 1997 she worked for the Shire of Buninyong and the City of Ballarat Council Home Care Services. She was the Relief Homecare Supervisor with the Shire of Buninyong until she retired in 1997.

256 John Bailey is employed by the Department of Health & Community Services (Certificate IV Community Services) and works with adults with disabilities. During the 1970s he worked with his wife Judith in two separate residential schools for children and adults with disabilities, namely "Warrah" in Dural, NSW, and "Wandin" in Mt Martha, Victoria.

257 Judith and John Bailey met Betty Dyke at her farm in Craigie Road in 1974 after they moved to Mt Martha from Dural to work at "Wandin" - a Rudolf Steiner Curative Home, which is a residential school and sheltered farm for adults and children with disabilities. They met at Betty Dyke's farm in Craigie Road, Mornington. They also met Betty Dyke's mother at that time. Betty lived with her mother in the farmhouse until her mother's death in 1978. They also met Betty Dyke's friend and farmhand Joe Nolan at this time. Joe slept in the bungalow next to the farmhouse.

258 During the late 1970's Judith and John Bailey John became very close to Betty Dyke and her friend Joe.

259 In or about 1979 or 1980 Betty Dyke offered part of her land to the Bailey's to move onto. They declined this offer. After Joe died in 1983, Betty again made an offer to Judith and John Bailey to move onto part of her land. Betty told them that she wanted the Bailey's and their family to come and live with her. Although they were grateful for this offer, they never took it any further.

260 After Joe's death in 1983 the Baileys became even closer to Betty Dyke and visited her farm regularly. During the 1990s they continued to visit Betty Dyke up to three times a year until her death in 2004. They visited Betty regularly when she was in the Mornington Private Nursing Home and the Carrum Downs Private Nursing Home during the last two years of her life.

261 John and Judith Bailey were to be given $30,000 under the 1985 Will, $60,000 under then 1999 Will and $20,000 under the 2001 Will.

262 Betty Dyke's stock agent was Ronald Raymond. He was also a lifelong friend. He was married to Lynette Raymond.

263 Ronald Raymond had known Betty since he was a boy working at the Tanti stock market at Mornington, which is the site of the present day Tanti Hotel. He later worked at the former Dandenong stock market (now Pakenham stock market). He selected cattle for Betty to purchase and used to visit her farm a couple of times a year to choose cattle from Betty's herd which were ready for sale. This continued even after he retired. He continued to assist in this way until some months before Betty Dyke died.

264 Ronald and Lynette Raymond were to be given $20,000 under the 1985 Will. Under then 1999 Will Ronald was to receive $40,000 in his own right, and under the 2001 Will, the earlier position was restored with Ronald and Lynette to receive $20,000.

265 Ross Wadeson is a certified practising accountant who has been in practice for over thirty six years. He is the principal of the firm Ross Wadeson Accountants. He has conducted his own practice since 1983.

266 Until his death in late 1995, Hugh Muldoon had been the accountant for Betty Dyke. In 1995 Hugh Muldoon died. Mr Wadeson took over some of his clients including Betty Dyke. He first met her in February 1996. He was her accountant from that time until her death. He prepared her income tax returns, and her business activity statements after the introduction of GST and he gave her general tax and accounting advice regarding her financial affairs and the running of her farm business.

267 Mr Wadeson last visited Betty Dyke in relation to taxation matters in July 2000. After that the information was mailed to him by Denise Knaggs who began to manage her business affairs.

268 Ian Moffatt, was a solicitor engaged to take instructions for and prepare the 1999 Will. Mr Moffatt established his legal practice in Mordialloc in March 1999 at 5/540 Main Street, Mordialloc. His wife, Esther Ruberl was his assistant. Prior to 4 August 1999, Betty Dyke did not know Mr Moffatt.

269 Shortly after establishing his practice he became known to Mr Wadeson, who was Betty Dyke's accountant. Mr Wadeson conducted his accounting practice from an office across the road from Mr Moffatt.

270 Some time prior to 4 August 1999 Mr Moffatt was asked by Mr Wadeson to meet Betty Dyke for the purposes of her making a new will. On 4 August 1999, Mr Wadeson accompanied Mr Moffatt to Ms Dyke's, property at Craigie Road, Mornington where he met Betty Dyke for the first time.

271 Mr Moffatt was engaged by Ms Dyke to prepare her 1999 Will. He was appointed as an alternate executor to Mr Wadeson.

272 Brian Kollias was a solicitor and partner in the firm of solicitors, Hunt, McCullough, Kollias & Co. At the relevant time in the years 2000 and 2001 the practice was owned by Mr Kollias.

273 Mr Kollias died prior to the trial. He swore an affidavit which is in evidence in the proceeding, except for some parts which I ruled to be inadmissible.

274 Kerry Kollias is the wife of the late Brian Kollias. She was employed as a probate clerk at the office of Hunt, McCullough Kollias & Co from January 2000 to June 2004.

275 Elizabeth Kollias is the daughter of Brian and Kerry Kollias. She is a solicitor and was employed by her father's firm at the relevant time in the years 2000 and 2001. Since her admission as a solicitor in 1995 she has practised in the area of wills and probate. This occupied about 20% of her practice.

276 Mr Kollias was well known to Tim Knaggs. Tim Knaggs said that he had first met Mr Kollias during the period when he was a principal solicitor in his firm. In 2000 he said that he knew him as a solicitor. However, Kerry Kollias, described Tim Knaggs as a friend of her late husband, or at least an acquaintance, of his. I accept that Tim Knaggs was a friend of Mr Kollias.

277 Mr Kollias first became involved with Betty Dyke in a professional capacity after Tim Knaggs commenced managing the subdivision of a parcel of Betty Dyke's farm. This was concluded in 2000.

278 Subsequently, Mr Kollias became an executor of Betty Dyke's estate pursuant to the December 2000 Codicil and the 2001 Will prepared by his firm under the supervision of his daughter, Elizabeth Kollias.

279 Commencing in the late 1990's Betty Dyke became disabled, both physically and mentally. With the passage of time, her condition progressively deteriorated, ultimately resulting in her hospitalisation on 19 June 2002 with a diagnosis of advanced dementia.

280 Despite her stoic independence and strength of character, in her twilight years Betty became frail and vulnerable. The increasing physical pain she suffered from curvature of the spine and the anxieties this brought about, combined with the slow onset of dementia began to press upon her. In her later years Betty Dyke became lonely and fearful, particularly as to the fate of her animals when she died.

281 Betty Dyke suffered principally from curvature of the spine (thoraco-lumbar kypho-scoliosis), causing chronic back pain. She also developed depression and suffered anxiety.

282 Denise Knaggs said on the subject, which I accept:

Over the years I took Betty to numerous doctors, specialists, chiropractors, acupuncturists, pathology laboratories and hospital short stays and the like. She often used to say "The pain is so bad, I feel as though I've been kicked in the stomach from front to back". Because of her age, each doctor found her to be a difficult case. From about 1996 she suffered from chronic arthritis and spinal kyphosis. Physiotherapists did not provide any relief. Betty relied on the support of her magnetic "Dick Wicks" belt. She wouldn't get dressed without it.

283 In 1997 Betty Dyke was referred to an osteopath, Dr Brian Nicholls. He reported on 1 September 1997. I accept his findings stated in the following terms:

Miss Dyke first presented at this Clinic on 13/8/1997 complaining of pain in the right mid-lumbar and sacro-iliac regions, travelling into the lateral and posterior aspects of the right thigh. She complained of difficulty in straitening, and indeed had an obviously stooped posture and gait. On examination she had a marked lumbar scoliosis, minimal lumbar spine extension from her flexed position, and loss of right rotation and right sidebending. The ilio-psoas were markedly hypertonic, especially on the left, and there was tenderness on palpation in the left lower quadrant, and to a lesser degree on the right. A measured leg length difference of some 2 cm was noted, possibly contributing ton an obvious pelvic tilt. ... her lifestyle is a heavy and active one, and her present problems make it difficult for her to do her farm work. [Emphasis added]

284 Dr Jack Knobel commenced treating Betty Dyke as her general practitioner in September 1994. Commencing in early consultations, Dr Knobel prescribed Betty Dyke Serepax tablets for her anxiety and Digesic tablets to manage the pain as her principal treatments. She also took Visken tablets which had been prescribed for her to stabilize her blood pressure, and later in March 2002 a Fentanyl Patch was prescribed in an attempt to control her increasing pain.

285 Serepax is from a family of drugs known as Benzodiazepines. It has a sedative effect designed to control anxiety. Digesic was prescribed to control her pain. Dr Knobel continued to regularly prescribe these drugs for Betty Dyke. The dosages varied between ½ - 1. 30 mg tablets of Serepax, three times daily. As at 30 September 1999 the dosage of Serepax prescribed for Mrs Dyke amounted to 90 milligrams per day.

286 Betty Dyke was of slight build. Her height was 148 cm. In March 2002 she weighed 41 kg, although she may have weighed more in August 1999. Although Dr Knobel had no record of her weight prior to March 2002, he described her as being "always very thin". He estimated a weight of between 45 to 50 kg.

287 By August of 1999, Betty Dyke's posture was also markedly abnormal. By this time she was drastically bent over forwards and sideways. However, she refused to undergo any kind of surgery. At one point she was advised by an orthopaedic surgeon to have a hip replacement which may have alleviated some of her symptoms, however, she stubbornly rejected this advice. Accordingly, management of her symptoms by the administration of drugs was the only course open.

288 With the passage of time, her physical disability progressively worsened, such that by January or February 2002 she was bent over almost at an angle of 45 degrees to one side. As the curvature progressed, the pain which accompanied it increased, requiring increasing medication. Her capacity to undertake chores on the farm decreased and she became more dependent on others to assist her.

289 Professor Carmelle Peisah was called by the Defendants to give evidence. Professor Peisah is an adult general and old age psychiatrist. She has published extensively in the field of her expertise, including articles and papers dealing with the relationship between dementia and the will making process.[140]

290 I accept the following evidence of Professor Peisah: Benzodiazepines, which include Serepax, have a sedatory effect. However, they may also cause "paradoxical disinhibition or increased confusion" as well as dependence and withdrawal symptoms with prolonged use. In an article which she co-authored[141] the Professor also said:

Strictly speaking, benzodiazepines should be ceased after two to three weeks due to the potential for dependence and tolerance; however, for those who require benzodiazepines for longer periods, doses should be slowly tapered before ceasing.

291 I also accept the evidence of Professor Peisah when she said that, although some people are surprisingly tolerant to the effects of Serepax if they have been taking the drug for a long period, marked changes in dosage could result in confusion. She regarded halving the dose as a "significant reduction" which could be associated with confusion. Similarly, increasing the dosage could have the same effect. She said that an extra quarter or even an extra half tablet may not make a big difference in an elderly subject, but certainly doubling the dosage would make a big difference.

292 Dr Lloyd, a consultant neuropsychiatrist with expertise in the care of the elderly, was broadly in agreement with Professor Peisah on this issue. I accept his observations about the drugs prescribed for Betty Dyke. For a person of the weight and build of Betty Dyke, Dr Lloyd described 90 milligrams of Serepax per day as "a significantly high dose". He also said that if the dosage consumed by Mrs Dyke was more than 90 milligrams, the adverse effects of the drug "would be compounded". Dr Lloyd described the effect of variable dosages of the drug being taken by a patient:

If the doses change quite significantly day to day there can be a picture of toxicity where there is almost a picture of confusion arises, disorientation, disorganised language, sedation, non-comprehensible language. If the doses levels drop off quite dramatically there may be a withdrawal state that develops 24, 48 hours or so later, and there can be a withdrawal type picture which we would call a delirium where again there may be confusion. So where there are rapid fluctuations of administration withdrawal, erratic administration, there can be quite marked fluctuations in the cognitive presentation.

293 The approach Betty Dyke adopted to control her increasing pain included self-medication. She commonly ignored the prescribed dosages and intervals for the taking of her medication. This was a dangerous course, given the potency of the Serepax which had been prescribed for her. Nevertheless, the quantities of the drug regularly supplied by her pharmacist pursuant to the prescriptions prepared by her treating doctor provided for up to 10 extra tablets of Serepax each month. This enabled her to self-administer the additional tablets at any time over and above the dosage which had been prescribed for her.

294 Judith Bailey had training in personal care and other areas directly related to personal care. She worked for at least 20 years with children with disabilities and with adults requiring support in their own homes. From 1989 to 1997 she worked for the Shire of Buninyong and (after amalgamation) the City of Ballarat Council Home Care Services. I accept the evidence of Judith Bailey when she said:

In 1998 I saw Betty self-medicate with Serepax. When I noticed this I was very firm with her. Betty told me on several occasions that she took an extra quarter of a tablet as she felt she needed them. I told her on this occasion and on other occasions in 1998 and 1999 when Betty mentioned to me that she did this, that these tablets were addictive and that one had to be careful not to self-medicate and to follow the doctor's directions carefully. ... I did not see Betty self-medicate again but she told me that sometimes she would take an extra piece of tablet if she didn't feel well. ... In about late 1999 Betty asked me to look at her tablets and we discussed the strength of the tablets. Betty said that she did not know what strength the tablets were despite the fact that this information was readily available on the packet.

295 I also accept Shirley Huyton's evidence about Betty Dyke's practice of self-medication when she said:

Betty had curvature of the spine for which she took pain killers. She would have these tablets sitting on the kitchen table and Betty told me that she would take these tablets randomly. She said words to the effect that they were the only thing which kept her going. I do not know what these tablets were but I know that Betty took them for the pain in her back and stomach. I saw her take these tablets on many occasions.

... During the 1980's and 1990's I visited Betty at various times of the day and I saw Betty take a tablet on many of these occasions no matter what time of the day I visited. Betty said to me on many occasions during the 1980's and 1990's words to the effect "These are what keep me going". ... "When I'm in pain I take them."

296 I also accept what Colin Nicholson said on the subject:

From about 1997 onwards, on many occasions when I visited Betty, I saw Betty take a tablet and 15 minutes later I saw her take another one. Whenever I asked Betty what the tablet was, she told me it was Serepax. I told Betty on these occasions that she had already taken a tablet and Betty said to me words to the effect "Have I?"

297 I find that over time Betty Dyke's pain increased. She also became more forgetful. The combination of these two factors more than likely contributed to an escalating tendency towards indiscriminate self-administration of the drug Serepax. With that, her propensity to suffer the effect of confusion correspondingly increased.

298 The Defendants did not advance a case that the testatrix's condition varied to such an extent that it was possible for her to have lucid intervals at the relevant times.[142] However, the Plaintiffs case was that Betty Dyke's mental condition varied from time to time, and to a marked degree, as a result of her self-medicating with Serepax.

299 I accept both Dr Lloyd's and Professor Peisah's evidence that Serepax can cause confusion in an elderly patient, particularly if it is taken in varying doses. I also accept that Betty Dyke self-medicated with the drug and administered varying doses to herself, and that this is likely to have escalated as time went on and her pain and discomfort increased.

300 However, there was no evidence that at any relevant time when she gave instructions for any of the wills or codicils or when she executed those instruments, she had self-medicated with Serepax causing impairment of her cognitive processes on those occasions, although I accept the possibility that she may have been so affected.

301 Betty Dyke tended to become consumed with feelings of isolation, loneliness and self-pity. In 1999 she said to her solicitor, which I accept:

I don't know of anyone to whom I feel a responsibility. I don't know of anyone else. Most of the ones I used to know are dead. Sometimes I see someone I haven't seen for 20 years but no one else. No brothers or sisters. Its a pity I hadn't and I never married.

302 From about 1997 Betty spoke openly and with increasing frequency about herself with her relative, Enid Nicholson. Her conversation was especially concerned with her pain and her loneliness. From about 1997 onwards Betty repeatedly told Enid that she wanted to have someone come and live with her.

303 Denise Knaggs, who had the greatest contact with Betty Dyke on a day to day basis, observed emotional changes in Betty Dyke towards the end of 2000, especially the emergence of a greater level of emotional dependence. Denise Knaggs provided the following description, the accuracy of which I accept:

Well, towards the end of 2000 she was probably starting to be different, but certainly in the New Year she was different.

Towards the end of the Year 2000 she was starting to be different; how did that difference show itself towards the end of 2000?---Just wanting us around and needing us more. You know, she'd ring up quite frequently, which was different, I guess. Well, different to us, because she'd leave messages on the telephone and things and say she was lonely and things like that.

304 Betty Dyke became increasingly vulnerable to the influence of those she thought offered her the facility to remain at home in her old age and allow her to care for her beloved animals. She became deeply anxious about her future. She told Enid Nicholson that she was extremely worried about her animals and about who would look after them if she could not. Betty said to Enid Nicholson repeatedly, "I don't know what is going to happen to my animals if anything happened to me". Judith Bailey confirmed what I accept to be an accurate depiction of the perception of Betty Dyke's fears and anxieties when she said:

Betty always vowed she would not leave her home and would not go to a nursing home. She stated on many occasions that she wished to stay in her own home for the rest of her days. From 1998 onwards her wish to stay in her home for the rest of her days became a central focus of Betty's conversations with me. During these conversations she constantly said to me that she was worried about how she was going to manage to look after herself and the farm for the rest of her life and stay in her own home.

305 Tim Knaggs also described Betty Dyke as having an emotional vulnerability to suggestion from persons in authority. I accept the following description as accurate when he said in his cross-examination:

She's also a very vulnerable lady at that time [in 1999, at the time of preparation of the 1999 Will] isn't she, vulnerable to suggestion?---Well she's not vulnerable to suggestion. Betty never was vulnerable to suggestion but she was vulnerable for - to anybody that perhaps exercised power over her that she didn't know.

306 From about 1998 Betty Dyke became increasingly dependent on other people to drive her to shops, attend medical appointments and the like. By late 1999 Betty Dyke stopped driving altogether. Denise Knaggs, for the main part, took on the task of driving Betty Dyke in the course of assisting with her daily living.

307 I accept the evidence of Colin Nicholson when he made the following observations:

From my conversations with Betty, I observed that she stopped driving to the Dandenong market, in about the early 1990's and she stopped driving altogether in about 1998 or 1999. I observed from my conversations with Betty that she needed other people to drive her to do her shopping and to attend doctor's appointments from about 1998 or 1999 onwards.

In about mid 1999 Betty said to me that she wanted to stop driving altogether and preferred to be driven. Denise told me that she tried to encourage Betty to continue to drive but Betty was adamant that she preferred Denise to drive her. By late 1999 Betty had stopped driving altogether.

309 There was evidence that from about 1998 onwards Betty Dyke's living standards deteriorated.

310 In her 4 July 2002 letter to the Guardianship Board in support of her application for guardianship of Betty Dyke, Denise Knaggs said this about Betty's housekeeping and personal hygiene, which I accept as a true account:

During Betty's later years her interest in housekeeping became nonexistent and her hygiene levels dropped. This became a concern to family, others and myself who knew her well. Her dogs (her children) lived inside, including sleeping on and under her bed, excreting and eating in the house. Betty loved having her favourite Pomeranian "Honey" lick her face, eyes, ears and in fact any bare skin ...

311 In the light of these statements, I do not believe Denise Knaggs when she swore in her trial affidavit that:

[U]ntil her hospitalisation in 2002 I did not notice any change in her conversation or behaviour. She was always forthright and capable of a good conversation and this did not change over the years. Over the years there was no change in her dress and hygiene.

312 From about 1998 Betty tended to live more in her kitchen. She often slept in the big chair in the kitchen by the stove where it was warm. During this period, Betty chopped up the animals' food in the same place as her own, on a plastic mat stuck to the table. This mat was full of cutting marks. She would wipe the mat but not remove it so as to wash it down adequately.

313 From 1998 onwards Betty Dyke's eating habits also suffered a decline: she did not eat much; she ate vegetables which she had boiled in a pot on the stove and kept in the fridge for several days; she also ate boiled chicken; and, she liked to eat ice cream and cakes. She did not have any lower dentures. She could not chew and mainly ate soft foods. By 1998 Judith Bailey observed that the range of protein and vegetables in her diet had reduced.

314 However, Betty Dyke was resistant to change and refused to accept Enid Nicholson's and others' suggestions for renovations and improvements to her house, which might have made her more comfortable.

315 There was also evidence that, by about 1998, Betty Dyke began to attend less assiduously to her domestic and farming chores. For example, the aviaries were not cleaned daily as had been done in the past. Nevertheless, she pushed herself through her chores even though it was an increasing effort for her to get going in the morning. She began to tire easily and needed to rest more often.

316 In considering her lifestyle it is necessary to separate what could be considered evidence of eccentric living habits from evidence of cognitive decline.

317 Betty managed her household in an unorthodox manner. Dogs, birds and other animals lived inside. Dogs slept in her bed. She spread newspapers in the hallway to allow them to defecate. As stated, she cut up her food on the same table mat that she used for the dog food. She bathed herself using a hand basin near the fire rather than using the bath or shower.

318 However, much of this conduct was directed towards achieving a practical result. For example, she was able to keep warm and ward off loneliness by sleeping with her dogs; he was able to clean up after them more easily by spreading newspapers on the floor; and she was able to enjoy the fire whilst bathing. In my opinion, activities such as these do not of themselves point to cognitive decline, and I disregard them for this purpose.

319 Further, in considering the question of her cognitive decline, it is also necessary to distinguish change attributable to it from changes in her lifestyle resulting from a typical "slowing down" due to old age and to her physical disabilities.

320 In my opinion, a deterioration in her ability to look after herself as described by Denise Knaggs in her letter to the Guardianship Board, taking short-cuts such as chopping up animal food on her kitchen table mat, reducing the range of her diet and cutting down on her domestic and farming work, do not necessarily point to cognitive decline, and I disregard this body of evidence for this purpose. However, it does serve to illustrate her increasing dependence on the support of others and her vulnerability in this respect.

Betty Dyke's Inability to Manage Her Business Affairs

321 During 2000 Betty Dyke became unable to manage her taxation affairs as she had previously done. Mr Wadeson last visited Betty Dyke in relation to taxation matters in July 2000. Prior to that time Betty Dyke had been independent and was well able to give competent instructions for the preparation of her taxation returns. However, as Denise Knaggs noted in her Guardianship Letter of 4 July 2002, on an annual visit by Betty Dyke's accountant, Mr Wadeson, which I infer was in mid-2000, it was requested that Denise Knaggs keep the accounts and invoices for Betty Dyke. This resulted in Denise Knaggs reorganising Betty Dyke's accounting system, which was then controlled by her. Further, after July 2000 taxation information was posted to Mr Wadeson by Denise Knaggs who took over this task.

322 An enduring power of attorney pursuant to s.114 of the Instruments Act 1958 was conferred by Betty Dyke on Denise Knaggs on 19 September 2000. In relation to this, I accept what Judith Nicholson said:

Commencing in 1998 and proceeding through to 1999 it was obvious to me that Betty was unable to look after her affairs and to take care of herself. Early in 2000 I made a special trip to discuss whether Betty could give an Enduring Medical Power of Attorney. I rang both Denise and Betty to tell them I was coming for this purpose and I took a Power of Attorney form with me. I considered this step needed to be arranged as soon as possible as I felt it could be needed in the near future. At that time I did not know whether Betty would understand the effect of signing such a Power of Attorney. When I discussed this proposed Power of Attorney with her, Betty seemed to understand that I regarded it as an important legal document but she did not know what it meant. Denise brought a Financial Power of Attorney form with her. I considered becoming Betty's Attorney but felt that since Denise was close by and as I was more than a two and a half hour drive away, Betty needed someone closer to her. I firmly believe Betty was not capable of understanding or organizing this by herself.

323 In notes she prepared for the social workers at the Frankston Hospital after Betty Dyke's admission in June of 2002, Denise Knaggs said: "Betty's financial matters are managed by me (Enduring Power of Attorney since 2000) at Betty's request and through the guidance of her Accountant, Solicitor and Bank Manager". I accept this as the true position.

324 Denise Knaggs also said in her letter to the Guardianship Board dated 4 July 2002, which I accept:

On an annual visit from her Accountant (Ross Wadeson) it was requested that I keep the accounts/invoices in order for Betty: This resulted in folders being purchased and all Betty's paperwork that had previously been placed in cupboards, buckets, drawers, shelves (never to be found-when needed) were now sorted and kept in one place.

A separate account for her living expenses including a Flexicard was obtained, which I operate for her. Betty was present at all these meetings with the National Bank and a copy of everything sent to her Accountant. Betty's financial affairs are now all in order and her Business Activity Statements are attended to by me and posted to her Accountant for finality.

Tim Knaggs Assumes Control of Ms Dyke's Banking Business

325 Tim Knaggs also assumed control of Betty Dyke's banking business, further evidencing her increasing incapacity to manage her own affairs, and her increasing dependence upon the Knaggs.

326 In January 2000 Betty Dyke was in need of assistance to transfer a term deposit into her name which was held in the BHP Credit Union in the name of the Estate of her late father, S A Dyke. Tim Knaggs acted on her behalf in this process. This matter was finalized on 12 July 2000 with the balance held by the credit union being transferred to her account with the National Australia Bank. This was the first time that Tim Knaggs had acted on Betty Dyke's behalf in dealing with her bank.

327 This led to Tim Knaggs becoming involved in the consolidation of five separate bank accounts Betty Dyke held in the National Australia Bank into one long term capital growth account. On 31 October 2000 Tim Knaggs took the step of speaking directly to Betty Dyke's accountant regarding the proposed direction of her term deposits. The following day he contacted Mr Hepworth, Betty Dyke's bank manager at the National Australia Bank, and arranged a meeting with Betty. Then, in July 2001 Tim Knaggs and Betty Dyke attended a meeting with Mr Westwater, Betty Dyke's new bank manager at the National Australia Bank. Tim Knaggs said that on that occasion, after initial discussion, he left Betty with Mr Westwater and sat in the waiting room at the bank entrance while the re-organisation of her affairs was planned. However, Tim Knaggs was or became well aware of the financial plan which had been organised for Betty Dyke. As Tim Knaggs said, to his knowledge:

The result of the discussion, advice and planning with the Financial Planner was that all of Betty Dyke's investments were rolled into one investment portfolio with her cheque accounts and everyday accounts consolidated, reducing the need for her to carry cash.

Tim Knaggs Assumes Control of the Subdivision and Sale of Part of 'Sefton Grange'

328 Another important transaction managed by Tim Knaggs was the subdivision and sale of a portion of Betty Dyke's Craigie Road farm, "Sefton Grange". This took place in 2000, with the proceeds being distributed to the Neighbours in early 2001.

329 In about January or February of 2000, Betty Dyke decided to sell a portion of her land and distribute the proceeds to the Neighbours. This project involved subdividing the 27 hectares which comprised her property "Sefton Grange", into two lots: one 17.7 hectare lot and one 9.3 hectare lot.

330 The project proceeded. The plan of subdivision was certified by the Mornington Peninsula Shire Council on 28 April 2000 and a Statement of Compliance was issued on 26 May 2000 permitting the Plan of Subdivision to be registered at the Land Registry. The subdivided land was subsequently sold in December 2000 for $1.3 million. On 12 December 2000 a file note on the Hunt, McCullough, Kollias & Co file records reads:

Could you please call Tim or Denise Knaggs re: Miss Dyke sale, want to know progress. On 5975 1417.

The proceeds of the sale were subsequently distributed between the three groups of Neighbours, with each couple receiving a total of $413,320 by 2 May 2001.

331 Betty Dyke was not capable of managing the subdivision venture and called upon Tim Knaggs to undertake the project. Although he denied that he was the person who effectively managed the subdivision, I do not accept this evidence. A friend of Tim Knaggs, Mr Brian Kollias, a principal of the firm Hunt, McCullough, Kollias & Co, was engaged to undertake the legal work for the subdivision. The statement of account for professional fees dated 26 June 2000 from the firm addressed to Ms Dyke for the legal work done in respect of the plan of subdivision acknowledges a number of attendances directly on Tim Knaggs at key stages in the process. The account provided:

TO: Our professional costs in this matter, including:

Attending Mr Knaggs on your behalf taking initial instructions; perusing Plan of Subdivision; attending Mr Knaggs to collect cheque for registration fees; drawing and engrossing Application for Plan of Subdivision; letter to Melbourne Agents enclosing Subdivision for lodging at the Land Titles Office on our behalf; attendance upon Mr Knaggs receiving Statement of Compliance; letter to Melbourne Agents enclosing Statement of Compliance for lodging on our behalf; telephone call from Melbourne Agent; telephone call to Mornington Peninsula Shire Council re: error on Statement of Compliance; telephone attendance upon you; telephone attendance upon Mr Knaggs; perusal of registered dealing; accounting to you and all professional skill, care and attention generally. [Emphasis added]

Apart from a single telephone attendance on Ms Dyke, which preceded a telephone attendance on Mr Knaggs, the account makes no mention of any other attendances on Betty Dyke in the course of the subdivision. There can be little doubt that Tim Knaggs assumed effective control of the subdivision project, and he did so because Betty Dyke was no longer capable of undertaking the work on her own.

332 I accept that Betty Dyke may have described the rationale for the project to different people in different ways. There was evidence that she said to members of her family that the Neighbours were "pressuring her" to sell her land and that "they're trying to make me sell my land" and that "the neighbours had said to her that they had not been adequately paid" and that "the neighbours had suggested to her that she should sell part of her land so that they would be paid more for the help they were giving her."

333 However, although Betty Dyke may have uttered statements such as these from time to time, there was no evidence before me that the Neighbours in fact pressured Betty Dyke to sell a portion of her land in the way she may have suggested.

334 There was also evidence that, following the distribution of the sale proceeds derived from the subdivided land to the Neighbours, Betty Dyke made statements to the effect that "I've paid them out" or "that's it for them". In making such statements I am not satisfied that Betty Dyke was intending to substitute the inter vivos land transaction for the testamentary dispositions she had in contemplation for the Neighbours. There are a number of other possible explanations for her conduct. She may have felt a degree of embarrassment as to the level of her generosity to the Neighbours reflected in her will which she wished to disguise. There was also evidence that the recording of hours and the calculation of payments owing to the Neighbours for work they did on her farm was becoming increasingly burdensome for Betty. The substitution of a single lump sum payment for regular payments calculated on an hourly basis would have provided an obvious solution. Even though Betty was not ultimately able to implement such a plan, and hourly payments to the Neighbours appear to have continued, it is possible that she had the idea for a lump sum payment in mind at the time she made the statements attributed to her.

335 Mr Kollias swore in his trial affidavit that in July 2000 he was informed by Tim Knaggs that Betty Dyke wanted to sell the subdivided 9.3 hectare lot.

336 Mr Kollias further swore in his trial affidavit that in a meeting with Betty Dyke in July 2000, she advised him that she did not want to engage an estate agent to sell the property. I accept that she did instruct Mr Kollias to this effect. Mr Kollias assumed the role of selling the property. Subsequently he sought expressions of interest for the purchase of the subdivided land through several of his contacts and through Watsons Surveyors who had a range of developer clients.

337 Mr Kollias swore in his untested trial affidavit that he met with Betty Dyke and Tim Knaggs on 30 November 2000 to discuss the sale and the price. He also said that Betty Dyke told him that "if we could achieve better than the $1.2 million price she would sell". However, given that Mr Kollias had passed away before the trial, the communications between the parties on this issue could not be tested. In particular, the contents of the Hunt, McCullough, Kollias and Co file and other matters could not be put to him. Consequently, I give no weight to this part of his evidence.

338 In spite of the direction of Betty Dyke given to Mr Kollias that she did not want to engage an estate agent, an estate agent was in fact engaged to sell the land. Mr Bruce Phillips of the real estate firm Bruce Davis Real Estate Pty Ltd was engaged following a discussion with Mr Kollias. On 1 December 2000 Mr Davis sent a copy of a document entitled "Sale Authority" to Mr Kollias requesting that he arrange for his client, Betty Dyke, to sign it. The "Sale Authority" was in the standard form of an exclusive sale authority issued by the Real Estate Institute of Victoria Ltd.

339 Further, Ms Dyke's solicitor, Mr Kollias was also appointed as an estate agent to sell the land and charged a commission of 1% for his services. Under the heading "Particulars of Appointment" in the "Sale Authority" and beside the printed word "Agent" the names of both "Bruce Davis Real Estate Pty Ltd" and "Hunt, McCullough, Kollias & Co" were handwritten in. Beneath the heading "Agent's Fees" the following handwritten note appears: "3% (1% payable to Hunt, McCullough, Kollias)". On a sale price of $1.3 million, the commission written in the Sale Authority together with GST was expressed to be "$28,600 + $14,300 (HMK)" - a total of $42,900. The nature of the service to be provided by the "Agent" was expressed in handwriting to be: "TO NEGOTIATE A BINDING SALE". Beside the printed words "Signed by or for the Agent" a signature is provided followed by the handwritten note: "for HMK & Co".

340 In early December 2000 Betty Dyke signed the Sale Authority beside the printed heading "Signed by or for the Vendor". I infer that her signature to the Sale Authority was obtained at the request of Mr Kollias and on his recommendation. Mr Kollias was at the time the solicitor acting for Ms Dyke in the sale transaction. Tim Knaggs came to know that Mr Kollias was to get or had obtained a commission on the sale of the subdivided land, however there was no evidence as to precisely when it was that he learned that this had occurred. There was no evidence that Betty Dyke ever questioned the commission payable to Mr Kollias pursuant to the Sale Authority or that Tim Knaggs ever raised the issue with him on her behalf.

341 Mr Kollias did not mention the Sale Authority or the circumstances of its origin in his affidavit. Consequently there is evidence neither as to whether the effect of the Sale Authority was explained to Ms Dyke before she signed it, nor whether or not she understood what she was doing when she executed the document. However, Mr Kollias did swear that he negotiated a sale price of $1.3 million for the subdivided land.

342 Documents from the Hunt, McCullough, Kollias & Co file reveal further facts which were not included in Mr Kollias' affidavit. It is clear that Mr Phillips of Bruce Davis Real Estate Pty Ltd presented Mr Kollias with the buyer. On 5 December 2000 Mr Phillips sent Mr Kollias what he described as a contract notice, and said that the offer from his purchaser would lapse at midnight on 7 December 2000.

343 On 6 December 2000, Denise Knaggs took Betty Dyke to Mr Kollias' office. Tim Knaggs met them there, but says that he remained in the foyer of the office of Hunt, McCullough, Kollias & Co while the signing of the contract took place. Why he was present at the office but was not present at the signing of the contract, and indeed why he was present at all, is unexplained. The contract was signed by Betty Dyke on 6 December 2006.

344 An interim account dated 5 February 2001 shows that Hunt, McCullough, Kollias & Co charged Betty Dyke as "Professional Costs" the full 1% commission of $13,000 plus Goods and Services Tax (GST) (10%), being a total of $14,300, noting the costs were in respect of "Commission on sale as agreed". This amount was recorded in the interim account as having been paid in full. The Statement of Account in the Hunt, McCullough, Kollias & Co file records that the estate agent Bruce Davis Real Estate Pty Ltd was paid its full commission of $28,600 on 5 February 2001. Hunt, McCullough, Kollias & Co was also paid a further sum for costs and disbursements amounting to $4,856.49 on 7 February 2001. This sum was reflected in an account dated 23 May 2001 and was for conveyancing work arising from the sale of the subdivided land. The account included a component for: "perusing duly executed contract and section 32 vendor's statement from agent".

345 The commission structure in the Sale Authority was totally imprudent as far as Betty Dyke was concerned. Furthermore, Ms Dyke's apparent commitment to the commission was quite out of character given the degree of concern she had previously expressed about the level of charges that she had been billed by professionals that she engaged from time to time. This concern had previously caused her to have her former solicitor Mr Moffatt removed as an executor of her 1999 Will.

346 A second and subsequent engagement to sell the remainder of her land after her death was procured by Mr Kollias. This was undertaken pursuant to an unidentified agreement with the other executors under the 2001 Will, namely Tim Knaggs, Robert Allen and Gary Smith. Pursuant to this agreement, Mr Kollias again charged a 1% commission to sell the land. This yielded him a fee payable by Betty Dyke's estate of $151,100. I make no finding as to whether this conduct, in combination with the earlier transaction reflected in the Sale Authority of December 2000, constituted a contravention of s.12 Estate Agents Act 1958 (Vic).[143]

347 The obvious lack of commercial prudence expressed in the commission structure of the Sale Authority evidences that by December 2000 Betty Dyke had become unusually vulnerable to the influence of those in a position to exercise authority over her, such as Mr Kollias and Tim Knaggs.

348 I accept the description provided by Denise Knaggs in her letter to the Guardianship, Board dated 4 July 2002:

Eventually the task to keep Betty clean became full time. I would wash bed linen, including dog blankets, sweep, wash, scrub, mop the floors, chop wood and split kindling, collect bags of briquettes from the shed to replenish the wood fire stove.

349 The involvement of Denise Knaggs extended to collecting and opening Betty Dyke's mail. Each day she would collect the mail from Betty Dyke's letterbox, open it and discuss the contents with Ms Dyke.

350 Further, since about 2000 Denise Knaggs was also accustomed to taking Betty Dyke shopping because, as she said in her Guardianship Letter of 4 July 2002, "she just can't manage on her own".

Effect of Evidence as to the Relinquishing of Control

351 I accept the evidence of Professor Peisah when she said that relinquishing the management of her financial affairs could have been the product of a choice exercised by Betty Dyke to take that course, or it could have been the product of cognitive decline. In this regard, Professor Peisah said:

[F]inancial management is quite a high order, what we call a high order activity of daily living and there's evidence to suggest that people with mild dementia, in fact, even the pre-stage mild cognitive impairment, might start losing their ability to manage their financial affairs. So, its either a normal person delegating saying, "I don't want to deal with this any more". [Or] [s]he could have had mild cognitive impairment and couldn't deal with financial affairs or even mild dementia and couldn't deal with her financial affairs.

352 Denise Knaggs described Betty Dyke in her Guardianship Letter as having a "strong personality" and being "very independent". Given Betty Dyke's strong personality trait of independence, which I accept, and her previous conduct in dealing directly with the management of her financial affairs and banking business, together with other surrounding circumstances, I conclude that during 2000 Betty Dyke had become unable to manage her financial affairs by reason of cognitive decline rather than handing over control as a matter of free choice, and it was for this reason that she was prepared to allow Denise Knaggs to in effect become her financial manager and Tim Knaggs to organise her banking and other business.

353 I conclude that by mid-1999, Betty Dyke was no longer capable of looking after herself.

354 Physically the pain in her back from the twisting of her spine and the referred pain in her legs were worsening. Nothing seemed to ease the pain. She had tried wearing shoes of different heights and back supports. She refused an operation recommended by her medical practitioners because she was fearful that it would prevent her caring for her animals.

355 Betty Dyke tried to encourage others to move onto her property and look after her. She had attempted this in the latter half of 1999 when she requested Judith Bailey and her husband John Bailey to move onto her property, but they declined to take up her offer.

356 She became increasingly dependant on her neighbours, Denise Knaggs, Robert and Sandra Allen and Gary and Diane Smith for care and support, with Denise Knaggs assuming the role of principal care giver.

357 I accept that Betty Dyke was particularly vulnerable to suggestion from people she did not know and who were in a position to exercise influence over her in relation to her legal affairs, and that this was known to and understood by Tim Knaggs in 1999, at the time of preparation of the 1999 Will and subsequently her March 2000 Codicil.

358 Betty Dyke's physical disability was compounded by the onset of dementia which progressively debilitated her to the point where, on 19 June 2002, she was admitted to the Frankston Hospital with a diagnosis of advanced dementia.

359 As her chronic back pain got worse, she developed depression. Betty Dyke refused to accept the advice of the medial specialists that she consulted to undertake surgery to alleviate the symptoms. She did not want to leave her animals unattended during recovery from an operation. This left her treating doctors with little option but to continue with their attempts to control the pain with the drugs prescribed for her, however, this course of treatment provided only limited relief. She became depressed at the prospect of continuing her life with enduring pain.

360 I accept what Denise Knaggs described in her letter to the Guardianship Board of 4 July 2002, regarding the onset of deterioration in Betty Dyke's emotional wellbeing:

Betty didn't enjoy books or television but she did like the company of radio, although more recently, even it too would annoy her, leaving only myself and the other neighbouring friends to pass the hours with her. Gradually she became disinterested in anything other than her dogs, birds and her own depression.

361 She also developed anxiety. This was the subject of ongoing medication prescribed by her general practitioner, Dr Knobel over many years.

362 I accept the following evidence given by Professor Peisah.

363 Professor Peisah described dementia as a neurodegenerative condition characterised by the development of multiple, cognitive deficits, usually including memory impairment. It does not, however, impair consciousness. There are over 100 causes of dementia. Alzheimer's Disease is the most common cause, followed by Vascular Dementia and Lewy Body Dementia. Although each type has a distinctive pattern of cognitive impairment and course, most dementias are characterised by progressive decline.

364 She described dementia as a degenerative mental condition affecting 1 in 20 people above the age of 65 and up to 1 in 5 over 80. I accept what Professor Peisah said:[144]

Although any debilitating mental or physical illness resulting in dependence on a caregiver may facilitate the subversion of the testator's free will, dementia in particular seems to increase susceptibility to undue influence.[145]

365 Professor Peisah also made the observation that it is not always easy to identify those clients who are incompetent because people with early dementia may appear relatively normal in casual conversation.[146]

366 A diagnosis of dementia, however, does not necessarily preclude testamentary capacity. Professor Peisah gave evidence that in 1994 it was thought that it could be assumed that testamentary capacity is preserved in early dementia and lost in late dementia. Medical opinion considered that the gradually progressive, somewhat predictable decline caused by Alzheimer's disease lent itself to an approximation of a threshold of testamentary capacity, in which a mild form of Alzheimer's disease would indicate definite testamentary capacity, a moderate form would indicate a declining capacity and a severe form would exclude testamentary capacity.

367 However, medical science has advanced in this area since 1994. It is now Professor Peisah's view, which I accept, that the lines are now much more blurred than was earlier thought to be the case. In some cases a person suffering severe Alzheimer's disease may retain testamentary capacity, while in other cases a person with mild dementia may not.

368 Professor Peisah agreed generally with the stages referred to by Gelinas and Auer[147] in their description of the progress of the disease and the commensurate deterioration in functional abilities. However, she acknowledged that expert opinion in the field differed in relation to the magnitude of cognitive deficit required for each stage, as measured by a mini-mental state examination (MMSE).[148]

369 Professor Peisah also agreed with observations as to the progress of Alzheimer's disease made in O'Brien, Ames and Burns work on dementia,[149] and she also agreed with the conclusions of Isabelle Gelinas and Stephanie Auer in their edited work on the loss of functional autonomy suffered by an individual having Alzheimer's disease.[150] The progress of the disease plotted by these authors, when their observations are integrated, may be summarised as follows:

(a) In the pre-dementia stage, meticulous neuro-psychological investigation may reveal very mild cognitive impairment five years before the clinical diagnosis of a dementia syndrome can be established. At the pre-dementia stage of Alzheimer's disease, patients do not show a significant deterioration in activities of daily living. Individuals may still be able to live independently most of the time but, due to significant cognitive difficulties in several domains, may still need support with a variety of activities. Sufferers may forget appointments or have difficulty finding their way in unfamiliar environments. At this stage, individuals may use memory aids and other strategies to overcome or compensate for any cognitive deficits.

(b) In the mild dementia stage, memory impairment usually interferes with various cognitive domains and usually plays a key role in the patient's difficulties with the activities of daily living. The patient's reduced ability to plan, judge and organise may not only show in complex tasks, but also in more difficult household chores such as managing finances, preparing meals and using complex appliances at home. Communication may begin to suffer from a reduced vocabulary, decreasing word fluency and less precise use of expressive language. Even though a patient may still appear eloquent, "fluent" and even verbose on casual inspection, an impairment of object naming and semantic difficulties with word generation can often be demonstrated by means of detailed neuropsychological tests. Individuals have more difficulties in performing complex instrumental activities, such as dealing with finances or marketing. At this point, independent living is attainable and the affected person can still adequately perform basic tasks, such as dressing or moving around their community. Symptoms of depression may prevail in the early stages of illness. These emotional disturbances are typically mild and fluctuating, but full-blown depressive episodes can also occur.

(c) In the moderate dementia stage, due to the severe impairment of recent memory, patients may appear to "live in the past". Logical reasoning, planning and organisational abilities are significantly impaired at this stage. Language difficulties become more obvious. Reading skills deteriorate and the comprehension of texts can be incomplete. Individuals start to experience difficulties with basic activities of daily living. This usually begins with problems in choosing appropriate clothing. At this point, patients with Alzheimer's disease are no longer able to live alone safely and the ability to drive a motor car becomes increasingly compromised. Writing becomes increasingly insecure with an increasing number of mistakes and omissions. Patients become distractible and gradually lose insight into their condition.

(d) In the severe dementia stage, specific cognitive deficits cannot be teased apart at this late stage of the illness, when almost all cognitive functions are severely impaired.

Opinion of Professor Peisah as to Testamentary Capacity

370 I accept the expertise of Professor Peisah and I accept that the opinions which she expressed were the product of her independent and professional judgment. Having examined the material placed before her, Professor Peisah summarised her evidence in the following manner:

In summary, Miss Dyke was an eccentric and independent single woman who lived on her own supported by friends until she manifested clear signs of dementia by mid 2002. Prior to this, her mental state was probably affected by combined effects of mild cognitive decline (or mild dementia), pain, physical disability, depression and anxiety, with or without the effects of misuse of benzodiazepines and narcotic analgesics, although a contribution of cognitive decline was less likely as far back as September 1999. In September 1999 she made a will which differed in its emphasis, rather than inclusiveness by changing her major beneficiaries from a group of charities to the friends who supported her to secure and maintain their involvement and she maintained this will-making pattern through subsequent codicils in March and December 2000 and another will in January 2001. The consistency of this pattern over two years and her ability to identify this change and the reasons for it suggested that despite any mental impairment she retained testamentary capacity over this period.

I believe that regardless of the extent to which Dr Lloyd's and my estimate of her cognitive level prior to 2002 might differ (and I must emphasise that this estimation was difficult in this case for the reasons outlined earlier), the detailed, contemporaneous notes of her accountant and solicitor more accurately demonstrated her capacity than any estimate of her cognitive functioning. Importantly, the presence of cognitive decline or dementia does not preclude testamentary capacity and there is no empirical scientific evidence correlating stage of dementia or Mini Mental State Score with loss of capacity, other than to say that it is probably lost in severe dementia, although even this depends on the complexity of the estate. From my extensive experience acting as an expert witness in over 100 cases of challenged testamentary capacity and my extensive writings and presentations in this area, I believe that generalizations in this area are fraught with difficulty. Each case must be examined on its own merit with regards to the particular manifestations of the dementia and the decisions to be made in terms of the complexity of the estate arid the nature and history of the relationships which bear on the claims one ought to consider.

371 I accept these observations as an accurate summary of her opinions as to Betty Dyke's mental condition. However, given her understandably tentative conclusions about Betty Dyke's testamentary capacity at the relevant times, the evidence could not be regarded as conclusive and at best is of only limited weight.

372 I agree with Professor Peisah's observation that: "the detailed, contemporaneous notes of her accountant and solicitor more accurately demonstrated her capacity than any estimate of her cognitive functioning". However, in making this comment, I conclude that Professor Peisah was confining herself to the making of the 1999 Will and the March 2000 Codicil. During this period Mr Wadeson was Betty Dyke's accountant and participated in the preparation of the will for Ms Dyke which was undertaken by her solicitor at the time, Mr Moffatt. Both took notes of their various meetings with Betty Dyke, and Mr Moffatt's conferences with her, in particular, were relatively detailed and comprehensive. In contrast, the notes taken by Elizabeth Kollias in the course of preparing the December 2000 Codicil and the 2001 Will, were remarkably sparse. Furthermore, the accountant Mr Wadeson, had no involvement with the preparation of these instruments.

373 However, I do not accept Professor Peisah's opinion founded on her observations as to the will making pattern of Betty Dyke between the making of the 1999 Will and the December 2000 Codicil through to the 2001 Will. True it is that the basic bequest of her residuary estate to the Neighbours remained intact. However, there were remarkable and unexplained changes of considerable significance during the period which were not taken into account by Professor Peisah.

374 These matters, which are considered below in the context of an analysis of the circumstances surrounding the making of the December 2000 Codicil and the 2001 Will,[151] were not put to, nor were they considered by, Professor Peisah. However, having had the considerable advantage - not enjoyed by Professor Peisah - of reviewing the evidence as a whole, I am not able to accept her observation that:

The consistency of this pattern over two years and her ability to identify this change [to benefit the Neighbours] and the reasons for it suggested that despite any mental impairment she retained testamentary capacity over this period.

Opinion of Dr Lloyd as to Testamentary Capacity

375 Dr John Lloyd was called by the Plaintiffs. I accept the expertise of Dr Lloyd and I accept that the opinions which he expressed were the product of an independent and professional assessment. Having examined the material placed before him, Dr Lloyd observed in his trial affidavit that Betty Dyke's capacity to make a will in January 2001 is likely to have been limited. After reading the Frankston Hospital file Dr Lloyd then said that he had considerable doubt that she had testamentary capacity in 2001. He also doubted that she had testamentary capacity in 1999.

376 After considering further material he concluded that it would be reasonable to suggest that Betty did indeed have testamentary capacity on 20 of September 1999. He reiterated that opinion although he entertained some reservations on the matter during cross examination.

377 He concluded that it is probable that a combination of dehydration, chronic neglect and chronic benzodiazepine intoxication superimposed on an underlying dementia contributed to an acute three week deterioration in Betty prior to her hospitalisation. He then concluded that with her condition as it was found to be in June 2002, cognitive impairment sufficient to question testamentary capacity would have been evident, had it been assessed in January 2001.

378 Dr Lloyd agreed that a person can have dementia and paranoid ideation and still have testamentary capacity. He also agreed that there can be catastrophic and sudden deterioration in the condition of dementia.

379 In their submissions on Dr Lloyd's evidence, the Defendants drew my attention to the following exchange in his cross-examination:

And there is nothing, I suggest to you, that you have found in any of the medical reports to support a proposition that Miss Dyke could not have addressed those four issues in 1999?---Well, there is nothing specific, and I don't believe I've made that suggestion. I've raised doubts based on the level of impairment that appears to have been suggested in the information I've been provided

...

And the only way that one can remove that doubt is by looking at what she did when she discussed matters with Mr Moffatt and what she did when she discussed matters with Mr Wadeson. Would you agree with that?---That would be crucial and it would, in my view, be dependent also on there being some confirmation by those persons that the information was consistent and reliable.

380 It was submitted by the Defendants that Dr Lloyd misunderstood the legal test for testamentary capacity and that this was a ground for rejecting his evidence. However, having examined his evidence in this regard, I am satisfied that he was fundamentally correct in his understanding of the test, and to the extent that he was not entirely accurate, the technical error made no material difference to the thrust of his evidence.

381 Dr Lloyd too was understandably tentative in his conclusions as to Betty Dyke's testamentary capacity at the relevant times. In these circumstances, his evidence as to her testamentary capacity at the relevant times is of limited weight.

382 Dr Lloyd drew attention to the syndrome of "gratuitous concurrence" in elderly patients, which he described as the "Noddy syndrome". This may arise where an elderly person will agree with questions put to him or her in order to placate, comply with, or ingratiate themselves with a person in authority, in this case the lawyer conducting the interview. It may also occur when the elderly person seeks out of embarrassment to mask their incapacity to understand what to the lawyer appears to be a simple concept, or simply to avoid causing what is perceived by the testator to be a problem.

383 An analogy may be drawn with the widely recognised tendency for some Indigenous Aboriginal witnesses to adopt this approach. In R v Anunga[152] Foster J explained the propensity in the following terms:[153]

[M]ost Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman.

384 In answer to a question as to whether it is possible for an elderly person to mask the appearance of the onset of dementia, Dr Lloyd said:

It is possible to mask or deny many elements over a period of time. And one can interview patients and have a number of yes responses which if one assesses in any greater depth can actually be found not to be based on any understanding. The patients may easily be led and give the impression of knowing what they're doing and behav[e] appropriately.

[T]he important thing is each particular gift or the person to whom it is being given would be known and identified rather than the - Ms Dyke for example sitting back and simply demonstrating what I've called elsewhere the Noddy syndrome, that [with] some patients we can read out a series of questions or points and ... you have no idea whether or not there is an actual understanding. And sometimes that can only be clarified by putting it back on to the patient so to speak and saying what do you intend and why for this person, who is this person ... it avoids a patient being overloaded, overwhelmed, by a mass of material and simply taking the way out that I alluded to elsewhere that sometimes [a patient] will mask [his or her] ignorance by simply agreeing.

385 Professor Peisah expressed a similar view. She cautioned that:

An affirmative answer to the question: Do you understand what this will contains? is not an adequate reflection of understanding. The client should be asked to explain the effect of what he or she is doing in his or her own words and it is important to record the responses verbatim".[154]

386 I accept these observations of Dr Lloyd and those of Professor Peisah.

387 Protection against the effects of this problem described by both Dr Lloyd and Professor Peisah finds expression in the law. I refer in this respect to the observations of Tadgell JA in Robertson v Smith,[155] which have been cited earlier, to the effect that, in order to establish knowledge and approval of a will by a testator, more is required than "merely establishing that the testator executed it in the presence of a witness after it had been read to or by him."

Opinion of Dr Knobel as to Testamentary Capacity

388 Dr Jack Knobel was Betty Dyke's treating general practitioner, and had treated her in this capacity since 1994. He continued to act as her doctor, including during the period between 27 April 2000 and 21 July 2001, when Dr John Dade also acted in this role. Dr Knobel recommended Betty Dyke's admission to the Frankston Hospital on 19 June 2002.

389 On 21 August 1999, at the request of Betty Dyke's solicitor Mr Moffatt, Dr Knobel completed and signed the medical certificate which had been provided to him attesting to Betty Dyke's testamentary capacity. The certificate provided:

TO WHOM IT MAY CONCERN

I confirm that I have been the personal physician of ELSBETH JEAN DYKE, of Sefton Grange, Craigie Road, Mount Martha, Victoria, 3934, for the past FIVE years.

I confirm that it is my opinion that ELSBETH JEAN DYKE is of sound mind and that in executing her Will she understands:

• the nature of the document she is signing, and
• the gifts she is making in her Will.

390 The Plaintiffs were critical of this certificate. They submitted that it had been prepared in a short space of time, and without the benefit of having undertaken any formal testing of Betty Dyke, or organising for her to undergo such tests, to ensure that she was not suffering any cognitive deficit and that she had sufficient mental capacity to comprehend the nature of what he was doing, and its effects. Importantly, contended the Plaintiffs, the certificate was prepared without any inquiry either as to whether she had sufficient understanding of the nature and extent of her property, or whether she was in a position to comprehend and consider those who may have had a moral claim to her estate, or part of it.

391 Professor Peisah makes a number of useful recommendations for medical practitioners engaged to evaluate the testamentary capacity of a testator at the time of making a will.[156] The most important guidelines are: first, consulting with the instructing lawyer; second undertaking a comprehensive examination of the mental status of the testator by means of a "semi-structured" interview; and, third, conducting a detailed assessment of the cognitive functions specific to the testamentary process.

392 Dr Knobel was a busy general practitioner. The consultation with Betty Dyke which resulted in him signing the standard form which had been provided to him by Mr Moffatt was of short duration. None of the approaches suggested by Professor Peisah for medical practitioners in undertaking such an assessment were followed by Dr Knobel.

393 Nevertheless, I am satisfied that Dr Knobel's certificate, in spite of its shortcomings, did reflect his genuine belief at the time. The preparation of the certificate at the very least directed his mind to the issue of Ms Dyke's testamentary capacity and required him to certify his opinion. Furthermore, given that he had attended on Betty Dyke for a considerable period of time as her general practitioner, and was undoubtedly familiar with her, I am satisfied that the exercise undertaken by Dr Knobel at the time, limited though it was, provided a measure of supporting evidence as to Betty Dyke's testamentary capacity contemporaneous with her giving instructions for, and executing, the 1999 Will.

394 Dr Knobel twice consulted with Betty Dyke between December 2000 and January 2001, the period in which Betty Dyke executed the December 2000 Codicil and the 2001 Will. First, on 9 December 2000 when he noted: "same problem with pain in hip and back right side. Has seen Prendergast who suggested that she see Taverner". He prescribed Prednisolone (5 mg twice daily) and Serepax tablets (30 mg ½ tablet three times per day); and second on 17 February 2001 when he noted: "has seen Prendergast and Gassin; blood tests FBE, UE, NFT are all NAD; discussion regards analgesia, leg shortening. Will see orthotists re building up of left leg; particulars given". He prescribed Digesic tablets (32.5 mg) and Serepax tablets (30 mg ½ tablet three times per day).

395 Dr Knobel's medical records on Betty Dyke, clearly demonstrate that his consistent focus during this period was his treatment of the difficult physical problems she presented with. He never conducted a formal assessment of Betty's cognitive capacity at this time, nor indeed at any time, because as he said, he never saw any evidence of cognitive impairment or confusion until May 2002. However, except for August 1999 when he prepared his medical certificate for Mr Moffatt, he never again turned his mind to the question of Ms Dyke's testamentary capacity. He was not requested to provide an opinion to Hunt, McCullough, Kollias & Co or any other firm of solicitors as to her testamentary capacity in December of 2000 or January 2001.

396 I am not satisfied that Dr Knobel was able to provide any accurate evidence as to Betty Dyke's mental condition or cognitive capacity at the critical time in December 2000 and January 2001 when she gave instructions for and signed the December 2000 Codicil and the 2001 Will respectively. Being a busy medical practitioner, whose primary concern was the treatment of Betty Dyke's chronic physical problems, he had little time for general discussion with her. He took no notes directed to assessing her mental health. His evidence as to her mental capacity was founded on the impressions he was able to recall some years after the relevant events.

397 Dr Dade treated Betty Dyke as her general practitioner between 27 April 2000 and 21 July 2001. Dr Dade had not met Ms Dyke before she first consulted him on 27 April. At the time he was a medical practitioner of long and varied experience, who had treated many elderly clients.

398 He consulted Betty Dyke on 8 occasions from late April 2000 (a month after she executed of the March 2000 Codicil) to mid-July 2001 (six months after the execution of the 2001 Will). However, she had no consultation with him in the critical period when Betty Dyke executed the December 2000 Codicil on 18 December 2000 and the 2001 Will on 12 January 2001.

399 Dr Dade's consultations with Betty Dyke, like those of Dr Knobel, were limited to treating the various physical ailments with which she presented with from time to time. As with Dr Knobel, there was no evidence that he had ever been requested to provide an opinion to Hunt, McCullough, Kollias & Co or any other firm of solicitors as to Betty Dyke's testamentary capacity in December of 2000 or January 2001. Consequently there was no evidence that he had ever specifically turned his mind to the issue.

400 His consultations with Betty Dyke occupied sometimes 10 minutes but mostly between 15-20 minutes. He conceded that some of the attendances were unremarkable and might have taken far less than 15-20 minutes. He too was a busy medical practitioner. At the time he was seeing about 50 patients a day.

401 He said that Betty Dyke presented as strong willed, slightly irritable person who loved her animals and appeared to be actively involved in the running of her farm. She communicated normally to him and was able to give all required history appropriately. He did not recall any repetition or forgetfulness. He never considered that she required assistance with providing information in consultations. He noticed no confusion. He recalls that she talked normally, although he acknowledged that consultations usually offered a limited opportunity for discussion.

402 He said that Betty presented as a "perfectly normal elderly old lady, slightly irascible but perfectly normal". He saw no signs "whatsoever" of dementia or Alzheimer's disease.

403 Consequently, Dr Dade took no step to arrange for any cognitive tests to be conducted on Betty Dyke to ensure that she had no deficit in this regard.

404 Dr Dade was not able to provide any accurate evidence as to the mental condition or cognitive capacity of Betty Dyke at the critical time on or about 18 December 2000 when she signed the December 2000 Codicil, and on or about 12 January 2001 when she executed the 2001 Will. His evidence was somewhat impressionistic and was the product of hindsight.

405 Helen Levins was a trained nurse of considerable experience. In late 2001 she commenced working for two local clinics during daytime working hours. She worked for the Beach Street Clinic in Frankston and Beach End Clinic in Mornington where Dr Jack Knobel's practice was located. Helen Levins conducted "Health Assessments" on the elderly patients of those clinics.

406 She conducted a health assessment of Betty Dyke at her home on 4 March 2002.

407 Ms Levins observed that Betty Dyke answered her questions appropriately and that her speech was neither rambling nor slurred. She noticed nothing untoward about her speech or presentation. She described Ms Dyke as not being grubby or smelly. She was appropriately dressed and she was not unkempt. She was washing herself in a "bird bath", a top and tail in a hand basin, however she said that in her experience, a lot of old people bathed in this manner.

408 Ms Levins' assessment of Betty Dyke's cognitive status was derived from a single conversation with her on 4 March 2002 of 45 minutes to one hour duration. She did not think it necessary to carry out a mini mental test as there was nothing in Betty's speech, presentation or behaviour which suggested to Ms Levins that Ms Dyke suffered any cognitive impairment. Rather, she appeared to Ms Levins to have a good awareness of what was happening on an everyday basis, but her short term memory was failing. Betty was able to answer her questions and give information and she did not see any sign of advanced dementia.

409 Although Ms Levins did not observe any sign of advanced dementia, I am not satisfied from her necessarily limited observations and conversation that she was able to detect the presence of mild dementia. The observation that Betty Dyke's short term memory was failing was not investigated further.

Evidence of Lay Witnesses as to Testamentary Capacity

410 A hallmark of this case was the considerable divergence in the evidence of lay witnesses called by both sides as to the cognitive capacity of Betty Dyke at the relevant times.

411 The evidence in chief from the lay witnesses called by the Defendants was that there was no noticeable change in Betty Dyke's demeanour or cognitive capacity until shortly before she entered hospital on 19 June 2002.

412 On the other hand, the lay witnesses called by the Plaintiffs provided a significant body of evidence that Betty Dyke had suffered from observable mental decline since about 1997.

413 I summarise below elements of the competing bodies of evidence presented on this issue derived from the principal lay witnesses called by the parties.

Principal Lay Witnesses for the Defendants as to Testamentary Capacity

Sandra Allen, Robert Allen, Denise Smith and Gary Smith

414 I accept that Sandra Allen may not have observed any deterioration in Betty Dyke's cognitive capacity prior to her admission to the Frankston Hospital on 19 June 2002. I accept that Sandra Allen's perception of Betty Dyke's medical condition was limited to the following:

Up until a week or so before her diagnosis with urinary tract infection Betty's behaviour and conversation had been unchanged from her usual behaviour and conversation. She did not have any incidents of lack of memory in her conversations with me. She was the same as she had always been.

415 I do not however accept that this accurately represented Betty Dyke's mental condition in the six months leading up to her admission to hospital.

416 The evidence of Robert Allen, Denise Smith and Gary Smith was to similar effect. None of them observed any deterioration in Betty Dyke's mental capacity until a week or so prior to her admission to hospital. Even then, some would not accept the diagnosis of dementia.

417 Many of the changes which were taking place in Betty Dyke's mental condition over a long period of time would not have been readily detectable in everyday conversation or by casual observation. I am satisfied that Sandra Allen, Robert Allen, Denise Smith and Gary Smith did not observe the gradual decline taking place in Betty Dyke's cognitive capacity prior to the rapid onset of an intense phase of her illness in mid-June 2002.

Betty Dyke's Hospital Admission and the Knaggs

418 On 19 June 2002 Betty Dyke was admitted to the Frankston Hospital. The events leading up to her admission were recorded in notes made by Tim Knaggs at the time.

419 On 15 June 2002, Betty Dyke was located tangled in wire fence early in the morning. The fence was 400m from house curtilage near a dam. She was conveyed to Dr Knobel. Tests were recommended. She was taken home. On 17 June 2002, she was conveyed to Mornington Radiology where a CT Scan and blood test were undertaken. The Neighbours commenced to look after Betty Dyke 24 hours per day. On 19 June 2002 the results of the blood tests and the CT Scan were obtained from Dr Knobel. These indicated normal functioning, however, increasing disorientation was noted as a problem. An ambulance was called on the advice of Dr Knobel. She was conveyed to the Frankston Hospital in the company of Tim Knaggs.

420 Norma Bradley, a qualified Division 2 Nurse was on duty in casualty at the time of her admission and was the following day assigned to nurse Betty on the ward. I accept her evidence when she observed:

I clearly remember the admission to Frankston Hospital, of a patient called Elsbeth Jean ("Betty") Dyke. I remember clearly that Betty was extremely unco-operative and distressed on her admission, and was calling out that she wanted to go home. She was in a very bad physical state. Her hair was matted, both her finger nails and toe nails were curled around her digits, and she was covered in lesions, which I read from the nursing notes were caused by being caught up in barbed wire while attending to her birds. I remember noting that Betty's admission form stated she had been tangled in the wire overnight in cold temperatures.

421 The surviving parts of Denise Knaggs' diary, in the extract which appears below, describe Betty Dyke's deteriorating cognitive condition in the period leading up to her admission to the Frankston Hospital on 19 June 2002:

12 January - Betty confused + can't follow the conversation [it appears in relation to Geoff's finances]; 14 April - She was mixed up. Forgetting that it was Leon Watt she spoke to this mon. evening. Betty says it was a fortnight ago; 21 April - Betty's conversation was all confused. She was away with the fairies. She thought Tim's [Tim Knaggs'] mother was Gary's [Gary Smith's] mother. Gary called to do cows + he phoned later to tell me that Betty was off the planet; 1 June - Betty phones in afternoon. Said she couldn't remember who'd been this morn. Sounded vague - loss of memory + realising she wasn't making sense; 2 June - Betty quite strange; 3 June - Betty couldn't understand where all the bananas had gone. She denied putting them down in the aviaries. She cooked up more tongues for the dogs. She had trouble last night finding her electric blanket. Straightened her bed. It was already filthy from Honey [the dog] wiping her backside on the sheets. (I only changed them last week). She was depressed about Dr Knobel telling her that she wasn't going to gain anything from an operation couldn't see any future. (hanged Patch [of morphine] 2nd strength) ...Betty seemed happier - in less pain she was muddling her sentences, but most of then time OK; 6 June - Betty getting all confused over what she was going to feed the dogs.; 10 June - She was all muddled up in her speech but seemed to think everyone was plotting against her; 11 June - Betty had tipped out nails all over the floor shed. ...bent over when sitting, just dozing off; 12 June - I think she scolded herself with hot water her arm was burnt + red. She was in a bad way; 13 June - She couldn't find her mother. ... She was OK for a moment then off the rails again; 15 June - Betty been on a rampage, cupboard in porch emptied plant house geraniums all tipped over - hole in front of verandah wall + Joes sleepout chaotic. Betty found in paddock with scratches etc Tim +Diane take to Knobel [Doctor] while Gary + I clean up; 17 June - Betty at it again complaining about the fridge +confused about dogs meat; 18 June - Betty on about meat again. being difficult, but depressed. Can't understand why she's like she is; 19 June - Betty up at 8 - cold, shaky + messed her pants of night - I changed the lot. Clean clothes, but she wouldn't wash. ... Tim went to solicitor + Dr Knobel ... Knobel's tests came through + he suggested hospital + ambulance. Diane + I got betty organised. Tim arrived + went in Ambulance with Betty to Fkst [Frankston].

422 None of this material appeared in Denise Knagg's trial affidavit, where she purported to describe Betty Dyke's medical condition, including the period leading up to her admission to hospital on 19 June 2002. In her trial affidavit Denise Knaggs described Betty Dyke's admission to hospital in the following terms:

On 19 June 2002, Betty was admitted to Frankston Hospital, casualty, suffering bowel blockage and Urinary Tract infection. Tim accompanied Betty to Frankston Hospital by ambulance. She never truly recovered. The result was her placement into a nursing home after a difficult and lengthy stay in Mount Eliza Rehabilitation Centre from 31 August 2002 to 14 October 2002.

423 True it was that at the time of her admission Betty Dyke was complaining of unbearable bowel pain consistent with suffering a bowel blockage, and suffering sickness consistent with the presence of a urinary tract infection. However, as noted by Tim Knaggs, and I find as also known to Denise Knaggs, Betty Dyke's increasing disorientation was the major health problem. By omitting any reference to the deterioration in Betty's mental condition, which was recorded in detail in the surviving parts of her diary at least from mid-January 2002, Denise Knaggs' evidence painted a false picture of Betty Dyke's mental health in the period leading up to her hospitalisation on 19 June 2002.

424 Denise Knaggs also stated in her trial affidavit that "Betty was in overall and day to day control of her financial affairs until shortly before she was hospitalised in 2002". I do not accept this statement as the truth in the light of Denise Knaggs' diary entries to which I have referred, and in the light of the other evidence which I accept as pointing to the contrary conclusion.

425 Consistently with Denise Knaggs' diary notes, Tim Knaggs also recorded observations of Betty Dyke's mental decline in a note he made on 19 June 2002. The note recorded observations consistent with dementia. I accept his note as a correct statement of the observations which he made at the time. Mr Knaggs wrote:

Significant & unusual events occurring since January indicate Betty may be suffering Dementia ie; Memory loss, mood swings, contradictory statements + more recently, obsession with cooking dogs meat repeatedly and re-feeding birds & chooks, numerous telephone calls.

Recalled events:- May - Confusion re cattle sales proposed; Confusion + follow up phone calls re identity of helpers; 26th May - Falling out of bed + bruising nose - Advised by Dr Knobel - Advised to suspend application of Fentanyl Patches; 27th May - Rang Dr - Increased depression & pain (Arthritic hip + back).

426 However, in his trial affidavit, Tim Knaggs omitted any reference to Betty Dyke's mental decline in the period leading up to her hospital admission. Following a detailed description of Betty Dyke's domestic capabilities and intellectual interests in a manner intended to convey complete normality in her daily living, he concluded: "Her condition in the hospital was a complete change from her previous self". This too was intended to provide false impression and I do not accept it. Further, I do not believe Mr Knaggs when he said in his trial affidavit:

Up until the time she became ill shortly before she was hospitalised Betty was capable of managing her own affairs except that she found it difficult physically because of arthritic pain.

427 On 26 June 2002 Dr Sivasubramanian reviewed Betty Dyke at the Frankston Hospital and wrote a report which included the following observation:

Ms Dyke was referred by her local GP to Frankston hosp on 19/6 with increasing confusion and constipation. She lives alone on a farm with no relatives nearby. According to friends she has been behaving oddly for the last 1-2 years, with wandering and at times aggression.

428 Denise Knaggs and Tim Knaggs both denied advising anybody at the Frankston Hospital that Betty Dyke had "been behaving oddly for the last 1-2 years, with wandering and at times aggression" and both denied that this in fact reflected her behaviour prior to that period. Denise Knaggs said that Betty Dyke "was never aggressive at home, nor did she wander" and that she was "as good as gold" until the time when she was prescribed Fentanyl patches in March of 2002.

429 Dr Sivasubramanian was not called to give evidence and the direct source of the observation "According to friends she has been behaving oddly for the last 1-2 years, with wandering and at times aggression" has not been identified. In the light of Denise and Tim Knaggs' denials, I am unable to conclude whether this part of his report was accurate. However, to a limited extent it was consistent with the observation made by Denise Knaggs in her evidence that she had observed behavioural change in Betty Dyke towards the end of 2000 when, as she said: "She was probably starting to be different, but certainly in the New Year she was different".

430 Following Betty Dyke's admission to the Frankston Hospital on 19 June 2002 a written diagnosis was prepared by Dr P Nayagam, a Senior Physician at the Mt Eliza Aged Care Assessment Service in his report dated 3 July 2002. Dr Nayagam wrote:

Thankyou for referring this rather complex 82-year-old lady whom I saw at Frankston Hospital today. This lady has basically got advanced dementia but has been managing to mask this by living alone in a farm in Mount Martha and basically looked after by friends. She has been admitted in an acute confusional state wandering and extremely anxious. Initially she was quite drowsy and hence appeared to have a delirious state on top of the underlying dementia. However all routine septic screens have been normal apart from low iron and chest X-ray has been clear.

In the time of admission she was found to be in a state of gross self-neglect with faecal soiling etc. The social report gives more insight into this where it appears that she has been living on a large property with no regular contact with family and supported by 3 couples living nearby who assist with her cattle, dogs and birds. Friends report that her cognitive function has progressively decreased over the last I year. She is non-compliant with medications, has refused all services, only excepting [accepting] support from her friends. Over the last 3 weeks her confusion and disorientation has become considerable[y] worse with her wandering during the night and being found caught in barb wire etc.

Examination revealed a lady who is very confused and disorientated and could not even perform a proper Mini Mental but the OT report indicates a score 13/30. She is currently awaiting a neuropsychiatric assessment. Pulse was 80 per minute regular, blood pressure 110/70, lungs were clear; abdomen was soft, there were no obvious neurological deficits.

Biochemistry and haematology has essentially been unremarkable.

This lady's main problem is severe Alzheimer's disease and she now needs high level of care placement. She was discussed at the team meeting today and I have filled out the necessary forms including a 2624. She will need a Guardianship Board application and a guardian appointed. In the interim I will try and get into an interim care bed in the Age Care Unit at Golf Links Road where they have a dementia wing. Alternatively such an accommodation may need to be found in the community pending permanent placement.

431 I accept the diagnosis of Dr Nayagam as stated in his report of 3 July 2002. The principal medical problem suffered by Betty Dyke at the time of her admission to Frankston Hospital on 19 June 2002 was advanced dementia caused by severe Alzheimer's disease. The hospital records amply reinforce the diagnosis made by Dr Nyagam at the time. The hospital notes contained a significant body of evidence evidencing the severity of the confusion, disorientation and trauma suffered by Betty Dyke following her admission. At one point she had to be shackled to her bed.

432 Although bowel pain and sickness may have precipitated the Defendants' decision to admit Betty to hospital on the advice of Dr Knobel, this was not the principal ongoing medical problem she was then encountering. Although some improvement in Betty Dyke's mental condition was noted in the months following her initial course of treatment in the Frankston Hospital, reflected in an improvement in her mini-mental score,[157] she continued to suffer significant cognitive impairment for the remainder of 2002. The condition was degenerative and irreversible.

433 As to Dr Nyagam's observation that "Friends report that her cognitive function has progressively decreased over the last 1 year", he conceded that this information was derived from a hospital social worker, who was not called to give evidence. Although this is broadly consistent with what Dr Sivasubramanian noted on the matter in his report of 26 June 2002, I am unable to arrive at a conclusion as to whether one or other of the neighbours had in fact advised hospital staff of Betty Dyke's condition precisely in these terms.

434 The case advanced by the Defendants at trial that it was only shortly prior to the time Betty Dyke was admitted to the Frankston Hospital on 19 June 2002 that there was any noticeable change in her demeanour cannot be accepted. Both Denise Knaggs and Tim Knaggs observed and noted a significant decline in her mental wellbeing, commencing at least in January 2002. It follows that I do not accept the evidence of the other Defendants that Betty Dyke's decline in cognitive capacity only manifested itself in mid-June 2002, shortly prior to her admission to hospital.

435 As part of his assumed role in conducting Betty Dyke's banking business, Tim Knaggs occasionally met with her bank manager, Mr Westwater and did so in her absence.

436 One such meeting took place on 6 July 2001. Tim Knaggs met with Mr Westwater at the Mornington branch of the National Australia Bank to discuss a new financial plan which Mr Westwater had prepared for Betty Dyke involving the re-investment of $600,000 of funds held on term deposit with the bank. Mr Westwater went through the plan with Tim Knaggs and noted that: "Tim felt happy with my recommendations and as clearly explained in the objectives felt that this would best suit her on going needs".

437 Another important note was made by Mr Westwater of the conversation with Tim Knaggs during the course of the meeting of 6 July 2001. Mr Westwater recorded that Tim Knaggs said to him:

Betty has mind lapses and although she has some very good days she may forget and that is why we wanted to ensure that everyone fully understood the position and what funds we were entering into.

438 Mr Knaggs did not deny that he may have said the words as recorded by Mr Westwater. However, he sought to confine and qualify the statement by suggesting that Betty Dyke did not "forget things" but that "she forgot that particular appointment". I had the advantage of observing Tim Knaggs being cross-examined on this issue. I do not accept the explanation of the words attributed to him in the note given by Mr Knaggs. His explanation does not find support in the note at any point and indeed is at odds with its thrust, effect and context.

439 I accept the position as recorded in Mr Westwater's note that Betty Dyke, at least by mid-July 2001 and probably for some time before that, was suffering from mind lapses, and that although she enjoyed some very good days, she was prone to forgetfulness. It was for this reason that it was prudent, and indeed necessary, for those around her to have an understanding of the financial plan and the proposed investment funds.

440 In their submissions, the Defendants contended that I should draw an adverse inference against the Plaintiffs for their failure to call Mr Westwater to explain the note. The principle of Jones v Dunkel[158] was relied upon. That principle is concisely explained by Kirby P (as he then was) in the decision of Ghazal v GIO (NSW)[159] (Mahoney and Clarke JJA in agreement) as follows:

The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. It is important to note that this is a facility. It is not an obligation in the reasoning of the decision-maker.

441 In this instance, the principle should not be applied. The Defendants had previously taken instructions for and prepared an affidavit for Mr Westwater for use in these proceedings. Although the affidavit was not sworn and Mr Westwater was not called by the Defendants, the Plaintiffs could be forgiven for thinking that Mr Westwater was sitting in their opponents "camp". Furthermore, the note on its face was evidence adverse to the Defendants and, if anything, the failure to call Mr Westwater called for an explanation by them, which was not forthcoming.

442 As found previously, Denise Knaggs destroyed her diary in a fire shortly before the commencement of these proceedings. The parts of the diary which have survived vividly record the day to day life of Ms Dyke in the time before her admission to hospital, and her endeavours to cope with her physical disabilities, which grew to become a barely tolerable burden for her. They also record the considerable level of confusion and anxiety which she suffered in the period leading up to her admission to hospital.

443 The conduct of Denise Knaggs has denied the Court access to her record for the critical periods when Betty Dyke made her wills and codicils. The contents of the record remain unknown. However, given the content of what survives, and the fact that Denise Knaggs more than likely appreciated that the issue of Betty Dyke's testamentary capacity would have arisen in future proceedings, I draw the inference that they would not have been of assistance to the case which she has sought to advance in this case on the question of Betty Dyke's testamentary capacity. Further than that, I cannot go.

444 Dr Mark West, veterinary surgeon, said in his evidence that, by reference to his notes, his veterinary practice dealt with Betty Dyke from 1994. Also from his notes he was able to say that on 8 August 2000 he called at Ms Dyke's farm at 330 Craigie Road, Mount Martha and met with her to attend to a cow; on 14 February 2001 he had a consultation with Ms Dyke at her farm to deal with a coughing steer; and on 29 November 2001 he had a further consultation with Ms Dyke at her farm regarding a traumatic calving.

445 Most of his consultations with Ms Dyke were of between 20 and 30 minutes duration. He found Betty Dyke to be "very lucid". He could understand her easily and she was able to communicate with him so as to explain "what she wanted from me".

446 I accept that Dr West understood what Betty Dyke said to him. However, husbandry of cattle was something which Betty Dyke well understood from many years of farming. It was totally familiar to her. The consultations with Dr West usually followed a pattern. When they met Betty Dyke would tell the doctor what was wrong with the animal; they would then go together to the cattle yard; after Dr West had inspected the animal they would discuss the appropriate treatment. If medication was required Dr West would discuss the dosage and regularity of dosages with her.

447 On his visits to Betty Dyke they only ever discussed her cattle, their problems and the appropriate treatment. They did not have any general discussion.

448 I accept Dr West's evidence, as far as it goes. However, Dr West's conversations with Betty Dyke focussed on animal management. This was a matter about which she had a lifetime of experience. The subject was extremely familiar to her and indeed was her inspiration. She was well able to draw upon these resources from her long term memory in dealing with Dr West. His evidence is of very limited assistance in determining the testamentary capacity of Betty Dyke at any relevant time.

449 Dr Andrew Browne was also a veterinary surgeon. He consulted with Betty Dyke in relation to her animals on 34 occasions over an 11 year period, from 1991 to 31 May 2002.

450 From October 1996 to May 2002 he saw her on 25 occasions, an average of one visit per quarter with consultations ranging from 10 minutes, if the visit involved merely dropping off medication, to 15-20 minutes in cases where an animal was examined.

451 From early 2002 he observed that Betty's physical condition had declined, and that she complained more about pain. He observed that she was "generally just a bit agitated", frustrated with her back condition and very uncomfortable and stooped.

452 She always wore old clothes but was always normally and appropriately dressed.

453 Over the entire 11 years he consulted Betty Dyke, he found her to be headstrong and independent, and to have high expectations, with a "good working knowledge" of cattle. It was difficult to get her to change her ways. She did not always follow his advice. He described her as a "stubborn person of fixed opinions".

454 Betty Dyke always paid Dr Browne by cheque although she always took a few minutes to find the chequebook. She did not require assistance in filling out the cheque.

455 He never sat down in the kitchen to have a cup of tea with her. He considered it "very messy" over the whole time he consulted with her.

456 I accept Dr Browne's evidence, as far as it goes. However, as in the case of Dr West, Dr Browne's conversations with Betty Dyke concentrated on the topic of animal management which was well within her expertise and lifetime experience. His evidence is also of very limited assistance in determining the testamentary capacity of Betty Dyke at the relevant times.

457 Mr Conrad Hammel was a civil engineer. He met Betty Dyke in relation to drainage works which were being undertaken on land adjoining "Sefton Grange". These works required an outfall drain to be constructed on Ms Dyke's land.

458 He met with Betty Dyke on three occasions on her farm. These visits were in April 2001, about one month later in approximately May 2001 and in September 2001. Each of these visits was of about an hour. The consultations took place in Ms Dyke's kitchen apart from a short time spent on the third visit to inspect the works in progress.

459 Mr Hammel observed that her kitchen was nothing out of the ordinary. There was some clutter in the room, however he did not feel uncomfortable having a cup of tea. He found Betty Dyke to be a person with whom it was easy to have a genuine conversation.

460 Ms Dyke took a keen interest in the drainage works and discussed the nature of the works and the implications it had for her property. She was interested in how the livestock may be affected by the works and was concerned for the safety of the livestock.

461 Betty told him of the three families who were looking after her. When discussing the persons who helped her she mentioned Tim Knaggs but he could not recall her mentioning Denise Knaggs. I do not accept Mr Hammel's recollection of this matter. He took no notes of the conversation and was relying purely on his memory of a casual conversation which occurred more than seven years previously. Furthermore, the evidence is contradicted by the well accepted position that it was Denise Knaggs who was Betty Dyke's principal caregiver, as she had so readily acknowledged in the past. It is unlikely that Betty Dyke did not mention Denise Knaggs in the context of this conversation.

462 Betty Dyke told Mr Hammel that she had sold off part of her land because the property was fairly large and she wanted to reward the people who were helping her with the property with the proceeds from the land.

463 Other than Mr Hammel's recollection of his conversation with Betty Dyke about the persons who had been helping her, I accept his evidence.

464 However, his evidence as to Betty's ability to hold a conversation in 2001 is of limited assistance in determining Betty Dyke's testamentary capacity at the relevant times. The thrust of the conversations between Mr Hammel and Betty Dyke related to physical matters concerning earth works on her farm and the effect this might have on her animals. These matters were familiar to her and well within her capacity to comprehend.

465 On the other hand, the disposition of her estate upon her death was for Betty Dyke in an entirely different category. For example, she remarked to her solicitor Mr Moffatt, who prepared her 1999 Will, that her will was a "hard basket".

466 Enid Nicholson said that from about 1997 onwards Betty Dyke's conversation tended to wander and she would change topics mid-stream. She would not stay on one topic for long, and seemed unable to concentrate on a particular train of thought. An example provided by Enid Nicholson was that: "Betty would be telling me about one of her dogs being unwell and would switch to telling me about her birds in mid-sentence". Enid said that she tended to listen more in her conversations with Betty "as Betty's side of the conversation was more and more repetitive and rambling." She also said:

Betty began to tell me things she had just told me. I would say "Betty you have just told me that" but my comment would not register with her. In every conversation I had with her, Betty would repeat the same thing another two or three times before we hung up the telephone.

467 I accept these observations of Enid Nicholson as an accurate account.

468 I also accept the observations of Betty Dyke's long time friend and care professional, Judith Nicholson, when she said:

By 1998 the changes in Betty's behaviour and in her conversation were giving me deep concern. From my work with the aged and with people with Alzheimer's disease and dementia, I could clearly recognise the incremental change in Betty's mental capacity each time I saw her.

469 Colin Nicholson's evidence, which I also accept, was to similar effect. He said that:

Commencing in about 1997, and continuing to the late 1990s and early 2000s, Betty's behaviour became repetitive ... From about 1997 onwards, although Betty could relate stories of her childhood or past with consistency, she would do this to anyone at random, and she would repeat the same story to the same person as though they had not heard it before. Betty could not, however, recall events which had happened the day before. For example Betty would often say to me that she had not spoken to me for ages when I had spoken with her very recently. She would also ask me when Enid was coming to visit when my mother had told me that she had visited Betty a couple of days earlier.

From about 1997 onwards I observed that Betty would forget who had visited her. For example Betty, in a typical conversation with me after 1997, Betty would say to me either on the telephone or when I visited her "When is Enid coming down?" I would say to Betty words to the effect of "Betty, Enid was there/here on Saturday". Betty would typically be silent for a moment and then say with a surprised tone in her voice "Enid was here on Saturday?" Similarly, Betty would typically say to me in her conversations with me "I haven't spoken to you for ages" when it was less than a week since we had spoken. From about 1997 onwards I regularly observed that Betty could not remember events which had taken place prior to the day in question ...

I also saw Betty on many occasions after about 1997 do a task, and a couple of minutes later, do the same thing again. For example Betty would wipe a small space on the kitchen table and immediately she had finished she would start to do the same thing again. After about 1997 I repeatedly saw Betty fill the kettle and put it on the stove to make a cup of tea. Immediately she had done this she would pick up the kettle up and take it to the sink to fill it again. I would say to Betty words to the effect of "You have just done that Betty" and she would stop in her tracks and put the kettle back on the stove. Betty could not remember things she had done minutes before the present time from about 1997 onwards.

470 Shirley Huyton was Betty Dyke's friend of long-standing. She lived close by to "Sefton Grange". From about 1974 she regularly visited Betty Dyke's farm to buy eggs. She gave evidence of an incident which she observed in 1998:

From as early as 1990 she [Betty] began to have trouble counting the trays which held two and a half dozen eggs and which she sold to me for $0.80 to $1.20 per tray depending on the size of the eggs. This task became increasingly difficult for her but she would not let me do the counting for her and would have three or four attempts at counting the trays before she would get it right. Sometimes she would get a pen and paper but still could not get the task done. I would just let her go because she would get upset that she could not do this task easily. By about 1998, which was about three or four years before she first went into hospital, Betty could not manage this task at all. She could no longer count the trays of eggs.

471 Ms Huyton also observed that Betty's mental and physical health started to decline in the late 1980s and that it had deteriorated quite noticeably by the early 1990s. She said that Betty was not able to engage in a two way conversation and that she repeated herself over and over. I do not accept this evidence in its entirety. I accept that from about 1997 onwards, Betty Dyke's conversation was becoming repetitive and somewhat rambling, however, this had not occurred to any marked degree prior to that time.

472 Linda Russell was Shirley Huyton's daughter. About once a year between 1982 and the end of 1995 she accompanied her mother on visits to Betty Dyke at her farm. She gave evidence that Betty supplied eggs to her mother, and that she became confused when counting the trays and calculating the cost of the eggs sold. She said that Betty would often become confused in her calculation of the change and go backwards and forwards several times saying that she had given Shirley Huyton the wrong change or that she was not sure that she had worked the change out correctly.

473 Linda Russell recalled that her last visit to Betty Dyke was in early 1997 when she accompanied her mother to buy eggs. On this visit she found Betty to be confused in her conversation and in her actions. She said that Betty continually asked herself question without expecting an answer from anyone, and that she talked to the dogs and herself incessantly. She described the purchase of the eggs on this occasion:

My mother and I sat at the kitchen table while Betty tried to sort out the trays of eggs to give my mother. As she was doing this Betty constantly asked herself questions such as "Are these today's eggs or last week's eggs?", "Are these yesterday's eggs or today's eggs?" as she moved the trays from one place to the other on the kitchen table. Betty continued asking herself questions as she tried to count the trays of eggs and come up with an amount to charge my mother for the eggs. She seemed to have great difficulty in multiplying the number of trays by the cost of each tray. When she had finally decided on an amount, my mother gave Betty a note and Betty went through the kitchen door to the part of the house where I had never been as she had done on many of my previous visits. Betty went backwards and forwards through the door to the rest of the house saying things such as "I'll just get your change", and to the effect: "Oh no you gave me a $20.00 (or a $10.00) note" (I can't recall the amount of the particular note) whatever it was. Betty then said in effect: "I'll be back in a minute", "Is that right? You gave me a $20.00 (or a $10.00) note?" Betty seemed totally confused and unable to calculate the change from the note my mother had given her, or to calculate the price of the eggs based on the number of trays she was giving my mother.

474 I find that Betty Dyke had always experienced some difficulty in counting out the eggs for Shirley Huyton and accounting to her for the correct price. However, by early 1997 her abilities in this regard had declined further, and by about 1998 she could not manage the task at all. Although lack of arithmetic skill in itself is inconclusive, particularly for a person who left school after eighth grade, the deterioration in Ms Dyke's ability to perform the simple calculations described in the evidence points to a decline in her cognitive capacity.

475 Judith Bailey made a number of observations about Betty Dyke's physical and mental decline. During a visit for Christmas in 1996 she noticed that Betty's routine, health, conversation and general demeanour had deteriorated. Thereafter, further indicators of a deterioration in her condition became obvious. In November 1999 Judith Bailey made the following observation:

In November 1999 I visited Betty just after her 80th Birthday. I found that Betty had deteriorated greatly. Her physical condition had deteriorated and she was more bent over and in more pain. She was more depressed than when I had last seen her and more self absorbed. She was vague in conversation and debilitated by and pre-occupied with her pain.

476 Having reviewed the whole of the evidence, I arrive at the following conclusions as to Betty Dyke's cognitive capacity:

(a) By mid-1999 Ms Dyke was suffering from cognitive impairment characteristic of the pre-dementia stage of Alzheimer's disease described by Professor Peisah. This remained her condition in March of 2000;

(b) The very mild cognitive impairment characteristic of this stage of the disease contributed to Betty Dyke's dependence on her care givers, in particular Denise Knaggs and those who were in a position of authority in her life, and rendered her susceptible to their influence. In this context I accept Professor Peisah's view that although any debilitating mental or physical illness resulting in dependence on a caregiver may facilitate the subversion of the testator's free will, dementia in particular increases susceptibility to undue influence;[160]

(c) By late 2000 and early 2001, Ms Dyke's condition had progressed to the stage of mild dementia as described by Professor Peisah;

(d) By early 2002 her condition had advanced to the moderate dementia stage; and

(e) By mid-2002 she was suffering from severe dementia as diagnosed by Dr Nyagam at the Frankston Hospital shortly after her admission.

477 In 1996, some eleven years after she had made her 1985 Will, Betty Dyke commenced to give further consideration to the testamentary dispositions she had made under it. The 1985 Will to this point had remained in place unaltered.

478 Mr Wadeson commenced acting as an accountant for Betty Dyke in 1996. In one of his early meetings with her, she told him that she had a will but that she was not happy with it. She told him that it had been drawn up some years earlier and she felt that the solicitor who had drawn the will had done so to reflect some of his interests rather than her own. She informed Mr Wadeson that much of the estate had been left to animal charities. On 25 February 1996 they also discussed whether Peninsula Animal Aid or Denise Knaggs would look after Betty Dyke's pets after she died.

479 Nothing further was done about her will until about March 1998 when Betty Dyke showed a copy of the 1985 Will to Mr Wadeson. At this time she told Mr Wadeson about a recent radio interview she had heard conducted with Dr Hugh Wirth of the RSPCA. She told Mr Wadeson that Dr Wirth had been discussing a particular policy of the RSPCA which she did not agree with. She told Mr Wadeson that as a result of this she did not want to leave any money to the RSPCA in her Will. At this time they also discussed Peninsula Animal Aid. Betty Dyke told Mr Wadeson about a neighbour or friend whose dog had been impounded and killed by Peninsula Animal Aid. She told him that the dog had been killed within a few days of being picked up, just prior to the owner arriving to collect the dog. She expressed the view that the dog had not been kept long enough and that perhaps adequate contact had not been made with the owners. She told Mr Wadeson that as a result of this she also wanted to cut Peninsula Animal Aid from her will.

480 She again met with Mr Wadeson on 16 May 1998. They discussed the value of her estate, which was then estimated to be worth about $2 million, consisting of the farm (valued at $1.6 million) by reference to its capital improved value (CIV) and term deposits in the bank. At one point in the conversation, Mr Wadeson noted that they discussed the suggestion noted by Mr Wadeson that "she help those who helped her". Tim Knaggs did not fairly fit the description of a person who had been helping Betty Dyke at this time. They further discussed gifting $1 million to specified beneficiaries. The idea of a trust to be established to generate income to be used in the care of her dogs was also discussed. Mr Wadeson's file note records the discussions they had concerning the amount of money that would be required for this purpose. The file note also records that they discussed leaving the sum of $500,000 from Betty Dyke's estate which could be left to charities. At the time of these discussions Mr Wadeson was satisfied that Betty Dyke understood that her estate was substantial. He was also satisfied during these discussions that Betty Dyke fully understood the matters under discussion.

481 In his trial affidavit Mr Wadeson recounted that in these early discussions:

She particularly mentioned Denise and Tim Knaggs, Robert Allen and Dianne and Gary Smith in this respect [as persons who had been helping her in her old age]. Additionally, whilst I cannot recall the full details she also expressed to me that there were some she did not wish to benefit as she felt some injustices had been done.

However, no note of this particular conversation was taken by Mr Wadeson. I do not accept that Ms Dyke made any reference to Tim Knaggs as a person she wished to benefit in her will as mentioned by Mr Wadeson. Tim Knaggs did not fit the description of a person "who had been helping her in her old age". Further, to have mentioned him to Mr Wadeson as someone she wished to benefit was inconsistent with her previous attitude to Tim Knaggs which had been long held and strongly felt.

482 The matter was progressed further in mid-1999 when Mr Wadeson visited Betty Dyke at her farm. Denise Knaggs was present. Betty Dyke said that she wanted to make a new will. She asked Mr Wadeson to refer her to a solicitor who would be able to help her prepare a new will. Mr Wadeson suggested that Mr Moffatt, a solicitor situated close to his office in Mordialloc, be consulted. Betty Dyke asked Mr Wadeson to arrange a meeting. A short time later Mr Wadeson arranged for Ian Moffatt to travel to Betty Dyke's farm to meet her.

483 On 4 August 1999 Mr Wadeson and Mr Moffatt went to Betty Dyke's farm for the purpose of introducing Mr Moffatt and to enable him to take the initial instructions from Betty Dyke for a new will. This was the first time Betty Dyke had met Mr Moffatt. Denise Knaggs was also present at Betty Dyke's house on this occasion.

484 I accept Mr Moffatt's account of the meeting that Mr Wadeson was present at the beginning of the meeting but then left them alone to enable Mr Moffatt to take instructions for Betty Dyke's new will. Denise Knaggs was not present during this exercise. Although there are discrepancies between Mr Moffatt's and Mr Wadeson's evidence about the outcome of the meeting, I prefer and accept the evidence of Mr Moffatt who was directly taking the instructions for the new will.

485 In the course of the meeting on 4 August 1999, Betty Dyke instructed Mr Moffatt that she wished to leave all of her real estate in three (3) equal shares to (i) Robert Allen, (ii) Diane and Gary Smith, and (iii) Denise Knaggs. Tim Knaggs and Sandra Allen were not included in the list of persons that Betty Dyke wished to benefit.

486 Mr Moffatt took down further details during his meeting on 4 August. He recorded Ms Dyke's full name, address and occupation. She instructed him that her executor was to be Ross Wadeson, that she would provide a list of people to whom she wished to leave cash gifts, and that her dogs, cat and birds were to be cared for by Denise Knaggs. She also said that she wanted all of her farm machinery to be given to Robert Allen. She further instructed Mr Moffatt that the balance of her estate was to be left to the Royal Society for the Prevention of Cruelty to Animals (the "RSPCA").

487 In the course of the meeting on 4 August 1999, Mr Moffatt also had a discussion with Ms Dyke to determine whether she may have owed a moral responsibility to anyone, and who might make a claim pursuant to Section 91 of the Administration and Probate Act 1958. Betty Dyke instructed Mr Moffatt that she did not have a moral responsibility to anyone. She gave Mr Moffatt her telephone number, and also gave him Denise Knaggs' telephone number.

488 On 4 August 1999 Mr Wadeson and Ms Dyke also had a discussion about the possibility of a subdivision of her property and selling some of it, or giving a part of her property to the neighbours. This conversation was general in nature. Mr Wadeson did not receive any instructions in relation to any subdivision and did not make any notes about it.

489 However, the discussion with Mr Wadeson at this time illustrates that during the period from August 1999 to late September 1999 Betty Dyke was considering a number of approaches to the disposition of her estate - as were, her advisers and indeed, Tim and Denise Knaggs. During this period discussions included: the testamentary gift of the farm "Sefton Grange" to some of the Neighbours as tenants in common; a gift of specified portions of the land to some of the Neighbours, to be achieved by a subdivision of the entire property after her death, alternatively by a subdivision undertaken during her lifetime; and an inter vivos disposition of the real estate, or a portion of it, to some of the Neighbours.

490 On 9 August 1999 Mr Moffatt conferred with Denise Knaggs at his office. Betty Dyke was not present at this conference. On this occasion Denise Knaggs delivered to Mr Moffatt a note dated 6 August 1999 with some attachments to the note. One of the attachments included a list of names in Denise Knaggs' handwriting. This listed eight persons as potential beneficiaries under Betty Dyke's new will. The list specified the name, address, occupation and the bequest proposed for each person. Six monetary gifts were listed; and Betty Dyke's land was to be divided between Denise Knaggs (who was to receive "house/land"), Robert Allen (who was to receive "land/trailer/slasher"), and Diane and Gary Smith (who were to receive "land"). The list was broadly in accordance with what Mr Moffatt had discussed with Ms Dyke on 4 August 1999.

491 Mr Moffatt perused the documents supplied by Denise Knaggs but could not recall anything of substance being discussed about the note or its attachments.

Did you ever have a meeting with him [Mr Moffatt] when Ms Dyke wasn't present?---No, never.

So it might be then that you telephoned Mr Moffatt on 9 August?---Yes, yes.

I do not accept Denise Knaggs' answers as an accurate statement of what occurred. I accept Mr Moffatt's recollection when he said that Denise Knaggs did not telephone him on 9 August 1999. He said that he recalled that on that occasion she came to his office and hand delivered to him the list of potential beneficiaries. The conference with Denise Knaggs occupied between 6 to 12 minutes.

493 On 10 August 1999 Mr Moffatt spoke to Mr Wadeson by telephone. He informed Mr Moffatt that Ms Dyke had a problem with the proposed subdivision of her property due to the increased cost of rates which were greater on smaller lots. He further informed Mr Moffatt that Ms Dyke therefore wanted to put a stop to further consideration of a subdivision. Notwithstanding this, Mr Wadeson informed Mr Moffatt that the concept of subdivision and the selling of 20 acres was still a proposition. Mr Wadeson raised the question whether, if the property was to be surveyed, it could still be gifted in a will on the basis of a possible subdivision. Mr Wadeson also discussed with Mr Moffatt whether specific areas of Miss Dyke's property could be gifted to her nominated beneficiaries.

494 Also on 10 August 1999 Mr Moffatt commenced his preparation of the new will for Ms Dyke. At some time prior to this he had been provided with a copy of Ms Dyke's earlier will dated 10 May 1985. Mr Moffatt made some notes about the possibility of gifts of specific paddocks of Miss Dyke's property to specific beneficiaries; he made a telephone call to the RSPCA and made a note of the name of the bequest officer of the RSPCA; he also made a note to his assistant (who was his wife) Esther Ruberl, asking her to undertake a fresh title search of Ms Dyke's property and provided her with his notes for the draft will for engrossing by her. Mr Moffatt also gave consideration to potential problems for a subdivision of land after the death of the owner.

495 Also on 10 August 1999 Mr Moffatt telephoned Miss Dyke. In that telephone conversation, he made an appointment to see her on Thursday 12 August 1999. Ms Dyke informed Mr Moffatt that she had been speaking to Dianne and Gary Smith about the possibility of gifting them her back paddock and she also said that she would be speaking to Robert Allen that night. Ms Dyke told Mr Moffatt that she wanted to meet with him to discuss her will and her property.

496 On 12 August 1999 Mr Moffatt again attended upon Betty Dyke at her property in Mornington. When he arrived at Miss Dyke's property at approximately 2.00 pm. Denise Knaggs was also present. He met them outside Ms Dyke's house. He recalls discussing her will and the property alone with Ms Dyke in her kitchen. Ms Dyke told Mr Moffatt that she wanted to make a gift of $20,000 to John and Judy Bailey of Ballarat, and she also named Jane Leech. Ms Dyke said to Mr Moffatt that she was thinking about what to give to Jane Leech. Ms Dyke also raised with Mr Moffatt the question: "If we subdivide but keep the land will the rates go up?"

497 At the meeting on 12 August 1999, Ms Dyke informed Mr Moffatt that she wanted her friends to have the benefit of her property. Mr Moffatt suggested to Ms Dyke that her estate was likely to be substantial and that she might wish to consider increasing the size of her gifts to relatives and charities. In the course of discussing the charities, Mr Moffatt offered to provide her with a list of charities to think about, and Ms Dyke asked him to send this to her. Mr Moffatt told Ms Dyke that he would send her a letter about these matters and the possible terms of her will, so that she could think about it further. Subsequently, Mr Moffatt sent her the letter as promised, being a letter dated 17 August 1999. This letter included a list of charities called "Pro Bono 1999".

498 Mr Moffatt also spoke to Miss Dyke about a number of other general things on 12 August. They discussed her farm, and she informed him that the kikuyu grass had been introduced because it provided a green grass in summer for cattle. She also told Mr Moffatt that her farm had been her family's property. She also said that she had no siblings and had never married or had children. Ms Dyke told Mr Moffatt that she was once fond of a young soldier who had been a killed in the Second World War. Ms Dyke also told Mr Moffatt about her love for her animals.

499 The conversation Mr Moffatt had with Ms Dyke inside her house took place in the kitchen. Ms Dyke explained that the kitchen was the room she lived in. She slept on a bed in there. Mr Moffatt said that her bed was made. He also recalled that Ms Dyke's kitchen had a "musty, old house smell about it" but nevertheless appeared to be reasonably clean.

500 Ms Dyke told Mr Moffatt about her love for her dogs. She told him of one occasion when she had an ear infection and her dogs had licked her ear while she was lying in bed, and that she attributed her recovery from the ear infection to this. Ms Dyke appeared to Mr Moffatt to be bent to one side when she stood up. She showed him an x-ray which showed the curvature of her spine.

501 I accept all of these observations of Betty Dyke which Mr Moffatt made on 12 August 1999.

502 In or about the days between 12 August and 17 August, Mr Moffatt prepared a draft will for Betty Dyke. He provided the draft to her during her consultation on 12 August 1999. In the draft, Mr Moffatt provided for a gift of all of Betty Dyke's real estate in three equal shares, with one share to be gifted to Denise Knaggs, another share to Robert Allen, and a third share jointly to Diane and Gary Smith. After providing for various monetary gifts, the residue of the estate was to go to the RSPCA. Robert Allen was also to receive Ms Dyke's agricultural machinery and equipment, and Denise Knaggs was to receive her motor vehicle. Again there was no mention in the draft of Tim Knaggs, either as a beneficiary of any interest in Betty Dyke's real estate, as the recipient of any monetary or other gift, or as the beneficiary of any part of her residuary estate. I accept that this was in accordance with the instructions given by Betty Dyke at the time of preparation of the draft will.

503 Further details about Mr Moffatt's meeting with Ms Dyke on 12 August 1999 are set out in his letter to her dated 17 August 1999. The letter commences:

I refer to our meetings on 4 August and again last week on 11 August [corrected by Mr Moffatt in his oral evidence as being 12 August] and to the draft will which I gave to you last week. I would like to confirm that your instructions for your Will, at this point, are as follows:

• Executor: Ross Wadeson
• Real estate at Craigie Rd, Mount Martha, to Denise Knaggs, Robert Allen and jointly to Diane & Gary Smith, but further clarification is needed as to the proportions each is to receive and as to the way in which the property is to be transferred to them.
• Specific gifts of money as follows.
• It is your wish that Denise Knaggs care for your dogs, cat and birds for the rest of their lives.
• The balance of your estate to charity. So far you have nominated the RSPCA but would like to nominate other charities.

504 The letter from Mr Moffatt dated 17 August 1999 also addressed the issue of how Ms Dyke's principal asset - the Craigie Road property - should be dealt with. This had to be finalised before the new will could be drawn. Three alternatives presented themselves, which Mr Moffatt set out in his letter as options 2A, B and C. They were:

2A Tenants in Common: You could give the whole of the property to your friends in specified proportions (eg, 1/3 each) as "tenants in common". This means that they will each own their stated proportion of the whole of the property and could sell their interest or, by agreement with each other, subdivide, sell or otherwise share the property. This approach [may] give rise to problems if your friends are unable to agree with each other as to how they deal with the property.

2B Sale by Executor: You could give the whole of the property to your executor on trust to sell and pay the proceeds of sale in stated proportions (eg, 1/3 each) to your friends.

2C Gift of Money: As with your other beneficiaries, instead of giving the Craigie Road property to your friends, you could give them gifts of specific amounts of money or a stated percentage of the value of your estate (eg, 10 or 15% each).

505 In the letter of 17 August 1999, there was no mention of any desire on the part of Betty Dyke to benefit Tim Knaggs. Again, I accept that the contents of the letter of 17 August reflected Betty Dyke's instructions to her solicitor in respect of Mr Knaggs given up to that time.

506 Further, in his letter of 17 August 1999, Mr Moffatt referred to the question of Ms Dyke's competency to make a will. He advised her in the letter:

While it seems to me that you are of a completely sensible and sound mind and able to make your will, I think it is important that you have some independent evidence of this on the file. I would therefore suggest that you obtain a letter from your doctor confirming his or her opinion that you are of sound mind. I hope that you are not offended by this, it is really just a cautionary measure in case your Will gives rise to arguments. A form which your doctor could sign is enclosed.

507 In his evidence Mr Moffatt said that he recommended a medical certificate, not because of a belief on his part that Betty Dyke did not or may not have had capacity, but as a cautionary measure in case of a future dispute over Ms Dyke's will. Indeed, Ms Dyke appeared to Mr Moffatt "to be capable and to be thinking carefully about the terms of her will".

508 At least by the time Betty Dyke received the letter dated 17 August 1999 from Mr Moffatt, Mr Knaggs learned that she was having a will prepared and was intending to benefit some of the Neighbours very substantially. He agreed that he discussed the letter dated 17 August 1999 with his wife Denise Knaggs. The letter said in its first page that the real estate at Craigie Rd, Mount Martha, was to be gifted to "Denise Knaggs, Robert Allen and jointly to Diane & Gary Smith". Tim Knaggs was not included in this list of beneficiaries and no mention was made of him in the letter.

509 In his affidavit, which he swore to at the trial, Tim Knaggs went to some lengths to include himself as an intended beneficiary under Betty Dyke's will. He said in his trial affidavit:

In 1999 I was aware that Betty was having a will prepared. This was because Denise had told me that Betty was making a will and that she wanted to make Denise and myself and the Smiths and the Allens beneficiaries of her will. [Emphasis added]

The words emphasised were used as a formula which he repeated, with inconsequential variations, in no less than four passages in his trial affidavit.

510 However, the formula was plainly incorrect insofar as it included a reference to Tim Knaggs, and I do not accept it as an expression of Betty Dyke's wishes in the passages where it appears in his affidavit. The letter of 17 August 1999 made no mention of Tim Knaggs as an intended beneficiary. This was consistent with Betty Dyke's instructions to Mr Moffatt and with the position she had taken in her 1985 Will. Betty Dyke did not wish to gift one third of her property to both Denise Knaggs and to Tim Knaggs. Her intention was to exclude him.

511 I find further that Mr Knaggs read the letter of 17 August 1999 soon after it had been received by Betty Dyke, and that, when he did, he learned that he was not to be included as a beneficiary in her will. In his cross-examination, Mr Knaggs acknowledged that he had read page 1 of the letter at the time and he conceded that the part of the letter dealing with the gifts of real estate on page 1 of the letter did not mention his name.

512 Mr Knaggs proceeded in his trial affidavit to swear the following:

1. I went through the letter with Betty and we discussed it together. Page 2 of the letter sets out 3 options for the gift of the Craigie Road property to Denise and myself and the Smiths and the Allens. Betty and I discussed these different options. Betty told me that it would be better for the property to be sold by the executor of the will and for the proceeds to be paid as to one third to the Smiths, the Allens and Denise and myself. She was adamant about this.
2. She asked me to speak to Ian Moffatt about the letter. She asked me to tell him that it would be better for the Craigie Road property to be sold by the executor of her will and for the proceeds to be paid as to one third to the Smiths, the Allens and Denise and myself.
3. A short time after my discussions with Betty I telephoned Ian Moffatt. I told him that it was Betty's preference for the Craigie Road property to be sold by the executor of her will and for the proceeds to be paid as to one third to the Smiths, the Allens and Denise and myself. Moffatt told me that he would prepare a will and send it to Betty.

513 On 25 August 1999, Mr Knaggs did in fact telephone Mr Moffatt. Betty Dyke did not participate in the conversation which followed, even though it would have been relatively simple for Mr Knaggs to have arranged for her to be present in the room at his end to introduce him and give her authority for the discussion to proceed. By this time, Mr Moffatt had already had a visit from Denise Knaggs on 9 August 1999, however, he had not met Mr Knaggs and had never spoken with him before. Mr Moffatt knew that Tim Knaggs was the husband of one of the potential beneficiaries in Betty Dyke's will, Denise Knaggs. However, Betty Dyke had not indicated to Mr Moffatt that she wanted to make any gift in her will to Mr Knaggs.

514 Mr Moffatt considered the telephone call to be, as he acknowledged "irregular" and "unusual", and that "the whole call from Mr Knaggs was strange". The telephone call was inappropriate and improper. Mr Moffatt did not contact Ms Dyke about the telephone call to receive her instructions about it or receive her authority to proceed with it. Nevertheless, Mr Moffatt decided to listen to what Mr Knaggs had to say and to make a note of the conversation, although he did participate at various points. He said that he was confident that the instructions which he had received directly from Ms Dyke reflected what she wanted, however he became concerned by the conversation with Mr Knaggs. He said that his principal concern during the conversation was "to make sure that her will reflected what she wanted and that there was no pressure on her". Mr Moffatt also said that "in essence I asked him [Mr Knaggs] to back off". In fact Mr Moffatt said that he told Mr Knaggs: "I'm concerned and you should back off and let her make up her own mind". Mr Moffatt could not recall Mr Knaggs' response to this request, although the conversation continued to its conclusion.

515 The conversation lasted in the order of 24 minutes. Mr Moffatt made handwritten notes of this telephone conversation which he completed immediately after it had concluded. I accept these notes as an accurate summary of the conversation. Mr Moffatt noted the following: Mr Knaggs opened by introducing himself as the husband of Denise Knaggs. He then said that he had spoken "to her re Betty Dyke". I infer from this that Mr Knaggs had spoken to his wife Denise Knaggs about Betty Dyke and her proposal to have a new will prepared. Mr Knaggs then said: "She's decided". The conversation then proceeded broadly as follows: Tim Knaggs described the letter dated 17 August 1999 from Mr Moffatt to his client Ms Dyke, as "good"; Mr Knaggs discussed what was designated in the letter as "Option 2B", being a sale offered by executor followed by splitting the proceeds; he also discussed what was designated in the letter as "Option 2C" in the following terms: "2C may be preferable in case the land is sold before death, as under 2B this would cause the three friends to receive nil". Here Mr Knaggs is presumably referring to the possibility that if Betty Dyke sold her land before her death, and then distributed the cash to other parties, the Neighbours would receive nothing. Mr Knaggs then advised that "Betty wants her will to be simple, but having trouble reaching decision". He then said: "They will talk to her about the 2C option and what sort of split she wants". It was at that point that Mr Moffatt warned Mr Knaggs: "I'm concerned and you should back off and let her make up her own mind". Mr Knaggs then said that when Betty had decided and was ready to speak to Mr Moffatt again she would contact him. Mr Moffatt suggested that he would see her and perhaps Mr Wadeson also (to ensure her instructions were what she really wanted). Mr Knaggs then briefly discussed Betty Dyke's mental capacity with Mr Moffatt, in the course of which Mr Knaggs said that Betty Dyke had a letter from a doctor. They then briefly discussed the responsibility which Betty Dyke owed to others, for example, relatives. In the course of this part of the discussion Mr Knaggs confirmed what Betty Dyke had told Mr Moffatt - that she had no close relatives other than elderly cousins and second cousins to whom she did not feel responsibility, but that she wanted to leave them "a little something".

516 Mr Moffatt said that he did not have any hard evidence to found a suspicion of undue influence, however he said the call "gave me something to think about". I am satisfied that at this time Mr Moffatt became suspicious about the possibility of undue influence being exerted on Ms Dyke in relation to her will. This was so even though in his mind he was not told anything during the conversation that provided evidence of undue influence. However, telling Mr Knaggs to "back off" is consistent with such a suspicion being actually held by Mr Moffatt at the time.

517 Further, Mr Moffatt noted to himself in his handwritten record:

I said at present my instructions from Betty are that the land be divided to three friends. If the value of gifts to three friends changes dramatically I will worry about undue influence and advise Betty accordingly.

Although Mr Moffatt believed he did not use these actual words when talking with Tim Knaggs, and in particular did not use the words "undue influence" to him, it does reflect his considerable concern at the time. He also said in his evidence, "I was concerned at the way they were speaking to her and I wanted to make sure she was not feeling pressured", and that, "I was really in this conversation asking Mr Knaggs to let her decide for herself". He also said that when Mr Knaggs said that "they wanted to talk to her about it", this provided a reason to Mr Moffatt to say to Mr Knaggs "let her decide for herself". I draw the inference that to Mr Moffatt's mind at the time there was a real risk that Ms Dyke was being subjected to undue influence in the will making process then in train.

518 Mr Moffatt's suspicion about Tim Knaggs was well founded. What Mr Moffatt did not know at the time was that Betty Dyke had elected to proceed with "Option 2B" referred to in his letter to her of 17 August. Indeed, according to Mr Knaggs, she was "adamant" about this.

519 Despite Betty clearly communicating this decision to Tim Knaggs, he chose to press his personal preference for "Option 2C" referred to in the letter. The opening words of the conversation of 25 August 1999, when Mr Knaggs said to Mr Moffatt "She's decided" were explored in cross-examination. Mr Knaggs responded as follows:

Yes, well, did you say to Mr Moffatt that Betty had decided?---It appears I have said that, yes.

Yes, decided what?---Decided on one of those options.

And which one had she decided on?---She's decided on 2(c).

On 2 (c), yes. That's 2(c) in Mr Moffatt's letter of 17 August. Is that right?---I would expect that to be 2 (c) that I was referring to.

520 I find that the conduct of Tim Knaggs in making the telephone call to Betty Dyke's solicitor on 25 August 1999, in which he sought to advance his personal preference for the disposition of Betty Dyke's land, evidenced his willingness and desire to influence the will making process in a manner which coincided with his own aspirations in disregard of the wishes of the testatrix, Ms Dyke.

521 Mr Moffatt continued to have lingering concerns about the possibility of undue influence exercised on Betty Dyke in relation to her 1999 Will. He spoke briefly about the subject of undue influence with Ms Dyke on 1 September 1999. He also spoke with Mr Wadeson about the issue on the telephone. He had another brief discussion about the matter with Ms Dyke on the day she executed the 1999 Will on 20 September 1999, following which he said that he was no longer concerned about the problem.

522 However, Mr Moffatt telephoned Mr Wadeson some 10 months later on 18 July 2000. This occurred after Betty Dyke had collected the original of her 1999 Will from Mr Moffatt for the purpose of instructing another solicitor, Mr Lumb, to make the March 2000 Codicil. The note of the telephone conversation between Mr Moffatt and Mr Wadeson, made contemporaneously by Mr Wadeson at the time of the discussion, records:

18/7/00 Ian advised Betty had collected her will from his office (he was not present Possible Codicil?) His only concern is whether she was being unduly influenced.

523 I return once more to the sequence of events culminating in the signing of the 1999 Will on 20 September 1999. At some time shortly prior to 1 September 1999, Denise Knaggs and her husband Tim Knaggs together hand wrote a two page document for presentation to Betty Dyke's solicitor Mr Moffatt. Denise described it as "merely a note as a guide for what she wanted to do with her estate". Denise Knaggs knew it was a note intended to be passed on to Ms Dyke's solicitor, Mr Moffatt. The document relevantly provided as follows (with the parts written by Mr Knaggs in italics):

Option 2C Gift of Money

Most straightforward - the proceeds of the Estate is divided into the proportions desired by Betty.

Leaves money in the bank for emergencies and does not stir up interest by other Parties - eg. The Shire

When estate is sold finalised the Executor makes sure that:-

1/ The Beneficiaries are paid (including charities)

RSPCA $100,000

Cat Protection Society $100,000

Frank Field 10,000

Maida Pitchford 20,000

Bernice Parfitt 20,000

Enid Nicholson 20,000

Geoff Edwards 20,000

Ron Raymond 20,000

Norman Allen 20,000

Jane Leech 15,000

Julie Nicholson 20,000

Wendy Parfitt 20,000

Judy Bailey 60,000

2/ COSTS / EXPENSES probate etc. are paid

3/ Then remainder incl. sale of land is split 3 ways to KNAGGS, ALLEN SMITHS

* If property split into 2 titles now, then greater cost to Betty would be involved, including surveying, Shire Involvement, stamp duty, gift duty etc. There should be no haste by Friends at this time. The Solicitor can be called down or Betty could go with Denise to Mordialloc to finalise the Will - This would save cost and fix the concern once and for all.

If Betty should ever change mind then a Codicil could be made to add or alter the Will.

524 In relation to the preparation of these notes Denise Knaggs said in her evidence that they had been written on Betty Dyke's kitchen table. She said: "They're notes that Betty had dictated that she wanted done". When pressed further on the point, Denise Knaggs confirmed that Betty Dyke had dictated the note to her. However, when the note is examined, I do no accept that it was the product of a dictation in the strict sense. Rather it was the product of Denise Knaggs interpreting the instructions of Betty Dyke and writing them down in the course of the discussion, or shortly thereafter.

3/ Then remainder incl. sale of land is split 3 ways to KNAGGS, ALLEN SMITHS.

Given the circumstances of the taking of the note, which I have found was not likely to have been the product of a process of transcription of the conversation word for word, the note is unreliable as a record of precisely what was said. In particular, I do not accept that the word "KNAGGS", if that was actually said by Ms Dyke, was intended by her to include Tim Knaggs.

526 Tim Knaggs agreed that he added his own handwritten notations to the document. These notations were not made as a result of anything said by Betty Dyke. The notations included altering the word "sold" in the fourth sentence to "finalised", which Denise Knaggs conceded was "Tim's idea", and the words "Incl. sale of land" in the third numbered paragraph which was another of Mr Knaggs' additions. His most substantial addition, however, was the note at the foot of the page:

*If property split into 2 titles now, then greater cost to Betty would be involved, including surveying, Shire Involvement, stamp duty, gift duty etc. There should be no haste by Friends at this time. The Solicitor can be called down or Betty could go with Denise to Mordialloc to finalise the Will - This would save cost and fix the concern once and for all.

If Betty should ever change mind then a Codicil could be made to add or alter the Will.

527 Tim Knaggs conceded that there were in fact two related ideas being considered at the time of the writing of the note - the idea of Betty Dyke making a will to dispose of her estate; and a second idea that she would subdivide her land and give money to her friends. I accept this as a correct summary of the situation at that time. However, in his note he advanced his personal view that Ms Dyke's land should not be subdivided prior to her death and in relation to this he wrote: "There should be no haste by Friends at this time". In response to cross-examination on this point Mr Knaggs said:

Well I didn't think the property needed to be split up;

It seemed strange to me that there was - there was talk about splitting the property up at that time and that Betty was - there was a proposal of Betty to - to allot certain parts of her property to the three families;

528 Mr Knaggs said as to his additions to the notes:

I'm assisting Betty. Denise had already written this. Betty had this and in fact I would suggest this was written on a different day even than we look at the letter.

I find that Mr Knaggs did indeed add his contributions to the note written by Denise Knaggs at a different time. Further, Mr Knaggs did not volunteer evidence, nor was there any evidence, that Betty Dyke was either present when Mr Knaggs wrote his additions, or was even aware of them. I find that Mr Knaggs' additions to the note were written in Betty Dyke's absence and without her knowledge, authority or approval. I find further that Mr Knaggs was well aware that the purpose of the note was to supply Betty Dyke's solicitor, Mr Moffatt, with instructions for her will.

529 Mr Knaggs' additions to the notes further demonstrate his willingness to influence the will making process by pressing his own views as to what should have happened to Betty Dyke's estate, and communicating these views to her solicitor, without her knowledge, approval or authority. His conduct amounted to a further attempt to exert his direct influence on the structure of the will which was then under consideration by Betty Dyke.

530 On Wednesday 1 September 1999 Mr Moffatt again met with Betty Dyke at about 2 pm. Betty Dyke was driven to the meeting by Denise Knaggs. Mr Moffatt took further instructions for the will. Denise Knaggs attended for the first part of the discussion until Mr Moffatt asked her to leave the room. Mr Moffatt took notes of the discussions in the meeting. I infer that had she not been asked to leave the room, Denise Knaggs would have remained present for the entirety of the conference.

531 During the consultation with Ms Dyke on 1 September 1999, Mr Moffatt was handed the document consisting of two handwritten pages written by Denise Knaggs, with Tim Knaggs' additions. After inquiry with Ms Dyke as to who had written the notes Mr Moffatt noted at the top of the page: "Tim or Denise's handwriting". Denise Knaggs was present when Mr Moffatt went through that part of the handwritten sheets which listed each of the beneficiaries and the monetary gifts proposed for them. This part was in Denise Knaggs' handwriting. In the course of this discussion, Mr Moffatt made a handwritten note on the sheets provided to him changing the gift to Jane Leech from $15,000 to $20,000 and the gift to Julie Nicholson from $20,000 to $10,000. I accept that these changes were made at Ms Dyke's direction. While going through the handwritten pages, Mr Moffatt also made notes of Ms Dyke's comments about each of the beneficiaries and the specific monetary sums to be gifted to each.

532 Mr Moffatt noted the following as having been said by Betty Dyke during the meeting, in the presence of Denise Knaggs:

Denise, Robert & Sandra Allen and the Smiths are very important to me - they are my best friends - they look after me, & my property & animals. Denise helps me more than anyone. They get paid but not much and they help me enormously. They are my friends. They do what needs doing.

I accept this as an accurate record of part of the conversation with Betty Dyke in the course of her giving instructions for her 1999 Will. Importantly, it provides insight into her thinking and intentions at the time. The caregivers who had helped her were identified, and her positive feelings towards them detailed. However, Tim Knaggs was specifically not mentioned in this context. And the omission is significant. Even though the statement was made in the presence of Denise Knaggs, I accept it as a genuine reflection of Betty Dyke's feelings at the time.

533 Betty Dyke also said to Mr Moffatt that she did not want to make any other gifts to charities. In my view, this was also a significant indicator of her intentions at the time. At this point in the conference Mr Moffatt asked Denise Knaggs to leave the room. Denise Knaggs gave evidence about the meeting of 1 September 1999. She swore in paragraph 49 of her trial affidavit:

I drove Betty to Ian Moffatt's office. I did not take part in any meetings between Ian Moffatt and Betty. I did not discuss Betty's will with her in the car while we were driving to or from Ian Moffatt's office.

This statement is not the whole truth. Denise Knaggs was present at the meeting between Mr Moffatt and Ms Dyke on 1 September 1999 until she was asked to leave by Mr Moffatt. During the part of the meeting when Denise Knaggs was present, Mr Moffatt, referring to the notes Denise Knaggs had prepared, went through all of the monetary gifts which Ms Dyke then had in contemplation for her will, and he did so in some detail. Denise Knaggs was also present, as I have said, when Ms Dyke described the "friends" who had helped her, in particular Denise Knaggs, and when she said that she did not want to make any other gifts to charities.

534 Denise Knaggs was cross-examined about her attendance in Mr Moffatt's office during the 1 September consultation. After confirming paragraph 49 of her affidavit by saying: "That's the truth", the cross-examination continued:

By that I take it you mean that you were never in the office when Betty gave instructions for her will?---Not for the will, I was in there to settle Betty in and leave the room.

The answer given by Denise Knaggs in this evidence was not the truth.

535 During the consultation of 1 September 1999, after Denise Knaggs had left the room, Mr Moffatt proceeded to ask questions of Ms Dyke, as he noted at the time "to make sure she is not pressured in relation to her will". Mr Moffatt's notes of this part of the consultation with Ms Dyke record:

I do not feel at all coerced or pressured. Denise has been very helpful to me in this process. I would not describe any of my friends as greedy people. I trust them and they have been more than helpful to me. Denise took me to the doctor's without me having to ask. They really care for me. I am 79.

They are writing things down for me etc but I do not feel pressured at all. My will is a hard basket. It has worried me. But I am happy with what we have talked about today.

I don't know of anyone to whom I feel a responsibility. I don't know of anyone else. Most of the ones I used to know are dead. Sometimes I see someone I haven't seen for 20 years but no one else. No brothers or sisters. Its a pity I hadn't and I never married. I was once close friends with a man called Joe. Never lived together. He had no children. I've never had children. Joe and I were old fashioned mates.

Me as reserve executor. I want my $ to go to people I know. Others can help charities. Nothing has ever been easy for me in my whole life. I want to help people I care for not charities. I am an animal person.

Denise will look after my dogs. I hope I'll see my dogs out.

536 During the consultation on 1 September 1999, Ms Dyke made no mention of wanting to include Tim Knaggs as a beneficiary under her will. Indeed, her references to the people who had helped her and whom she regarded as her "friends" specifically made no mention of him. She confirmed to Mr Moffatt in her private session with him that she was "happy with what we have talked about today". I infer from this that she remained satisfied with a will that did not include Mr Knaggs as a beneficiary. I find that she did not tell Tim Knaggs at this time that he was to be included as a joint beneficiary along with his wife, as he contended in his evidence.

537 At the meeting of 1 September 1999, Mr Moffatt was also provided with the medical certificate dated 21 August 1999 which had been completed and signed by Betty Dyke's general practitioner, Dr Knobel.

538 A letter dated 8 September 1999 from Mr Moffatt to Ms Dyke confirmed his meeting with her on 1 September 1999 and thanked her for clarifying her instructions for her will. The letter enclosed a new draft will for her review which he described as being "in accordance with your instructions". The letter advised in general terms what was provided for in the attached draft will. After describing the specific gifts in the draft will, Mr Moffatt's letter says:

1. The balance of your estate (which I understand would be very substantial) is to be divided equally three ways to:

(a) Robert Allen

(b) Denise Knaggs

(c) Mr and Mrs Smith.

539 The draft will which had been prepared by Mr Moffatt on the instructions of Betty Dyke did indeed provide for her residuary estate to be divided equally between Robert Allen, Denise Knaggs and Mr and Mrs Smith. Mr Knaggs was excluded from this list of beneficiaries.

540 Not until 16 September 1999 was mention first made of Tim Knaggs' inclusion in the 1999 Will. However, this instruction was not given by Betty Dyke. A note in Mr Moffatt's file reveals that Denise Knaggs telephoned Mr Moffatt's office on that date and passed on a message to Mr Moffatt's assistant (also his wife), Esther Ruberl. The note included the following reference: "1. see notes on letter of 8/9/99". Esther Ruberl recorded the substance of the instructions related by Denise Knaggs on the copy letter dated 8 September 1999 retained on Mr Moffatt's file. Sandra Allen was noted in Esther Ruberl's handwriting beside Robert Allen as a beneficiary of the residue of Betty Dyke's estate jointly with her husband Robert Allen, and Tim Knaggs was noted beside Denise Knaggs as a beneficiary of the residuary estate jointly with his wife. It was by this means that Denise Knaggs told Mr Moffatt's assistant to include Tim Knaggs, along with Sandra Allen, as additional joint beneficiaries to the residue of Betty Dyke's estate.

541 On 16 September 1999, Betty Dyke also had a telephone discussion with her accountant, Mr Wadeson, about her will and the recent proposed changes. This telephone call demonstrates that Betty Dyke was capable of calling her solicitor on 16 September 1999 and communicating any changes of the type which Denise Knaggs had communicated to Mr Wadeson on that day, and which she wanted, to him. Mr Wadeson made the following notes of the conversation:

She said that the current is more suitable - helping people she knows compared to the 101 charities in the old will.

She mentioned that Denise was helping her with some of the figures. I asked was she happy with this and the conversation got more direct when I asked if she felt anyone was pushing their own ideas. She was happy with what she was doing and said she was so strong minded that no one would tell her what to do. I agreed with this. She then said no one was pulling the wool over her ears - at least, she felt that.

542 Although Mr Moffatt thought that it was surprising that Denise Knaggs should have telephoned his assistant on 16 September 1999 and left a message to add two additional beneficiaries to Ms Dyke's will, he did not contact Ms Dyke about this, nor did he write to her about it, or indeed contact Denise Knaggs about the matter. Nevertheless, the additional beneficiaries, Sandra Allen and Tim Knaggs were added to the draft will for signing by Betty Dyke on 20 September 1999.

543 On 20 September 1999, Denise Knaggs brought Betty Dyke to Mr Moffatt's office for the signing of the completed will. Denise Knaggs left Betty Dyke alone with Mr Moffatt during his consultation. The prepared will included Sandra Allen and Timothy Knaggs as joint beneficiaries with their respective spouses of the residuary estate. Mr Moffatt said in his affidavit:

During the meeting I recall discussing with Miss Dyke the message given to my assistant Esther from Denise Knaggs on 16 September 1999. I remember Miss Dyke told me she knew about it because Denise Knaggs had called with that message at her (Miss Dyke's) request.

544 Although Mr Moffatt said that he spoke to Betty Dyke about the addition of the two further beneficiaries to her will when she came to sign the document on 20 September 1999, he took no note of any instruction given by her as to this change or the reason for it. Moreover, I am satisfied that the reason for Ms Dyke changing her mind in this manner, and the circumstances which gave rise to the inclusion of Tim Knaggs as a beneficiary, were not explored at all by Mr Moffatt. In all likelihood, this was because Mr Moffatt did not know of Ms Dyke's attitude to Tim Knaggs, and did not appreciate the significance of the apparent change in instructions. There was no satisfactory evidence demonstrating that the decision to add Tim Knaggs as a beneficiary was the product of Betty Dyke's own free and independent will.

545 Ms Dyke signed her 1999 Will on 20 September 1999. It not only included Robert Allen as a beneficiary of the residue of her estate jointly with his wife Sandra Allen, it also included Tim Knaggs as a beneficiary of the residuary estate jointly with his wife, Denise Knaggs.

546 The gift made by Betty Dyke to Tim Knaggs in the 1999 Will was out of character for her and a significant departure from her previously long held attitude towards him. It was also departured considerably from the consistent instructions she had given to her solicitor Mr Moffatt prior to the telephone call from Denise Knaggs on 16 September 1999.

547 In the case of Tim Knaggs, I find that his inclusion in the 1999 Will did not occur because of any friendship with him recognised by Ms Dyke. Nor was the substantial gift provided to him made in gratitude for any help which Mr Knaggs had provided to her in her old age. If any such help or care had been provided by him, it was insignificant. The explanation for the gift to him has a profoundly different origin. There were a number of likely motives for Denise Knaggs to have made the contact she did with Betty Dyke's solicitor on 16 September 1999.

548 I am satisfied that Denise Knaggs and Tim Knaggs both assumed substantial control of Betty Dyke's life. In the case of Denise Knaggs, this commenced well prior to mid- 1999; and in the case of Tim Knaggs, the execution of the 1999 Will by Betty Dyke on 12 August 1999 marked his ascendancy in her personal affairs. Tim Knaggs' inclusion as a joint beneficiary of one third of Ms Dyke's residuary estate provided a platform for him to become involved in the management of Betty Dyke's considerable cash investments and her valuable real estate. This carried with it the obvious side-benefit of maximising the value of the residuary estate during her lifetime, prior to her death.

549 The addition of Tim Knaggs as one of the principal beneficiaries under Betty Dyke's will was also likely to have consolidated and enhanced the opportunities for the Knaggs to continue to influence her testamentary intentions. Tim Knaggs was acutely conscious of Betty's capacity to alter her will at any time. He wrote in his note, which he added to Betty Dyke's instructions written out by Denise Knaggs shortly prior to 1 September 1999: "If Betty should ever change mind then a Codicil could be made to add or alter the Will".

550 Further, I am satisfied that the inclusion of Tim Knaggs as a beneficiary provided something of an "insurance policy" for the Knaggs family. As things stood prior to the inclusion of Tim Knaggs, in the event that Denise Knaggs predeceased Betty Dyke, her husband and children would stand to inherit nothing. However, adding Tim Knaggs as a joint beneficiary provided the Knaggs a degree of security with regard to Ms Dyke's estate.

551 I am further satisfied that when she made the telephone call to Betty Dyke's solicitor on 16 September 1999 to include her husband in the will, Denise Knaggs did so on her own initiative without Ms Dyke's express consent.

552 I find further that Tim Knaggs was involved in the conduct of his wife in securing his inclusion in the 1999 Will as a joint beneficiary of a one third share of the residuary estate. It is likely that the approach made by his wife to Betty Dyke's solicitor was known to him at the time. It would have been very unlikely for Denise Knaggs to have taken the course she did without at least advising him about the plan. The approach was likely to have enjoyed his express or at least his tacit approval.

553 Once Denise Knaggs had secured Tim Knaggs' inclusion as a beneficiary in the draft will on 16 September 1999, when Betty Dyke attended to sign her will on 20 September 1999, the line of least resistance for her to follow was to accept the draft which had been prepared by her solicitor. Betty Dyke was likely to have known that the inclusion of Tim Knaggs was desired by Denise Knaggs and her husband. She would also have known or believed that cutting him out of the will at this point would more than likely have come to their attention. I infer that, in Betty Dyke's mind, this would have carried with it, at the least, a risk of introducing friction into, or possibly even have jeopardised, her relationship with Denise Knaggs, a person upon whom she depended heavily. Ms Dyke's purpose in providing the generous gift to Denise Knaggs in her will was to ensure the loyalty and service of her principal caregiver for her remaining days. Fear of loss of her security is likely to have inflicted pressure on Ms Dyke to be compliant with the wishes of the Knaggs at this critical time.

554 For the sake of peace and quiet, avoiding anxiety and tension, and preserving her security, Betty Dyke suppressed her long held wish not to benefit Tim Knaggs in her will. Submitting to what had been placed before her was a pliant and painless course.

555 The addition of Sandra Allen to the 1999 Will, however, is in an altogether different position.

556 Betty Dyke never expressed any animosity towards her. Indeed, the contrary is the case. During her consultation with Mr Moffatt on 1 September 1999 Betty Dyke spoke of her with warmth and specifically and spontaneously included Sandra Allen in the list of "friends" who were very important to her and who looked after her, her property and animals. Further, Sandra Allen, unlike Tim Knaggs who was not mentioned at all in the 1985 Will, had been a beneficiary under that will of a monetary bequest, jointly with her husband, Robert Allen. In contrast, Tim Knaggs was not mentioned at all in the 1985 Will, although his wife Denise Knaggs was the subject of a monetary bequest in her own right.

557 I am satisfied that no undue influence was exercised to secure the appointment of Sandra Allen as a joint beneficiary, with her husband Robert Allen, of a one third share of Ms Dyke's residuary estate under the 1999 Will. Although the means of her appointment, through the telephone call made by Denise Knaggs to the office of Ms Dyke's solicitor on 16 September 1999, was irregular, I am satisfied that the inclusion of Sandra Allen in the 1999 Will coincided with Betty Dyke's intentions.

PREPARATION AND EXECUTION OF THE MARCH 2000 CODICIL

558 Gary Smith's earliest awareness of Betty Dyke's 1999 Will was in about late 1999 when she told him that she was unhappy with Mr Wadeson and Mr Moffatt being the executors of her will. She said that they had charged her too much for their services for drawing the 1999 Will. She spoke to Gary Smith on a number of occasions about the matter and said that she wanted to change the executors to the 1999 Will to be Gary Smith, Robert Allen and Tim Knaggs.

559 At the request of Betty Dyke, Gary Smith arranged an appointment for her to see his family solicitor, Mr Peter Lumb of Nevett Ford & Co in Melbourne to document the change of executors. The appointment was arranged for 28 March 2000. On this day Gary Smith drove Betty Dyke to the appointment with Mr Lumb. They first drove to Mr Moffatt's office to collect the 1999 Will. Betty Dyke attended to this on her own while Gary Smith remained in his car. They then continued on their journey to see Mr Lumb of Nevett Ford at his offices at Level 42, Rialto South Tower, 525 Collins Street, Melbourne. Betty Dyke gave the necessary instructions to Mr Lumb while Gary Smith remained in the waiting room.

560 Mr Lumb is a solicitor. He was a director of NF Legal Pty Ltd, which trades as Nevett Ford. He was admitted to practice in 1972, and since 1978 has practised principally in the areas of commercial and property law, wills, probate and estate administration.

561 Betty Dyke instructed Mr Lumb that she wished to appoint as her executors Gary Smith, Robert Allen and Tim Knaggs who, with their wives, were the residuary beneficiaries of her will. She informed him that Mr Moffatt was not well known to her and it was her preference that the three men she nominated act as her executors. Betty Dyke gave a copy of her 1999 Will to Mr Lumb.

562 Mr Lumb briefly reviewed the remaining provisions of the 1999 Will dealing with the various bequests and the division of the balance of her estate as set out in that will. She instructed Mr Lumb that she was happy with the bequests and did not wish to make any further changes other than to specify that the balance of her estate dealt with in clause 5 of the will should be divided into three separate and equal parts for distribution between the Neighbours.

563 Mr Lumb prepared a codicil making the changes Ms Dyke requested. This was prepared for her execution while she waited and was executed by her in the presence of Mr Lumb and another witness who was an articled clerk. Following execution of the March 2000 Codicil, Mr Lumb gave the original codicil to Ms Dyke to take with her.

564 Mr Lumb was of the opinion that at the time of giving her instructions and signing the codicil Betty Dyke appeared to be of sound mind and fully understood the extent of her property, being principally the land she stated she owned at Mount Martha, and the bequests she had conferred, and that she had the necessary capacity to execute the codicil.

565 Mr Lumb made no notes about any advice given regarding the nature of the gifts in the 1999 Will. However, his task was a limited one. It was simply to remove Mr Wadeson as executor and Mr Moffatt as reserve executor under the 1999 Will, substitute three new executors, and undertake a minor further amendment at Ms Dyke's request.

566 In the course of the meeting on 28 March 2000 Mr Lumb was given a copy of Mr Moffatt's letter of advice to Ms Dyke dated 17 August 1999. That letter has annotations in Denise Knagg's handwriting. Despite initially stating that prior to the institution of the present proceeding she had never before seen or read this letter, upon being recalled and having it put to her in further cross examination that the copy retained in Mr Lumb's file had her writing on it, she was forced to concede that she had both read it before, and made the handwritten notes on it.

567 Tim Knaggs knew that Gary Smith was taking Betty Dyke to his solicitors in Melbourne to have both the accountant Mr Wadeson and the solicitor Mr Moffatt removed as executors to her 1999 Will.

568 The explanation given by Tim Knaggs for Betty Dyke wanting to remove Mr Wadeson and Mr Moffatt as executors from her 1999 Will was that, as he put it:

Because Betty had sounded long and hard about the cost of the will that she'd made - or the cost of the invoice she'd received from Mr Moffatt and Mr Wadeson.

569 I accept that Betty Dyke was unhappy about the charges being made in respect of her will by Mr Wadeson and Mr Moffatt, and that this was one of the reasons she wanted them removed as the executors of her 1999 Will. Even though the charges for the work undertaken by Mr Moffatt appear on their face to have been within reasonable bounds, they may well have appeared to Ms Dyke to have been excessive. Mr Moffatt charged a total of $2,230. However, he did a not insignificant amount of work for this charge. He undertook five conferences, drafted the will, conducted three reviews of the draft will, wrote a long letter to his client, and a shorter letter, and incurred about $60 worth of photocopying and disbursements. This was for a will which he described as not being a "plain vanilla", or simple standard will. It was a will which was tailor made for Ms Dyke and contained some complexities.

570 Further, Betty Dyke had long held the view that a solicitor should not be an executor of her will. I accept the evidence of Enid Nicholson when she said:

In about 1985 Betty told me that she had been to Chelsea to sign a Will. Betty told me that she had not proceeded to sign the Will because the Solicitor had wanted to be appointed as Executor. Betty had told me on many occasions prior to this conversation that her father had said to her never to appoint a solicitor as an Executor of a Will.

571 Denise Knaggs broadly supported this view when she said in her cross-examination:

Did Betty ever say to you that she didn't like solicitors being appointed as the executor of her estate?---She did say that on one occasion, yes.

Well that was the occasion when she decided to have Mr Moffatt at least, removed as the reserve executor of her 1999 will?---That was due to the excessive bill she received through the dealings with Mr Moffatt.

But she also said to you, didn't she, she didn't like solicitors being made executors of her wills?---Not at that time, no. No that was - - -

Did she say at any time?---I don't recall, but I'd say - - -

I think you just said that she did?---Yes, that was words that were said back many years ago when her father was alive.

572 Betty Dyke wished to have her accountant, Mr Wadeson, removed as an executor under her 1999 Will because she believed that he too had overcharged her. Another complaint conveyed to Mr Lumb was that she saw Mr Moffatt as having been "foisted" upon her by Mr Wadeson.

TESTAMENTARY CAPACITY - TIME OF MAKING THE 1999 WILL

573 As the Full Court of the Supreme Court of Queensland said in Bool v Bool:[161]

A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.

In this case there was such a change from the structure of the 1985 Will to the position adopted by the testatrix leading up the execution of the 1999 Will.

574 Furthermore, a significant body of evidence from members of the family and friends cast doubt on Ms Dyke's testamentary capacity in the August-September 1999 period and beyond.

575 Accordingly, after having applied the necessary level of scrutiny to the evidence, I find that it is sufficient to throw doubt on the competence of Betty Dyke to make the 1999 Will and the March 2000 Codicil.

576 The burden of proof to establish testamentary capacity in these circumstances is caste upon the prospective propounders of the 1999 Will and the March 2000 Codicil, namely the Defendants.

577 I am satisfied that on the evidence, considered as a whole, and after undertaking the appropriate level of scrutiny, the Defendants have proven to the requisite standard on the balance of probabilities, that Betty Dyke did have testamentary capacity at the time she gave instructions for and executed the 1999 Will and the March 2000 Codicil.

578 I do not accept the submission that Betty Dyke's thought processes in planning the disposition of her estate in the period from August to late September 1999, evidenced confusion, lack of understanding and lack of capacity on her part in dealing with her property, and that this revealed a lack of testamentary capacity.

579 It is true that the development of the final plan for her estate took some time and progressed through a number of concepts. However, under the umbrella of her broad and consistently expressed intention to benefit those of the Neighbours who had helped her by gifting her land to them, a number of approaches were possible and required guidance from her solicitor and accountant and deliberation upon their advice. The selection of the appropriate approach was not a matter to be entered into lightly, and a number of factors required consideration. I do not accept that Betty Dyke's approach in arriving at the result reflected in the 1999 Will demonstrated any lack of testamentary capacity on her part.

580 Although, as I have found, by mid-1999 Ms Dyke was suffering from cognitive impairment characteristic of the pre-dementia stage of Alzheimer's disease described by Professor Peisah, and this remained her condition in March of 2000, this degree of mental impairment does not necessarily preclude the existence of testamentary capacity as defined in law, and it did not have this effect at this time.

581 In particular, I am satisfied from the evidence provided by Mr Moffatt, Betty Dyke's solicitor at the time she gave instructions for the 1999 Will, that she had the requisite capacity. He took detailed notes of his consultations with Ms Dyke at the relevant time. Mr Moffatt's notes, followed by his letters to Ms Dyke confirming his instructions, supplemented by his personal recollections, coupled with his opinions founded on his observations, and supported by the medical certificate provided by Dr Knobel, demonstrate that Ms Dyke was able to give adequate instructions as to her intentions and understand what she was doing.

582 I am also satisfied from the evidence of Mr Lumb, the solicitor who took instructions for the March 2000 Codicil, that at the time Betty Dyke gave her instructions for this codicil and executed it, she had the testamentary capacity required by law to make a valid will.

583 I am satisfied that at the time of making the 1999 Will and the March 2000 Codicil, Betty Dyke had sufficient mental capacity to comprehend the nature of what she was doing, and its effects; that she was able to realise the extent and character of the property she was dealing with, and to weigh the claims on her estate, such as they were, which she ought to have been aware of. To the extent that she did suffer mental impairment at the time, this was not sufficiently advanced to have precluded the testamentary capacity which I have described.

584 Even though, as I have found, the evidence as a whole is sufficient to throw doubt upon the competency of the testatrix, I am positively satisfied that she was of sound mind, memory and understanding when she executed the 1999 Will and the March 2000 Codicil, and at the time when she gave her instructions for those instruments. She knew what she was doing, and she understood the effect of the principal clauses in the will; she had a general knowledge of the nature of her property and that it was an estate of significant value; and she acknowledged the friends and relatives who she ought to have considered at the time.

585 At the close of the trial the Plaintiffs abandoned any allegation that Sandra or Robert Allen had engaged in any conduct which amounted to undue influence in respect of any of the wills or codicils in contention. In my opinion there was no evidence to substantiate such a claim.

586 In giving instructions to Mr Moffatt for her 1999 Will, Betty Dyke demonstrated an intention to benefit both Robert Allen and his wife Sandra Allen. It will be recalled that during her consultation with Mr Moffatt on 1 September 1999, Betty Dyke said:

Denise, Robert & Sandra Allen and the Smiths are very important to me - they are my best friends - they look after me, & my property & animals.

[Emphasis added]

587 I find that it was Betty Dyke's intention to give a substantial benefit to both Robert and Sandra Allen in her 1999 Will as it was eventually reflected in that document and subsequently confirmed in the March 2000 Codicil.

588 The Plaintiffs, however, persisted in their claim that Gary and Diane Smith had engaged in such conduct. The high water mark of such an allegation was the involvement of Gary Smith in introducing Betty Dyke to his solicitor, Mr Lumb, on 28 March 2000 for the purposes of the preparation and execution of the March 2000 Codicil and driving her to the appointment in Melbourne after collecting the necessary documents from Mr Moffatt's office en route.

589 I find that neither Gary nor Diane Smith exercised any undue influence over Betty Dyke at the time when she gave instructions for and executed the March 2000 Codicil.

590 I find further that the Smiths did not exert any undue influence over Betty Dyke at any other time when she gave instructions for and executed the other testamentary instruments which are under challenge in this litigation.

591 It was Betty Dyke's intention to give a substantial benefit to both Gary and Diane Smith in her 1999 Will as it was eventually reflected in that document and subsequently confirmed in the March 2000 Codicil.

592 However, different considerations arise in relation to Denise Knaggs and Tim Knaggs.

593 It was Betty Dyke's consistent intention to give Denise Knaggs a substantial benefit in the 1999 Will as eventually reflected in that document and subsequently confirmed in the March 2000 Codicil. No undue influence was exerted over Betty Dyke to achieve this result.

594 However, I am satisfied that Denise Knaggs exerted undue influence over Betty Dyke. She acted with the express or tacit approval of her husband, Tim Knaggs, to secure his inclusion as a joint beneficiary of a one third share of the residuary estate under the 1999 Will. In this regard, Betty Dyke's will was overborne and I am satisfied that had she been free from the influence, she would not have executed the 1999 Will with the inclusion of Tim Knaggs as a beneficiary.

595 Further, once Tim Knaggs was included as a beneficiary under the 1999 Will, it would have imposed an intolerable burden on Betty Dyke to have cut him out of the further testamentary instruments which she made from that time. This situation arose because of Betty Dyke's increasing dependence upon Denise Knaggs in her capacity as her principal caregiver, and ultimately as the manager of her personal affairs which commenced in 2000. Further, following Betty Dyke's execution of the 1999 Will, the position was exacerbated by Tim Knaggs' assuming control of Betty Dyke's banking investments and the subdivision and sale of part of her property.

596 The pressures emanating from these sources which exerted undue influence upon Betty Dyke in the making of the 1999 Will, continued through to the making of the March 2000 Codicil, and indeed the December 2000 Codicil and the 2001 Will. As a consequence, Tim Knaggs remained as a beneficiary under Betty Dyke's wills, and indeed consolidated his position in that respect over time.

597 In this case, I am satisfied that the circumstances at least raise a more probable inference in favour of the undue influence which I have described, than not. The power to overbear Betty Dyke was exercised and the result of the exercise of that power was the 1999 Will, and the testamentary instruments made subsequently, which included Tim Knaggs as a beneficiary.

598 The following body of circumstantial evidence, summarises the evidence referred to elsewhere in the judgment and the findings which I make regarding that evidence. When considered as a whole, it gives rise to the inference of the undue influence which I have found:

(a) Tim Knaggs had not been included as a beneficiary by Betty Dyke in her 1985 Will, whereas his wife Denise Knaggs had been gifted $20,000;

(b) Betty Dyke consistently gave direct instructions to her solicitor in the course of preparation of the 1999 Will, which did not include Tim Knaggs as a beneficiary. Further, she did not mention him in her important interview with her solicitor on 1 September 1999 in which she listed all the other Neighbours as persons whom she regarded as being 'very important' to her, who were her 'best friends' and who looked after her, her property and her animals. Further, prior to making her 1999 Will, Tim Knaggs did not personally provide Betty Dyke with practical care of any consequence;

(c) Betty Dyke intensely disliked Tim Knaggs, and nothing occurred in the 1999 Will making period which was likely to have changed that position;

(d) In the period August - September 1999 (the "1999 Will making period"), when Betty Dyke was giving instructions for the preparation of the 1999 Will, she was a vulnerable and frail individual susceptible to the influence of those in a position to exercise authority over her. This continued, though to the time of the making of the March 2000 Codicil;

(e) The very mild cognitive impairment characteristic of the pre-dementia stage of Alzheimer's disease as described by Professor Peisah, coupled with the increasing severity of her physical disabilities, contributed to Betty Dyke's dependence on her care givers, and in particular Denise Knaggs. By mid-1999 Betty Dyke had become particularly susceptible to her influence;

(f) Further, by the commencement of the 1999 Will making period Betty Dyke had in a practical sense become very dependant on Denise Knaggs. By that time, Denise Knaggs had become her principal and most important carer, and in that capacity Denise Knaggs was in a position to exert significant influence over her. This continued though to the time of the making of the March 2000 Codicil;

(g) During the 1999 Will making period Denise Knaggs became closely involved in Betty Dyke's will making process and knew the contents of Betty Dyke's proposed will as the draft stood at 16 September 1999. She knew that it was proposed that she would be a beneficiary of one third of Ms Dyke's residuary estate in her own right, to the exclusion of her husband, Tim Knaggs;

(h) During the 1999 Will making period Tim Knaggs was also in a position to exercise influence over Betty Dyke. He too had become closely involved in her will making process. More than likely he knew the contents of Betty Dyke's proposed will as the draft stood at 16 September 1999, at least insofar as it was proposed that his wife, Denise Knaggs would be a beneficiary of one third of Ms Dyke's residuary estate in her own right, to the exclusion of himself;

(i) Of significance was Tim Knaggs' attempt, during his unsolicited telephone conversation with Betty Dyke's solicitor, Mr Moffatt, on 25 August 1999, to directly influence the structure of the new will then under consideration by Betty Dyke, in disregard of her wishes which had been communicated to him and were known by him at the time;

(j) Of further significance was Tim Knaggs' attempt, at some time shortly prior to 1 September 1999, to directly influence the structure of the new will then under consideration by Betty Dyke by the inclusion of his handwritten notes in a communication which he knew would be passed on to Ms Dyke's solicitor. This was conduct undertaken without Ms Dyke's knowledge, approval or authority;

(k) Tim Knaggs came to be included in the 1999 Will, not as a result of any instruction given by Betty Dyke directly to her solicitor, when she had ample opportunity to give such an instruction, but as a result of a telephone call from his wife Denise Knaggs to the office of Ms Dyke's solicitor made on 16 September 1999. Prior to her signing the 1999 Will four days later on 20 September 1999, there was no instruction directly from Betty Dyke to effect the change;

(l) Once Tim Knaggs had been included in her 1999 Will, in all the circumstances, it would have created an intolerable burden for Betty Dyke to have taken the relatively drastic step of cutting him out of her will, or excluding him from becoming an executor, along with the other male members of the group of Neighbours, by the March 2000 Codicil;

(m) Betty Dyke's solicitor, Mr Moffatt failed to adequately confirm with Betty Dyke that the instruction which was communicated by Denise Knaggs in fact reflected her free and independent will. Further, he did not explore with her the reason for changing her instructions and the circumstances which brought about the change;

(n) Denise Knaggs and Tim Knaggs both had a number of motives for his inclusion in the 1999 Will as a joint beneficiary in respect of a one third interest in Betty Dyke's residuary estate. The circumstantial evidence, when considered as a whole, raises a more probable inference in favour of undue influence on the part of Denise Knaggs and Tim Knaggs in securing his appointment as a beneficiary under the 1999 Will, than not.

599 Further, I am satisfied that the circumstances attending the preparation and execution of the 1999 Will and the March 2000 Codicil are not only consistent with the hypothesis of them having been obtained by undue influence on the part of the Knaggs in the manner which I have described, the circumstances are inconsistent with any reasonable hypothesis to the contrary effect.

600 In arriving at the finding of testamentary undue influence, I have reached a degree of satisfaction, consistently with the statements made in Briginshaw v Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, conscious of, and recognising, the significance and gravity of the finding.

601 For a will to be valid a testator must know and approve of its contents.

602 I find that as at both 20 September 1999 when the 1999 Will was executed, and 28 March 2000 when the March 2000 Codicil was executed, circumstances were such as to raise a suspicion that Betty Dyke did not sign these instruments with the requisite knowledge and approval.

603 As I have found, by mid-1999 Ms Dyke was suffering from cognitive impairment characteristic of the pre-dementia stage of Alzheimer's disease described by Professor Peisah. This remained her condition in March of 2000.

604 Further, she was a person of very limited education, having left school at the end of eighth grade and had no experience of legal or business affairs beyond what was necessary to manage her small farming enterprise.

605 Moreover, she self-medicated with the drug Serepax, which may produce confusion as a side effect, particularly if taken in variable dosages.

606 At least these matters in combination call for an enquiry as to whether Betty Dyke had the necessary knowledge and gave the necessary approval to the terms of her 1999 Will and the March 2000 Codicil.

Conclusion as to the Knowledge and Approval of the Testatrix

607 The Plaintiffs submitted that I should draw the inference from the surrounding circumstances that Ms Dyke neither knew nor approved of the contents of her 1999 Will. They relied upon twelve principal matters, each of which I have considered.

608 In particular, the Plaintiffs submitted that questions arose as to what Ms Dyke was advised, and what she understood, about the nature and extent of the gift she was making to the Defendants by her wills. It was submitted that the evidence in respect of this matter shows that discussions she had with her professional advisers, in particular Mr Moffatt and Mr Wadeson, primarily related to the disposition of her land only. It was said that Ms Dyke was not advised as to how she might deal with her considerable personal estate, short of a number of relatively small specific bequests.

609 It was submitted that, given the inadequate explanation provided to her in relation to her personal estate, Ms Dyke neither knew nor approved of the contents of the wills and codicils in contention in these proceedings.

610 I reject this submission. Both the 1999 Will and the March 2000 Codicil were read over to Ms Dyke before its execution. Furthermore, I am satisfied that she was otherwise aware of the contents of the testamentary document and had a sufficient grasp of the extent of both her personal and real estate to have approved of the dispositions she was making under those instruments.

611 I also reject the submissions of the Plaintiffs founded on the inferences which they invited me to draw from the surrounding circumstances.

612 In particular I am satisfied that Ms Dyke's solicitor, Mr Moffatt, adequately communicated the precise terms of the 1999 Will to her before she signed it. He gave a very detailed account in his evidence of the manner in which he went over each clause of the 1999 Will with Ms Dyke and the amendments she made to the draft before signing the document. For example, Mr Moffatt said:

I remember reading through the first five clauses of the will with her line by line. I turned the will to face her and I read it aloud to her slowly while she followed the text as I read. As changes were made, I turned the will around and made annotations, then I turned it back towards Miss Dyke and we continued reading through the clauses.

A similar process was followed by Mr Moffatt in relation to the other clauses of the will.

613 The March 2000 Codicil by comparison was a relatively simple exercise. Essentially it involved substituting the professionals whom Betty had appointed to be executors of her 1999 Will, Mr Wadeson and Mr Moffatt, with a male representative drawn from each of the three groups of Neighbours. I am satisfied from the evidence of Mr Lumb, the solicitor who prepared the March 2000 Codicil, that when she signed it on 28 March 2000, Betty had full knowledge of the document and approved of its contents.

614 Applying the requisite careful scrutiny to the facts, I am satisfied that Ms Dyke did know of and approve of the contents of the 1999 Will and the March 2000 Codicil.

PREPARATION AND EXECUTION OF THE DECEMBER 2000 CODICIL

615 It will be recalled that Mr Brian Kollias, the principal of the firm of Mornington solicitors Hunt McCullough Kollias & Co, and a friend of Tim Knaggs, had been engaged to subdivide and sell part of Betty Dyke's farm "Sefton Grange". By late May 2000 he had achieved the subdivision, and by late November 2000 he was in the course of conducting negotiations in relation to the sale of the subdivided portion of the land.

616 On 30 November 2000 Mr Kollias received instructions to complete a codicil to Betty Dyke's 1999 Will to include himself as a co-executor, along with Tim Knaggs, Robert Allen and Gary Smith. He was not to be merely an alternate director, as in the case of Mr Moffatt in the 1999 Will. Mr Kollias was to be appointed as a co-executor with the consequence that it was almost inevitable that he would charge for his services in this capacity. He was given a copy of Betty Dyke's 1999 Will. In his affidavit he also said that he believed that he had been provided with a copy of the March 2000 Codicil. He passed on the documents he had received to his daughter, Elizabeth Kollias, a solicitor with his firm, to complete the codicil.

617 On 1 December 2000 Elizabeth Kollias prepared the codicil and forwarded it to Ms Dyke under a covering letter dated 1 December 2000.

618 On 18 December 2000 Tim Knaggs drove Betty Dyke to the offices of Hunt McCullough Kollias & Co to execute the codicil. This was the first time that Elizabeth Kollias had met Betty Dyke. The codicil was executed on that day by Betty Dyke in the presence of Elizabeth Kollias, and another employee of the firm, Claire Smith.

619 However, Elizabeth Kollias made a mistake in drafting the codicil. The codicil was engrossed in underlined capital letters in its opening words: "THIS IS A FIRST CODICIL to the last Will and Testament of ..."

620 It is unrealistic to have expected Betty Dyke to have recognised the error, and I draw no inference from this oversight. However, at the time of giving instructions for and signing the December 2000 Codicil on 18 December 2000, Ms Dyke appears not to have mentioned to Elizabeth Kollias that she had signed another codicil, only nine months before. The circumstances surrounding the making of the earlier codicil were somewhat remarkable and clearly made an impression on Betty at the time. However, it appears that she forgot to mention this plainly relevant matter to Elizabeth Kollias at the time of making the second codicil in December 2000.

621 Of greater significance is the fact that on 18 December 2000 Tim Knaggs accompanied Betty Dyke to the office of Hunt McCullough Kollias & Co. Referring to this in his trial affidavit, Tim Knaggs said:

I accompanied Betty to an appointment at the offices of Hunt, McCullough Kollias & Co. I waited in reception while Betty saw Brian Kollias. Betty told me that she had discussed and signed documents in relation to the sale of her land.

622 However, it was Elizabeth Kollias, not her father Brian Kollias, who in fact attended upon Betty Dyke on 18 December 2000. Further, Elizabeth Kollias did not arrange for any documents to be signed by Betty Dyke on that day in relation to her land. The document signed by Betty Dyke on that day was in fact the December 2000 Codicil. The evidence given by Tim Knaggs to the effect that Ms Dyke told him that she had discussed and signed documents in relation to the sale of her land indicated a remarkable level of confusion on her part as to the nature of the document she had executed on that day.

623 This conduct is consistent with Betty Dyke having at the time suffered one of her "mind lapses" which Tim Knaggs later described to Mr Westwater of the National Australia Bank.

624 Subsequently, Elizabeth Kollias prepared a new will for Betty Dyke, which she executed on 12 January 2001. This was the 2001 Will.

625 The recollection of Elizabeth Kollias surrounding the preparation and execution of the 2001 Will was poor and her notes taken in respect of the process were sparse.

626 Elizabeth Kollias consulted with Betty Dyke in relation to the new will on 22 December 2000. She made a short note of the conference in the following terms:

22/12/00

Attendance Betty Dyke and Denise Knaggs - Betty not sure why we'd prepared a new will. I said it was to consolidate all previous changes but mainly b/c she was reducing a specific bequest from $60K to $20K + it was BK's advice this should be in the form of a new will. She was clearly not ready to sign so I gave her the draft to take home.

627 She also made a second note when Betty Dyke returned to execute her new will on 12 January 2001. The note recorded:

12/01/01. Attendance on Betty and Denise Knaggs going over the terms of the revised Will in detail. She was able to understand everything as discussed and I had no doubts about her ability to make the Will.

I provided her with two copies at the time of signing to double check over the weekend.

628 The notes made on 22 December 2000 and on 12 January 2001 provide the only written record of what transpired on those occasions. The notes, such as they were, provided a plainly an inadequate record of the will making process involving the elderly person in this case. Indeed, they barely meet the description of a record.

629 Elizabeth Kollias agreed with the opinion of Professor Peisah that, given the common and insidious nature of dementia, it is prudent to document the process of taking instructions for a will from all clients aged over 65 years. She also agreed that she did not properly document Ms Dyke's instructions. Indeed, I am satisfied that the taking of the instructions from Betty Dyke for the 2000 Codicil and the 2001 Will by Elizabeth Kollias was not documented at all. This may be contrasted with the relatively careful record maintained by Mr Moffatt in the course of preparing the 1999 Will.

630 Elizabeth Kollias could not recall exactly what happened between the execution of the codicil on 18 December 2000 and the meeting on 12 January 2001 when the 2001 Will was signed. Nevertheless, I am satisfied of the following matters:

(a) At some time shortly after 18 December 2000 Elizabeth Kollias discovered the mistake in the codicil signed by Betty Dyke on 18 December 2000 where it was described as a "first codicil";

(b) Elizabeth Kollias consulted with her father, the principal of the firm, and it was suggested by Mr Kollias that a new will should be prepared and executed;

(c) At some point prior to 22 December 2000 Elizabeth Kollias prepared a new draft will for Betty Dyke. She said that "... if betty didn't give me instructions prior to me preparing it, I had it ready for her when she came in";

(d) Two draft wills were in fact prepared between 18-22 December 2000. The first draft was a preliminary draft and the second draft was prepared in a final form in readiness for execution if its contents had been approved by the testatrix. Both drafts contained a reduction in the gift to John and Judith Bailey from $60,000, as it appeared in the 1999 Will, to $20,000 as contained in both of the drafts;

(e) I conclude that instructions for the preparation of the new will had in all likelihood been sought and obtained from Betty Dyke prior to the meeting of 22 December 2000. In the first place the draft wills already contained the reduction in the gift to the Baileys from $60,000 to $20,000. This could only properly have been undertaken on the specific instructions of Ms Dyke. Secondly, the main reason given in the note made by Elizabeth Kollias as to the necessity for a new will was Betty Dyke's instruction as to the reduction of the gift to the Baileys. Thirdly, it is unlikely that a solicitor would have proceeded to draft a new will for a client without having first obtained instructions to undertake such an exercise;

(f) At the meeting of 22 December 2000, the second of the draft wills which had been prepared for the meeting was given to Betty Dyke to take home. Thereafter, Betty Dyke made handwritten amendments to the second draft principally by reducing some gifts and deleting others, and the amended draft was returned to Elizabeth Kollias at some time prior to 12 January 2001 for final engrossing;

(g) On 12 January 2001 Denise Knaggs drove Betty Dyke to the office of Hunt McCullough Kollias & Co and the new will was executed. The executed will incorporated the handwritten amendments made to the draft provided to Ms Dyke between 22 December 2000 and 12 January 2001.

TESTAMENTARY CAPACITY - THE DECEMBER 2000 CODICIL

631 A number of matters give rise to suspicion regarding Betty Dyke's testamentary capacity at the time of the preparation and execution of the December 2000 Codicil and the 2001 Will.

Appointment of Mr Kollias as an Additional Executor Unexplained

632 A principle effect of Betty Dyke's December 2000 Codicil and the 2001 Will was to permit her conveyancing solicitor, Mr Kollias, to become an executor of her will in addition to Tim Knaggs, Graham Smith and Robert Allen. The standard form clause used in the firm of Hunt McCullough Kollias & Co for charging professional fees in the administration of a deceased's estate, was also included in the 2001 Will.

633 However, Betty Dyke permitted Mr Kollias to become an executor of her estate without seeking any estimate as to the professional charges which this would attract from either him, or his daughter Elizabeth Kollias, or any other member of his firm. Any such professional fees, if charged, would have had the effect of reducing the value of her residuary estate. In fact this proved to be the case, and in large measure. Pursuant to an unidentified agreement with the executors of the 2001 Will, Mr Kollias charged a commission of $150,100 in respect of "Professional Costs" for the sale of the remaining portion of Betty Dyke's land and $10,195 for professional fees in respect of the associated conveyancing work. There was no evidence as to the amount of his fees in respect of administration of the estate, however I infer that this was in addition to the other charges.

634 Failing to make any enquiry as to the level of fees charged by a professional executor in administering her will was a departure from her practice in the course of making the 1999 Will. She had then asked Mr Moffatt what he would charge as a reserve executor. Mr Moffatt gave his advice to her on 1 September 1999. Some two weeks later on 16 September 1999, and four days prior to signing her 1999 Will, she also asked her accountant, Mr Wadeson, what the professional charges for administering her estate would be. She was advised that they would be between $10,000 and $50,000.

635 Further, her conduct in appointing Mr Kollias at all was inconsistent with the concern she had previously expressed in respect of Mr Moffatt's charges for preparation of her 1999 Will, which appeared to her to be too high. She took profound exception to these charges, which, according to Denise Knaggs, "made her furious". She took a similar position in relation to Mr Wadeson's charges for his involvement with the preparation of the 1999 Will. Betty Dyke was vigilant in protecting her interests in this regard. This concern drove her to remove both Mr Moffatt and Mr Wadeson as professional executors of her estate. She appointed the male members drawn from the Neighbours in their place. This was effected by the March 2000 Codicil.

636 Then, and inexplicably, by her December 2000 Codicil and her 2001 Will, which she executed only about nine months later, she proceeded to appoint another solicitor, Mr Kollias, not as an alternate executor, but as an additional executor.

637 This was a remarkable step because Betty Dyke had held a long-standing aversion to the appointment of solicitors as executors of her will. This stemmed from advice which had been given to her by her father many years before. She had previously followed this advice. The 1985 Will had appointed the National Trustees Executors & Agency Company of Australia Limited to be the executor under that will. The appointment of her solicitor Mr Moffatt under the 1999 Will was only as an alternate executor. In any event, he was soon replaced by the March 2000 Codicil by the three male members of the Neighbours who were to benefit under the 1999 Will. The appointment of Mr Kollias in these circumstances was unexplained and out of keeping with her previous will making pattern.

638 Further, there was no evidence which pointed to the necessity to have Mr Kollias appointed as an additional executor. For example, there was no evidence which pointed to any dissatisfaction on the part of Betty Dyke with her existing executors, Tim Knaggs, Robert Allen and Gary Smith, continuing unaided in that role. It would have always been open to them to have sought professional advice and services, had they needed to. Elizabeth Kollias made no such enquiry of Betty Dyke and appears to have accepted the instruction which she had received from her father as to his appointment without question. The evidence relating to Betty Dyke's intention in appointing Mr Kollias as an additional executor to her will is inconclusive and speculative. In her cross-examination Denise Knaggs said this as to the appointment of Mr Kollias:

You do say that on one occasion, Betty had said to you she didn't like solicitors being executors of the will?---That's mentioned, yes.

And you were aware that in this case, other people have said that she said to them that she didn't like solicitors being executors of a will?---Yes - - -

You've heard that?---Yes, I think someone said that.

And you knew that in December of 2000 she was going to make Mr Kollias, who was a solicitor, an executor of her will?---Yes.

By a codicil?---Yes.

And that was discussed?---Yes, mentioned, yes.

And did she say why she was wanting Mr Kollias added as an executor of the will?---I think she wanted Mr Kollias to help the three families get through the executor thing if - when she passed away.

Did she say why?---No, not that I can recall.

You're just speculating when you say I think she - - -?---Well, that was why she did put him on there, so that it would make it easier in the end, so there wouldn't be, I don't know, disruption or whatever.

639 I am satisfied that at the time of appointing Mr Kollias as an executor of her will in his professional capacity, by the December 2000 Codicil as confirmed in the 2001 Will, Betty Dyke was not capable of turning her mind to, or comprehending, the effect of her actions on the administration of her estate upon her death, and the level of the charges that could potentially be levied against it. She was not capable of turning her mind to making appropriate and simple enquiries as to the scale of these potential charges at the time. This was in marked contrast to the enquiries she had made so assiduously some 16 months previously of her accountant and solicitor on the very subject, at the time she was giving instructions for the 1999 Will. Her mind had failed her and there was no one present willing to remind her.

Unexplained and Significant Reduction to Monetary Gifts in the 2001 Will

640 There were a number of significant, but unexplained, reductions to the monetary bequests gifted by Betty Dyke under the 2001 Will compared with the 1999 Will. Suspicion as to testamentary incapacity will be aroused when an elderly testator revokes a prior will and introduces significantly different dispositions for no apparent reason.

641 The reductions included diminishing the gifts to John and Judith Bailey. They had been gifted $30,000 in the 1985 Will. This was increased to $60,000 in the 1999 Will but reduced to $20,000 in the 2001 Will. However, there was no evidence as to why Betty Dyke made this significant reduction. It did not reflect the long-standing friendship with the Baileys, which was evidenced by Ms Dyke inviting them to live with her on her land on a number of previous occasions. It also did not reflect the friendship which continued until Betty's death in 2004, maintained by the regular visits undertaken by John and Judith Bailey three times each year until that time.

642 By her 1985 Will, the Cat Protection Society was gifted the sum of $20,000. This was increased to the sum of $50,000 by her 1999 Will. The gift remained at this level after she made her codicils of March 2000 and December 2000. However, and inexplicably, the gift was reduced to $10,000 in her 2001 Will.

643 Other reductions were also made in the 2001 Will in relation to the gifts provided for Ronald and Lynette Raymond ($40,000 left to Ronald Raymond in the 1999 Will reduced to a joint gift of $20,000), Douglas Edwards ($10,000 in the 1999 Will reduced to nil), Norman Allen ($20,000 in the 1999 Will reduced to $10,000), Julie Nicholson ($10,000 in the 1999 Will reduced to nil), and Steven Allen ($20,000 in the 1999 Will reduced to $10,000). These changes were made after the time when Betty Dyke had taken the draft will home with her following upon the conference with Elizabeth Kollias on 22 December 2000.

644 Overall, the reductions in monetary gifts from the 1999 Will to the 2001 Will amounted to a total of $140,000. However, Betty Dyke's solicitor, Elizabeth Kollias, who took the instructions for the 2001 Will, prepared the final document and oversaw its execution, could not recall making any enquiry of Betty Dyke as to the reason or reasons for the significant changes to the bequests. No explanation for the reductions appears in the evidence.

645 There was no rational basis for Betty Dyke to make these relatively small reductions in the monetary gifts to the beneficiaries listed in her 1999 Will. The handsome gifts of her residuary estate to her Neighbours were magnanimous and the estate was abundantly endowed. I conclude from her conduct that by late 2000 and early 2001 Betty Dyke was no longer capable of appreciating the extent and value of her estate. Further, her solicitor at the time made no enquiry of her to ensure that she did have this necessary appreciation.

Solicitor's Record Evidencing Testamentary Capacity

646 In the note taken by Elizabeth Kollias of her meeting with Betty Dyke on 22 December 2000, Ms Dyke is recorded as expressing uncertainty as to why it was that a new will had been prepared for her. This concern takes on added significance in the light of my finding that she had earlier given instructions to reduce the gift to the Baileys from $60,000 to $20,000 and that Elizabeth Kollias had included this change in the two drafts of the new will which she had prepared by 22 December 2000. Clearly enough, when it came to the meeting on that day, Betty Dyke could not recall having given any recent instructions for the preparation of a new will.

647 The evidence provided by the note leads to the conclusion that Betty Dyke had no understanding of why she had been brought to the conference, and that she was in a state of confusion as to the nature of the exercise then in train, and which she had previously approved. Her state of mind was such that Elizabeth Kollias felt compelled to attempt to offer the explanation she gave as to why a new will was necessary. In my opinion, the note evidences a level of confusion consistent with short term memory loss and cognitive decline in this elderly lady.

648 Elizabeth Kollias sought to explain why Betty Dyke "was clearly not ready to sign" on that day as stated in the note she made on 22 December 2000 by saying that it was because she wanted to think further about altering other bequests made in her 1999 Will. However, Ms Kollias gave no satisfactory evidence of any instructions which she received from Betty Dyke to this effect and the explanation is not substantiated in the file note. I do not accept the evidence of Elizabeth Kollias that Betty Dyke was not ready to sign her will on 22 December 2000 because she wanted to think further about the bequests contained within the document. It is true that, following the meeting of 22 December 2000, Betty Dyke made handwritten amendments to the draft given to her, principally by reducing some gifts and deleting others. However, there was no evidence as to how Betty Dyke undertook this exercise, in whose presence this may have occurred and, if some other person or persons were present, at whose suggestion this may have been done and what, if any, influence may have been exerted upon her.

649 I am satisfied that the principal reason for Betty Dyke not signing a will on 22 December 2000 was the confusion created in her mind by being confronted with a new will to sign, in circumstances where she could not recall having given any prior instructions for a new will.

650 The second note made by Elizabeth Kollias related to the second conference conducted on 12 January 2001, the day on which the new will was executed.

651 It was Elizabeth Kollias' evidence that on 12 January 2001 she read over the terms of the new will to Betty Dyke and that she appeared to understand the terms. This is consistent with what is recorded in the note of 12 January 2001.

652 At the time, Kerry Kollias was employed as a probate clerk at the office of Hunt, McCullough Kollias & Co. As part of her duties she frequently witnessed the signing of wills which had been prepared by either her husband Brian Kollias or her daughter Elizabeth Kollias. She said that the procedure in the firm was always for the legal practitioner to read the will over for the client to ensure the client understood its contents. She recalled the 2001 Will being read over to Betty Dyke on 12 January 2001 who appeared to understand the contents, and then she signed it. She then witnessed Betty Dyke executing her Will.

653 Claire Smith was also called to give evidence. She was a legal secretary employed by Hunt McCullough Kollias & Co between May 2000 and September 2001. Part of her duties involved her participating in conferences with clients of the firm with a supervising solicitor and witnessing wills. She recalled that Betty Dyke attended at the office of the firm on 18 December 2000. Claire Smith was one of the witnesses to the December 2000 Codicil which Betty Dyke signed on that day, along with Elizabeth Kollias who was the other witness. Claire Smith swore that:

Before Miss Dyke executed the Codicil, the Codicil was read over in my presence by Miss Dyke and she appeared thoroughly to understand and approve the contents. [Emphasis added]

She confirmed and explained the procedure in her oral evidence in the following terms:

I was asked to go down and witness a document by Elizabeth Kollias and that was the document that Betty was to sign. She was asked to read it over, which she did, and she was asked if she understood it, and she acknowledged that she did.

Claire Smith was asked how Betty Dyke gave the acknowledgment, to which she answered: "By saying yes". In cross-examination she stated that her belief was that the usual practice in the firm was for the client to read a will or a codicil before signing the document and that she could not recall any occasion when she observed such a document being read over aloud by the supervising solicitor.

654 A fuller note recording precisely what occurred during the will signing process of 12 January 2001 would have resolved the apparent conflict in the evidence. In the absence of an appropriate record, I am unable to safely arrive at any conclusion as to which procedure was adopted on this occasion: that is, whether the completed 2001 Will was read out aloud by Elizabeth Kollias, or whether Betty Dyke read it over to herself before she signed it.

655 The note of 12 January 2001 also raises the question as to why it was necessary to provide Betty Dyke with two copies of the 2001 Will to "double check over the weekend" after she had signed the original document. I infer from this conduct that it was apparent to Elizabeth Kollias that, at the time of signing the 2001 Will, Betty Dyke remained uncertain as to whether the document expressed her intentions, and that two copies were provided to enable her to consult with another person to clarify the position. The conduct is not consistent with the testator being confident that the new will fully and accurately expressed her wishes at the time that she signed it.

656 It was Denise and Tim Knaggs who provided Mr Kollias, at his request, with the full names and addresses of the executors Gary Smith and Robert Allen to assist in the preparation of the December 2000 Codicil and later the 2001 Will.

657 There was no explanation as to why it was that this simple information could not have been sought directly from Ms Dyke and accurately provided by her, if she was of fully sound mind.

658 The fact that these details for inclusion in her codicil and will were not provided by Betty Dyke to her solicitor, but by Denise and Tim Knaggs, is a further factor which raises suspicion as to her testamentary capacity at the time.

659 Elizabeth Kollias failed to take the precaution of obtaining a medical certificate as to the testamentary capacity of Ms Dyke in late 2000 and early 2001. It was her practice to obtain a medical certificate from a medical practitioner as to the testamentary capacity of a client in cases where she had particular concerns. This occurred generally with elderly clients aged over 70 years. However she did not take this step as a matter of course for all elderly clients.

660 Elizabeth Kollias' approach in this case may be contrasted with the procedure adopted by Mr Moffatt in August and September of 1999 when a medical certificate was provided as to the testamentary capacity of Betty Dyke at that time. Although, as observed earlier, the 1999 medical certificate had evidentiary limitations and could not be relied upon as conclusive on the issue of testamentary capacity, it did have some weight as evidence of a contemporaneous medical assessment of the testamentary capacity of Ms Dyke at the time provided by a medical practitioner who had treated her over a long period of time.

661 Further, Mr Moffatt's approach did evidence a desirable practice in obtaining instructions for a will from an elderly person, particularly a testator who is over 80 years of age. As Professor Peisah said:[162]

It is not always easy to identify those clients who are incompetent because people with early dementia may appear relatively normal on casual conversation.

662 Although Elizabeth Kollias said that she did not entertain any doubts about Betty Dyke's ability to make the 2001 Will and said that she "felt that she was perfectly lucid and competent", I do not accept that Betty Dyke's testamentary capacity was at all obvious. Although this may have appeared to Ms Kollias to have been the case, she formed her opinion unassisted by any inquiry or investigation which would have been appropriate in the circumstances.

663 Reference to an appropriately qualified medical practitioner was called for in this case to enable Betty Dyke's mental capacity to be professionally evaluated and ensure that she had sufficient testamentary capacity to proceed with the making of a new will.

Failure to Conduct an Appropriately Detailed Interview

664 A considered and appropriately structured interview with the testatrix was also called for to ensure that Ms Dyke had testamentary capacity at the time. In particular two enquiries ought to have been pursued. The first was to establish whether there was any rational basis for the significant reductions proposed in the gift structure of the new will. A second line of enquiry should have been directed to ensuring that Betty Dyke comprehended the nature and extent of her estate. This was an essential step in determining whether or not this elderly person had testamentary capacity. However, this was neither done, nor attempted. Elizabeth Kollias said in cross-examination on the point:

Now you know one of the first things that's required if you're to determine whether or not a person has capacity to make a will in your role as a solicitor, you need to see whether that person is able to tell you what their assets consist of, don't you?---Yes, Yes.

You never took any instructions at all from Ms Dyke as to what her assets were did you?---No, and I think, you know, it's - - -

The answer's no, isn't it, Ms Kollias?---Yes, the answer's no, yes.

665 The December 2000 Codicil and the 2001 Will were rational on their face.

666 Nevertheless, after applying the necessary scrutiny, there is sufficient evidence to throw doubt upon the competency of the testatrix.

667 The onus is therefore upon the Defendants, as contingent propounders of the 1999 Will and the March 2000 Codicil, to satisfy the Court affirmatively that Betty Dyke was of sound mind, memory and understanding when she executed those instruments and when she gave her instructions for them.

668 After undertaking careful scrutiny of the evidence as a whole, I am not affirmatively satisfied on the balance of probabilities of the testamentary competence of Betty Dyke at the time of giving instructions for the preparation of the December 2000 Codicil and the 2001 Will, or that she had the necessary competence when she executed those instruments.

669 Indeed, I am satisfied affirmatively on the applicable standard of proof that she was not of sound mind, memory and understanding at the relevant times. She was not able to comprehend the effect of a critical clause in her will, namely the effect on her estate of the appointment of Mr Kollias as an additional executor in combination with his firm's professional charging clause which had been inserted on his initiative. She was also unable to place the relatively paltry reductions to the bequests to members of her family and her friends, which she focussed upon, in the context the very large residuary estate she was proposing to leave to her Neighbours. The effect of these reductions was to correspondingly increase the value of the already large and abundantly generous gifts of her residuary estate, and for no good purpose.

670 Accordingly, I am compelled in conscience to find against the validity of the December 2000 Codicil and the 2001 Will, and it follows that these instruments should be set aside.

UNDUE INFLUENCE IN THE MAKING OF THE DECEMBER 2000 CODICIL AND THE 2001 WILL

671 The Plaintiffs have not made out their case that the December 2000 Codicil and the 2001 Will were the product of discrete conduct which amounted to undue influence.

672 Testamentary undue influence may be proved, and most often is, by inferences drawn from circumstantial evidence. However, where the evidence only raises a suspicion of such conduct, it is insufficient. Suspicion is not proof.

673 In this case, having examined the whole of the evidence surrounding the making of the December 2000 Codicil and the 2001 Will, there is no proper basis for concluding that the circumstantial evidence, such that it is, raises a more probable inference in favour of undue influence on the part of any person, than not.

674 Further, I am satisfied that the circumstances attending the preparation and execution of the December 2000 Codicil and the 2001 Will are not consistent with the hypothesis of them having been obtained by undue influence on the part of any person. On the contrary, the circumstances are consistent with the reasonable hypothesis that these instruments were the product of a lack of testamentary capacity on the part of Ms Dyke at the time.

KNOWLEDGE AND APPROVAL OF THE DECEMBER 2000 CODICIL

Are there Suspicious Circumstances as to The Knowledge

675 On the assumption that Betty Dyke did have testamentary capacity at the time of making the December 2000 Codicil and the 2001 Will, in my opinion suspicious circumstances arise in relation to Betty Dyke's knowledge and approval of those instruments.

676 If the evidence of Claire Smith is accepted, and the procedure that she described was applied, with Ms Dyke being asked to read over the December 2000 Codicil and the 2001 Will to herself before giving her assent to the document, suspicion is aroused as to whether she was able to do this effectively.

677 The Plaintiffs case is that Betty Dyke required spectacles to read. There was no evidence that she had any spectacles with her or that she used spectacles while in the office of Elizabeth Kollias on either 18 December 2000, when she executed the December 2000 Codicil, or on 12 January 2001, when she executed the 2001 Will.

678 I do not accept this submission. I am not satisfied as to the degree of visual impairment that she suffered, or indeed if she suffered any material deficiency in her vision at all.

679 Of greater import is whether the procedure described by Claire Smith was the appropriate one for an elderly person such as Betty Dyke. In this regard I return to Dr Lloyd's observations regarding the potential for what he called the "Noddy syndrome".[163] Claire Smith was asked how Betty Dyke gave her acknowledgment after reading the December 2000 Codicil before signing it. She answered: "By saying yes". If that occurred, the procedure she described would not in itself have provided adequate evidence that Betty Dyke had the necessary knowledge of and approved of the contents of her 2001 Will.

680 On the other hand, if the process described by Elizabeth Kollias was adopted, this too would have been deficient. After reading out the clauses of the will to Ms Dyke before she signed it, and in some instances offering an explanation of the clause, Elizabeth Kollias said that she accepted Ms Dyke saying: "Yes" or "nodding her approval" to each clause as signifying her knowledge and approval of the clause in each case.

681 As Dr Lloyd comments in his description of elderly patients with dementia:

[O]ne can interview [them] and have a number of yes responses which if one assesses in any greater depth can actually be found not to be based on any understanding.

An affirmative answer to the question: "Do you understand what this will contains?" is not an adequate reflection of understanding. The client should be asked to explain the effect of what he or she is doing in his or her own words and it is important to record the responses verbatim.[164]

683 Given the appointment of Mr Kollias as an additional executor and the alteration to the will to include his firm's standard clause for professional charges, it was necessary to ensure that Betty Dyke fully comprehended the effect of these changes, including the range of the likely fees which Mr Kollias would charge in the administration of her estate. This had a direct bearing on the administration of her property and the amount available in her residuary estate for distribution to her intended beneficiaries. For this reason, it was essential to ensure that Ms Dyke was in a position to make an informed decision about these matters.

684 In the circumstances of this case, I am satisfied that no adequate attempt was made to ensure that Ms Dyke understood the full effect of the new clauses of the codicil and the will which added Mr Kollias as an executor and provided a facility for him to charge for the administration of the estate in accordance with his firm's standard charging clause. I am further satisfied that Betty Dyke did not comprehend the effect of these clauses and the impact they were likely to have had on the administration of her estate. It is one thing to read out clauses in a will, and even explain their meaning to an elderly client. It is quite another thing to ensure that the elderly client has understood both the clauses and their explanation, and therefore fully comprehends the effect of what is being done. A well founded suspicion therefore arises as to whether Betty Dyke had adequate knowledge of and gave her approval to the instruments before signing them.

685 Having found suspicious circumstances, the onus is cast upon the Defendants, as propounders of the 2001 Will, and contingently the December 2000 Codicil, to satisfy the Court that Betty Dyke possessed the necessary knowledge and gave the necessary approval prior to the execution of these documents.

686 I am not satisfied on the whole of the evidence that the Defendants have discharged the onus which is placed upon them. The evidence to which I have referred in considering the presence of suspicious circumstances justifies this conclusion.

687 Whichever procedure was followed during the execution of the December 2000 Codicil and the 2001 Will, it failed the test referred to by Tadgell JA in Robertson v Smith.[165] I am not satisfied that the process followed in either case went beyond merely establishing that Ms Dyke executed the testamentary instruments after they had been read to her or by her.

688 To this may be added Elizabeth Kollias' poor recollection of the execution of the testamentary instruments she prepared, the failure to conduct any interview with Ms Dyke in the necessary depth, and the manifest deficiencies in record keeping of the process undertaken. Furthermore, I take into consideration my finding that, by late 2000 and early 2001, Ms Dyke's condition had progressed to the stage of mild dementia as described by Professor Peisah.

689 Accordingly, if, contrary to my finding, Betty Dyke did have testamentary capacity at the relevant times, and it becomes necessary to decide the issue, I find that Betty Dyke did not have the requisite knowledge and did not give the necessary approval to the contents of the December 2000 Codicil and the 2001 Will.

690 It follows that these instruments should be set aside on this further ground.

691 Consequent upon my findings that undue influence was exercised on Betty Dyke in relation to the 1999 Will, a question arises whether a Court, having found that only a discrete provision or bequest in a testamentary instrument has been included as a result of improper conduct, may sever the compromised provision or bequest, and admit the remainder of the will to probate. I could find no case precisely on point which could be considered as binding authority.

692 In the interests of achieving finality in this litigation, I should determine this matter now.

693 The learned authors of Halsbury's Laws of Australia put the matter straightforwardly enough. They state:

If the whole of the will is affected by undue influence, the will is invalid, but if only part of the will is affected, that part may be severed and the rest of the will admitted to probate.[166]

694 An early Victorian authority is cited in support of this proposition.[167] In the case of Re Nickson (dec'd)[168] A'Beckett J had cause to consider a will made in August 1915. In a will drawn by her long-time solicitor, Mr Kemp, Mrs Nickson left the bulk of the residue of her estate to him. It appears that Mrs Nickson had become somewhat infatuated with Mr Kemp. The Court said in obiter that, even if there had been no evidence of coercion and control over the mind of Mrs Nickson, if it had been found that Mr Kemp had failed to fulfil his obligations, the Court "should strike the gift to Mr Kemp out of the will", and admit the remainder to probate.

695 In the 1847 decision of the House of Lords in Allen v M'Pherson[169] the majority (Lords Lyndhurst, Brougham and Campbell) agreed that the Ecclesiastical Court had the power to "admit a part of an instrument to probate, and refuse it as to the rest".[170] As Lord Campbell put the matter:

[T]he distinction attempted to be drawn between the powers of the Court ... over a will and a part of a will, or over a codicil and a part of a codicil, cannot be supported.

... it is quite clear that the Ecclesiastical Court had jurisdiction to refuse probate of that part of the codicil which affects the appellant, because giving credit to the facts stated, that part of the codicil was not the will of the testator; he was imposed upon; and that part of the codicil ought to have been refused.[171]

696 Thereafter, the House of Lords entrenched the position. In Fulton v Andrews,[172] in an appeal from the Court of Probate (as the Ecclesiastical Court had by then become), an order was made remitting a previously granted probate back to that Court with directions that the grant be remade, less the residuary clause. Then in Wintle v Nye[173] it confirmed the legitimacy of a Court taking a blue pencil to a testamentary instrument in order to prevent a fraudulently procured bequest being admitted to probate along with the balance of a will.

697 Rhodes v Rhodes[174] was a decision of the Privy Council on appeal from the Supreme Court of New Zealand decided in 1882. In his judgment Lord Blackburn made a clear (in obiter) that in cases where an instrument has been sufficiently proven as comprising a testator's will, "but that from fraud ... the instrument ... also contained something that was not his will, this latter part is to be rejected".[175]

698 The issue in Rhodes was complicated by the fact that the rejection of the words not representing the true will of the testator in that case would have caused the sense of those that remained to be markedly altered. Lord Blackburn resolved the question in the following way:

A much more difficult question arises where the rejection of words alters the sense of those which remain. For even though the Court is convinced that the words were improperly introduced, so that if the instrument was inter vivos they would reform the instrument and order one in different words to be executed, it cannot make the dead man execute an new instrument; and there seems much difficulty in treating the will after its sense is thus altered as [validly executed according to law, given] the signature at the end of the will required ... [by law] having been attached to what bore quite a different meaning.[176]

699 In Australia, Kitto J considered the position in Osborne v Smith.[177] It was declared to be "undoubted law" that a Court of Probate may:

[I]n an appropriate case, grant probate ... in respect of a portion only of a document which has been executed as a will, omitting other portions as having formed no part of that to which the execution of the document really applied, as for example, where by fraud or mistake there has been included in the instrument words which in truth were not part of the testator's will.

700 Further, Kitto J in Osborne[178] cited Lord Blackburn's warning in Rhodes v Rhodes against omitting words from a testamentary instrument where the result would be to alter the sense of those which remained, observing[179] that:[180]

[A] Probate Court may [not] omit from the probate a word or words which appear in a will, where the omission will cause other words of the will to produce a result different from that which was within the knowledge and approval of the testator.

701 In Re Fenwick (decd)[181] Menhennitt J[182] cited Osborne v Smith, Fulton v Andrew, Rhodes v Rhodes and the earlier Victorian decision of Re: Hemburrow,[183] as authority for the proposition that:

In an appropriate case, probate may be granted in respect of proportion only of a document executed as a will, omitting other portions where, for example, by fraud, mistake or inadvertence there has been included in the instrument words which in truth were not part of the will of the testator. [Emphasis added]

702 Shortly thereafter, the New Zealand Court of Appeal in Tanner v Public Trustee[184] regarded it[185] as uncontroversial that a Court is permitted to grant probate of a will, but at the same time disallow, or effectively sever, particular benefactions on the ground of the "unrighteousness of those transactions". As Turner P observed:[186]

[T]he righteousness of [a] transaction, ... may be relevant only to a consideration of the validity of the particular benefactions whose righteousness is under suspicion; and in the present case therefore the unrighteousness of the transaction is not properly to be accepted as a decisive reason for refusing probate of the whole will. [Emphasis in original]

703 Testamentary undue influence falls squarely within the examples of fraudulent conduct cited by Menhennitt J in Re Fenwick (decd). As Lord Campbell confirmed more than 150 years ago in Allen v M'Pherson,[187] it is quite clear that a Court exercising probate jurisdiction has power to refuse probate of only that part of a testamentary instrument which has been brought about because of an improper imposition upon a testator or testatrix which does not truly represent his or her will.

704 I am satisfied that the words "and TIMOTHY PETER KNAGGS, farmer, both" and "or the survivor of them living at my death" contained in clause 5.1 of the 1999 Will, should be excised and not admitted to probate. Additionally, it follows as a matter of mechanics that the word "friends" appearing in clause 5.1 should be amended to the word "friend" by deleting the letter "s".

705 I am satisfied that these amendments will not cause other words of the will to produce a result different from that which was intended by the testatrix. The severance of the bequest to Tim Knaggs is "self-contained".[188]

706 The effect of the amendments to the 1999 Will is that Denise Knaggs will take a one third portion of the residuary estate in her own right and not jointly with her husband Tim Knaggs, who will no longer be a beneficiary. By this means the instrument will be restored to reflect the true will of Betty Dyke.

Gary Smith, Robert Allen, Tim Knaggs & Brian Kollias (solicitor, now deceased)

1. [1] Australian Summary Page, United Nations Convention on the Rights of Persons with Disabilities _2006(_2007) ATNIF 15.

[2] Burns, F. R., 'Elders and Testamentary Undue Influence in Australia'[2005] UNSWLawJl 8; , (2005) 28(1) UNSW Law Journal 145 at 145-146.

[3] Convention on the Rights of Persons with Disabilities 2006, Australian Treaty Series [2008] ATS 12.

1. [4] New York, 5 December 2006 ( See: www.un.org/esa/socdev/enable/rights/ahc8usgmsg last observed 23 February 2009)

[5] See: 'Making it Work: Civil Society Participation in the Implementation of the Convention on the Rights of Persons with Disabilities', Declaration of Madrid - Expert Working Group, Madrid, 27 November 2007 (a world body of disability experts organised by the United Nations Department of Economic and Social Affairs, the Office of the High Commissioner for Human Rights, the Government of Spain and Fundacion ONCE, November 2007, Madrid, Spain).

[6] Australia signed the CRPD when it was opened for signature on 30 March 2007. It was one of the first Western countries to ratify the Convention. It has not yet signed the Optional Protocol to the Convention, although it has commenced the process of examining the appropriateness of such a course. (See:

www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_UnitedNations ConventionontheRightsofPersonswithDisabilities last observed 1 February 2009).

[7] Convention on the Rights of Persons with Disabilities, Article 1.

[8] In an International Law context, chapeaux are text that appears in an international treaty which broadly defines the principle(s) or object(s) of a treaty or an article in a treaty.

[9] See: "Guiding Principles of the Convention" United Nations Enable, Rights of Persons with Disabilities (See: www.un.org/disabilities/default.asp?navid=14&pid=156 last observed 23 February 2009).

[11] Administration and Probate Act 1958, Part IV, s. 91.

[12] [1997] 2 VR 359.

[13] Grey v Harrison [1997] 2 VR 359 at 366.

[14] Croucher R. F., 'Statutory Wills and Testamentary Freedom - Imagining the Testator's Intention in Anglo-Australian Law' (2007) 7(2) Oxford University Commonwealth Law Journal 241 at 263-4.

[15] Burns, F. R., 'Elders and Testamentary Undue Influence in Australia' [2005] UNSWLawJl 8; (2005) 28(1) UNSW Law Journal 145 at 146.

[16] [2002] HCA 59.

[17] Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59 at 13 - 14.

[18] Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59 at 13.

[19] Sugden v St Leonard's (1876) 1 PD 154.

[21] Brown v M'Encroe (1890) X1 NSWR 134 at 142.

[22] [2008] VSC 350 at [145].

[23] [2005] NSWSC 902 at [34].

[24] [1966] 2 WLR 717.

[25] [2004] VSCA 109 at [120 - 121].

[26] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141.

[27] [1998] HCA 28; (1998) 153 ALR 490.

[28] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 517-518.

[29] See: Section 3 of the Vienna Convention on the Law of Treaties 1969, Articles 31 - 33.

[30] [2005] HCA 33; [2005] 223 CLR 189 at 211.

[33] A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 251 - 256.

[34] A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 277.

[35] A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 252.

[36] Literally: "pacts must be respected".

[37] [2005] HCA 33; (2005) 223 CLR 189.

[38] The Convention for the Unification of Certain Rules Relating to International Carriage by Air (The Warsaw Convention 1929 as amended by the Montreal Protocol No 4).

[39] Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189 at 211.

[40] [1998] HCA 65; (1998) 196 CLR 161 at 186.

[41] Commentators differ as to the correct interpretation of Article 31. Differences of opinion exist as to the circumstances in which the "context ...object and purpose" of a treaty may be used to supplement the "ordinary meaning" of a treaty. See: McHugh J in A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 253

1. [42] The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights of Persons with Disabilities (the 'Ad Hoc Committee') was established by UN Resolution 56/168 of 19 December 2001. In accordance with General Assembly Resolution 58/246, the Ad Hoc Committee started its negotiation on a draft convention at its Third Session from 24 May to 4 June 2004, based on the draft text prepared by the Working Group. The Committee completed two readings of the draft text during its Third, Fourth (23 August to 3 September 2004), Fifth (24 January to 4 February 2005) and Sixth Sessions (1-12 August 2005). At its Seventh Session, from 16 January to 3 February 2006, the Ad Hoc Committee considered a draft text proposed by the Chair, reflecting the work of the Committee. At its Eight session from 14 to 25 August 2006, the Ad Hoc Committee adopted the draft text of the CRPD including an optional protocol, as a whole, without a vote. (See: www.un.org/disabilities/default.asp?navid=24&pid=1423 last observed 24 February 2009)

[43] See: 'Background Conference Document Prepared by the Office of the United Nations High Commissioner for Human Rights" - "Executive Summary"' prepared for the Sixth Session of the Ad Hoc Committee conducted 1-12 August 2005 concerning Draft Article 9.

[44] The Sixth Session of the Ad Hoc Committee was conducted 1-12 August 2005. See: Documents of the Sixth Session (www.un.org/esa/socdev/enable/rights/ahc6documents last observed 24 February 2009)

[45] 'Background Conference Document Prepared by the Office of the United Nations High Commissioner for Human Rights' paragraph 37 p. 20; See too: Report of the Fifth Session of the Ad Hoc Committee 23 February 2005, paragraphs 20 and 21 (linked to www.un.org/disabilities/countries.asp?id=166 last observed 24 February 2009).