Plaintiff v Applicant

1 James Allen Watson died on 8 March 2016, aged 89 years ('the deceased'). His wife predeceased him, having died on 31 December 2015. The deceased and his wife had no children.

2 By his will dated 21 December 2015 ('the will'), the deceased appointed the plaintiff, who is an accountant and a longstanding friend, as the executor and trustee of his estate. His will gave all his real and personal estate to his wife for her lifetime and, upon her death, to Alexandra Eileen Sozanski and Michael Joseph Sozanski as tenants in common in equal shares ('the residuary beneficiaries').

3 The deceased's estate comprised real estate and personal estate, with a combined value of $2 081 334.60. Probate of the deceased's will was granted to the plaintiff on 10 June 2016.

4 The residuary beneficiaries were longstanding friends of the deceased and his wife and were treated by them as their children. The residuary beneficiaries also provided care and support for both the deceased and his wife over a long period of time.

5 The applicant is a nephew of the deceased. By summons filed 15 February 2017, the applicant seeks revocation of the grant of probate and that he be at liberty to apply for letters of administration of the estate of the deceased with the deceased's penultimate will dated 23 February 1989 annexed.

6 No grounds for the revocation of the grant were provided in the applicant's summons. In his affidavit sworn 9 February 2017, the applicant alleges the deceased lacked testamentary capacity around the time the will was executed and undue influence of the deceased by the residuary beneficiaries. Affidavits were also filed on behalf of the applicant by his brother, a niece of the deceased's wife, the daughter of that niece and the applicant's solicitor. All of the affidavits contain a substantial amount of objectionable and inadmissible material.

7 The applicant's solicitor exhibited correspondence between himself and the plaintiff's solicitor, which included a copy of the will file and pages from an advice from the applicant's counsel. The exhibited correspondence from the applicant's solicitor contains intemperate allegations of undue influence, without any details, and of there being grave concerns about the execution of the deceased's will, also without any details.

8 Nevertheless, the applicant's solicitor sought production of a wide range of documents from the plaintiff's solicitor pursuant to what he described as 'pre-litigation discovery/supply of information obligations imposed on potential parties and their lawyers' on the basis of a purported practice adopted by the Court in the Trusts, Equity and Probate List.

9 The plaintiff's solicitor refused the request and rejected the allegations made by the applicant's solicitor. He considered the applicant was entitled to a copy of the will file and informed him that any application to set aside the deceased's will would be the subject of a summary dismissal application and costs would be claimed on an indemnity basis.

10 At the first directions hearing, the applicant was ordered to file and serve particulars of his grounds for revocation. The filed particulars contained two grounds: that the deceased lacked testamentary capacity during the period shortly before and at the time of the execution of the will, and that the deceased did not know and approve of his will. No allegation of undue influence was made despite the allegation having been made on numerous occasions by the applicant's solicitor and in the applicant's affidavit.

11 On the return of the application, the applicant's grounds for revocation and particulars of grounds filed 6 April 2017 were struck out, with leave granted to file and serve amended particulars of grounds.

12 The applicant's further particulars of grounds of revocation filed 4 May 2017 provide as follows:

1. James Allen Watson, deceased ('the deceased') lacked testamentary capacity during the period shortly before, at the time of the execution of the deceased's last will dated 21 December 2015 ('the Will') and in the weeks after the 21 December 2015.

(a) By reason of his multiple medical conditions (including a recent stroke) the deceased did not understand the nature and effect of the Will.

For many years prior to June 2015, the deceased had suffered from psychiatric or psychological problems that left him incapable of managing his legal and financial affairs, which were handled by his wife, Vere Freda Watson ('Bon'). In or about June 2015 the deceased suffered a stroke ('the stroke') which then left him totally dependent upon Bon for matters relating to both his personal care and his decision making in relation to his legal, financial and personal matters as he was totally unable to care for himself or make proper decisions concerning his legal or financial affairs.

(b) Further, by reason of the deceased's confusion and disconnection from real persons and events in the days preceding the signing of the Will and the weeks following the signing of the Will the deceased did not understand the nature and effect of the Will.

(i) On 17 December 2015 the deceased, in conversations with the deceased's niece Coralie Joy Wedd ('Coralie') was:

(1) rambling and distractible and not making sense, his only coherent and repeated statements being that he should have called the ambulance;

(2) confused as he called Coralie by her mother's name, a mistake he should not have made as Coralie's mother, Joyce Etheline Barnett ('Joyce') who was Bon's sister, was well known to the deceased as was Coralie;

(ii) On or about 19 December 2015 the deceased was uncommunicative and detached during a hospital visit by Coralie, her husband Richard Keith Wedd ('Dick') and Coralie's grandson, Mathew Allan Smith ('Mathew'), which lasted about one half hour;

(iii) During the course of three hospital visits by Coralie's daughter, Jacqueline Maree De Koning ('Jacqueline') prior to Christmas 2015 the deceased was on each occasion vague and his conversations did not make much sense;

(iv) On 23 December 2015 during a hospital visit by Jacqueline and her son Maxwell De Koning ('Max'), and Joyce the deceased spoke to Max as though they had met before, referred to him as 'Dick' and spoke about the last time they had met. The fact is that Dick was then aged about 78 years and is Coralie's husband whereas Max was then aged about 26 years and had not previously met the deceased;

(v) On 27 December 2015 at a hospital visit attended by Coralie between about 11.00 am and 3- 4.00 pm the deceased was not making sense in his discussions with Coralie and said inter alia he would honour Bon's wishes and that the only people to be involved were Coralie and Michael when the Will made no provision for Coralie and she was not named as an executor of the deceased's Will;

(vi) Shortly after Bon's death on 31 December 2015 during a hospital visit by Coralie and Dick the deceased was confused, did not appear to have a grasp of matters and not was making sense in his discussions, particularly in that:

(i) The deceased told Coralie and Dick he had a book to show that Dick played cricket against England and kept returning to this subject of Dick's supposed cricket game against England. The fact is that Dick once played for a Victorian country team against South Africa and has never played cricket against England;

(ii) The deceased repeatedly said "I have been a bad boy. I have made a mistake. I shouldn't have done it" but did not say what he had done that was bad or what the mistake was that he had made.

(vii) In early January 2016 during a visit at the hospital from the deceased's nephew Bruce James lvey ('Bruce') which visit lasted about 45 minutes, the deceased was rambling and confused and not making much sense in his discussions with Bruce other than to refer to a book from the 1930's on paint, to talk about a recipe for paint he had invented, which he had done sometime in the 1960's-1970's, and repeatedly stated he should have done more for Bon. He otherwise did not connect with the present day and presented to Bruce as being heavily medicated;

(viii) In early January 2016, when the deceased was then in a nursing home at Dorothy lmpey Home, during a visit by Bruce which lasted about 1 hour, Bruce showed the deceased their family tree which had photographs of various relatives. The deceased did not recognize many of the names or the people in the photographs and his conversation was not making much sense.

(c) The deceased failed to understand the extent of or value of his estate or the nature of his estate when will instructions were taken on 21 December 2015:

(i) The Will gave the trustee the deceased's real and personal property upon trust for the use of Bon during her lifetime subject to her paying all rates, taxes and outgoings when in fact the deceased and Bon were registered as joint proprietors on the title of their property at 38 Willonga Road, Strathmore ('the Strathmore property') and had been since 27 January 1971 and were registered as joint proprietors of their property at 38 Cheniston Road, Mount Macedon ('the Mount Macedon property') and had been since 26 October 1982.

(ii) The Will gave the deceased's other property to the trustee upon trust for Bon during her lifetime, which property included numerous bank accounts which the deceased was incapable of managing due to the stroke and which the Applicant believes were jointly owned with Bon.

(iii) The solicitor's file note records the deceased had real property 38 Willonga Street and a block of land at Mt Macedon and 3 bank accounts estimated at $700,000 as comprising 'everything' whereas the Inventory of Assets and Liabilities of the deceased dated 3 June 2016 recorded the deceased had the properties at 38 Willonga Street, Strathmore and 38 Cheniston (sic) Road Mount Macedon and a total of 10 bank accounts spread over 4 banks which banks accounts totalled $321,834.66 and an accommodation bond of $550,000.00 in relation to Dorothy lmpey Home. The total of all bank accounts and accommodation bond is $871,834.66. It is not known what monies were spent or gifted by the deceased between his signing the Will and his death. Additionally the deceased owned 2 motor vehicles stated in the inventory to be worth $11,500.00.

(d) The deceased did not comprehend or appreciate the claims to which he ought to have given effect.

(i) The deceased had lived with Bon in a de-facto relationship for some 25 to 26 years prior to their marriage in 1970 and thereafter they had continued to live together up until their hospitalisation on 15 December 2015, and whereas the deceased's penultimate Will dated 23 February 1989 left the deceased's entire estate to Bon the Will dated 21 December 2015 gave Bon the use of his real and personal property during her lifetime only subject to her paying all rates, taxes and outgoings.

(ii) The deceased failed to comprehend or appreciate that he and Bon were registered as joint proprietors of their real properties.

(e) The deceased was suffering from a disorder of the mind that resulted in unwanted dispositions.

The combination of the deceased's pre-stroke psychiatric or psychological problems, the stroke and the deceased's state of confusion and disconnection as described above resulted in him gifting to Bon a right to use his real and personal property during her lifetime when in fact she was registered as a joint proprietor of that real property and it is believed by the Applicant that she held joint bank accounts with the deceased.

1. The Will was executed in suspicious circumstances giving rise to a presumption that the deceased did not know or approve of the contents of the Will.

PARTICULARS OF SUSPICIOUS CIRCUMSTANCES AND LACK OF KNOWLEDGE AND APPROVAL

(a) It appears from the available documents that the deceased was taken to his appointment with the solicitor who made the Will by the residuary beneficiaries, Alexandra Eileen Sozanzki ('Alexandra') and Michael Joseph Sozanski ('Michael') in circumstances where each of Alexandra and Michael:

(i) Knew or ought to have reasonably have known that the deceased had long-term psychiatric and psychological injuries and had suffered a stroke in or about June 2015 which rendered him wholly reliant upon Bon for matters relating to both his personal care and his decision making in relation to legal, financial and personal matters;

(ii) Knew or ought reasonably have known by reason of their presence at the Royal Melbourne Hospital over a number of days prior to the signing of the Will had not been making sense in his conversations.

(b) The Will purported to gift to Bon a right to use the deceased's real and personal property during her lifetime when in fact Bon was registered as a joint proprietor of both real estate properties and it is believed by the Applicant that Bon held joint bank accounts with the deceased, and that the deceased's residuary estate was then left wholly to Alexandra and Michael.

(c) On 17 December 2015 whilst Coralie visited both the deceased and Bon at the Royal Melbourne Hospital Michael remained in the deceased's room throughout her visit and Alexandra remained in Bon's room throughout her visit.

(d) On 19 December 2015 whilst Coralie and Dick and Coralie's son, Mathew Alan Smith ('Mathew'), visited the deceased and Bon together in Bon's room at the Royal Melbourne Hospital for approximately a half hour and Michael remained present in the room throughout the visit and did not leave.

(e) On 27 December 2017 [sic] Coralie visited the deceased and Bon in Bon's room at the Royal Melbourne Hospital between approximately 11.00am until between 3.00-4.00pm and Michael remained present in the room throughout the visit and did not leave.

13 A grant of probate or a grant of letters of administration is more than just a court order: it is proof of the validity of the deceased's will.[1] The Court in its probate jurisdiction has the power to revoke a grant, with such power exercised at the discretion of the Court having regard to all relevant circumstances in the particular case.[2] The revocation of a grant of representation is equivalent to setting aside a court order.[3] The power to revoke a grant is not exercised as of course or of right.

14 Probate litigation is interest litigation and an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings.[4] An interest sufficient to entitle a person to oppose a grant of probate or letters of administration is sufficient to entitle a person to apply for revocation of a grant of probate or letters of administration.[5]

15 An applicant seeking to revoke a grant must show that he, she or it has:

(b) a reasonable explanation for the delay in bringing the application to revoke the grant; and

(c) a prima facie case to challenge the grant of probate or letters of administration.[6]

16 In order to establish a prima facie case, an applicant must provide a sufficient factual basis for his or her grounds of revocation.[7] The grounds of revocation must include particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds relied on by him or her. This will define the questions for trial, provide an opposing side with a precise understanding of the applicant's case and avoid surprise at the trial.

17 Where the particulars of the grounds of revocation are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[8] In default of particulars that fail to provide a sufficient factual basis for the grounds of revocation, the Court will dismiss the application. If there is a proper basis for the application, directions will be made for the trial of the proceeding.

18 At all times an applicant must be mindful of the applicable overarching obligations under the Civil Procedure Act 2010.

19 The applicant contends that he has an interest adverse to the grant of probate on the basis that he is one of the next-of-kin of the deceased on intestacy. Under the deceased's penultimate will dated 23 February 1989, the assets of the deceased were left to his wife. As the deceased's wife predeceased him, if the grant of probate is revoked, the estate would fall to be distributed on intestacy. The beneficiaries of the estate on intestacy are the deceased's three nephews, one of whom is the applicant.

20 The affidavits filed in support of the applicant's summons set out details of some visits made to the deceased in hospital and at the deceased's nursing home by some of the deponents, attendance by some at the deceased's funeral and enquiries made of the plaintiff concerning the contents of the deceased's will shortly after the deceased's death.

21 The applicant first contacted his solicitor in late July 2016, after the grant of probate had been made. His summons for revocation was not filed until some eight months after the date of the grant of probate. His explanation for this delay was that by the time he and his brother, Bruce, had been contacted by the family of the deceased's wife and 'pieced the story together, probate had been granted'. His brother did not refer to this in his affidavit. The applicant has not identified the family of the deceased's wife who contacted him nor the story that has been 'pieced together'. It is clear from the affidavits and the exhibited correspondence that certain family members attended the deceased's funeral and knew of the contents of the deceased's will soon after the death of the deceased as a result of the enquiries made of the plaintiff.

22 The applicant said that after this contact from the family of the deceased's wife, efforts were made by his solicitor to resolve the matter and referred to the exhibited correspondence. This correspondence does not show a genuine attempt to resolve the matter by his solicitor. What it shows are unsubstantiated and wide ranging allegations of a serious nature made against unidentified persons in relation to the deceased's will.

23 The usual course adopted by a person concerned about the effect of a deceased's will is to lodge a caveat against the making of a grant. The applicant has not explained why he did not lodge a caveat with the Registrar of Probates. He, members of his family and members of the family of the deceased's wife knew of the deceased's death and the particulars refer to their concerns about the deceased. The applicant has stood by without intervening prior to the grant being made and has not provided an adequate explanation for his delay in making his application for revocation of the grant of probate.

Ground 1: whether the deceased lacked testamentary capacity shortly before and at the time of the execution of his will

24 The classic statement as to the legal test for testamentary capacity is stated in Banks v Goodfellow:

It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he 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.[9]

25 These principles have been consistently applied at intermediate appellate levels across Australia.[10]

26 The requirement that a testator should understand the extent of his or her property when making a will has been relaxed over the years as many elderly persons choose to give a degree of control of their finances to their relatives and advisors.[11] That is their decision and it is often a wise decision. When assessing testamentary capacity, a court should, in light of this, look not to the testator's actual understanding of their precise financial situation but to their capacity to understand the nature of their assets, the extent of their assets, how they wish those assets to be divided and who they should consider when dividing those assets. Making a will is not an exercise of memorising, but disposition. The Court is concerned with the soundness of a testator's ability to dispose of his or her assets.

27 Prior to the issue of the summons for revocation, the plaintiff's solicitors forwarded to the applicant's solicitor a significant amount of information to support the plaintiff's rejection of the allegations then made by the applicants, namely, that the deceased lacked testamentary capacity when he executed his will and of undue influence. The exhibited correspondence includes reference to opinions from medical practitioners for the period from 15 September 2015 through to the deceased's death and afterwards, from the solicitors who took the deceased's instructions and from the plaintiff who was present when the deceased gave his instructions for his will to the solicitors. Letters from the medical practitioners were also forwarded to the applicant's solicitors on 17 January and 10 February 2017.

28 The exhibited correspondence refers to the circumstances when the deceased gave instructions for his will and power of attorney. At that time, there were two solicitors and the plaintiff present with the deceased. The plaintiff was present at the request of the deceased. The will was executed in the presence of the two solicitors and the plaintiff. The solicitors state that the deceased was completely lucid and clear, gave clear instructions as to his wishes and there was no doubt in their minds that the deceased had full testamentary capacity. The plaintiff confirms this, stating that the deceased was mentally alert and knew exactly what he wanted in his will.

29 On the day the deceased gave his instructions, Dr Edmund Song from Royal Melbourne Hospital provided a letter of the same date stating as follows:

I [have] assessed [the deceased] and believe he has capacity and informed consent to be able to appoint an enduring medical and financial power of attorney and a guardian of his choosing, if he so wishes.

30 While Dr Song did not specifically address testamentary capacity, he did assess capacity in the context of the execution of important documents relating to the deceased's medical and financial affairs, documents that also require capacity of a donor of the power at the time of execution.

31 Dr P G Marsh, the general practitioner of the deceased, provided his opinion of the deceased's testamentary capacity from his awareness of the deceased's medical history and the last occasion he saw the deceased, being three months prior to the deceased giving instructions for his will. Against that background, Dr Marsh has provided an opinion as to the deceased's testamentary capacity when the instructions were given by the deceased as follows:

This pleasant gentleman was a patient at my practice for at least 27 years prior to his death, so I am therefore well aware of his medical history.

I last saw [the deceased] on 15.9.15, when I visited him at home to discuss his on going problem with chest pains (angina) and to review his medication.

Although frail, he was cheerful, mentally alert, articulate and displayed no sign of any cognitive impairment whatsoever.

Therefore on 15.9.15, I am strongly of the opinion that [the deceased] had full testamentary capacity.

I understand that his will was signed 3 months later on 21.12.15, so that considering the short time span since I last saw him, there would have been little or any change in his mental state during that time, and that therefore [the deceased] was fully capable of making and executing his last will on 21.12.15.

32 Dr Ian Stokes became the deceased's doctor when the deceased was admitted to Dorothy Impey Home in mid-January 2016. He provided an opinion as to the deceased's testamentary capacity when the deceased gave instructions for his will based on his attendances on the deceased from mid-January 2016 until the death of the deceased. His opinion as to the deceased's testamentary on 21 December 2015 is set as follows:

I became [the deceased's] doctor when he was admitted to Dorothy Impey Home on 14/01/2016.

I met with [the deceased] on a number of occasions prior to his deterioration and death. On these occasions [the deceased] was lucid and of normal mental state. He was able to discuss his medical and social history with me and with the staff of the Dorothy Impey Home.

Based on these conversations, it is my opinion that [the deceased] had testamentary capacity at the time of his admission to Dorothy Impey Home and prior to his admission.

It is my opinion that [the deceased] would have been capable of making a will on 21/12/2015 and for the first couple of weeks after his admission to Dorothy Impey Home he would have been capable of changing the content of his will had he not been happy with it.

33 The deceased's death certificate does not record that the deceased suffered from an illness relating to capacity, such as dementia. The causes of death of the deceased were recorded as ischemic heart disease and chronic kidney disease suffered for years, renal failure suffered for three days and acute myocardial infarction suffered for five minutes.

34 The particulars for the allegation that the deceased lacked testamentary capacity are detailed, repetitive, wide ranging in terms of time and events and, in many instances, state conclusions. They fail to take into account the detailed responses provided by the plaintiff's solicitors when the deceased's testamentary capacity was questioned by the applicant's solicitors before the issue of the summons for revocation of the grant of probate. They can be summarised succinctly as follows:

(a) The deceased did not understand the nature and effect of his will because:

(i) of his multiple medical conditions over years (including a recent stroke), which meant that he was dependent on his wife for his decision making, was incapable of managing his legal and financial affairs and incapable of making proper decisions concerning his legal affairs; and

(ii) he was confused and disconnected from real persons in the days before he signed his will and the weeks afterwards, as alleged by various people who visited the deceased at the relevant times.

(b) The deceased failed to understand the extent, value or nature of his estate, did not comprehend or appreciate the claims to which he ought to have given effect and the disorder of his mind resulted in unwanted dispositions because:

(i) his last will failed to comprehend or appreciate that he owned his real and personal property jointly with his wife whereas his will made in 1989 left all of his estate to his wife;

(ii) he was confused as to the amount of money in his bank accounts, with his instructions being he estimated he had around $700 000 in the bank whereas the amount in his bank accounts in the inventory of assets was around $322 000.

35 The allegations that the deceased was incapable of managing his legal and financial affairs and unable to make proper decisions concerning his legal affairs as a result of his multiple medical conditions are vague and without a proper factual basis. It was common ground and accepted by the applicant that the deceased left the management of their financial affairs to his wife and had done so for the past 40 years. This is not unusual in relationships, particularly relationships that have been longstanding. Where one party in a relationship manages the financial affairs, it cannot be said, without more, that this provides a reliable ground that the other person was unable or incapable of making decisions concerning their legal affairs. The causes of death on the deceased's death certificate, the three medical practitioners, the two solicitors and the plaintiff all refute the allegation that the deceased was incapable of making proper decisions concerning his legal affairs. The deceased's instructions were clear in wishing to leave his entire estate to the residuary beneficiaries. This was not a surprising or aberrant decision considering their longstanding and close relationship with the deceased and his wife.

36 The allegations that the deceased was confused and disconnected from the people who visited him appear to rely on conclusions by the people who visited the deceased before and after he made his will, as set out in the particulars. It was common ground that the deceased had not seen or heard from these people for many decades and they had not provided any assistance to him or his wife. The deceased also had a longstanding dislike towards his wife's family. It would not be surprising that the deceased might not have known most of them very well, or did not want to know them, particularly in circumstances where they make sudden appearances at his bedside towards the end of his life. The subjective views of these lay people is in stark contrast to the informed views of the two solicitors and the plaintiff as to the deceased's state of mind when he gave instructions for and executed his will and powers of attorney.

37 The next allegation is that the deceased failed to understand, comprehend or appreciate that his assets were jointly owned with his wife. The first particular is that the deceased did not comprehend or understand that his property was jointly owned with his wife. The solicitor's will file records that the solicitor explained joint ownership to the deceased and his instructions were 'not to change this just yet'. This instruction does not show a failure to understand, comprehend or appreciate that his assets were jointly owned. The second particular is that the deceased was confused about the amount of his funds in his bank accounts. First, it is to be remembered that the deceased's wife managed their money. In those circumstances, it would not be surprising that the deceased might not know the exact amounts in the bank accounts or the number of accounts held by his wife and him. Secondly, the deceased's instructions to his solicitor are clear in that they establish that he understood what his assets were, including that there was money in bank accounts. The deceased also had a better understanding than the applicant has sought to portray in the particulars. At the time the deceased gave his instructions for his will to his solicitor, he had not yet paid the accommodation bond of $550 000 for the purpose of his move to Dorothy Impey Home in January 2016. This would make the deceased's estimate of the money in the bank reasonably accurate in the circumstances.

38 The applicant's allegations and particulars are based on inference rather than direct evidence of a lack of testamentary capacity. They are speculative, vague and circumstantial. The matters and circumstances alleged do not establish a prima facie case that the deceased lacked testamentary capacity shortly before and at the time of the execution of his will.

Ground 2: whether there are suspicious circumstances giving rise to a presumption that the deceased did not know and approve of the contents of the will

39 Any assertion that a will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, an assertion that goes beyond lack of testamentary capacity.[12] It is a testator's understanding that is decisive in determining whether he or she knew and approved the contents of his or her will. Evidence that supports an assertion that the testator did not properly understand the contents of his or her will raises a suspicion in the court's mind which must be satisfied before the court admits the will to probate. An example of circumstances that give rise to such a suspicion is where the person who prepared the will takes a substantial benefit under it.[13]

40 In Nock v Austin, Isaacs J provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:

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

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

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

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

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

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

(7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it.[14]

41 As the will has been admitted to probate, the applicant has the evidentiary burden to point to circumstances that raise a suspicion that the deceased did not know and approve of his will such as to require an investigation as to whether or not there are sufficient grounds to revoke the grant of probate.

42 The suspicious circumstances particularised by the applicant repeat many of the particulars relied on in relation to the applicant's allegation that the deceased lacked testamentary capacity. It is unnecessary to repeat what has already been stated above in respect of the allegations concerning the jointly owned property and a life interest being given to the deceased's wife and the allegations of the deceased not making sense in the specified conversations, being on 17, 19 and 27 December '2017' [sic], as referred to in the particulars. These particulars do not provide a sufficient factual basis to establish a prima facie case of suspicious circumstances.

43 The applicant asserts that it is a suspicious circumstance that the deceased was taken to the solicitor who made the will by the residuary beneficiaries in circumstances where they ought to have known that he suffered certain long term health issues and had suffered a stroke in June 2015 that made him reliant on his wife to make decisions concerning his legal, financial and personal matters. The applicant also asserts that the residuary beneficiaries ought to have known, by their presence at the hospital in the days before the will was made, that the deceased had not been making sense in his conversations when certain relatives visited him in hospital on 17, 19 and 27 December '2017' [sic]. The presence of the residuary beneficiaries on those occasions appears to relate to the allegation of their knowledge of the deceased not making sense in his conversations on those dates.

44 The solicitor who prepared the deceased's will had previously prepared powers of attorney for the deceased and his wife. His file notes show that the deceased was taken to the solicitor at his own request, having made an appointment with him. The applicant was informed by the plaintiff's solicitors that the plaintiff had no previous dealings with the solicitors or the residuary beneficiaries and that the residuary beneficiaries were not present or privy to the discussions between the deceased and the solicitor concerning the deceased's will. The solicitors and the plaintiff are clear that the deceased showed no confusion when he gave instructions for his will.

45 The applicant's particulars are again speculative, vague and circumstantial. They do not establish a prima facie case that the will was executed in suspicious circumstances and they do not give rise to the presumption that the deceased did not know and approve of the contents of his will.

46 The applicant has adopted a combative approach in attempting to challenge the grant of probate. Initially, he made serious allegations of undue influence against unknown people with no details to support the allegations, despite being requested on numerous occasions to provide those details by the plaintiff's solicitor. The allegations of undue influence were contained in his affidavit in support of this allegation yet were not included in his grounds of revocation. At the hearing, counsel for the applicant was queried as to whether the applicant relied on undue influence as a ground. He informed the Court there was no claim for undue influence 'as a specific ground'. As stated above by Isaacs J in Nock v Austin, an allegation of suspicious circumstances should not be used as a screen for any reliance on fraud or dishonesty.

47 The applicant has been given a number of opportunities to file proper particulars of his grounds for revocation of the grant of probate. Despite this, the amended particulars of his grounds did not differ substantially in their content.

48 The applicant has failed to provide a sufficient explanation for his delay in making the application and has failed to establish a prima facie case.

49 Accordingly, the applicant's summons for revocation of the grant of probate is dismissed.

[1] Whicker v Hume [1858] EngR 991; (1858) 7 HL Cas 124; 11 ER 50; Ex parte Brown (1869) 8 SCR 332; Blake v Knight (1843) 3 Curt 547; 163 ER 821; Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185.

[2] In the Will of Lamont [1881] VicLawRp 179; (1881) 7 VLR (I) 86; In re Goode (1890) 11 NSWR (Eq) 281; Re Gillard [1949] VicLawRp 67; [1949] VLR 378; Re Egan [1963] VicRp 46; [1963] VR 318; Re Gardiner [2016] VSC 541 (9 September 2016).

[3] In the Will of Lamont [1881] VicLawRp 179; (1881) 7 VLR (I) 86, 93, 98 (Molesworth J). See also Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53] (Lindsay J).

[4] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [212]-[216] (Lindsay J).

[5] Re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381 (Barry J); Re Egan [1963] VicRp 46; [1963] VR 318; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014); Van Wyk v Albon [2011] VSC 120 (24 March 2011).

[6] See, eg, Offley v Best [1793] EngR 778; (1667) 83 ER 361; In re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381 (Barry J); Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [1963] VR 318, 320 (Herring CJ); Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285]-[288], [309] (Lindsay J), citing Swalwell v Swalwell (Unreported, Supreme Court of New South Wales, Needham J, 15 July 1988); Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53] (Lindsay J).

[7] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242] (Lindsay J), citing Moran v Place [1896] P 214, 216-7 (Kay RJ); Montalto v Sala [2016] VSCA 240 (7 October 2016) [29]-[30] (Warren CJ, Whelan and Santamaria JJA).

[8] In re Smith [1951] VicLawRp 53; [1951] VLR 368.

[9] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ).

[10] Kantor v Vosahlo [2004] VSCA 235 (16 December 2004); Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (10 July 2009); Frizzo v Frizzo [2011] QCA 308 (1 November 2011); Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757.

[11] See, for example, Kerr v Badran [2004] NSWSC 735 (17 August 2004) [49] (Windeyer J); Vukotic v Vukotic [2013] VSC 718 (13 December 2013) [114] (McMillan J).

[12] Veall v Veall (2015) 46 VR 123, 175-6 [173] (Santamaria JA), citing Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 (19 November 2004).

[13] In the Will of Walsh (1892) 18 VLR 723.

[14] Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528 (citations omitted).