Plaintiff v Applicant

18 The plaintiff initially raised two objections to the applicant's reasons for delay in her original grounds for revocation. In substance, the plaintiff contended there was no explanation for the applicant's failure to lodge a caveat and the particulars provided did not demonstrate that the delay was excusable. Subsequent to the filing of the applicant's amended grounds that included such matters as the plaintiff undergoing open heart surgery, having an ongoing psychiatric illness and other significant medical ailments, the plaintiff's written submissions state that 'without conceding the matters now particularised under paragraphs [26]-[34], the plaintiff does not seek further particularity in this regard.'

19 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 the relevant circumstances in the particular case.[1] An applicant seeking to revoke a grant must show:

(a) standing to make such an application;

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

(c) a prima facie case to challenge the grant of probate or letters of administration.[2]

20 The standing of the applicant is not in issue between the parties. The applicant is a child of the deceased, and a beneficiary under the will and penultimate will. If the grant of probate is revoked, the penultimate will would stand as the last valid will of the deceased. Under the penultimate will, the applicant would receive a different and greater benefit from of the estate of the deceased. As a child of the deceased, the applicant would also be a beneficiary on intestacy, and receive a greater benefit than under the will.[3]

21 An applicant seeking to revoke a grant of probate must provide an adequate reason for the delay in bringing the application.[4] The delay between the grant of probate being made and the application for revocation being filed was a period of approximately five and a half months. The applicant's amended particulars on her delay establish that her delay was excusable.

22 An applicant seeking revocation of a grant of probate is required to establish a prima facie case at the commencement of an application for revocation.[5] This requirement is grounded in the Court's concerns to prevent 'frivolous or vexatious'[6] proceedings, to 'show some ground for making the application',[7] to ensure that there is 'a case for investigation'[8] and to provide 'a substantial safeguard against attempts to revoke probate'[9] before an application proceeds to trial.

23 This process is consistent with case management principles and the overarching obligations in the Civil Procedure Act 2010[10] to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[11] In administering its probate jurisdiction, the Court must seek to give effect to that purpose.[12]

24 In order to establish a prima facie case, an applicant must provide a sufficient factual basis for his or her grounds of revocation.[13] Mere assertion of facts are insufficient - a causal connection must be shown between the facts asserted and the grounds of revocation. The provision of a sufficient factual basis will define the questions for trial, provide an opposing side with a precise understanding of an applicant's case and avoid surprise at the trial. Particulars based on mere inference, rather than direct evidence or circumstantial facts that are sufficiently particularised, will be insufficient to support a prima facie case for revocation of a grant of probate.[14]

25 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.[15] In default of particulars that provide a sufficient factual basis for the grounds of revocation, the Court will dismiss the application.

26 If the Court decides to exercise its discretion in favour of an application for revocation, directions will be made for further interlocutory steps to be undertaken and for the trial of the proceeding. The propounder of the will is then treated 'as if he were propounding the will de novo',[16] that is, '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'.[17] The propounder will bear this ultimate burden of proof on the balance of probabilities,[18] although where relevant, will be subject to the 'shifting evidentiary burden in the context of testamentary capacity'.[19]

27 A will that has been the subject of undue influence, within the meaning recognised by the courts of probate, is invalid.[20] Undue influence is a serious claim of an equitable species of fraud, an essential component of which is an allegation of fraudulent conduct.[21] The onus of proof in such claims lies with the party who alleges undue influence.[22] Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one:

to be undue influence in the eye of the law there must be - to sum it up in a word - coercion ... It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be so induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence.[23]

28 The issue in an undue influence claim is whether the will made by the deceased was a product of his or her free will or a product of coercion and therefore undue influence.[24] Particulars that are consistent only with the opportunity to influence a testator or testatrix are insufficient.[25] Undue influence will not be presumed.[26] For the purpose of establishing a prima facie case, the applicant's particulars must establish that there is a 'case for investigation' or raise a 'doubt' concerning the making of the will.

29 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.[27]

30 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.[28]

31 The applicant bears the initial onus of proof to point to circumstances that raise a suspicion that the deceased did not know and approve of his will such that an investigation is required as to whether or not there are sufficient grounds to revoke the grant of probate.

32 Both the applicant and the plaintiff made submissions addressing the particulars set out under the heading 'Background' and these particulars are taken as included under both grounds.

33 The undue influence particulars set out the background of the deceased's physical health from late 2016, the subsequent care provided by his children and other family members, including both the plaintiff and the applicant, and the circumstances attending the execution of the deceased's last will.

34 The particulars rely on the deceased's age and health and the plaintiff's conduct in isolating him from his other family members. The deceased was of advanced age and very ill in March 2017. He had been very ill over a long period, as established by his death certificate. It records that the deceased suffered for years from chronic kidney disease, congestive heart failure, Parkinson's disease, visual impairment and dysphagia. In the weeks before his death, he suffered from right lobar pneumonia and within only two days of signing his last will he suffered a heart attack, described in his death certificate as 'non st elevation myocardial infarction'. In the hours before his death, he suffered from acute pulmonary oedema.

35 The history of the plaintiff's care of the deceased seemed to start in February 2017 when the plaintiff assumed partial responsibility for his care, with other family members attending and assisting with his care as well. In around March 2017, the plaintiff moved into the deceased's home and this appears to be when she starting isolating the deceased from his other family members. The fact that the plaintiff moved in to the home and was caring for the deceased in this manner was unusual as the plaintiff and the deceased had been estranged for about 12 years prior to this over an issue of money. From the time that the plaintiff moved into the deceased's home, the deceased complained to his other family members about his isolation from them and that the plaintiff and her cousin monitored and listened to his telephone conversations, checked his mobile phone call log, and that the plaintiff was using his money for her own personal expenses.

36 On 15 March 2017, the deceased was admitted to hospital with complications from pneumonia. While he was in hospital, the plaintiff and her family continued to monitor and control the deceased, such as staying in the deceased's hospital room when other family members, including the applicant, visited the deceased and he was not given any privacy to speak with his other family members.

37 On 18 March 2017, the plaintiff discharged the deceased from hospital. This was not known to the deceased's family. She called the deceased's solicitor who had prepared the deceased's penultimate will and witnessed the deceased's signature on that will and sought to make an appointment for the deceased to make a new will. The solicitor refused to make an appointment.

38 Five days later, on 23 March 2017, the plaintiff took the deceased to a different solicitor, Mr Fabiatos, and he prepared and witnessed the deceased's last will. Within two days of signing his will, the deceased had a heart attack and died the following day.

39 Coercion may be of different kinds. It is not always actual violence or confinement, it can include pressuring a weak or enfeebled person, or vulnerable or susceptible person and talking or pressing upon that person in a late stage of illness to change his will. That conduct may simply exhaust that person, and the person may be induced to do anything for peace and quiet.[29] As stated by Hallen J in Petrovski v Nasev:

What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual.[30]

40 The deceased's last will was made in unusual circumstances where the deceased was under the control of the plaintiff and he was isolated from his other family members. He was very ill, enfeebled and in the last days of his life. These circumstances make him susceptible and vulnerable to being unduly influenced by the plaintiff to change his longstanding testamentary dispositions in favour of the plaintiff. The last will is significantly different to the provisions in the penultimate will. Prima facie, there is no rational explanation for the sudden and substantial change made in his last will only two days before his death. From the combination of these circumstances, there is a prima facie case that the execution of the deceased's last will was more probable than not to have been the product of the plaintiff's undue influence over the deceased and it is inconsistent with a contrary hypothesis.

41 Accordingly, the Court is satisfied that the applicant has established a prima facie case of undue influence of the deceased by the plaintiff.

42 The deceased's signature on the last will was placed in the wrong place in varying degrees. On the first page, his signature is placed well above the signing line above his name, on the second page he signed above the signing line for Mr Fabiatos. His signatures are also markedly different. The placement of the deceased's signature suggests that the deceased had trouble locating where to sign his name. The lack of consistency between the deceased's signatures on each page and the quality of the deceased's signatures suggest a frailty of mind that raises an inference that the deceased did not know and approve of the contents of his last will and did not understand the document he was signing.

43 The deceased's first language was Cypriot Greek. The last will was translated to the deceased in modern Greek by Mr Fabiatos. The deceased's penultimate will was translated to him in Cypriot Greek. The plaintiff conceded that the deceased's purported inability to understand the Greek translation could form the basis of the ground of objection, however, also submitted that 'the deceased clearly understood the translation'. In his affidavit, Mr Fabiatos deposes that the deceased, having had the will translated to him in Greek, 'appeared to thoroughly understand the same and approved the contents thereof' but did not specify the basis for this conclusion. It may be inferred from his evidence that Mr Fabiatos does not speak Cypriot Greek. The translation of a will into a language in which the testator is not fluent, or which is not his native dialect, supports a prima facie case that the deceased did not know and approve of the last will.

44 The last will also includes the deceased's reasons for not providing for his other children, Mario's children, or provide further for the applicant other than the sum of $20,000. The applicant acknowledges that while the plaintiff, Steve and Kerry received inter vivos gifts from the deceased, she and Mario did not. For that reason, the last will does not reflect the true state of affairs within the family and the applicant asserts that the deceased would not knowingly include such a statement in his will.

45 The applicant also alleges that 'all of the deceased's children had a good relationship with the deceased, apart from [the plaintiff] who had a tumultuous relationship with him.' It can be inferred from this that there was no reason for the deceased to feel no moral obligation towards the applicant or his children, other than the plaintiff, as they had good relationship with him. The plaintiff submitted that 'the deceased's own value judgment as to his obligations cannot be demonstrated to be incorrect'. In establishing a prima facie case, the applicant is not required to prove anything, but merely establish a prima facie case.

46 In his penultimate will, the deceased disposed of his assets held in Cyprus and Australia with specificity whereas his last will does not. Prima facie, the change raises an inference that the deceased did not know of and approve of the contents of the last will.

Amendment to applicant's summons for revocation

47 The applicant's summons requires amendment in respect of a number of matters and leave will be granted to do so. The title to the applicant's summons dated 24 January 2018 is described as 'Summons for Application for Revocation of the Grant of Probate dated 11 July 2017'. The summons requires amendment so that the orders include an order for revocation of the grant of probate dated 11 July 2017 of the deceased's will dated 23 March 2017. Leave will also be granted to the applicant to correct a typographical error in the recital prior to the orders so that it reads 'YOU ARE SUMMONED to attend before the Court on the hearing of an application by the application applicant seeking revocation for the following orders'.

48 The second order sought by the plaintiff is for discovery on oath of the will files, testamentary scripts and writings of the deceased, and all medical or like reports of the deceased at the time the will was executed, said to be pursuant to Order 11 of the Supreme Court (Administration and Probate) Rules 2014 ('the Rules'). Order 11 applies to an application for revocation of a grant of representation[31] and requires that such an application shall be made by way of summons in the proceeding in which the grant was made.[32] Order 11 contains no provisions concerning discovery. The Rules only contain a provision for discovery in an application for a grant of probate that is contested.[33] Discovery in revocation proceedings are made pursuant to the inherent jurisdiction of the Court and the general powers under the Civil Procedure Act 2010 to further the overarching purpose of that Act.[34]

(a) Leave be granted to the applicant to amend her summons for revocation filed 24 January 2018 by:

(i) deleting the word 'application' between the word 'the' and 'seeking' in the recital preceding the orders sought and inserting in its place the word 'applicant';

(ii) deleting the phrase 'Pursuant to Order 11 of the Supreme Court (Administration and Probate) Rules 2014,' in order 2 of the orders sought;

(iii) inserting an order pursuant to r 11.02 of the Supreme Court (Administration and Probate) Rules 2014 seeking revocation of the grant of probate made 11 July 2017 of the will of Antonios Theodoulou deceased dated 23 March 2017;

(b) Leave be granted to the applicant to amend the amended grounds for revocation to reflect her reliance on the particulars contained in paragraphs 1 to 9 thereof;

(c) The applicant be added as a defendant and the heading to the proceeding be amended accordingly;

(d) The proceeding be listed for further directions on 2 November 2018 at 10.00 am before the Honourable Justice McMillan;

(e) Costs reserved.

[1] Re Lamont [1881] VicLawRp 179; (1881) 7 VLR (I) 86; 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).

[2] See, eg, Offley v Best [1793] EngR 778; (1793) 1 Lev 186; (1793) 83 ER 361; Re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [1963] VR 318, 320; Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285]-[288], [310]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53]; Re Watson [2017] VSC 322 (8 June 2017) [15].

[3] Administration and Probate Act 1958 (as in force at 25 March 2017), s 52(1)(f). Section 52 was repealed by the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 on 1 November 2017.

[4] Re Lamont [1881] VicLawRp 179; (1881) 7 VLR (I) 86; Re Gillard [1949] VicLawRp 67; [1949] VLR 378, 382-3.

[5] Re Gardiner (No3) [2018] VSC 414 (31 July 2018) [15].

[6] Re Egan [1963] VicRp 46; [1963] VR 318, 320; Nicolson v Knaggs [2009] VSC 64 (27 February 2009) [78].

[7] Wrigley v Buxton [1893] VicLawRp 13; (1893) 19 VLR 37, 44 (Madden CJ).

[8] Re Egan [1963] VicRp 46; [1963] VR 318, 320. See also Re Watson [2017] VSC 322 (8 June 2017) [41].

[9] Wrigley v Buxton [1893] VicLawRp 13; (1893) 19 VLR 37, 44 (A'Beckett J).

[10] Civil Procedure Act 2010, ss 16-27; see especially s 18. See also Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 217 [113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[11] Civil Procedure Act 2010, s 7(1).

[12] See ibid ss 8-9. Gardiner v Hughes [2017] VSCA 167 (29 June 2017) [93].

[13] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242]; Montalto v Sala [2016] VSCA 240 (7 October 2016) [29]-[30]; Re Watson [2017] VSC 322 (8 June 2017) [16]-[17].

[14] See, eg, Re Smith [1951] VicLawRp 53; [1951] VLR 368, 377; Re Watson [2017] VSC 322 (8 June 2017) [38].

[15] Re Smith [1951] VicLawRp 53; [1951] VLR 368, 377.

[16] Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [51], citing Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [284]-[291].

[17] Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [80], citing Re Egan [1963] VicRp 46; [1963] VR 318; Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [3] (Ormiston JA).

[18] Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [15] (Ormiston JA).

[19] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175 [170].

[20] Hall v Hall (1865-69) LR 1 P & D 481, 482; Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 474-5.

[21] Re Montalto [2016] VSC 266 (23 May 2016) [27]; Re Anderson [2017] VSC 338 (16 June 2017).

[22] Boyse v Rossborough (1857) 6 HLC 1, 49; [1854] EngR 252; 10 ER 1192, 1211; McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA); Re Montalto [2016] VSC 266 (23 May 2016); Re Anderson [2017] VSC 338 (16 June 2017).

[23] Wingrove v Wingrove (1885) 11 PD 81, 82-3; Winter v Crichton [1991] 23 NSWLR 116. See also Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558; Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 474-5.

[24] Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (15 June 2007) [63]-[64].

[25] Winter v Crichton (1991) 23 NSWLR 116, 121 (Powell J).

[26] John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013) 217. See also Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 173 [166].

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

[28] [1918] HCA 73; (1918) 25 CLR 519, 528 (citations omitted).

[29] Wingrove v Wingrove (1885) LR 11 PD 81 at 82-3 (Hannen P).

[30] [2011] NSWSC 1275 (17 November 2011) [276].

[31] Supreme Court (Administration and Probate) Rules 2014, r 11.01.

[34] Civil Procedure Act 2010, s 9, pt 4.3.