Plaintiff v Applicant

2 The will is simple and straightforward. It appoints Mr Gao's wife of some 20 years, Li Wang, as executor and provides for the whole of his estate to pass to her. The estate is valued at approximately $200,000, being a half share in a property Mr Gao and his wife owned as tenants in common.

3 Probate of the will was granted to Ms Wang on 20 June 2019.

4 Lan Gao is Mr Gao's daughter from a previous marriage. Ms Gao resides in China. On 3 July 2019, she filed a summons seeking revocation of the grant of probate of the will.

5 Ms Gao has standing to bring the revocation application because she was the executor and principal beneficiary under Mr Gao's penultimate will dated 4 June 2016 (the 2016 will). Revocation of the grant of probate of the will would allow Ms Gao to seek probate of the 2016 will which would substantially affect her interest in her father's estate.

6 Ms Gao initially sought that probate be revoked on the ground that the will was a forgery. This ground of objection was later abandoned.

7 In amended particulars of revocation, Ms Gao then alleged that the grant should be revoked because her father lacked testamentary capacity and/or because he did not know and approve the contents of the will. In further amended grounds of revocation later filed with the Court, the claim of lack of testamentary capacity was also abandoned.

8 Ms Wang now seeks orders that the particulars of grounds of revocation and summons for revocation be struck out.

(a) First, has Ms Gao made out a prima facie case for the revocation of the grant of probate in respect of the will on the basis that her father did not know and approve its contents? This will require me to determine whether there exists suspicious circumstances sufficient to establish a case for investigation that Mr Gao did not know and approve the contents of the will.

(b) Secondly, even if Ms Gao has made out a prima facie case for the revocation of the grant, should relief be refused on discretionary grounds? This will require me to determine whether Ms Gao has explained the delay in relation to her application for revocation.

10 The Court of Appeal in Gardiner v Hughes (No 2)[1] recently restated and clarified the correct approach for determining whether an applicant for revocation of a grant of probate has established a prima facie case. '[T]he task for the party seeking to have a grant of probate revoked is ... to show that there is a "case for investigation" or "something to go on"'.[2] Mere speculation will not be sufficient.[3] The Court continued:[4]

... There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.

Next, the power to revoke a grant of probate is discretionary, involving a consideration of all the circumstances and not just the merits of the case. Those discretionary considerations are apt to be considered along with the prima facie case question, at a preliminary stage. In that context, a failure adequately to explain delay, for example, may in some circumstances be a basis for refusing relief despite the existence of a prima facie case. ... However, the fact that matters of discretion may arise does not mean that the evaluation of the prima facie case is itself an exercise of discretion. It is instead the application of a legal test to alleged facts. Although minds may differ as to the correct outcome of that process, in law there is only one correct answer. There is either a prima facie case or there is not.

11 Where a lack of testamentary capacity was alleged, the Court stated that the application of the prima facie test '... did not require a determination whether or not the particulars, in isolation or taken together, justified an inference of testamentary incapacity,' but, '[i]nstead, the question was whether the allegations, assuming them to be true, called for further investigation ....'.[5]

12 The Court determined that the trial judge erred because, having considered each of the particulars for revocation, the judge 'did not return to the question whether the particulars as a whole constituted a narrative warranting further investigation'.[6] '[O]nce it was accepted that individual particulars could, depending on other facts, point towards testamentary incapacity it was incumbent on the judge to view the case as a whole to see whether it called for further investigation'.[7]

13 The principles relevant to a testator's knowledge and approval of a will were addressed by the Court of Appeal in Veall v Veall.[8] Santamaria JA, with whom the others members of the Court agreed, referred to the principle that knowing and approving of the contents of one's will is traditional language for saying that the will represented one's testamentary intentions.[9] Santamaria JA also referred to the statement in Williams, Mortimer and Sunnucks - Executors, Administrators and Probate in relation to particular matters which arouse suspicion:[10]

A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside.

The testator's feebleness of body or mind may be relevant to knowledge and approval.

14 The sufficiency of evidence as to whether a testator knew and approved the contents of a will is dependent on the circumstances of the case.[11] Proof that a will was read by or read to the testator before its execution may not be sufficient; nor will evidence that the will was explained to the testator.[12] As Santamaria JA later stated:[13]

... Evidence that a will was prepared on the testator's instructions and was read by or to him or her before it was executed has been described as 'the most satisfactory evidence'. But, it is not conclusive evidence. In the end, the Court must be satisfied that the testator knew and approved the contents of the will sought to be admitted to probate.

15 Santamaria JA also referred with approval to the following statement by Meagher JA in Tobin v Ezekiel:[14]

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will: Barry v Butlin ...; Gregson v Taylor ...; Re Fenwick ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew ...; Tyrrell v Painton ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton ...; Nock v Austin ...; Fuller v Strum ...; Dore v Billinghurst ...

Prima facie case of lack of knowledge and approval?

16 In her further amended particulars of grounds of revocation, Ms Gao relied on the following matters as constituting suspicious circumstances surrounding the making and execution of the will:

(a) Mr Gao spoke Mandarin as his first language and could not speak, write or understand English.

(b) The 2016 will and an enduring power of attorney executed by Mr Gao on the same day were prepared by a Mandarin speaking solicitor who explained their contents to him.

(c) It was Mr Gao's practice to attend solicitors when making a new will. Both the 2016 will and an anti-penultimate will dated 21 March 2016 were drafted by solicitors and executed by Mr Gao in their presence. The will departs from this practice, being handwritten and using a homemade will kit. There is no explanation for this departure.

(d) The author of the will is uncertain. However, it is handwritten in English in circumstances where Mr Gao could not read or write English. It might be inferred that it was drafted by Ms Wang.

(e) The contrast between Mr Gao's testamentary intentions as expressed in the will and his intentions as expressed in the 2016 will including that:

(i) the will appoints Ms Wang as executor, whereas the 2016 Will appoints Ms Gao as executor;

(ii) the will leaves the whole of Mr Gao's estate to Ms Wang, whereas the 2016 will leaves no more than about $10,000 to Ms Wang and the bulk to Ms Gao;

(iii) in the 2016 will, Mr Gao declared:

I have made ample financial provision for my wife Li Wang during my lifetime and our relationship has deteriorated over the years which has caused me much tension and anguish.

By contrast, in the will, Mr Gao declares that he has no obligation to provide for Ms Gao financially and that he has made adequate provision for her during his lifetime.

(f) The change in Mr Gao's testamentary intentions between the 2016 will and the will is spontaneous and does not accord with the surrounding circumstances including that:

(i) Mr Gao maintained a good relationship with his daughter;

(ii) Mr Gao was in regular contact with his daughter who visited him on five occasions in Australia and by telephone including after 22 October 2018, the date the will was made;

(iii) Mr Gao made no reference to having changed his will when speaking to his daughter after 22 October 2018;

(iv) Mr Gao was experiencing difficulties with his marriage to Ms Wang and wanted a divorce;

(v) Although Ms Wang and Mr Gao resided at the same address, they lived apart in separate rooms;

(vi) Ms Wang had engaged lawyers to seek a divorce from her husband.

(g) On four occasions, on or around 17 May 2019, Ms Wang denied that her husband had made a will.

(h) Mr Gao was elderly and was diagnosed with prostate cancer in October 2017. He was being treated by a specialist oncologist at the Austin Hospital.

17 At hearing, the parties did not confine themselves to submissions about the adequacy of these particulars in addressing whether Ms Gao had made out a prima facie case for the revocation of the grant of probate in respect of the will. They also relied upon various affidavits without any objection.[15] In this way, the approach was similar to that adopted in New South Wales where the court will consider the evidence available, or reasonably thought likely to be available, in support of a prima facie case of invalidity of a will.[16] Such an approach was referred to without criticism by the Court of Appeal in Gardiner v Hughes (No 2).[17]

18 It is convenient to address the manner in which counsel for Ms Gao contended that the above particulars constituted a prima facie case for the existence of suspicious circumstances surrounding the making and execution of the will.

19 It was submitted that it is suspicious that the will is handwritten in English in circumstances where Mr Gao could not read or write in English and where the 2016 will was prepared by a Mandarin speaking solicitor.

20 Relatedly, it was also submitted that it is suspicious that the author of the will is unknown. It was contended by counsel for Ms Gao that it was reasonable to infer that it was drafted by Ms Wang. Authorship of a will by a major beneficiary is a well-recognised basis for the existence of suspicion as to a will's validity.[18]

21 The foundation of these suspicions fell away in light of the evidence filed on behalf of Ms Wang shortly before the hearing of the matter. In an affidavit dated 23 October 2019, Ms Wang deposed that she did not write the will. Ms Wang also relied on a short affidavit dated 24 October 2019 made by Eric Chien who deposed to being a friend of Mr Gao's. His evidence was that he wrote the will in or about October 2018 at Mr Gao's request.

22 The above uncontradicted evidence, received by the Court without objection, answers the basis of Ms Gao's suspicions premised on her understanding that the author of the will was unknown.

23 The above evidence is also self-evidently relevant to Ms Gao's suspicion based on the fact that the will is handwritten in English. In that regard, Ms Wang also relied on an affidavit dated 19 September 2019 made by Dr Tina Horng, one of the witnesses to the making of the will. Dr Horng deposed to being Mr Gao's general practitioner between 30 August 2007 and 22 February 2019. Her evidence was that, on 22 October 2018, Mr Gao attended the clinic where she worked. She asked him, 'Do you understand what you are doing here today?', to which he replied 'Yes, to sign a will'. Being fluent in both English and Mandarin, she then read the will to him in Mandarin. After doing so, she deposed that Mr Gao said words to the effect that he understood and approved the contents of the will. He then signed it in her presence and the presence of the other witness. Dr Horng also deposed that it appeared to her that when he executed the will, Mr Gao had the mental capacity to understand its nature and contents.

24 Dr Horng's evidence, in conjunction with that given by Mr Chien, answers Ms Gao's suspicion based on the fact that the will is handwritten in English.

25 Counsel for Ms Gao next submitted that the fact that the will is handwritten was suspicious because Mr Gao's previous two wills were prepared by solicitors and executed in their presence. The decision to prepare a homemade will and to take it to a general medical practitioner was submitted to be inexplicable in these circumstances and to therefore arouse suspicion.

26 Considered in isolation, there is nothing inherently suspicious in a testator departing from a past practice in relation to their testamentary affairs. That is particularly so where, as is purportedly the case in relation to the will, a testator's testamentary intentions are straightforward and uncomplicated. Such a change of practice might, however, be capable of forming part of a broader set of circumstances which collectively arouse suspicion around the circumstances of the making and execution of a will.

27 The next claimed suspicious circumstance alleged by Ms Gao concerns the fact that the will represents a radical departure from her father's previous testamentary intentions as reflected in the 2016 will. Under the 2016 will, the bulk of his estate was left to Ms Gao, who was named as executor. Under the will however, the whole of his estate was left to Ms Wang, who was named as executor.

28 Both wills also contain conflicting declarations about Mr Gao's duties and responsibilities to his daughter and his wife. In the 2016 will, Mr Gao declared that he had made ample financial provision for Ms Wang during his lifetime and that the provision left for her under that will had been determined after serious consideration. He then left the bulk of his estate to his daughter. However, in the will, Mr Gao declared that he had determined not to make any provision for his children as he did not feel any obligation to them as they had not cared for him in his older age, that he had made adequate provisions for them during his lifetime and that their financial circumstances are better than that of Ms Wang.

29 Although a testator may of course change their mind in respect of their testamentary intentions, in the circumstances of this case, the apparent change in Mr Gao's intentions raises a case for investigation for several interrelated reasons.

(a) First, the changes are very significant. They are effectively a complete reversal of Mr Gao's apparent testamentary intentions effected in a relatively short period of two and half years.

(b) Secondly, this reversal is from a very pointed formal statement by Mr Gao in which he expresses a critical attitude towards his wife and their relationship. Not only did he state in the 2016 will that he had made ample financial provision for her during his lifetime, he declared that their 'relationship has deteriorated over the years which has caused me much tension and anguish'.

(c) Thirdly, the about-face in Mr Gao's apparent intentions is unexplained. The material before the Court does not reveal any change in the surrounding circumstances between the time of making the two wills which might explain the apparent reversal in Mr Gao's testamentary intentions. If anything, the material before the Court is to the contrary.

30 I am mindful that there is evidence before the Court as to how the will came to be written, that its contents were read to Mr Gao and that he said words to the effect that he understood and approved its contents. Such evidence is significant, but does not conclusively establish that Mr Gao knew and approved the contents of the will. This is particularly so in circumstances where he could not speak, write or understand English and where the evidence before the Court about the making of the will is startlingly brief. It is limited to the evidence by Dr Horng to which I have referred and the following sentence in Mr Chien's affidavit: 'In or about October 2018, at the request of the Deceased, I wrote a Will for the Deceased'. Mr Chien then exhibits a copy of the will. In circumstances where Ms Gao had squarely raised in her particulars a claim that the will was produced in suspicious circumstances, it is surprising that Mr Chien's evidence provides no insight into the circumstances in which he wrote the will including, for example, the source of the instructions upon which he acted in writing the will and how those instructions were conveyed to him.

31 There are two other matters which, in conjunction with matters to which I have referred above, support a conclusion that the overall narrative before the Court as raised in the particulars and in the affidavits establishes a case to investigate.

(a) First, when he made the will, Mr Gao had been suffering from prostate cancer for more than 12 months and had been receiving treatment for that condition. Contrary to the submission put by counsel for Ms Wang, it is not correct that poor physical health has no bearing on the validity of a will. A testator's feebleness of mind - or body - may be relevant to knowledge and approval.[19]

(b) Secondly, I have already noted that, in making the will, Mr Gao departed from his previous practice of using solicitors to prepare his wills.[20] While not of itself a cause for suspicion, this does however support a conclusion that there is something to investigate when seen in the broader narrative of the case, including in particular the radical change in testamentary provision made by the wills and the absence of any detail about the actual circumstances in which the will was made.

32 For these reasons, I consider that Ms Gao has established a prima facie case to challenge the grant of probate for the will on the basis that her father did not know and approve its contents.

Delay - should relief be refused on discretionary grounds?

33 Probate of the will was granted to Ms Wang on 20 June 2019. Ms Gao commenced her application for revocation of the grant on 3 July 2019. The principles governing the revocation of probate require the applicant to show a reasonable explanation for the delay in bringing the application.[21]

34 Ms Gao's explanation for the delay in making her application was that she is a resident in China and has very limited English. She also contended that she had relied on her previous solicitors to object to the granting of probate of the will, but that this was not lodged in time. As a result, she sought out further legal assistance from her current solicitors on 20 June 2019 and brought this application by summons on 3 July 2019. This occurred less than two weeks after probate was granted for the will.

35 Ms Gao also submitted that the solicitors acting on behalf of Ms Wang did not provide affidavits detailing due execution of the will by the witnesses to the will despite being requested to do so on 21 June 2019.

36 The delay between the grant of probate and the application for revocation being filed was a period of only two weeks. On any measure this is a short period. There is no basis to conclude that this delay has caused prejudice to Ms Wang.

37 Further, I accept Ms Gao's explanation for the delay referred to above.

38 I do not accept Ms Wang's submissions that Ms Gao had failed to disclose various matters, and that she was dishonest with the Court in her previous affidavits. These criticisms are answered by Ms Gao's explanation that she has a limited understanding of English and had relied on her previous solicitors to make the various applications.

39 Counsel for Ms Wang also made submissions in relation to Ms Gao's credibility, particularly that she had abandoned several grounds in her application, that she had 'confessed to the court that she has not been honest', as well as giving inconsistent evidence and evidence without basis. The criticisms of Ms Gao's credibility are without a proper foundation. The claim that Ms Gao's statement that certain evidence she previously gave was 'not totally correct' amounts to a confession of dishonesty cannot be accepted, given Ms Gao's language difficulties.

40 I accordingly do not consider that relief should be refused on discretionary grounds.

41 Within 7 days, the parties are to submit proposed orders giving effect to these reasons for judgment, including further interlocutory orders and any orders as to costs. In the absence of agreement, the parties are to submit short submissions on costs.

[1] [2019] VSCA 198.

[2] Ibid [41], referring to the statement by Herring CJ in Re Egan [1963] VicRp 46; (1963) VR 318, 320.

[4] Ibid [42]-[43] (citations omitted).

[8] [2015] VSCA 60; (2015) 46 VR 123.

[9] Ibid 176 [173] referring to the statement by Chadwick LJ in Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097, [59]).

[10] Ibid 177 [175], quoting John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks - Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013) 207 [13-30] (citations omitted).

[14] Ibid 178 [179], quoting Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 772 [48].

[15] Ms Gao relied upon the affidavits of Lan Gao, sworn 28 June 2019, 15 July 2019 and 14 August 2019, the affidavits of Jenny Panczel sworn 8 August 2019 and 11 September 2019, the affidavit of Mei Yan Zhou sworn 11 September 2019 and the affidavit of Tina Horng sworn 19 September 2019. Ms Wang relied upon the affidavit of Yunayng Gao sworn 22 August 2019, the affidavit of Li Wang sworn 23 October 2019, the affidavit of Eric Chien sworn 24 October 2019 and the affidavit of Tina Horng sworn 19 September 2019.

[16] See Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, [320(l)] (Lindsay J).

[17] [2019] VSCA 198, [40]-[41]. At [4] the Court referred to the demonstration of a prima facie case entirely by way of particulars as an 'alternative approach' to doing so by affidavit.

[18] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175 [172]. See also Nock v Austin [1918] ArgusLawRp 113; (1918) 25 CLR 519, 528; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 771 [47]; Re Matiasz (dec'd) [2017] VSC 677.

[19] See paragraph 13 above.

[20] See paragraphs 25-26 above.

[21] Gardiner v Hughes (No 2) [2019] VSCA 198, [9].