Plaintiff v Applicant

2 The deceased's last will is dated 24 September 2008 ('the 2008 will'). It was made when the deceased was 77 years of age. The 2008 will appointed the deceased's wife as executor and, in the event she did not survive the deceased, the plaintiff the alternate executor. The 2008 will devised and bequeathed the whole of the deceased's estate, after the payment of debts and testamentary expenses, to the deceased's wife, provided she survived the deceased. In the event that the deceased's wife did not survive the deceased, then subject to the gift of the contents of the deceased's home and shed at his Kilmore property to Elizabeth Kay Gibson ('Kay') and Neil William Wright ('Neil') respectively, the residue of the estate was to be divided into 10 equal parts, with one part each to Kay; Neil and Jennifer Kaye Wright ('Jennifer'); Stacie Wright; Nikkita Wright; Amber Wright; Celey Gibson; Sherry Gibson; Nicholas Gibson ('Nicholas'); Andrew Gibson ('Andrew') and the remaining one part was to have been held on trust by Neil and Jennifer for the benefit of their daughter, Sarah Wright, to be used for Sarah's benefit, and upon her death to be given to Neil and Jennifer.

3 On 9 January 2020, probate of the 2008 will was granted to the plaintiff. The plaintiff is a solicitor practising in Kilmore and is the principal of Still & Company Lawyers ('Still & Co'). He was admitted to practice in 1967 and has extensive experience in the area of probate, will and estates.

4 The deceased's penultimate will is dated 17 September 2003 ('the 2003 will'). The 2003 will was made when the deceased was 72 years of age. The 2003 will appointed the deceased's wife as the executor and if she did not survive him, then appointed the plaintiff and Kay as the executors. The 2003 will devised the Kilmore property to Jennifer and the contents of the home and shed to Neil and bequeathed the residue of the estate in eight equal parts, with four parts to Kay, three parts to Nicholas, and one part to Andrew.

5 By summons filed 8 July 2020, the applicant seeks that the grant of probate of the 2008 will be revoked and that she be at liberty to apply for a grant of letters of administration of the estate of the deceased.[1]

6 On 7 August 2020 the applicant filed her grounds for revocation of the grant of probate of the 2008 will objecting to the validity of the 2008 will and the 2003 will.

7 The applicant submits there are circumstances that give rise to a suspicion that lead to the conclusion that the deceased did not know and approve of the 2008 will and the 2003 will and there are circumstances that give rise to suspicion about the deceased's testamentary capacity. The applicant initially included a further ground that the deceased acted under the undue influence of his wife and/or the beneficiaries. By her amended grounds filed 31 August 2020 the applicant abandoned the ground of undue influence.

8 The applicant relied on her unsworn affidavit dated 5 August 2020 comprising of 17 pages and 74 pages of exhibits and an unsworn affidavit of her mother, Cherrill Anne Quigley Hayes ('Cherrill') also dated 5 August 2020 comprising nine pages. Despite regulations being in place for the swearing of affidavits during the pandemic at the date of these affidavits, they were not sworn by the deponents.

9 On 4 September 2020 orders were made for the parties to file any submissions, including submissions in reply, on the question of the prima facie case of the applicant's amended grounds, and referred the issue to be determined on the papers.

10 In reply submissions, the applicant sought to reinstate paragraphs 21b and 24 of her initial particulars that related to there being no reference to the deceased's pistol collection in the 2008 will. The applicant alleged this was a further suspicious circumstance requiring investigation.

11 The applicant's submissions in relation to her prima facie case make reference to matters raised in her initial grounds of objection, her amended grounds, and the affidavits of Cherrill and the applicant. In determining the question of the applicant's prima facie case, the issues are confined to those set out in the applicant's amended grounds.

12 In order to establish a prima facie case, an applicant must provide a sufficient factual basis for his or her grounds of revocation.[2] 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.

13 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.[3] In default of particulars that fail to provide a sufficient factual basis for the grounds of revocation, the application is dismissed. If there is a proper basis for the application, directions will be made for the trial of the proceeding.

Applicant's ground 1 - suspicion of lack of knowledge and approval

14 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.[4] 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.

15 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.[5]

16 As the deceased's 2008 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 the 2008 will such as to require an investigation as to whether or not there are sufficient grounds to revoke the grant of probate. If the applicant succeeds on that issue, the applicant then has the same evidentiary burden in respect of the 2003 will.

17 The 2008 will and the 2003 will comply with the formalities required in s 7 of the Wills Act 1997 in that they are signed by the deceased and two witnesses. Accordingly, their due execution justifies a presumption that the deceased knew and approved of their contents. The applicant seeks to rebut this presumption as she alleges that suspicious circumstances exist which suggest that the deceased may not have known and approved of the contents of the 2008 will and the 2003 will. If suspicious circumstances are shown, it would cast the onus on the plaintiff as the propounder of the 2008 will and the 2003 will to remove the suspicion.[6]

18 The amended grounds of lack of knowledge and approval are set out as filed, including marked up amendments:

Lack of knowledge and approval

16. The Applicant asserts that the following there are suspicious circumstances, in conjunction with other matters set out in these grounds of revocation, lead to the conclusion that the testator did not know or approve of the content of the wills at the time that they were made.

17. Jennifer Wright (either alone or with other members of her family who are beneficiaries under the wills) arranged with the Plaintiff for the wills to be drawn.

Particulars

(a) Jenny Wright is a beneficiary under both the 2003 and 2008 wills and a client of the plaintiff's firm. Ms Wright receives the most significant share in the estate under both wills. In the 2003 will, Ms Wright is given the house at 14 Oak Court and in the 2008 will she and her husband are given not only one part in the estate but also one part to hold on trust for their daughter.

(b) In two separate telephone conversations in late 2019 with the Plaintiff and Ms Debbie Rowe, the Applicant is told that Ms Wright is a client of the firm and a friend of Ms Rowe who is the daughter of the Plaintiff.

(c) Both the wills list the Plaintiff as the executor. The 2008 will is also witnessed by the Plaintiff. Both wills are witnessed by a legal secretary/secretary residing in Kilmore with the same last name 'McKenzie'. Both wills have the same type font and formatting. These factors demonstrate that both the 2003 and 2008 wills were made in the Plaintiff's office.

(d) The fact that there is a conflict of interest, in the Plaintiff being both the witness and executor of the 2008 will, demonstrates that the testator did not receive any other independent advice in making the 2008 will.

(e) In a telephone call around August 2019, the Applicant was informed by Debbie Rowe from Still & Co Solicitors that Jenny Wright was a client and a good friend, and had Power of Attorney for testator.

18. The Plaintiff behaved suspiciously shortly before and after the death of the testator, by denying knowledge of the testator and later refusing to provide the 2003 and 2008 wills. Although evidence of what occurs after the death of the testator is not readily capable of throwing light on the question of the testator's knowledge and approval of a will executed during the testator's lifetime and is not relevant to raising a suspicion, in certain circumstances, such as where there is a delay in procuring the will, such delay may support contemporaneous evidence raising a suspicion (citations omitted). The Applicant's behaviour is indicative of an intention to prevent the testator's family from discovering the suspicious circumstances surrounding the making of the wills set out in paragraph 17 above.

Particulars

(a) In a telephone conversation with the Plaintiff in late 2019 (before the testator had passed), the Plaintiff stated that he did not know the deceased.

(b) In 2019, the Applicant contacted the Plaintiff's firm to get hold of the testator's power of attorney, Jenny, to sort out issues around contacting the testator at the nursing home.

(c) On 8 September 2019, in her first letter to the Plaintiff, the Applicant explained that she was the niece of the testator and set out the other remaining family members.

(d) On 30 November 2019, the Applicant contacted the Plaintiff, requesting copies of both the 2003 and 2008 wills.

(e) On 2 December 2019, the Plaintiff refused to provide the wills, and despite already being so informed in the letter dated 8 September 2019, the Plaintiff requested that the Applicant advise him of her relationship to the testator, 'as set out in Section 52 of the Administration and Probate Act'. An outdated version of the Act was attached to the letter (the provisions for intestacy that were applicable to the Applicant are found in s 70ZI, not s 52).

(f) The Applicant sent the plaintiff a further letter on 3 December, noting that 'under the Act and changes', she had a right to view the will. This letter was not responded to by the Plaintiff.

(g) It was not until 14 May 2020, after a further request from the Applicant for the wills, that the Plaintiff agreed to provide the Applicant with a copy of the 2008 will, on the basis that Probate had already been granted.

19. Ms Wright, tried to obstruct the Applicant and her mother from contacting the testator when he was in Kilmore Hospital in 2018. Similar to the reason above, this evidence subsequent to the death of the testator may support contemporaneous evidence raising a suspicion. It is alleged that Ms Wright's behaviour in seeking to obstruct contact between the Applicant and her mother with the testator can be explained by the fact that she did not want the suspicious circumstances outlined in paragraph 17 to be discovered by the testator's other family members.

Particulars

(a) In 2018, when the testator was in Kilmore Hospital, the Applicant's mother, Cherril called the Hospital to speak to the testator. Ms Wright answered the phone without introducing herself and said that the testator did not want to speak with her. The testator later called Cherril back to say that it was Ms Wright who answered the phone and that of course he would never not want to speak to her.

20. The testator was not cremated as per the instructions in his will. Additionally, it was Ms Wright who provided directions to the funeral company rather than the Plaintiff who is the Executor of the will. Again this supports the contemporaneous evidence in paragraph 17 above.

(a) The 2008 will instructs that the testator's remains be cremated privately at Springvale Crematorium and his ashes scattered at the Garden of Remembrance.

(b) On 17 July 2020, the Southern Metropolitan Cemeteries Trust, which manages the Springvale Crematorium, notified the Applicant of the fact that they do not have a cremation record for the testator or his wife.

(c) On 25 June 2020, the applicant spoke with Mary from Bamfords Funeral Services, who stated that she was directly handling Thomas Hayes's arrangements. Mary informed the Applicant that Tom was cremated over the border in NSW, in Murray Valley. Mary further informed the Applicant that they take instructions from the Executor and that all instructions came from Ms Wright who signed off on the arrangements.

21. The wills are in conflict with the testator's previously expressed intentions to will his house to the Applicant and her family. that the testator had as previously expressed to the Applicant, her mother and her brother.

Particulars

(a) Around 2008, shortly after her father's death, Cherril Quilgey (Cherril) had a conversation with the testator where she discussed selling her cottage in Daylesford. The testator led her to believe in that conversation that the house in Kilmore would be willed to her and her family.

(b) Around 1997 and 1998, when the testator visited Jason Hayes (Jason) who was in the Airforce at the time, at the airbase, he promised Jason that he would receive his gun collection and that whatever home they had when they passed would be theirs, (being his, his siblings and his mother's).

(c) Around 1998, when the Applicant spoke with the testator on his driveway about concerns in sustaining the loan for a townhouse she had just purchased, he told her that if she had to sell the place, she, her brothers and her mother would have his house to count on and to consider it as their safety net.

(d) Neither the 2003 or the 2008 will reflect the intentions expressed above.

22. The wills are in conflict with the testator's expressed dislike of the Wright and Gibson family.

Particulars

(a) During 2005 and 2007, Cherril visited the testator and his wife in Kilmore often to bring them food and perform caring duties. During these visits, the testator said to Cherril that he felt these people with Lynette (his wife) were 'not right'.

(b) During Cherril's visits in 2005 and 2007, the testator never once said he liked Kay Gibson (Kay) or Jenny Wright (Jenny) and had the only person in Kilmore he said was a 'top bloke' was the man who lived opposite and brought his mail.

(c) During 2008 and 2009, Cherril Hayes, who was worried about the testator's medical condition had called him often. In one of these conversations, the Testator had stated that 'I hope Neil Wright is not with Jenny or Kay' (who sometime take him to medical appointments). The Testator told Cherril that he was uncomfortable around Neil Wright.

(d) In 2016, when Cherril spoke to the deceased on the phone and asked if Jenny cooks for him, he said 'those people' and scoffed.

(e) After the phone call in 2016, Cherril became concerned and visited the testator. During this visit Cherril suggested that she find him a carer, to which the Testator replied 'I can't change things, because those people will get me'.

(f) In 2016, the testator told Cherril, he did not like going to the Wright's place because he did not like all of them.

(g) In 2018, he told Cherril that he had been invited by Kay and Jenny to come over for Christmas, but he declined because he didn't like being with the entire family.

23. The wills include people that the testator was not familiar and friendly with.

(a) The 2003 Will was prepared only shortly after the testator moved to Kilmore. The testator had previously lived in Malvern East his entire life until his 70s.

(b) Prior to moving to Kilmore, there is no evidence that the testator had any contact or any kind of relationship with the members of the Gibson or Wright family, other than his wife Lynette talking about Kay during the period shortly before they relocated to Kilmore.

(c) The 2003 will contains the names of Jenny, her husband Neil Wright and two other individuals, Nicholas Gibson and Andrew Gibson.

(d) The 2008 will contains the abovementioned individuals, plus the children of Jenny and Neil wright, as well as 5 other individuals of the Gibson and Wright family.

(e) The evidence of the testator's conversations with Cherril in paragraph 22(f) and (g) suggest that he had little contact with the wider Gibson/Wright family.

(f) The testator had stated his dislike for Neil Wright (as per paragraph 8(c) above) and his dislike for the rest of the family (as per paragraph 8(a), (f) and (g).

24. Both the 2003 and 2008 wills fail to mention the testator's gun collection which he was very fond of and previously expressed his intention to bequeath to Jason Hayes.

Particulars

(a) The testator spent much of his time plodding around the garage cleaning his pistols.

(b) The testator always talked about his pistol shooting when he spoke to the Applicant on the phone.

(c) Around 1997, 1998, the testator had promised Jason that he would receive his gun collection.

(d) The testator had always indicated to the Applicant, when he spoke with her, that the gun collection would go to Jason.

(e) The 2003 and 2008 wills make no mention of the gun collection.

19 The suspicious circumstances asserted by the applicant may be summarised into four categories: the circumstances in which the wills were made; the contents of the wills being contrary to the deceased's previously expressed intentions; the suspicious behaviour of Jennifer and the plaintiff after the deceased's death; and the close relationship between Jennifer and the plaintiff's firm, Still & Co.

20 The plaintiff is a witness and alternate executor of the 2008 will, and the alternate executor named in the 2003 will. He is not a beneficiary under either will.

21 The applicant claims that as executor, the will gives the plaintiff the power to control the estate to a certain extent, for example, being able to distribute all contents of the Kilmore property at the 'absolute discretion of the trustee'. While the plaintiff does not receive a benefit, he is vested with power and hence stands to gain from the making of the will, and also has a right in the first instance to executor's commission. As such, the applicant alleges that the deceased ought have been provided with independent legal advice in relation to the wills, where the wills were prepared at the offices of and witnessed by the staff of Still & Co.

22 The instructions for the 2008 will are typed. They do not vary from the text of the 2008 will. The applicant submits the 2008 will instructions are general and do not suggest any input from the deceased, in that it does not contain much detail about the assets of the deceased, including his gun collection.

23 The instructions for the 2003 will are handwritten. The applicant submits the handwriting of the instructions is markedly different from the deceased's handwriting and appear to be in the handwriting of the deceased's wife.

Wills contrary to deceased's previously expressed wishes

24 The applicant stated that in 1997 when the deceased saw the applicant's brother, Jason, the deceased and his wife promised Jason that whatever home they had when they passed would belong to Jason, his siblings and Cherrill.[7]

25 The applicant claims that in around 1998, when she spoke to the deceased about her concerns in sustaining the loan for a townhouse she had just purchased, he told her that if she had to sell the property, that the applicant, her brothers and Cherrill would have his house to count on and to consider it as their safety net.

26 The 2003 will was prepared only shortly after the deceased moved to Kilmore. Prior to that time, he had lived in Malvern East for his entire life. Before moving to Kilmore, the applicant says there is no evidence the deceased had any contact or relationship with members of the Gibson or Wright family, other than his wife mentioning Kay in the period shortly before their relocation.

27 The applicant recalled a conversation in 2008, shortly after her father's death, in which she and the deceased discussed the sale of the applicant's property. The applicant concluded from that conversation that the deceased would gift the Kilmore property to Cherrill and her family, and subsequently sold her property in reliance on these representations.

28 The deceased also confided in Cherrill on many occasions that he disliked the Wright and Gibson family:

(a) during 2005 and 2007, when Cherrill would visit the deceased and his wife in Kilmore to bring food and perform caring duties, the deceased said to Cherrill that he felt these people with his wife were 'not right';

(b) during these visits in 2005 and 2007, the deceased did not once say that he liked Kay or Jennifer, and the only person in Kilmore he said was a 'top bloke' was the man who lived opposite and brought his mail;

(c) during 2008 and 2009, the deceased told Cherrill that he was uncomfortable around Neil Wright;

(d) in 2016, Cherrill spoke to the deceased on the phone and asked if Jennifer cooks for him. He said, 'those people' and scoffed;

(e) in 2016, the deceased told Cherrill that he did not like going to their place because he did not like any of them;

(f) in 2018, the deceased told Cherrill that he had been invited by Kay and Jennifer to come over for Christmas, but he declined because he didn't like being with any member of that entire family.

29 The applicant refers to the evidence of the deceased's conversations with Cherrill in 2016 to suggest that the deceased had little contact with the wider Gibson and Wright family.

30 The applicant had sought to contact the deceased at the Caladenia Nursing Home, and was informed that her and her mother were not included in the list of the deceased's authorised contacts. The applicant says that when she attempted to contact Jennifer in late 2019 about being included in the list of approved contacts for the deceased, she received a return call from Ms Rowe of Still & Co. She recollects that Ms Rowe was 'defensive and abrupt', and that Ms Rowe said that Jennifer was 'her client and was a good friend', and Jennifer 'was the power of attorney for [the deceased] and was doing a fantastic job'.

31 The applicant relies on this to say that Ms Rowe was acting on behalf of Jennifer in her capacity as attorney for the deceased, and that Jennifer must have had dealings with the firm as far back as 2016 when the power of attorney was first executed. Further, the characterisation of Jennifer as a 'friend' of Ms Rowe demonstrates a close connection with Still & Co which would call into question whether she was involved with the drafting of the wills.

Jennifer and the plaintiff's suspicious behaviour

32 The applicant contends the plaintiff behaved suspiciously by denying knowledge of the deceased in late 2019 and later refusing to provide the 2003 and 2008 wills to the applicant in a prompt manner.

33 In September 2019, the applicant had written to the plaintiff to inform him that she was not on the list of approved contacts of the deceased at his nursing home, and requested that her family be given regular reports on the deceased's condition. The plaintiff responded to the applicant in October 2019 to confirm his instructions that no barriers had been placed in the way of the applicant contacting the deceased, and gave details of the deceased's nursing home in the event the applicant wished to visit him. He further confirmed he was not at liberty to disclose any updates of the deceased's health to the applicant.

34 The applicant questions why the plaintiff had asked the applicant to 'advise... of the exact relationship you or any person you represent has to the deceased' when this information was included in the applicant's first letter to the plaintiff on 8 September 2019, in which she stated that she 'writes in reference to Tom Hayes who is the uncle of Brett Hayes, Tracey Hayes, Jason Hayes and is Cherrill Hayes Brother In-Law'. This, combined with the circumstances that the plaintiff had given the applicant a copy of the will after probate had been granted, despite stating she was not entitled to receive it, led the applicant to submit that the plaintiff deliberately withheld copies of the wills until probate had been granted.

35 The applicant also submits that the plaintiff had conspired with Jennifer to placate and stall the applicant from seeing the deceased at the nursing home, by saying that there were no barriers to her visiting the deceased when he knew that she would not be able to visit him unless she was placed on the list of approved contacts.

36 In 2018, Cherrill attempted to call the deceased after finding out he was admitted to Kilmore Hospital. Jennifer answered the phone and told Cherrill that the deceased did not want to speak to her. When Jennifer did eventually hand the phone over on Cherrill's insistence, Cherrill noticed that Tom sounded 'guarded and nervous'. After the deceased returned home, he called Cherrill back and thanked her for ringing. The applicant alleges that Jennifer's behaviour in seeking to obstruct contact between Cherrill and the deceased is explained by the fact that she did not want the suspicious circumstances concerning the making of the will to be discovered by the deceased's other family members.

37 The applicant submits that the plaintiff's decision not to carry out the deceased's cremation wishes as requested in the will is suspicious as if the deceased wished to be cremated in the same way as his wife who died four years prior, it does not explain why he did not make any amendment to his will. Further, Jennifer was involved in providing the instructions for cremation arrangements to the funeral services, which suggests some closer relationship between the plaintiff and Jennifer than is currently disclosed.

38 The particulars relied on by the applicant for the ground of lack of knowledge and approval are wide-ranging and include circumstances at the time of making the 2008 will and the 2003 will and also draw on the context of the applicant's family's history with the deceased, and the alleged lack of relationship the deceased had with the members of the Wright and Gibson family, who are the named beneficiaries under the 2008 will and the 2003 will.

39 The applicant's allegations in relation to circumstances of the will making for both the 2008 will and the 2003 will do not raise any particular issues of concern. As the deceased had made a will in terms that were similar to that of his wife, it is not irregular or suspicious that they would have worked off the same set of instructions. Similarly, the circumstances of the solicitor being appointed as an executor and being appointed in both wills only in the event that the deceased's wife predeceased him, do not deviate from usual will making procedures and would not, of themselves, form a basis to require independent advice in respect of a will.

40 The applicant also alleges that the 2008 will and the 2003 will do not include the deceased's previously stated intentions to provide her and members of her family with the property in which he lived when he died. The deceased financially supported the applicant and her family in place of his youngest brother in the early 1990s. Some of the alleged conversations where the deceased promised to give his property to the applicant and her family occurred in or around 1997 to 1998. The applicant and Cherrill moved to Queensland in 2000, and in 2002, the deceased and his wife relocated to Kilmore.

41 In Kilmore, the deceased and his wife lived closer to her side of the family, residing in the same neighbourhood as Andrew and Celey Gibson. He saw less of the applicant's family during this time, although Cherrill moved back to Victoria in 2005 and periodically visited the deceased and his wife between 2005 to 2007. In 2008, the applicant alleges the deceased again led her to believe that he would gift the Kilmore property to her.

42 The particulars of the conversations in 1997, 1998 and 2008 lack specification as to the circumstances in which the statements were made and amount to assertions as to the deceased's intentions concerning the gifting of the property. In the wider context of the deceased seeing less of the applicant's family, and making the decision to relocate to be closer to his wife's side of the family, it is not suspicious that he would provide for members of his wife's side of the family in the 2008 will and the 2003 will.

43 The beneficiaries of the 2008 will and the 2003 will are members of the Wright and Gibson families, whom the applicant alleges the deceased had disliked. The statements that the applicant relies upon to establish this, taken at their highest, are vague and unspecific, for example, Cherrill's statement that the deceased 'did not once say he liked Kay or Jennifer'. Further, the alleged comments made in 2016 are not proximate to the time of the making of either the 2008 will or the 2003 will. In the same vein, the allegations of obstructing the applicant from being able to see the deceased before his death in 2018 and 2019 have no temporal connection to the circumstances of the making of the 2008 will or the 2003 will.

44 The applicant alleges that the plaintiff deliberately sought to withhold the 2008 will from her after the deceased's death. Such an allegation cannot be a ground to revoke the 2008 will. The request was made a few weeks following the deceased's death. In circumstances where the applicant was not named in the 2008 will, the plaintiff is obliged to exercise caution by asking her to confirm her relationship to the deceased. Upon her second request in May 2020, the applicant was provided with a copy of the 2008 will, which does not support a conclusion that the plaintiff intended to withhold the 2008 will from her.

45 The applicant also alleges that the plaintiff did not carry out the deceased's instructions that he be cremated privately at Springvale Crematorium and his ashes scattered at the Garden of Remembrance. The plaintiff deposed that the deceased's instructions were that he was to follow the same treatment as with his wife's remains in 2013. The plaintiff also noted that neither the applicant nor Cherril attended the funeral of the deceased's wife and they had not visited the deceased since sometime in 2008.

46 On balance, the applicant has not established a prima facie case of suspicious circumstances that the deceased did not know or approve of the contents of the 2008 will or the 2003 will at the time these wills were made.

Applicant's ground 2 - suspicion as to the deceased's testamentary capacity

47 The classic statement as to the legal test for testamentary capacity is stated in Banks v Goodfellow:[8]

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]

48 As the 2008 will and the 2003 will are rational on their face and duly executed, a presumption arises that the deceased possessed testamentary capacity when he executed them.[10] The applicant alleges there are circumstances that give rise to 'suspicion about the testator's capacity'. The allegations primarily relate to the 2008 will and then seek to include the 2003 will. The onus lies on the applicant to point to circumstances that raise a suspicion as to the testator's capacity in regard to the 2008 will and the 2003.

49 The amended grounds of testamentary capacity are set out as filed, including the marked up amendments:

Testamentary capacity

25. The Applicant asserts that there are circumstances that give a rise to suspicion about the testator's capacity.

26. It is alleged that suspicious circumstances exist as to the testator's capacity because the death certificate states that the testator had advanced cancer only in that last 6 months, but Dr Baha Ali whose signature appears on the death certificate stated that the had not seen the testator for at least two years.

(a) In a telephone conversation with the Applicant on 7 July 2020, Dr Ali revealed that he had not seen the testator for at least two years. Dr Baha disclosed that the testator had a melanoma many years beforehand, as well as diabetes, heart, and mental/emotional issues from the moment both the testator and his wife moved to Kilmore in late 2002. This is not consistent with the medical information in the death certificate.

(b) In a telephone conversation with Catherine Siebel, Practice Manager of Kilmore Medical Practice, Ms Siebel revealed that the clinic's doctors had issues with Caladenia Nursing Home and that the clinic's doctors have ceased dealings with the Caladenia Nursing Home.

(c) In a letter subsequently sent to the Applicant, the clinic took a very legalistic stance but does confirm that 'our GP's no longer attend Caladenia the reason for this decision have never been disclosed to you, nor would it be appropriate for us to do so.'

(d) The matters in paragraph (b) to (c) corroborate Dr Ali's statement in his phone call with the Applicant that he had not seen the testator for the last two years.

(e) This matter has been referred to the Coroner for investigation.

27. The testator was observed to have cognitive problems around 2005, 2006 and 2008. This suggests that the testator had issues of capacity much earlier and during the key period of 2008 when the second will was made.

(a) Between 2005 and 2007, the testator was showing cognitive problems. When Cherril visited the testator and his wife to bring food and perform caring duties, she noticed that both were showing cognitive problems.

(b) In 2008, testator, was in and out of hospital. Taci and Cherril became aware of this when the testator came to a luncheon at Daylesford in January 2009. In January 2009, The testator was also on crutches and presented decaying awareness.

28. By reason of the matters asserted in paragraphs 26 and 27, the testator had issues of capacity going back much further from the moment he moved to Kilmore in 2002.

29. Further by reasons of the matters stated in paragraphs 21, 22 and 23, it is evident that the testator did not understand the nature of the act and its effects and if the mind had been sound, the dispositions in the 2003 and 2008 wills would not have been made.

50 The applicant submits that during Cherrill's visits to Kilmore in 2005, 2006 and 2007, she noticed that the deceased and his wife were showing cognitive problems. At a luncheon at Daylesford in January 2009, Cherrill observed that the deceased came in on crutches. He was chatty, always friendly and able to manage, however presented with 'decaying awareness'.

51 The deceased's medical records note that in the period between April and July 2008, the deceased had a neck fracture, a femur (leg) fracture, anaemia and hyperkalaemia.

52 The deceased's death certificate records the deceased's cause of death as 'Advanced cancer 6 Months'. The name of the certifying medical practitioner on the death certificate is Baha Ali. The applicant says that she called Dr Ali on 7 July 2020, and that he disclosed that he had not seen the deceased for at least two years. The applicant submits this suggests that the death certificate does not appear to contain an accurate statement of the deceased's medical conditions at his date of death.

53 The applicant also relied on a medical report dated 7 October 2016 by Dr Oda, which was prepared eight years after the 2008 will. In his report Dr Oda assessed the deceased for aged care and stated there was evidence of 'cognitive decline'.

54 The applicant submits that the evidence shows the deceased was operating with limited cognitive ability from 2005 onwards and that there is nothing to suggest that the decline could not have commenced prior to the report in 2016.

55 The applicant is not required to prove her particulars to the standard of trial.[11] The issue is whether or not the allegations, assuming them to be true, call for further investigation, and whether the particulars as a whole constitute a narrative warranting further investigation.[12] There must be a causal connection between the facts asserted, and the grounds of objection, and the grounds should be properly particularised to demonstrate this connection.[13]

56 The applicant's grounds rely in part on Cherrill's assertions that the deceased and his wife showed 'cognitive problems' and presented with 'decaying awareness'. These assertions are vague, with no particular factual basis provided to establish a connection to the deceased's testamentary capacity at the time of making the 2008 will and the 2003 will. Likewise, the applicant has not drawn any relevant causal link between the deceased's various physical ailments and his testamentary capacity. The applicant's submission that there is nothing to suggest the deceased's cognitive decline could not have commenced prior to the 2016 medical report is speculative and not based on any facts raised in her particulars.

57 The applicant has not established any factual circumstances that give rise to suspicions as to the deceased's testamentary capacity at the time of signing either the 2008 will or the 2003 will.

58 The applicant's amended grounds fail to establish a prima facie case for revocation of the grant of probate of the deceased's 2008 will.

59 The Court will order that the applicant's summons filed 8 July 2020 be dismissed. If the plaintiff and applicant are unable to agree as to the costs of the application, written submissions on costs are to be filed by 10 May 2022.

[1] While the applicant asserts an interest in the deceased's estate on an intestacy on the basis that her extensive investigations did not locate any earlier wills of the deceased, it cannot yet be assumed that there are no previous wills of the deceased.

[2] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, [242] (Lindsay J), citing Moran v Place [1896] UKLawRpPro 24; [1896] P 214, 216-7 (Kay RJ); Montalto v Sala [2016] VSCA 240, [29]-[30] (Warren CJ, Whelan and Santamaria JJA).

[3] Re Smith [1950] VicLawRp 73; [1951] VLR 368.

[4] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175-6 [173] (Santamaria JA), citing Hoff v Atherton [2005] WTLR 99.

[5] Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J) (citations omitted).

[6] Veall v Veall (n 4) 175 [172] (Santamaria JA); McKinnon v Voigt [1998] 3 VR 543, 551 (Tadgell JA).

[7] The applicant did not file an affidavit from Jason.

[8] (1870) LR 5 QB 549 ('Banks v Goodfellow').

[10] Veall v Veall (n 4) 174 (Santamaria JA).

[11] Gardiner v Hughes (No 2) [2019] VSCA 198, [42] (Kyrou, McLeish and T Forrest JJA).

[12] Ibid [79]-[82] (Kyrou, McLeish and T Forrest JJA).

[13] Re Smith (n 3) 377 (Sholl J).