Plaintiff v Applicants

2 By her will dated 28 May 2015 ('the will'), the deceased appointed the plaintiff as her executor and trustee. She devised her property in Albert Park to four of her nieces and left the residue of her estate to the applicants, who are also her nieces. The solicitors for the plaintiff prepared the will and witnessed the execution of the will by the deceased.

3 Probate of the deceased's will was granted to the plaintiff on 8 July 2016. The principal asset of her estate is her Albert Park property.

4 The deceased's penultimate will dated 9 September 2010 and a codicil dated 7 June 2012 left her estate to the applicants and her four nieces equally.

5 The applicants seek revocation of the grant of probate of the deceased's will on three grounds:

(a) the deceased lacked testamentary capacity shortly before and at the time of the execution of her will dated 28 May 2015;

(b) the deceased executed her will due to the undue influence, intimidation and coercion on the deceased by two of her nieces, Janette Maree Williams ('Janette') and Michelle Norma Luca ('Michelle'); and

(c) the will is void ab initio because it was obtained by fraud on the part of Janette and Michelle.

6 The applicants' summons dated 16 January 2017 alleged the first two grounds of objection. On 21 March 2017, the applicants filed particulars of their first two grounds of objection.

7 The Court was satisfied that the applicants had established a prima facie case for the first ground of objection, but not for the second ground. Orders were made on 31 March 2017 for the applicants to file proper particulars of the ground of undue influence. The applicant filed those particulars on 5 April 2017. The adequacy of those particulars was adjourned as the applicants wished to add a third ground of objection.

8 At the directions hearing on 7 April 2017, the applicant obtained leave to file a summons seeking to add an order that the deceased's will is void ab initio because it was obtained by fraud on the part of Janette and Michelle.

9 The following particulars are relied on by the applicants for the ground of undue influence:

2.1 In about mid-May 2015, Janette and Michelle insisted that the Deceased be discharged from Como Hospital into their full-time care, instead of permanent residential care as recommended in the ACAT report.

2.2 Como Hospital was only prepared to discharge the Deceased into Janette and Michelle's full-time care, subject to their giving a written undertaking to the hospital that they would provide the requisite and appropriate full-time care for the Deceased. The written undertaking was given and the Deceased was discharged to Janette's and Michelle's full time care.

2.3 Subsequently, Janette and Michelle repeatedly and falsely told the Deceased that the Applicants were attempting to sell the Deceased's home without her consent and to place the Deceased into residential care against her will. Such conduct is properly to be characterised as domineering, manipulative and controlling.

2.4 Janette did not consult the Deceased in matters concerning the Deceased's medical care or daily activities or who the Deceased could see and speak to. Janette restricted and attempted to prevent contact between the Applicants and the Deceased. Such conduct is properly to be characterised as domineering, manipulative and controlling.

2.4[1] An Enduring Power of Attorney was executed by the Deceased on 28 May 2015 (the same day as she executed the Will). Janette thereafter misappropriated the Deceased's funds and has failed to account to the Executor for funds withdrawn from the Deceased's bank accounts.

2.5 Janette and Michelle's financial interests in the Will exceeded their interests under the Deceased's previous Will dated 9 September 2010 and codicil dated 7 June 2012 (the Previous Will). It was therefore in Janette and Michelle's own financial interests that the Deceased revoke her Previous Will.

2.6 The Will effected a substantial change to the Deceased's previous and longstanding testamentary intentions both with respect to the Applicants and to the Deceased's beloved charities.

2.6.1 Under the Previous Will and under the Deceased's will dated 14 December 2009 (the 2009 Will), the Deceased divided her estate equally among each of the Applicants, Janette, Michelle, Kerry Lynette Reid and Dianne Shirley Williams.

2.6.2 Under the Previous Will the Deceased gifted "all monies...in my bank accounts" to the Royal Society for the Prevention of Cruelty to Animals (Victoria) Incorporated (RSPCA) and the National Heart Foundation (Victoria). The bequests were not made under the Will.

2.7 Janette and Michelle were aware and/or ought to have been aware that the Deceased was not of sound mind and/or extremely vulnerable, nevertheless they facilitated the execution of the Will by the Deceased so soon after assuming the full-time care of the Deceased.

Particulars of the ground that the deceased's will was obtained by fraud

10 The following particulars of the will being obtained by fraud are relied on by the applicants:

1.1 By the wilful and false statements and conduct of [Janette] and [Michelle], the Deceased was misled and deceived into believing that the Applicants intended:

1.1.1 to place the Deceased into residential care against the Deceased's wishes; and

1.1.2 to sell the Deceased's home against the Deceased's wishes.

1.2 At the time of the misleading and deceptive conduct, the Deceased was:

(i) extremely feeble bodies and vulnerable;

(ii) under the full-time care and control of Janette and Michelle; and

(iii) wholly dependent upon Janette and Michelle for her living needs.

1.3 As a direct consequence of Janette's and Michelle's misleading and deceptive conduct the Deceased formed a false and negative view of the Applicants. Shortly thereafter, with the assistance of Janette and Michelle, the Deceased executed the Will. By letter dated 15 November 2016, the Plaintiff's lawyers Messrs. McClusky's Lawyers, who prepared and witnessed the Will, have advised the Applicant's lawyers, inter alia, that:

Unfortunately it appears from the deceased's instructions that the critical factor for the deceased deciding to change her Will was your client's trying to "push" her into a nursing home ...

1.4 Under the Will the Applicants stand to receive a substantially lesser share of the Deceased's estate, if any, as opposed to their potential entitlement under the Deceased's previous will dated 9 September 2010 and Codicil dated 7 June 2012.

11 In an affidavit sworn 13 April 2017, Mr Alek Cesmadziski, solicitor for the applicants, exhibited an affidavit sworn by the first applicant on 16 January 2017 in which the first applicant deposed that:

(a) the deceased was hospitalised some four weeks prior to signing her will, at which time the deceased was aged 96 years and admitted to hospital due to functional decline and other aliments;

(b) an Aged Care Assessment Team report on 8 May 2015 stated the deceased required full time residential care due to her infirmities;

(c) the deceased was discharged from the Como Hospital into the full time care of Janette and Michelle;

(d) from the regular and frequent discussions with the deceased, the applicants discovered that Janette and Michelle were endeavouring to turn her against us by repeatedly and falsely telling the deceased that the applicants were trying to sell her home without her consent and to place her in full time residential care against her will and the applicants believe this is indeed what occurred; and

(e) the deceased was misled and deceived by Janette and Michelle into believing that the applicants intended placing the deceased into residential care and sell the deceased's home against the deceased's wishes.

12 Mr Cesmadziski's affidavit exhibits a letter dated 15 November 2016 from the solicitors for the plaintiff to the applicant's lawyers that stated:

Unfortunately it appears from the deceased's instructions that the critical factor for the deceased deciding to change her Will was your client's trying to "push" her into a nursing home...

13 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 objection.[7] This is done through the provision of particulars with the grounds of objection. The function of particulars is to provide an opposing side with an understanding of an applicant's case and inform the opposing party of the case it has to meet. They limit the issues to be tried and define the questions for trial with precision and avoid surprise at the trial.

17 Where the particulars of objection 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 objection, 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 overarching purposes of the Civil Procedure Act 2010 and the overarching obligations set out in that Act.

19 The applicants are two of six beneficiaries under the deceased's penultimate will and codicil. If the grant of probate of the deceased's last will is revoked, then the penultimate will and codicil would stand as the last valid will of the deceased. The applicants therefore have sufficient standing to make the application to revoke the grant of probate.

20 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 correspondence exhibited to the first applicant's affidavit shows a longstanding concern by the applicants in relation to the deceased's will yet the applicants do not explain why they did not lodge a caveat with the Registrar of Probates.

21 The applicants first contacted the plaintiff's solicitors close to the date for the final distribution of the estate, alleging that the deceased failed to provide them with sufficient provision and that Janette misused her position as the deceased's attorney under power.

22 The applicants have failed to provide a satisfactory explanation for their delay in making their application so long after the grant of probate was made. They have stood by without intervening prior to the grant being made and have not provided an adequate explanation for the delay in making their application for revocation of the grant of probate.

Ground 2 - whether the deceased executed her will due to the undue influence, intimidation and coercion on her by Janette and Michelle

23 An allegation that a will was procured by undue influence is a serious claim of an equitable species of fraud, an essential component of which is an allegation of fraudulent conduct. 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 'coercion''.[9]

24 Where undue influence is alleged, the onus of proof lies on the party who alleges it, namely, the applicants.[10] The party alleging undue influence must show that the circumstances attending the execution of the will are inconsistent with the will having been obtained other than by undue influence. They must do so on the balance of probabilities. If all they are able to prove is that undue influence and a lack thereof are equally likely, they have not proved their case. They must instead show that, on balance, the hypothesis that the testator has been unduly influenced is more likely than the contrary.

25 The applicants have now been given three opportunities to provide particulars of the undue influence ground. The particulars provided set out a background of the deceased's situation, such as her care and the fact that she changed her will. There is an allegation that Janette misappropriated the deceased's funds after the will was executed using her enduring power of attorney from the deceased. These particulars do not provide a prima facie case of testamentary undue influence.

26 The principal basis of the allegation of testamentary undue influence appears to be that it can be reasonably inferred from the allegation that Janette and Michelle:

... repeatedly and falsely told the deceased that the applicants were attempting to sell the deceased's home without her consent and to place the deceased into residential care against her will. Such conduct is properly to be characterised as domineering manipulative and controlling.

27 The applicants contend that the deceased told this to the first applicant and this is supported by the statement in the letter from the plaintiff's solicitors that a critical factor in the change in the deceased's instructions for her will was the applicants 'trying to push her into a nursing home'. The applicants' position is that they did not ever actually push the deceased into a nursing home.

28 The applicants' allegation of testamentary undue influence is based on reasonable inference rather than direct evidence of the exercise of undue influence by Janette and Michelle on the deceased. Where the particulars alleged in respect of a circumstantial case of undue influence do not inevitably lead to the inference of undue influence being drawn, the particulars should be struck out as being incapable of being supported as they are unable to meet the requisite standard.

29 The matters and circumstances alleged in the particulars would not, if established by the evidence, lead to a reasonable inference that undue influence has been exercised by Janette and Michelle and do not exclude any contrary hypothesis.

30 Accordingly, the particulars do not provide a sufficient factual basis for a prima facie case of testamentary undue influence.

Ground 3 - whether the deceased's will was obtained by fraud on the part of Janette and Michelle

31 Fraud that is sufficient to result in the invalidation of a testamentary instrument is concerned with misleading or deceptive conduct. The execution of a will obtained by fraud is a fundamentally different concept to testamentary undue influence. Testamentary undue influence coerces a testator whereas fraud misleads her.[11]

32 A description of the width of the category of conduct that fraud embraces in affecting testamentary dispositions was set out by Powell J in Ridges v Watson:

... the concept of 'fraud' in this area of the law, although not entirely clear, is ... not limited to wilfully false statements, or the suppression of material facts, going to the execution of the will which is impugned, but may extend to statements, or the suppression of material facts, which statements were wilfully false and were made, or which facts were material and were suppressed, for the purposes, either, of gaining benefits under the will, or of preventing benefits being received by the natural objects of the testator's testamentary bounty ... [12]

33 As with testamentary undue influence, fraud must be affirmatively proved by the person who alleges it. The fraud perpetrated must be a material factor that operates on the mind of the testator to make his or her will in a certain way.[13] A court of probate may sever that part of a will that was induced by fraud, but not interfere with the other parts of it.[14] The onus of proving an allegation of fraud lies on the person alleging the fact.[15]

34 The applicants allege that the deceased was misled and deceived by the wilful and false statements and conduct of Janette and Michelle into believing that the applicants intended, against the wishes of the deceased, to place her into residential care and sell her home. The direct consequence of the misleading and deceptive conduct was that the deceased formed a false and negative view of the applicants and that this was the critical factor in the deceased executing her last will, relying on this statement in the letter from the plaintiff's solicitors.

35 These particulars are speculative and circumstantial. The alleged belief of the deceased is not inevitably linked to any actions of Janette and Michelle that can be said to be a fraud. The belief is based on reasonable inference rather than direct evidence of the exercise of fraud by Janette and Michelle on the deceased. They do not inevitably lead to the inference of fraud.

36 The matters and circumstances alleged in the particulars would not, if established by the evidence, lead to a reasonable inference that fraud has been exercised by Janette and Michelle. Even if the matters particularised by the applicants were established by evidence, the case that would be established would fall short of meeting the requisite standard of proof and should be struck out.

37 Accordingly, the particulars of fraud do not provide a sufficient factual basis for a prima facie case.

38 The applicants have failed to provide a satisfactory explanation for their delay in making their application to revoke the grant of probate. The delay affects all three of the applicants' grounds of revocation, including the ground of testamentary capacity. Despite this, the Court was satisfied that the applicants had established a prima facie case for the allegation that the deceased lacked testamentary capacity at the time she executed her will dated 28 May 2015, and as such that ground will proceed.

39 In respect of the remaining two grounds, the applicants have made serious allegations of testamentary undue influence and fraud against Janette and Michelle with little or no factual basis to support those allegations. The grounds do not differ substantially in their content. This is despite the fact that they were given three opportunities to file their particulars of undue influence and were granted leave to add the further ground of fraud out of time.

40 Both the undue influence and fraud grounds alleged by the applicants rely on statements of a general nature over an unspecified time period, inferences and conclusions and then attempt to link these very serious allegations to Janette and Michelle. Their particulars fail to provide the plaintiff or Michelle and Janette, who would need to be added as parties if these grounds proceeded, of an adequate or proper understanding of the case they have to meet.

41 The applicants have failed to establish a prima facie case to revoke the grant of probate on the ground of testamentary undue influence by Janette and Michelle on the deceased, and on the ground that the will was obtained by the fraud of Janette and Michelle.

(a) the applicants' ground of testamentary undue influence alleged against Janette and Michelle be struck out; and

(b) the applicants' summons for an order that the deceased's will is void ab initio because it was obtained by the fraud of Michelle and Janette be dismissed.

43 The ground that the deceased lacked testamentary capacity remains to be heard. The parties are to provide minutes of proposed directions in respect of that ground by 23 June 2017.

[1] The undue influence particulars contain two paragraphs marked 2.4.

[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] Wingrove v Wingrove (1885) 11 PD 81; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.

[10] McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA).

[11] Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (15 June 2007) [61], [65] (Ipp JA).

[12] Ridges v Watson (Unreported, Supreme Court of New South Wales, Powell J, 1 May 1992) 6, referring to his earlier decision in Newton v Taylor (Unreported, Supreme Court of New South Wales, Powell J, 2 May 1991). See also The Public Trustee v Mullane (Unreported, Supreme Court of New South Wales, Powell J, 12 June 1992) 15.

[13] In re Kelly [1929] SAStRp 39; [1929] SASR 262.

[14] In re Nickson [1916] VicLawRp 35; [1916] VLR 274.

[15] Robertson v Smith [1998] 4 VR 165, 177 (Tadgell JA).