Plaintiff v Caveatrix

1 Until she passed away on 27 March 2021 at 91 years of age, Clarice Robustelle (the deceased) was the proprietor of a farming property near Wangaratta. Although she was actively involved for many years in the farming activities undertaken on the property, from about 2004 until 27 February 2020, she was assisted in those endeavours by Stephen Atkins.[1] Over that time until his death on 27 February 2020, Stephen lived in a house on the deceased's property, together with his partner and his son Bryden Atkins, who is the plaintiff in this proceeding.

2 The deceased, who it would appear never married and had no children, left a will dated 1 March 2018 (the 2018 will), appointing Stephen as the executor of her estate.[2] The will provides that, after a number of small pecuniary legacies, Stephen is to receive the residue of the deceased's estate, with a gift over to the plaintiff in the event that, as occurred, Stephen predeceased the deceased.

3 As the residuary beneficiary of the deceased's estate, the plaintiff has applied for letters of administration with the will annexed in respect of the 2018 will. The inventory of assets and liabilities filed with the application records the value of the estate to be $7,275,176.[3] Counsel for the plaintiff estimates the estate to now be valued at about $8.6 million.

4 On 30 April 2021, Jeanette Clarke, who is a niece of the deceased, filed a caveat in relation to the deceased's estate. She seeks to impugn the 2018 will for want of testamentary capacity and on the basis that the deceased made the will under Stephen's undue influence. The caveatrix also alleges that the deceased acted under the undue influence of Stephen when she made her penultimate will on 22 August 2012 (the 2012 will), under which Stephen is also the residuary beneficiary.[4]

5 The caveatrix is a beneficiary under the deceased's antepenultimate will dated 15 July 2008 (the 2008 will).[5] Under that will, Stephen receives a bequest of $100,000, two farming properties, livestock, two motor vehicles and household appliances.

6 The plaintiff contested the caveatrix's standing to lodge the caveat. On 25 August 2022, McMillan J determined that the caveatrix had standing.[6] In the course of her reasons for judgment, McMillan J observed that, in challenging the 2012 will as well as the 2018 will, the appropriate course was for the plaintiff to issue a separate application, in the alternative, for a grant of the 2012 will.[7] Her Honour observed that this would ensure that the real issues in dispute concerning both wills were before the Court in circumstances where one of the executors to the 2008 will[8] had indicated that he would apply for a grant of the 2008 will in the event that that was the last valid will of the deceased.

7 The plaintiff subsequently lodged an application for a grant of letters of administration with the will annexed in respect of the 2012 will.[9] The caveatrix then filed a caveat in that proceeding. The grounds of objection filed in that proceeding are in the same terms as those filed in the proceeding brought in respect of the 2018 will.[10]

8 The parties ultimately agreed that it was appropriate in the circumstances of the case for the Court to determine together whether the caveatrix had established a prima facie case in relation to the caveats filed in respect of both the 2018 will and the 2012 will.

9 In their final form, the caveatrix's particularised grounds of objection to the making of a grant in respect of the 2018 will and the 2012 will (the grounds of objection)[11] were as follows:

Lack of testamentary capacity

1. The deceased lacked testamentary capacity during the period shortly before and at the time she executed the 2018 Will.

PARTICULARS

(a) From at least July 2015 onwards, the deceased was suffering from progressive cognitive decline and memory loss, and had been diagnosed with dementia by June 2017.

(i) In or around July 2015, the deceased told the caveator that she was the caveator's real mother but that the caveator had been raised by her aunt, the deceased's sister (the caveator's mother) instead of her.

(ii) On or around 16 June 2017, the deceased [was] admitted to Northeast Health Wangaratta hospital with a broken arm. The deceased remained in hospital until 28 August 2017.

(iii) During that admission, the deceased was assessed by hospital staff, including Dr Dhakal Lakshmi, social worker Neil Barassi, and others. As a result of those assessments, the hospital staff noted, inter alia:

(A) "[The deceased's] admission was complicated by acute confusion and delirium on a background of longstanding progressive cognitive decline".

(B) "[The deceased's general practitioner] Dr Moroney reports longstanding cognitive decline, worse over recent years".

(C) "Likely resolving delirium in the setting of background progressive cognitive decline".

(D) "Collateral reports outline [the deceased] has had a noticeable decline in cognitive ability over the past 6 months, poor memory, poor personal hygiene, impulsivity".

(E) "Following assessment, likely diagnosis mixed dementia of Alzheimer's and vascular type".

(F) "Deemed to lack capacity to make decisions regarding health and finances".

(G) "[The deceased] cannot recognise niece (Jeanette)".

(H) "...the treating team determined [the deceased] does not have decisional capacity and concerns raised about [the deceased's] future issues should she require aged care".

(I) "[The deceased] presents with a significant global cognitive impairment; and upon functional and formal cognitive assessment has been diagnosed, by Dr Lakshmi, to have dementia of mixed type. During functional tasks, it has been assessed that [the deceased's] main barrier to independence is her significant cognitive impairment; which is characterized by vagueness, behavioural lability, and executive dysfunction... [The deceased] demonstrated decreased ability to initiate the task, significant difficulty with in task sequencing, and limited insight into her functional and cognitive limitations".

(b) From in or around August 2017, the deceased did not have capacity to make reasonable judgments about her person or circumstances and estate; alternatively, the deceased's capacity to make reasonable judgments about her person or circumstances and estate fluctuated from that time until her death.

(i) By orders made in or around August 2017, VCAT declared that the deceased was unable to make reasonable judgments about her person or circumstances and estate and appointed an administrator and guardian over her estate, which orders were revoked on 6 February 2018.

(c) The deceased suffered from Alzheimer's disease from around the period shortly before and at the time the 2018 Will was made.

(i) The deceased's death certificate records that she suffered from Alzheimer's disease for the two years prior to her death.

Undue influence

1. The deceased acted under the undue influence of Steven Mark Atkins[12] when she made the 2018 Will.

PARTICULARS

(a) The deceased was in regular contact with the caveator throughout her life.

(b) From around 2004 until his death on or around 27 February 2020, Steven Mark Atkins worked for the deceased as a farmhand and/or farm manager on her property at 2345 Wangaratta-Whitfield Road, Moyhu, Victoria. Atkins lived on the property with the deceased, albeit in a separate residence.

(c) From around 2006 onwards, the deceased was subjected to repeated acts of aggression and violence by Steven Mark Atkins (Atkins) or others at his direction or associated with him.

(i) Atkins would monitor the deceased's phone calls and review her phone bills. He would confront her aggressively about her phone calls.

(ii) From time to time, Atkins would answer the deceased's phone when the caveator would call her. He would say the deceased was not there and then hang up the phone. The deceased would later call the caveator and tell her that she had been there the whole time.

(iii) Atkins would often become angry with the deceased and would act violently around her. For example, he would throw the deceased's chairs, often breaking them. The deceased told the caveator that she was scared of Atkins when he was angry.

(iv) In or around 2007 or 2008, during a dispute over pay, Atkins left the deceased on a remote part of her property without any mode of transportation. The deceased could not walk without discomfort due to suffering from polio as a child. Atkins eventually returned to pick up the deceased in her ute, but only on the condition that she agree to pay him and the plaintiff more money for their work on her property.

(v) In or around 2007 or 2008, Atkins' partner, Bernadette Williams, moved into the house he lived in on the deceased's property. Previously, Bernadette Williams had called the deceased an 'old bitch that wouldn't die so her and Steve could have the farm'.

(vi) In or around 2008, despite substantial experience and competence in farm management over many years, the deceased began to appear doubtful and unsure of her decisions and would regularly consult her accountant, John Iwanuch. She would consult with her accountant on days and at times she knew Atkins would be away from the property.

(vii) When the deceased made the 2008 Will, she told the caveator that she did not want Atkins to know about it.

(viii) In or around 2010, the deceased's copy of the 2008 Will went missing. She told the caveator that she believed Atkins had been through her paperwork and taken the copy of the 2008 Will. She said she was frightened about what Atkins might do because he was watching her the whole time.

(ix) In or around 2012, around the time the deceased made the 2012 Will, Atkins physically assaulted the deceased, called her a 'bitch' and said words to the effect that she 'would get what she deserved'. Atkins was arrested after this incident. The deceased did not press charges against him. She told the caveator that she was worried about what Atkins might do.

1. The deceased acted under the undue influence of Steven Mark Atkins when she made the 2012 Will.

PARTICULARS

(a) The caveator refers to and repeats the particulars to paragraph 13 above.

10 In many cases the assessment of whether there exists a prima facie case to justify a matter proceeding to trial is undertaken by reference solely to the particulars of the grounds of objection which, for the purposes of that task, are to be treated as true. In some cases, as here, a caveatrix also relies on affidavit evidence in seeking to establish a prima facie case. Important aspects of the affidavit material relied upon by the caveatrix are summarised in the following paragraphs.

11 The caveatrix relied upon an affidavit sworn by her on 23 August 2021. Amongst other things, the caveatrix deposed as follows:

(a) The caveatrix and the deceased had been very close, speaking at least three to four times per week and visiting each other three to four times per year.

(b) From around late 2006, the caveatrix noticed a change in the deceased's personality in that she had become withdrawn and seemed unsure of herself.

(c) The deceased told the caveatrix of an occasion when, after challenging Stephen about a discrepancy in his hours of work on her property, he reacted angrily and said that he would not round-up and check cattle, and that he did not in fact do so for three weeks. The deceased then started to round-up the cattle in her ute. Stephen then came to her, ordered her out of her car and told her that she could walk home. He then drove off, leaving her alone on the property a long way from the house in circumstances where she had difficulty walking (as a result of having suffered from polio as a child). About an hour later, Stephen returned and collected her in his car, and demanded that he and the plaintiff be paid $30 per hour, when until then he had been paid $15 per hour, or otherwise they would no longer work on the farm.

(d) The deceased told the caveatrix that Stephen would often get angry with her and would throw chairs. The deceased showed the caveatrix the chairs that Stephen had thrown and broken; she only had two remaining chairs to sit on. The deceased told her that Stephen scared her when he got angry.

(e) The deceased told the caveatrix that Stephen would read her phone bill and, if it showed a long call to the caveatrix, he would yell and scream at her. There were occasions when the caveatrix would telephone the deceased and Stephen would answer, and he would then say that the deceased was not there, that she was 'feeding the chooks'. The deceased would later call her back and say that she had been there the whole time.

(f) The deceased telephoned the caveatrix in 2008 and told her that she wanted to make a new will, but that she wanted to get someone to take her because she did not want Stephen to know.

(g) In around 2010, the deceased rang the caveatrix, crying. The deceased said that someone had been through her paperwork in her office and a copy of the 2008 will was gone. The deceased said she was sure that it was Stephen because he had 'become very nasty recently and I am frightened about what he might do as he is watching me the whole time'.

(h) In around 2012, the deceased rang the caveatrix and said that Stephen had been yelling and screaming at her. The caveatrix deposed that the deceased:

... said he had gone home. She then said that he is back. I could hear him yelling and screaming. Mary left the phone off the hook, and I could hear Steve hitting Mary and Mary was crying and saying "Don't hit me". I heard Steve say, "You're just a bitch and you are going to get what you deserve". The phone then went dead.

The caveatrix contacted the police, who attended the deceased's property. The deceased later told her that the police arrested Stephen, but that she did not want to press charges because she was worried as to what he might do.

(i) In around September 2012, the deceased told the caveatrix that she would like to sell up and move to Wangaratta and asked if the caveatrix could move there as well as this would make her 'feel safe'.

(j) The caveatrix considered that, in around July 2015, the deceased's memory and perception was poor. On one occasion she told the caveatrix that she was her daughter. The caveatrix later undertook a DNA test which confirmed that she was not the deceased's daughter.

(k) On around 11 January 2016, the deceased was admitted to hospital with badly swollen eyes and a cut to her head. The deceased told the caveatrix that she had 'fallen off the veranda'.

12 The caveatrix also relied upon the following other affidavits:

(a) An affidavit sworn 24 August 2021 by Neil Barassi, a social worker and counsellor who had worked at the North East Health Wangaratta Hospital (the hospital) between 2007 and 2019. Mr Barassi deposed that he examined and attended to the deceased at the hospital in the period in July - August 2017 during her rehabilitation for a broken arm. On 12 July 2017, he formed the view that the deceased did not have decision-making capacity and required a guardian and administrator to manager her affairs. He decided to make an application to the Victorian Civil and Administrative Tribunal (VCAT) on behalf of the deceased for guardianship and administration orders.

(b) An affidavit sworn 25 August 2021 by John Iwanuch, a chartered accountant who provided accounting and taxation services to the deceased between 1987 and 2018. Amongst other things, Mr Iwanuch expressed the view that, after Stephen gave up professional rodeo bull riding, he became increasingly threatening in his behaviour and in his control of the deceased. He stated that the deceased called him on numerous occasions complaining about the 'continual harassment and aggressive behaviour by Steve' and that she felt very threatened by his behaviour which increased each time he would 'blow up'. Mr Iwanuch deposed that, from around 2017 onwards, the deceased's calls to him increased in length and volume, and that she told him repeatedly that she was scared of Stephen and that he was controlling the farm. She would recount his numerous threats and 'blow ups' and abuse. He stated that the deceased increasingly expressed a sense of loneliness and that she felt isolated because Stephen was very strict with visitors and did not let her friends see her. He also stated that, in about 2017, the deceased showed him the 2012 will and told him that it was 'signed under duress, and she was not happy with it'.

(c) An affidavit by one of the deceased's nephews, Robert Bowers. Amongst other things, Mr Bowers deposed that the deceased would ring and ask his advice about the farm and that she would say that Stephen had been 'roaring and yelling at me', and telling her that if she did not agree with him, he would leave and she would have nobody to help her and she would be on her own and lonely. He stated that on numerous occasions the deceased said to him words to the effect that Stephen 'had a big screaming, yelling blue with me and I've told him to go home and pack his clothes and get off my property', and that she was scared that 'Steve may come back and hurt me'. He stated that when he spoke with the deceased, she would sometimes say that she could hear Stephen coming and that 'he'll go off at me again if he finds me talking on the phone', and that she would hang up the phone. He referred to similar situations when his mother, the deceased's sister, visited the deceased.

(d) An affidavit sworn 31 August 2021 by Wendy Piccolo, one of the deceased's nieces. Ms Piccolo stated that she had observed Stephen antagonising and swearing at the deceased and that the deceased would cease telephone conversations if Stephen was nearby.

(e) An affidavit sworn 4 May 2022 by Geoffrey Schreiber, a retired stock agent who had been the deceased's stock agent for about 30 years. Mr Schreiber stated that the deceased told him that she regularly had a 'blow up' with Stephen, that she would end conversations with Mr Schreiber when Stephen approached, and that Stephen did not like people visiting the deceased. Mr Schreiber stated that, when he visited the deceased in hospital in 2017, he was shocked when, having known each other for nearly 40 years, she asked him who he was.

13 In addition to his affidavit filed in support of his originating motion seeking a grant of letters of administration with the 2018 will annexed, the plaintiff relied on three other affidavits[13] in which he deposed to various matters including the following:

(a) Proceedings in VCAT in relation to the deceased during her lifetime about which he sought to 'correct the record'. This issue is raised in paragraph 11(b) of the grounds of objection based upon the deceased's alleged lack of testamentary capacity. I address this material in further detail and outline the plaintiff's submissions in [29] below.

(b) A letter provided by the deceased's long-standing medical practitioner dated 17 March 2015 in which he stated 'Your recent brain CT scan was reported as normal ie no tumours or other abnormalities. Headaches are coming from your neck arthritis'.

(c) Various matters and documents relating to the preparation of the 2018 will including the following which the plaintiff found while cleaning up and organising the deceased's home after her death:

(i) A letter dated 14 February 2018 from the solicitor who acted for the deceased in the above proceedings in VCAT in which he stated 'It is also probably a good time to reconsider your will, but I am only mentioning these matters to give you a prompt and to think about them'.

(ii) That the 2018 will was prepared by the law firm that also prepared the deceased's 2012 will. The witnesses to the 2018 will were employees of that law firm which, on 2 March 2018, the day after the 2018 will was made, issued the deceased with a tax invoice for professional services relating to the preparation and execution of the will.

(iii) A chequebook stub signed by the deceased in an amount equal to the above tax invoice, and a receipt issued by the law firm in relation to the payment.

(iv) That the deceased retained a copy of the 2018 will in an envelope upon which she had written the words 'The last will made CME Robustelle'.

14 The Court of Appeal authoritatively set out the approach to determining the existence of a prima facie case in Gardiner v Hughes (No 2).[14] Although made in the context of an application for the revocation of a grant, the statements of principle by the Court are equally applicable to cases involving the objection to the making of a grant.

15 The Court of Appeal identified that the task for a caveatrix is to show that there is a 'case for investigation', or 'something to go on'.[15] The question is whether the allegations made by the caveatrix, assuming them to be true, call for further investigation.[16] Mere speculation will not, however, suffice.[17] As to how this test is to be applied, the Court stated that: [18]

... it will not simply be a question of deciding whether an inference justifying revocation should be drawn from the facts relied upon, or which of two possible inferences is to be preferred. Those would be matters for trial. Nor is the true question even whether the inference sought to be relied on is available on the facts (although if that were so, there would be a prima facie case for investigation as to whether or not the inference should be drawn). 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.

16 In Gardiner v Hughes (No 2), the Court of Appeal criticised an approach to determining the existence of a prima facie case in which particulars of objection were separately examined in isolation from each other. The Court emphasised that the task is to determine 'whether the particulars as a whole constituted a narrative warranting further investigation',[19] with the weight to be attached to individual particulars to be determined with regard to the 'overall narrative'.[20]

17 A testator who leaves a will that is rational on its face and which has been duly executed enjoys the presumption of validity in relation to the will.[21] This presumption may be rebutted where there is doubt about a testator's capacity at or around the time they executed the will.[22] If such a suspicion is sufficiently raised, the onus shifts to the propounder of the will to prove that the will was validly made.[23]

18 It is well established that the test for testamentary capacity requires a proposed testator to comprehend the nature and effect of a will, understand the extent of the property of which the will disposes, and to be able to comprehend and appreciate the claims to which they ought to give effect.[24]

19 A testator who suffers from a 'disorder of the mind' will lack the requisite capacity if the disorder affects their mental faculties to a degree that renders them incapable of exercising their testamentary powers.[25] A diagnosis of dementia does not necessarily preclude testamentary capacity.[26]

20 It was submitted on behalf of the caveatrix that paragraph 11 of the grounds of objection,[27] in conjunction with the affidavit evidence,[28] established a prima facie case that the deceased lacked testamentary capacity shortly before and at the time she executed the 2018 will as they support the following propositions:

(a) From around 2006 onwards, the deceased became withdrawn and increasingly unsure of herself.

(b) By 2008, the deceased had difficulty with even simple matters, particularly in relation to the running of her farm and management of her property.

(c) From around the time of the 2012 will, the deceased could not properly recall the nature of her relationships with certain family members, including her sister.

(d) From at least July 2015, the deceased often appeared confused, and her memory and general perception had deteriorated.

(e) The deceased was admitted to hospital on or around 16 June 2017 and was discharged on 28 August 2017, during which time she was assessed by hospital staff on multiple occasions. The hospital records reflect the staff's repeated concerns about the deceased's cognition and capacity following those assessments, including that she was suffering from 'longstanding' and 'progressive' cognitive decline.[29]

(f) From at least August 2017, the deceased did not have decision-making capacity in relation to her personal and financial matters; in August 2017, VCAT appointed an administrator and a guardian over the deceased's affairs.

(g) The deceased's death certificate records that she suffered from Alzheimer's Disease for two years prior to her death in March 2021.

21 It was submitted that a diagnosis of dementia in June 2017, preceded by a noticeable cognitive decline from at least July 2015, raises significant concerns about the deceased's testamentary capacity when she executed the 2018 will.

22 It was further submitted that, in order to establish a prima facie case, the caveatrix was not required to establish the precise nature of the deceased's lack of capacity at the relevant time, provided she could raise facts that justify an inference that a finding of that sort could be made.[30]

23 The plaintiff submitted that the grounds of objection did not constitute a narrative warranting further investigation as to whether the deceased lacked testamentary capacity at the time she executed the 2018 will. The plaintiff submitted that the particulars relied on by the caveatrix in paragraph 11 of the grounds were inadequate, discursive and drew conclusions and inferences.

24 The plaintiff criticised the particulars in paragraphs 11(a)(i)[31] and 11(a)(iii)[32] of the grounds of the objection for their lack of a close temporal connection to the execution of the 2018 will, with those events respectively occurring either three years prior or nine months prior to the deceased executing her final will.

25 The plaintiff also criticised the particulars in paragraph 11(a)(ii) of the grounds insofar as the deceased's hospital admission due to a broken arm, being an example of physical frailty, was not relevant to the question of whether the deceased lacked testamentary capacity.

26 The plaintiff further criticised the caveatrix's reliance on 'selective medical notes' which were not a formal diagnosis of dementia and did not support a conclusion that the deceased was unable to satisfy the Banks v Goodfellow test. The plaintiff also noted that the hospital discharge summary following the deceased's admission in 2017 recorded the results of the deceased's CT scan as normal. This was consistent with the statement by the deceased's long-standing general practitioner in 2015 that her 'recent brain CT scan was reported as normal.'

27 The plaintiff relied on the deceased's death certificate which recorded the duration of the deceased's last illness as 'Alzheimer's disease 2 years', which meant that the onset of the deceased's dementia occurred at some point in 2019, a year after the 2018 will was executed.

28 The plaintiff also relied on the fact that the deceased's 2018 will was made by a solicitor. The observations made by hospital staff during the deceased's hospital admission in 2017, summarised in paragraph 11(a)(iii) of the grounds, were insufficient to conclude the deceased lacked capacity to make the 2018 will because a solicitor would necessarily have considered the deceased's testamentary capacity and at a time more proximate to the execution of the 2018 will.

29 The plaintiff sought to impugn paragraph 11(b)(i) of the grounds which concerned the orders made by VCAT in 2017. It was submitted that:

(a) The VCAT orders made on 10 August 2017, which appointed the deceased's accountant as administrator of her estate and appointed a guardian for her personal matters, were reassessed and revoked on the successful application of the deceased by further orders made by VCAT on 6 February 2018.

(b) The Powers of Attorney made in favour of Stephen in March 2018 were revoked by VCAT in 2020 because they were not executed in accordance with the requirements of the Powers of Attorney Act 2014. There was no finding by VCAT that the deceased lacked capacity to make a Power of Attorney at that time.

(c) The 2020 VCAT orders appointing an administrator and a guardian for the deceased were made because of declarations by VCAT that the deceased was not capable of managing her legal and financial affairs at that time (i.e. in 2020). Those orders were not relevant to whether the deceased lacked capacity at the time she executed the 2018 will.

30 The plaintiff also relied on the history of the deceased's three wills, noting that each included Stephen as a beneficiary to varying degrees. The inclusion of Stephen in the 2018 will was therefore not a radical departure from the deceased's previous testamentary intentions and made sense given that Stephen worked as the deceased's farmhand for many years and was the person with whom the deceased had the most contact.

31 In Gardiner v Hughes (No 2), the Court of Appeal made the following observations about the application of the prima facie test in the context of a claimed lack of testamentary capacity:[33]

... It is true that the judge was not required to speculate as to whether or not Mr Gardiner lacked testamentary capacity or whether the various particulars relied upon, taken by themselves or as a whole, pointed in that direction. But equally, 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.

Instead, the question was whether the allegations, assuming them to be true, called for further investigation as to the testamentary capacity of the deceased. If so, resolution of that question was a matter for trial. The fact that a particular allegation might, depending on the context, either support an inference of incapacity or not did not mean that the case did not warrant further investigation based on that allegation. That very process of investigation would determine whether or not the inference should be drawn.

32 Although there was force in some of the plaintiff's submissions directed at paragraph 11(b)(i) of the grounds of objection concerning the orders made by VCAT in 2017, in the language of the Court of Appeal in Gardiner v Hughes (No 2),[34] collectively the particulars nonetheless reasonably suggest the possibility that, when she made the 2018 will, the deceased was not 'free to act in a natural, regular and ordinary manner'[35] so as to understand the matters necessary for a valid exercise of will-making power.

33 This conclusion stems principally from the particulars in paragraph 11(a)(iii) of the grounds of objection. Those particulars concern the deceased's admission at the hospital for about 10 weeks some eight or nine months before she made the 2018 will and include a diagnosis by Dr Dajkal Lakshmi, apparently based upon a functional and formal cognitive assessment, that the deceased had dementia. The particulars capable of supporting the existence of a disorder of the mind go beyond dementia: they include notes prepared by hospital staff of the deceased's 'long standing progressive cognitive decline', her experience of delirium, the existence of a 'significant cognitive impairment' and 'a lack of capacity to make decisions regarding health and finances'.

34 It is not particularly surprising that these observations are 'selective'; their contextualisation is a matter for trial. These particulars, apparently based on the observations by medical personnel about the deceased's cognitive condition some nine months before she made the 2018 will, cannot be readily dismissed and call for further investigation about the deceased's testamentary capacity when she made the 2018 will. Given the nature of the deceased's alleged mental disorder, a period of about nine months between when these observations were made and the 2018 will was executed is a sufficient temporal connection to raise a case to investigate. My conclusion is also supported by the contents of the affidavit sworn by Mr Schreiber who deposed that, although he had known the deceased for 40 years and worked with her as her stock agent, she did not recognise him when he visited her during her hospital admission in 2017.

35 I agree with the submission made on behalf of the caveatrix that the fact that the 2018 will was prepared by solicitors does not, in and of itself (or in combination with the other points raised by the plaintiff), mean that there is no case to investigate as to whether, in light of the above particulars, the deceased lacked testamentary capacity when she made the 2018 will. This is because there is no evidence about how the will came to be prepared by the solicitors, or the circumstances in which that occurred. That is a matter for trial. The mere fact that the will was prepared by a firm of solicitors does not extinguish the existence of a case for investigation based, in particular, on paragraph 11(a)(iii) of the grounds of objection. Likewise, the fact that the 2018 will was not a 'radical departure' from the 2012 will does not dispel the existence of a case for investigation as to whether the deceased lacked testamentary capacity when she made the 2018 will. In that regard, it may be noted that the benefits Stephen receives under the 2018 will are materially greater than those he would have received under the 2012 will. [36]

36 The caveatrix has accordingly established a prima facie case that the deceased lacked testamentary capacity when she made the 2018 will.

37 The legal principles relating to undue influence in the context of the making of testamentary instruments were not in dispute. The essential concept is encapsulated in the following statement by Sir JP Wilde in Hall v Hall:[37]

To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's.

38 Undue influence requires that the testator be coerced into doing that which he or she does not desire to do.[38] It must be shown that a testator did not intend the disposition recorded in their testamentary instrument.[39] Further, as stated by Sir J Hannen in Wingrove v Wingrove:[40]

... it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

39 In his review of the authorities in Nicholson v Knaggs, Vickery J identified that, in the context of the making of testamentary instruments, coercion has a wide meaning and 'is not confined to conduct involving the persuasion of an unwilling person by some kind of threat or force'.[41] The 'degree and nature of pressure which has the effect of invalidating the will making process will vary according to the particular vulnerability and susceptibility of an individual testator'.[42] Such an effect can be achieved in a variety of circumstances and relationships and can be the product of a chain of events, or a single event.[43]

40 The above principles were recently canvassed by McMillan J[44] in Moloney v Hayward.[45] Her Honour identified that the primary element of undue influence in a probate context is 'that the conduct overbears the will of the testator so that the will is made without intending or desiring the disposition thereby made'.[46] Whether influence exercised over a testator is, at law, 'undue', is a 'question of the nature and extent of that influence'.[47] Ultimately, 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'.[48]

41 It was submitted on behalf of the caveatrix that paragraph 13 of the grounds of objection[49] established a prima facie case that the 2012 will and the 2018 will were procured by Stephen's undue influence over the deceased as they support the following propositions:

(a) That Stephen worked for the deceased and lived on the deceased's property from around 2004 until his death in February 2020.

(b) From at least 2006 the deceased was subjected to repeated acts of aggression, violence and control and abusive behaviour by Stephen including:

(i) supervising and exerting control over her contact and communication with others;

(ii) exploiting and exerting pressure on her for his own financial benefit;

(iii) taking control of her testamentary affairs, such that the deceased was concerned about his knowledge of her affairs; and

(iv) reacting violently when she would not do what he wanted.

(c) When she made the 2012 will, the deceased was of an advanced age and frailty and was suffering from progressive cognitive decline.

42 It was submitted that, taken as a whole, this established a narrative whereby the deceased was subject to the control and surveillance of Stephen from about 2006 until 2020. It was submitted that Stephen created a scenario in which he was the deceased's primary social contact during this period, which was marked by financial exploitation and incidents of violence, and in circumstances where the deceased was elderly and frail and vulnerable to coercion.

43 It was submitted that the affidavit evidence to which I have earlier referred provided compelling support for this analysis. Five witnesses connected to the deceased in different ways[50] had deposed to facts that support an inference that the deceased was subject to aggressive and violent behaviour by Stephen. Their evidence was said to demonstrate a pattern of coercive behaviour by Stephen that, coupled with the increased benefits he received under the 2012 and 2018 wills, supported an inference that he exercised coercion over the deceased when she made those wills. There was, it was submitted, a very real prospect that Stephen exerted coercive influence over the deceased when she made those wills such that a case for investigation was made out.

44 The plaintiff submitted that the grounds of objection did not constitute a narrative warranting further investigation in relation to the making of either the 2012 or the 2018 wills. The particulars in paragraph 13(a)-(d) of the grounds of objection did not raise a case for investigation, as the burden on the caveatrix was to prove actual coercion, as distinct from the possibility or opportunity for its exercise. The plaintiff in substance submitted in relation to each of the particulars that they were insufficient to show a case of actual coercion on the part of Stephen towards the deceased when she made the 2012 and 2018 wills, and that the paragraphs were otherwise irrelevant, discursive, ambiguous and obscure. The plaintiff also criticised the particulars on the basis that, in many instances, the periods of time to which the allegations related were either vague, not relevant or otherwise not proximate to the making of the 2012 and 2018 wills.

45 The plaintiff criticised the particulars in paragraph 13(c) of the grounds of objection insofar as they alleged that Stephen was aggressive and violent towards the deceased. The plaintiff submitted that these particulars were not temporally proximate to the making of the 2012 and 2018 wills. Further it was untenable for the caveatrix to rely on allegations about Stephen's alleged violent and aggressive conduct said to have occurred before 2008, given that the caveatrix was in fact seeking to propound the 2008 will.

46 A central contention advanced by the plaintiff was that the particulars of the grounds of objection and the affidavit material relied on by the caveatrix were deficient in that they did not disclose a 'critical nexus' between Stephen's alleged behaviour and the making of the 2012 or the 2018 wills. The grounds of objection and the affidavits relied upon by the caveatrix failed to make out a case that the 2012 will and the 2018 will were made as a result of the alleged aggressive and violent behaviour of Stephen. For example, there was no connection between deceased's will allegedly being overborne in the making of the 2012 will and the 2018 and any of the following matters:

(a) the caveatrix's statement in her affidavit[51] that, in around 2012 while on the telephone, she heard Stephen yelling and screaming and hitting the deceased, with Stephen saying 'You're just a bitch and you are going to get what you deserve';

(b) Stephen's alleged arrest after the above alleged this incident; or

(c) the caveatrix's statement in her affidavit[52] that in September 2012, after the 2012 will was made, the deceased said she wanted to move to Wangaratta as that would make her feel safe.

47 More generally, the plaintiff submitted that the caveatrix's affidavit filed in support of the application largely amounted to speculation, involved the drawing of improper inferences, or was otherwise misleading and based on hearsay.

48 The plaintiff also criticised the caveatrix's reliance upon the affidavit of Mr Barassi. Mr Barassi deposed that, when she was in hospital in 2017, the deceased told him that she wanted to go home, did not want to go into aged care and that she would get assistance living at home from her niece and her farmhand. The plaintiff submitted that it was remarkable that, although at this time the deceased had an opportunity to tell a medical professional about any fears she might have had about Stephen, she did not do so and instead stated that she wanted to return home.

49 The plaintiff also submitted that it was significant that, after the Office of the Public Advocate was appointed as the deceased's guardian in August 2017, there is no evidence or suggestion that the Advocate considered that the deceased was at risk of harm from Stephen's behaviour, despite the Advocate's responsibility for ensuing the appropriateness of the deceased's living despite.

50 The plaintiff submitted that the proposition that the deceased was the subject of actual coercion by Stephen was belied by the fact that she successfully applied to revoke the orders made by VCAT in August 2017 appointing an administrator for her estate and a guardian for her personal matters. Further, the deceased then 'independently went to a solicitor to change her will' and, in making the 2018 will, significantly reduced the value of her gift to the hospital which formed part of the 2012 will. This was consistent with the deceased being 'angry' at the hospital and demonstrated that, when she made the 2018 will, she was a 'fierce, independent, strong-willed woman'.

51 The plaintiff submitted that it was critical that the wills executed by the deceased were prepared by solicitors. The Court should infer from the fact that the deceased went to solicitors that she made the 2012 will and the 2018 will freely and voluntarily. This was underlined by the fact that the deceased kept records in relation to the 2018 will and went to the trouble of putting the 2018 will in an envelope and writing on it that it was her last will, indicating that she was clearly concerned to ensure that it was found, and relied on.

52 Counsel submitted that, on the material before the Court, including the 'historical background', it was not open to draw any inference that the deceased was under any pressure in making the 2012 will or the 2018 will. It was conceded that the material before the Court indicated that Stephen and the deceased had a 'complex relationship' or a 'love‑hate' relationship which only they understood and knew how to navigate. It was not, however, a relationship which involved the use of actual coercion or duress to overbear the deceased's will.

53 The plaintiff submitted, by reference to the authority of Re Przychodski,[53] that there is a need to establish a 'strong factual foundation' in the case of allegations of undue influence. The plaintiff also relied upon the following judgments:

(a) The judgment of McMillan J in Re Demediuk[54] where her Honour was not satisfied that the particulars relied on to support an allegation of undue influence were made out, despite the existence of evidence that some family members allegedly screamed at the deceased and the deceased was heard to have said words to the effect 'I can't take it anymore'.

(b) The judgment of the Court of Appeal in Montalto v Sala[55] where a prima facie case based on an allegation of undue influence was not made out despite the fact that the particulars alleged that the testator had been the subject of undue influence when she was removed by one of her sons and effectively kept hostage at his home, preventing the caveator from seeing her.

54 On the basis of the above matters, the plaintiff submitted that the grounds of objection filed in relation to both the 2012 and 2018 wills should be summarily dismissed pursuant to s 63 of the Civil Procedure Act because there was no case for investigation and no real prospect of the caveatrix succeeding at trial.

55 The plaintiff's reliance on allegations of undue influence made in other cases is of little assistance in determining whether there exists a prima facie case for trial in this matter. As the Court of Appeal stated in Montalto, 'Particulars supporting an allegation of testamentary undue influence will vary considerably; comparisons between the particulars advanced in different cases will rarely be helpful'.[56] Neither does it assist to place a gloss on the legal principles relating to undue influence to which I have earlier referred by suggesting that there is a need to establish a 'strong factual foundation' in cases of alleged undue influence. Her Honour McMillan J made no such observation in Re Przychodski.

56 Although at trial a party asserting undue influence in the making of a testamentary instrument will need to establish actual coercion, being conduct which overbears a testator's will such that it cannot be said that they intended to make the dispositions provided by the instrument, such conduct can occur in a variety of circumstances and relationships and can be the product of a chain of events, or a single event. [57]

57 In this matter, the grounds of objection, together with the affidavits relied upon by the caveatrix, disclose a narrative warranting further investigation as to whether the making of the 2012 and the 2018 wills were the result of undue influence by Stephen over the deceased's wishes. That narrative is not based upon a single threat or act of violence, but instead is characterised by the alleged exercise, over about twelve years, of coercive control by a middle-aged man over an elderly and frail woman who was dependent upon him in critical respects. The particulars of the grounds of objection, together with the affidavits relied upon by the caveatrix, articulate a case where that coercive control was allegedly exercised through a combination of violence, threats, verbal abuse, surveillance and social isolation.

58 The plaintiff's submissions unduly focused on various matters which, individually and collectively, were said not to support an inference that the caveatrix was actually coerced in making the 2012 and 2018 wills. In adopting this approach, the submissions were misdirected because, as the Court of Appeal explained in Gardiner v Hughes (No 2), a decision as to whether there is a prima facie case does not depend upon a judgment as to whether it is more likely than not that the deceased was coerced, or which inference is to be preferred; these are matters for trial.[58] The task is to determine whether the allegations, assuming them to be true, call for further investigation as to whether the deceased was coerced in making the 2012 and 2018 wills. That a particular allegation or matter may not support an inference of undue influence does not necessarily mean that further investigation at trial is unwarranted. The plaintiff's submissions concerning the fact that the 2012 and 2018 wills were prepared by solicitors and the deceased's retention of the 2018 will referred to in [50]-[51] above [59]lustrate this point.59 Although these matters will likely be highly relevant in determining whether or not the deceased was coerced in making the relevant wills, that is a matter for trial when evidence of all of the relevant facts and circumstances will be adduced.

59 I also do not accept the plaintiff's submissions that the caveatrix has failed to establish a sufficient nexus between Stephen's alleged coercive behaviour and the making of the 2012 or the 2018 wills. Mr Iwanuch swore an affidavit in which he deposed that, in about 2017, the deceased showed him the 2012 will and told him that it was 'signed under duress, and she was not happy with it'. Although there are otherwise no specific allegations directly connecting Stephen's alleged coercive conduct with the making of the 2012 and 2018 wills, this is not a case where it is alleged that a testator's will was overborn by a single act. Where, as here, the alleged coercive conduct is multifaceted and said to have been engaged in over a lengthy period of time, it may not always be possible, at this stage of a proceeding, to be able to identify all of the facts ultimately necessary to establish that a testator's will was overborn. As the Court of Appeal stated in Gardiner v Hughes (No 2), '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'.[60] That is the case here.

60 I also do not accept the plaintiff's submission that the particulars of aggression and violence alleged against Stephen are lacking temporal proximity with the making of the 2012 and 2018 wills. Although it is true that, in circumstances where the caveatrix apparently seeks to propound the 2008 will, it is problematic for her to rely upon allegations of coercive conduct by Stephen which precede the making of that will, the grounds include the most serious allegation that, 'In or around 2012, around the time the deceased made the 2012 will, Atkins physically assaulted the deceased, called her a 'bitch' and said words to the effect that she 'would get what she deserved''.

61 The caveatrix has accordingly made out a prima facie case that the 2012 will and the 2018 will were made by the deceased as a result of Stephen's undue influence.

62 The parties are to provide a minute of proposed order giving effect to these reasons for judgment.

[1] In the interests of clarity and without intending any disrespect, I will refer to Stephen Atkins by his first name.

[2] Each of the wills made by the deceased in 2008, 2012 and 2018 incorrectly refer to Stephen as 'Steven'.

[3] Comprised of real property ($4,617,000); two funds managed by State Trustees Limited ($1,624,654); livestock ($593,700); three motor vehicles ($65,000); a funeral benefit ($6,563); personal belongings ($18,260); and an accommodation bond ($350,000).

[4] The 2012 will provides for a number of small pecuniary legacies and further provides that North East Health Wangaratta is to receive the net proceeds of all the deceased's bank accounts to be used for the treatment of cancer patients. Under the 2012 will, Stephen receives a bequest of all the deceased's guns and is the residuary beneficiary, with the residue of the estate comprising a farming property, stock, plant, equipment, vehicles and all of the deceased's household contents and belongings. By comparison, under the 2018 will, North East Health Wangaratta does not receive the net proceeds of the deceased's bank accounts, but a bequest of $1,000, with Stephen receiving the residuary of the estate as outlined at [3] above.

[5] For completeness, it may also be noted that the deceased made an earlier will on 7 October 2004.

[6] Re Robustelle [2022] VSC 493.

[11] The third further amended grounds of objection (in proceeding S PRB 2021 08341) dated 8 February 2023 and the amended grounds of objection (in proceeding S PRB 2022 24501) dated 8 February 2023.

[12] Stephen is incorrectly referred to in the grounds of objection as 'Steven'.

[13] Affidavits of the plaintiff sworn on 16 September 2021, 25 January 2023 and 27 January 2023.

[14] [2019] VSCA 198 ('Gardiner v Hughes (No 2)').

[21] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174 [168].

[24] Banks v Goodfellow (1870) LR 5QB 549, 565 ('Banks v Goodfellow').

[25] Gardiner v Hughes (No 2) (n 14) [48], citing Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283 (Dixon J).

[26] Nicholson v Knaggs [2009] VSC 64, [366] ('Nicholson v Knaggs').

[27] See [9] above.

[28] See [11] - [12] above.

[29] See [9] above, at subparagraph 11(a)(iii) of the grounds.

[30] Gardiner v Hughes (No 2) (n 14) [42].

[31] The allegation that in or around July 2015, the deceased told the caveatrix that she was the caveatrix's real mother and expressed other delusions about their family.

[32] The assessments of the Northeast Health Wangaratta hospital staff during the deceased's admission on or around 16 June 2017.

[33] Gardiner v Hughes (No 2) (n 14) [79] - [80].

[34] Gardiner v Hughes (No 2) (n 14), [96].

[35] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283, quoting In the Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, 199 (Hood J).

[36] See above at [3] - [4].

[37] [1868] LR1P&D 481, 482. To which the Court of Appeal referred with approval in Montalto v Sala (2016) 15 ASTLR 393 at [26].

[38] Wingrove v Wingrove [1885] UKLawRpPro 46; (1885) 11 PD 81, 82 ('Wingrove').

[39] Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136, [64].

[40] Wingrove (n 38), 83. See also: Montalto v Sala (2016) 15 ASTLR 393, [32]: 'Particulars which are consistent only with the opportunity to influence a testator or testatrix are insufficient'.

[41] Nicholson v Knaggs (n 26) [140].

[44] Sitting as an Auxiliary Justice in the Supreme Court of South Australia.

[45] [2022] SASC 79.

[49] See [9] above.

[50] Being the deceased's relatives (the caveator, Robert Bowers and Wendy Piccolo), the deceased's former accountant John Iwanuch and the deceased's former livestock agent, Geoffrey Shriver.

[51] Referred to in paragraph 13(c)(ix) of the particulars.

[52] Reflected in paragraph 13(c)(x) of the particulars.

[53] [2016] VSC 781.

[54] [2016] VSC 587.

[55] (2016) 15 ASTLR 393 ('Montalto').

[57] See Vickery J in Nicholson v Knaggs above at [39].

[58] Gardiner v Hughes (No 2) (n 14), [42].

[59] It is also to be noted that, contrast to the plaintiff's submissions, there is no basis in the material before the Court to characterise how the deceased came to attend on the solicitors, and certainly nothing to suggest that she did so 'independently'.

[60] Gardiner v Hughes (No 2) (n 14), [42].