Plaintiff v Defendant

1 This proceeding concerns the validity of the last will of Neridah McInnes Brown ('the deceased').

2 The deceased died on 21 June 2010, aged 94 years.

3 By her last will dated 1 April 2010 ('the April 2010 will'), the deceased appointed her son, Simon Leonard McInnes Brown ('Simon Brown'), as her executor. On 20 August 2010, the deceased's grandson Antony David Guss ('Antony Guss') filed a caveat in relation to the will of the deceased. By originating motion filed 9 September 2010, Simon Brown made an application for a grant of probate of the April 2010 will.

4 Antony Guss filed a statement of grounds of objection on 14 October 2010,[1] alleging that:[2]

(a) the deceased lacked testamentary capacity during the period shortly before and at the time of execution of the April 2010 will;

(b) the deceased did not know and approve of the contents of the April 2010 will;

(c) the April 2010 will was procured by, or at the instance of Simon Brown, who takes a benefit under the will, and the deceased did not know or approve of the contents of the will; and

(d) the April 2010 will was procured by the undue influence of Simon Brown.

5 Antony Guss alleges that the last valid will of the deceased is her purported will dated 26 January 2010 ('the January 2010 will').

6 Simon Brown denies the allegations made in respect of the April 2010 will. He contends that in the alternative, if the April 2010 will is not valid, then the last valid will of the deceased is her will dated 27 September 2007 and her codicil dated 3 June 2008 (collectively called 'the 2007 will'). Accordingly, on 7 November 2012, Simon Brown filed an originating motion for a grant of probate of the 2007 will. Antony Guss objected to that application on the grounds of there being a later will, namely, the January 2010 will.

7 Finally, on 13 November 2012, Antony Guss filed an application for letters of administration with the will annexed of the January 2010 will.

8 Pursuant to orders made by Habersberger J on 31 August 2012, the various applications were to be heard together with the validity of the April 2010 will to be determined first and prior to determining the validity of the earlier wills.

9 Consequently, it is necessary to determine whether any of the four grounds of objection taken by Antony Guss are made out. It is only if any of those grounds are made out that the Court will be required to determine the validity of the earlier two wills of the deceased. If none of the grounds are made out, then the April 2010 will must stand as the last valid will of the deceased.

The particulars of the allegation of undue influence

10 Pursuant to the orders made by Osborn J on 25 November 2010, Antony Guss was required to provide particulars of the allegation of undue influence by Simon Brown. On 16 February 2011, particulars in respect of the allegation were filed that are wide-ranging, containing specific as well as very general allegations.

11 The particulars set out a general background to the allegations and, in summary, are:

(a) in the three months preceding the death of Sandra Guss on 15 September 2005, the deceased expressed an intention to her Sandra Guss that Sandra's children were to inherit 50 per cent of her estate, Simon Brown was to inherit 50 per cent of her estate, and her long time housekeeper and her grandchildren and great grandchildren would receive specific bequests including pecuniary legacies;

(b) Simon Brown forced the deceased to re-sign the 2007 will on 27 January 2010;

(c) the 2007 will was procured by Simon Brown's undue influence on, and coercion of the deceased at times when her own free will was entirely overborne by this;

(d) Simon Brown instructed solicitors to draw the April 2010 will in accordance with his own and not her instructions, and forced the deceased to execute it; and

(e) the deceased executed the April 2010 will under duress from Simon Brown, did not approve of its contents or the effects of the bequests which were dictated by Simon against her wishes.

12 The document then proceeds with detailed particulars, which I will set out in full:

For many years, and increasingly in the years after Sandra's death, Simon exerted undue influence and domination of the Testatrix, and habitually coerced her to sign documents and undertake transactions, including pre-testamentary dispositions of her property, with the intention of re-organising the holdings of her assets, and removing them from any claim that Sandra's estate, the defendant and Marilla may have on her estate.

At trial evidence of undue influence over, and coercion of the Testatrix will be led concerning the following matters:

(a) forcing her to sign documents affecting testamentary trust, particulars of which will be given after discovery in this proceeding;

(b) forcing the testatrix to sign documents effecting the transfer of properties owned by the testatrix, particulars of which will be given after discovery in this proceeding;

(c) habitually bullying, shouting and yelling at, and intimidating the testatrix, both alone and in front of witnesses;

(d) habitually raising his voice and yelling at the testatrix when requiring her to sign documents;

(e) forcing the testatrix to sign a transfer of a property in Dalby in Queensland, described by Simon as 'my income', to a testamentary trust, controlled by Simon and Nicholas, the effect and purport of which she did not understand and approve and was not told;

(f) persisting in this course of action contrary to the written objections of the testatrix dated 4 February 2010, in which she stated, inter alia:

(i) that her signature on the transfer of the Dalby property was procured by Simon's coercion;

(ii) that the witnessing of her signature was not done in her presence, the witness who had been asked by Simon to witness her signature in her presence having refused to do so; and

(iii) that she was not aware at the time of signing of the consequences of signing the transfer.

(g) further persisting, despite that written, and other objections by the testatrix, in procuring by coercion of the testatrix the transfer of the Dalby property by means of a transfer on which the testatrix signature was witnessed by Anthony Brearley on 9 February 2010;

(h) improperly and dishonestly dealing with the testatrix's property in Riversdale Road, Hawthorn, particulars of which dealing will be given after discovery of this proceeding;

(i) taking cash from the Dalby business without the testatrix's knowledge, consent or approval;

(j) habitually exercising domination over the testatrix' will;

(k) forcing the testatrix to terminate her retainer at the solicitor she instructed in January 2010 to draw a will appointing an independent executor with Simon, and bequeathing the residue of her estate in equal shares to Simon, the defendant and Marilla;

(l) informing the defendant and Marilla in May 2010 at the testatrix' apartments that the will and the Dalby property were nothing to do with the testatrix, that she didn't know how much she had, and that he was going to determine it anyway;

(m) abusing and showing extreme aggression towards Marilla in the presence of the testatrix;

(n) rejecting in the presence of the testatrix her intention to provide funds to repay the defendants and Marilla's mortgages;

(o) habitually inducing fear of him in the testatrix;

(p) assuming control of the testatrix's finances;

(q) controlling and restricting the money available to the testatrix for living expenses;

(r) habitually threatening the testatrix;

(s) threatening to throw the testatrix down the lift well;

(t) denying the testatrix access to her mail;

(u) intercepting the testatrix's telephone;

(v) habitually exerting undue influence and coercion over the testatrix in respect of her financial affairs, her property and her testamentary intentions and wishes;

(w) seeking to influence the testatrix against changing her will by telling her that he was her only surviving child, that an independent executor would end up obtaining the benefit of Sandra's 50% share, and discouraging the worthiness of the defendant and Marilla to inherit any share of her estate.

13 Although prolix, general, disordered and repetitive, these particulars can be categorised as follows:

(a) the alleged testamentary intentions of the deceased as expressed by her in the three months prior to the death of Sandra Guss in September 2005;

(b) alleged improper and dishonest dealing with the deceased's property in Riversdale Road Hawthorn ('the Hawthorn property');

(c) allegedly forcing the deceased to transfer her property at 31 Drayton Street, Dalby in Queensland ('the Dalby property') to a testamentary trust; and

(d) alleged bullying and influencing the deceased against the Guss family, including shouting, yelling, threatening and intimidating the deceased over unspecified periods of time.

14 The evidence in the proceeding covers a lengthy period from 1991 to 2010. The relevant time for the determination of the testamentary capacity of the deceased is 23 March to 1 April 2010. The allegations of undue influence in respect of the April 2010 will, as best can be discerned from the wide-ranging allegations, seem to embrace a time frame commencing from 1991 and, more specifically, from 2005 until 1 April 2010.

15 Included in the allegations of undue influence are circumstances which, if established, could have formed a basis for legal intervention to protect the deceased in her lifetime against any improper conduct by Simon Brown. No such intervention occurred. Instead, Anthony Guss opted to make very serious allegations against Simon Brown after the death of the deceased denying the opportunity to hear evidence from the deceased.

16 There are obvious failings in the evidence where affidavits have been sworn, or oral evidence has been given after death which too frequently provide an incomplete and shallow reflection of family relations, characteristics and events.[3] Most of the evidence in the proceeding was oral and comprised recollections of events that took place many years ago. There are obvious difficulties arising from fading memories and a witness's tendency to tailor the evidence to suit his or her case.

17 In Fast v Rockman, Habersberger J said (albeit in a different context):

because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care.[4]

18 In the determination of the issues in this proceeding, the principles expressed in Briginshaw v Briginshaw are applicable.[5] The oft quoted judgment of Dixon J in Briginshaw states that reasonable satisfaction cannot be established independently of the nature of the issue and the facts to be proved. It does not introduce a third standard of persuasion: the standard of proof remains on the balance of probabilities. That was subsequently made clear by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[6] References to the requirement that proof be 'cogent' or 'strict' in cases of fraud, for instance, should not to be taken as modifying the standard of proof, but merely reflecting that a court should not make a finding of such gravity lightly.

19 The deceased, who was born on 29 July 1916, married Leonard Mendoza-Brown. They had two children, Mrs Sandra Guss ('Sandra Guss'), born 9 July 1939, and Simon Brown, born 6 October 1942. Mr Leonard Brown died on 16 January 1991. At the date of her death, the deceased was survived by her adult son, Simon Brown, five grandchildren and 10 great-grandchildren:

(a) Simon Brown married Carol Brown and they have two children, Nicholas Brown ('Nicholas Brown') and Kristina Whitehead. Nicholas Brown has two children, Edward Brown and Millicent Brown. Kristina Whitehead has two children, William Whitehead and Zoe Whitehead.

(b) Sandra Guss married Joseph Guss ('Joseph Guss') and they have three children, Antony Guss, Marilla Guss ('Marilla Guss') and Alistair Guss. Sandra Guss died on 15 September 2005. Antony Guss married Joanne Guss and they have two children, Camille Guss and Samuel Guss. Marilla Guss is unmarried and has two children, Ellison Guss and Zara Guss. Alistair Guss married Julia Guss and they have two children, Ysabel Guss and Angus Guss.

20 Mr Leonard Brown and his brother were successful hoteliers. However, by 1974, the brothers had sold the last of their hotels. After the sale of the last hotel, Mr Leonard Brown placed $50,000 in the trust account of Joseph Guss while he (Mr Leonard Brown) travelled overseas. When he came back to Australia, he asked for his money. Joseph Guss told him that he had lost it. According to Simon Brown, he had used the funds towards the purchase of a holiday house in Portsea. Mr Brown also had a further falling out with Joseph Guss over his failure to pay rent for premises in a city building that he leased from Mr Brown. Mr Brown had to sell the building when the rent stopped. It was said to have caused him significant financial loss as it was intended to be a long term investment property for the Brown family. Joseph Guss denied any wrongdoing and claimed he had a good relationship with Mr Brown and the deceased.

21 As a result of these events concerning Joseph Guss, which occurred early in the marriage of Sandra Guss to Joseph Guss, the Brown family formed the view that Joseph Guss was dishonest, disreputable and not to be trusted. This affected the relationship between the Brown family and the Guss family. The Brown family took the view that neither Joseph Guss nor any member of his family or anyone associated with him should know anything about the Brown family's financial affairs. Both Simon Brown and Carol Brown said this was a longstanding family arrangement.

22 Simon Brown said the deceased had a long-term dislike of Joseph Guss and was adamant that she did not want any of her assets to pass to him on her death. Nicholas Brown said the deceased was very wary of Joseph Guss. Both Joanne Guss and Marilla Guss said the deceased was wary of Joseph Guss. Marilla Guss said for many years she heard the deceased speak about Joseph Guss having lost her and her husband's money. She said in the last months of the deceased's life it was a common topic of conversation for the deceased. The deceased was concerned that if she left anything to Marilla Guss then Joseph Guss would get it. She said this was the strong view held by the deceased which Marilla Guss said she could not change.

23 Marilla Guss said her grandfather and the deceased 'obviously did trust Joseph Guss because they got involved for a while but they obviously did not after that time'. In her affidavit sworn 3 August 2013, Marilla Guss said:

One of the issues for Granny was her belief that my father, Joe Guss, had lost money for her and her husband. For many years I had heard her speak about him as if he had lost money.

She agreed that was true, and that it was stated more than once. Marilla Guss said the deceased was vague with her about matters of finance, her money and assets, telling her that she would check with Simon Brown.

24 Although the deceased disliked and was wary of Joseph Guss, she loved her daughter, Sandra Guss, and was very fond of Sandra's children, Antony Guss and Marilla Guss. She was also very fond of Marilla Guss' two young children.

25 During the deceased's marriage, Mr Leonard Brown managed their family finances. After his death, Simon Brown took over that role for his mother and continued until her death in 2010. Simon Brown worked in the family hotel business with his father and uncle from 1961 until 1974. After 1974, he worked as an insurance inspector with General Mutual Mercantile for four years, then became an insurance broker on his own account. After selling that business, he became a travel agent. He was semi-retired for about five years before 2002 and fully retired by 2002.

26 In 2003, aged 87 years, the deceased moved from Riversdale Road, Hawthorn, where she lived in an upstairs self-contained unit separate from that of Simon Brown and his family, into an apartment in the Menzies apartment complex. Simon Brown said the move to the Menzies was for the deceased's health and well-being. Primarily, he was concerned that the deceased's physical health was deteriorating, and she had fallen down the stairs at the Riversdale Road property.

27 Simon Brown contends that the deceased was of sound mind, was strong willed and could not be stood over or intimidated. Carol Brown confirmed this. Her main health issues related to her age and her physical mobility.

28 On 30 April 2008, the deceased executed an enduring power of attorney (financial) appointing Simon Brown and Nicholas Brown as her attorneys.

29 Antony Guss described the deceased's health at the end of 2009 as 'pretty good' and she was 'fairly strong'. He said the deceased was independent prior to January 2010 and they conversed about all sorts of things. He described the deceased as a voracious reader of a wide variety of topics and she had a 'wicked' sense of humour. He said she looked after herself 'pretty well'. She cooked for herself and drove a car until early 2009. He agreed that she did not look after her own financial affairs but she would write cheques for the children occasionally.

30 Joanne Guss described the deceased as a very strong independent woman. Marilla Guss described the deceased as a relatively meek woman and financially unsophisticated. She was the only witness to describe the deceased as being 'meek' in any sense.

31 An aged care assessment of the deceased dated 9 March 2010 from the Caulfield Aged Care Assessment Service describes the deceased's health in late February 2010. She was frail, slow with mobility and tired easily. Her primary health condition was polymyalgia rheumatica. Her other health conditions were high blood pressure, congestive heart disease, upper respiratory tract infection-viral and peripheral vascular disease. In terms of her cognitive behaviour, she was recorded as suffering from occasional short term memory problems and no long term memory problems. She was described generally in the report as alert, pleasant, not suffering from depression or insomnia, and happy to be home alone.

The alleged testamentary intentions of the deceased in 2005

32 Antony Guss alleged that in 2005, the deceased expressed an intention to her daughter Sandra that the deceased would leave 50 per cent of her estate to Sandra's children, Antony and Marilla, and 50 per cent of her estate to Simon Brown. This allegation was said to be relevant to the present proceedings because the April 2010 will is inconsistent with the intentions said to have been expressed by the deceased in 2005.

33 Although the particulars of this allegation do not refer to an agreement, in their oral evidence, the witnesses called on behalf of Antony Guss were inclined to characterise this allegation as an agreement between the deceased and Sandra Guss.

34 In cross-examination, Joseph Guss accepted that the date of the will included in the particulars was incorrect and should have been 13 July 2001, not 13 June 2001, and that the 2007 will (which is the deceased's most recent will after the date of the alleged agreement in 2005) did not put into effect the alleged agreement. He also agreed that the deceased did not ever say to him that her 2001 will left half of her estate to Sandra Guss.

35 On his first day of giving evidence, Joseph Guss said that when Sandra Guss was in palliative care prior to her death, he did not speak directly to the deceased about what was to happen with Sandra's inheritance. On the next day, he said when Sandra Guss was in palliative care, he had two or three discussions with the deceased and she told him she had agreed with Sandra Guss to leave 25 per cent of the residue of her estate to each of Antony Guss and Marilla Guss.

36 In cross-examination, Joseph Guss was questioned about his earlier evidence that he did not speak directly to the deceased about Sandra's inheritance. He said that what he meant was that he did not discuss with the deceased a list of the deceased's assets that he claimed Simon Brown had prepared for Sandra Guss. He also said he observed Simon Brown at the hospice on two occasions, one in July and one in August 2005, with Sandra Guss and the deceased, and that he knew there was a discussion about inheritance on these the two occasions.

37 Simon Brown said that in the period leading up to the death of Sandra Guss, he did not have a conversation with her about their mother's will making intentions nor did he prepare a list of the deceased' assets for Sandra Guss.

38 In cross-examination, Joseph Guss said it did not occur to him that the deceased had not put the agreement in place because he 'had nothing to do with it' yet he agreed that he went to see the deceased on 1 March 2010, at which time he gave her two letters signed by him. In one of those letters, he stated:

You will recall that shortly prior to Sandra's death, it was agreed by you and her in July/August 2005 at St Vincent's Hospital, that your estate would after certain specific bequests to your grandchildren and possibly Maria, would be left as to 50% to Sandra and in view of her prospective death at that time, her 50%, as to 25% to each of Antony and Marilla, and the other 50% to Simon, and that you would make a will to that effect.

Sandra died content as a result of the above agreement with her and that she had been informed by you that a new will would be made by you to that effect and that Antony and Marilla and their children would accordingly be suitably be provided for by you (sic). It is accordingly disappointing to hear that you are succumbing to Simon and Nicks treaties to seek to defeat what Sandra died content in the knowledge of your above agreement with her, with the intention of getting 100% for themselves.

39 In examination-in-chief, Joseph Guss said he discussed the content of these paragraphs with the deceased when he saw her on 1 March 2010 and she conceded that was what she agreed at the time. In cross-examination, Joseph Guss agreed the deceased did not tell him that she intended to carry out the alleged agreement and he did not discuss with her whether she intended to do that. He also accepted that the deceased wrote next to the first quoted paragraph 'no such agreement ever existed' and signed her signature underneath those words. However, he queried whether the deceased wrote those words freely.

40 Mrs Maria Bortolin ('Mrs Bortolin') was called to give evidence of the alleged agreement. She knew the deceased for about 40 years, having worked for her as a housekeeper, and more recently, assisted her when she lived at the Menzies. In 2005, she was visiting the deceased one day a week.

41 Mrs Bortolin said she has worked for all of the members of the family over the years. She now works for Joseph Guss and had done so since Sandra Guss became ill. She also works for Marilla Guss and has done so over a number of years.

42 In her oral evidence, Mrs Bortolin said she would occasionally take the deceased to see Sandra Guss in hospital during the last few months of Sandra's life. On one of those occasions, she was present when she overheard Sandra Guss saying to the deceased that she wanted the deceased to leave to her children what her mother was going to leave her. Mrs Bortolin also said that, on another occasion at the home of Sandra Guss, she overheard the deceased and Sandra Guss saying that whatever Sandra Guss was entitled to under the deceased's will would be left to her children. In cross-examination, Mrs Bortolin said the amount the deceased said would be left to the children would be half of her estate.

43 Mrs Bortolin was taken to an affidavit sworn by her in the proceeding. She confirmed that the contents of the affidavit were true and correct. She said Antony Guss wrote the affidavit for her. In her affidavit, Mrs Bortolin deposed:

In the lead up to Sandra's eventual death, Neridah often spoke to me of how she was going to ensure the financial security of her grandchildren, Antony and Marilla, and her great grandchildren, particularly the twins as they were so young and Marilla was a single mother and needed the extra financial support.

Neridah told me of a number of discussions she had with Sandra in the months leading up to Sandra's death, the substance of which was that Neridah had agreed with Sandra that Neridah's estate would be divided equally between her son Simon Brown (Simon) and Sandra, but owing to the fact that Sandra was likely to predeceased Neridah, Sandra's half would be left to her grandchildren Antony and Marilla in equal shares with special provision for the education of the twins.

Neridah also told me that Simon was well aware of her intentions regarding Sandra's share because Simon had attended meetings when Sandra was in hospital with Neridah and had discussed finalising such arrangements.

44 Mrs Bortolin accepted that the second occasion referred to by her in her oral evidence was not included in her affidavit.

45 Joanne Guss said that in 2005 she had driven the deceased to see Sandra Guss when she was in palliative care. After the visit, she said the deceased told her in the car that she had discussed matters with Sandra Guss. She said the deceased said to her that Sandra Guss had asked that her share of the deceased's estate be passed to Antony Guss and Marilla Guss, with special provision for the twins, especially for their education. The deceased did not mention any amounts to Joanne Guss.

46 In cross-examination, Joanne Guss was taken to the following paragraph of her affidavit sworn 30 April 2012:

I can recall her intentions as she expressed them in 2005. Anthony's [sic] mother died in September of 2005. I was quite heavily involved in collecting Gran to take her to hospital to visit Sandra. I therefore spent a lot of time talking with her in the car to and from hospital and so on. She used to talk about Sandra and the fact that she was dying. She used to talk about wanting to provide for Marilla's children. It appeared to be a real matter of concern for her to provide for Marilla's children. It also seemed that she wanted to provide for Marilla but her real focus was her children. She did not put any particular figures on the gifts she wanted to provide. However she spoke about wanting to provide for their education.

47 Joanne Guss said she did not know why she did not say anything about the deceased's agreement with Sandra Guss in her affidavit. She agreed it was 'probably important' and said that she 'could promise it took place'. She said it was an important conversation but the deceased did not mention specifics or percentages of her estate.

48 Antony Guss said in a discussion when he was driving the deceased home one evening after visiting Sandra Guss sometime in the three months before Sandra Guss died in 2005, the deceased told him that she had agreed with Sandra Guss that in respect of Sandra's fifty per cent share of the deceased's estate 'we would stand in my mother's place'. In cross-examination, Antony Guss reiterated that he had a conversation with the deceased around the time that Sandra Guss was in Corpus Christi where she told him she had reached an agreement with Sandra Guss that Antony Guss and Marilla Guss were to get Sandra Guss' half share of her estate. She said that Sandra Guss had requested this, and that Simon Brown was there when Sandra made that request. Antony Guss agreed that he did not depose to this conversation in any of his three affidavits filed in the proceedings and he has no idea why it is not in the affidavit. He deposes that Sandra Guss told him about such a conversation and that Mrs Bortolin told him about such a conversation. He then again said he actually remembers driving with the deceased and discussing it on the way back from Corpus Christi. When asked whether he clearly remembered it, he answered 'M'mm'.

49 Marilla Guss said that, as far as she was aware, the deceased had originally intended to leave half of her estate to her two children. She was not present at any discussions between the deceased and Sandra Guss in 2005. She also said that although she was not present at any discussions between the deceased and her mother in 2005, the deceased had agreed with her mother that she would provide sufficient funds to pay off her mortgage, pay for her children's education and make them secure. She said the fact that these discussions had taken place was confirmed to her by the deceased a couple of years after her mother's death when the deceased told her she had made an agreement with Sandra Guss.

50 Mr Hugh Northam ('Mr Northam'), a solicitor, also gave evidence concerning the alleged agreement. He took instructions from the deceased for the January 2010 will, in the presence of Antony Guss, for two hours on 7 January 2010. His file note of the meeting records that the deceased's instructions were that she and Sandra Guss had discussions to the effect that because Sandra Guss would die before the deceased, Sandra Guss asked whether the deceased could make provision for her children instead of her. He initially said he thought he was told this by the deceased but in cross examination and in re-examination admitted that this was also said by Antony Guss.

51 In his affidavit sworn 23 May 2013, Mr Northam set out his evidence of this meeting and the parts relevant to the alleged agreement are as follows:

[The deceased] referred to prior wills dated 16 June 2005 and 27 September 2007 and said a new will was now needed. In respect of the 2005 will, Mr Antony Guss informed me that Mrs Brown had had a discussion in 2005 with her daughter, Mrs Sandra Guss, who was dying, and they agreed that Mrs Brown would change her will to make provision for Sandra's dependents in her place.

52 In his oral evidence, Mr Northam said the deceased gave him a copy of her 2007 will, and the last page of her 13 July 2001 will. In respect of what Mr Northam was told by Antony Guss as to the agreement between the deceased and Sandra Guss, Mr Northam said he did not ask the deceased why she had not made that change over the last five years. His explanation for this was that he considered it unnecessary to ask her about it. He did not think the fact that he had never dealt with the deceased before was all the more reason to ask her for an explanation.

53 In a letter to the deceased dated both 5 and 9 February 2010, Mr Northam stated that at the meeting on 7 January:

You informed me that a previous will bequeathed the residue of your estate to Simon and your daughter Sandra Guss in equal shares ... but that after Sandra's death in 2005 your will was changed to make Simon the sole beneficiary of your residual estate'.

Conclusions in respect of the testamentary intentions of the deceased in 2005

54 In my view, the evidence of the witnesses relied upon by Antony Guss in respect of this allegation is contradictory, unreliable and does not establish the allegation.

55 Joseph Guss was not a witness to any alleged agreement between the deceased and Sandra Guss. The contents of his letter dated 1 March 2010 is not evidence of the alleged agreement it is a self-serving statement written by him almost five years after the alleged event. Importantly, the deceased wrote in her hand on the letter the words 'no such agreement ever existed'. Although Joseph Guss queried whether the deceased wrote these words freely, that query is made without any evidentiary basis.

56 Mrs Bortolin's evidence was general in nature and usually non-specific with dates. Her affidavit evidence was incomplete and her oral evidence was ambiguous. She could not say definitively that she heard anything about an alleged agreement. What she overheard was Sandra Guss saying what she wanted to occur in her mother's will akin to a wish, and certainly not an agreement. In my view, Mrs Bortolin's evidence was too vague to be a much assistance to the court. She held strong views as to what she considered to be 'right and fair' in the circumstances and she put forward those views many times. I note also that she is also employed by Joseph Guss and she works for Marilla Guss from time to time. Although it was put forward that she was an independent witness, I did not assess her as such. She was clearly partisan to the Guss family and not objective. I consider that in the circumstances she was not a credible witness.

57 Joanne Guss's evidence did not support the alleged agreement being made. Her affidavit evidence did not include what she said in her oral evidence concerning the alleged agreement. Even so, her oral evidence only went so far as to say what Sandra Guss said to the deceased and no more.

58 Antony Guss gave oral evidence of an alleged agreement. At no time in any of his three affidavits filed in the proceeding did he refer to the alleged agreement and he could not explain why that was the case. His evidence conflicted as a to whether he had a conversation with the deceased in which she told him about the alleged agreement, or whether in fact he heard about such a conversation from either Sandra Guss or Mrs Bortolin. He seemed to be able to say with some conviction that the substance of the conversation occurred, but had no independent recollection of where, or when, or with whom. I did not find his evidence credible.

59 Marilla Guss was not present at any discussions between the deceased and Sandra Guss in 2005. Her evidence of what she was told by the deceased at some unspecified time the 'couple of years after 2005' and it differed in content from the alleged agreement. Her evidence was at least a second-hand account and lacked detail. It does not support the alleged agreement.

60 Mr Northam's evidence is second-hand in that he speaks of what he was told at a meeting with the deceased on 7 January 2010 when Antony Guss was present. In his affidavit, he deposed that Antony Guss was the person who told him about the alleged agreement. At the meeting, he had copies of the 2007 will and what he described as the will dated 16 June 2005 (but is actually a draft will). In both documents, the residue of the deceased's estate is bequeathed to Simon Brown. He did not ask the deceased any questions about the alleged agreement. This is in circumstances where the 2007 will did not implement the alleged agreement.

61 The 2007 will is the will that was made by the deceased after the death of Sandra Guss. If there were any substance in the allegation of an alleged agreement as contended by Antony Guss, this should have been the document where it would be most likely to have been included. That fact informs the court that the deceased did not consider there to be an alleged agreement. This is particularly so as there was ultimately no challenge by Antony Guss to the circumstances of the taking instructions and the execution of the 2007 will.

62 If anything, the 2007 will supports an inference that Antony Guss and Marilla Guss were to receive the share of her estate that Sandra Guss was entitled to under the deceased's previous wills: a substantial legacy, but no part of the residuary estate. Under the 2001 will, Sandra Guss was to receive $200,000. Under the 2007 will, Antony Guss and Marilla Guss receive $60,000, and the Guss grandchildren a total of $120,000 (an amount that is increased to $170,000 under the April 2010 will). A 50 per cent share in the residuary estate to the Guss side of the family would be inconsistent with the deceased's prior will-making pattern.

63 For those reasons, I am satisfied the deceased did not make the alleged agreement with Sandra Guss in the three months preceding her death on 15 September 2005.

Alleged improper and dishonest dealings with the Hawthorn property

64 After the death of Mr Leonard Brown in 1991, the matrimonial home in Eaglemont became too large for the deceased. Simon Brown found a property comprising two units in Riversdale Road Hawthorn which he bought at a mortgagee's auction for $600,000. The deceased and Simon Brown sold their existing matrimonial homes and each contributed fifty per cent to the purchase and subsequent renovations to the property. They moved in to the Hawthorn property in 1993. The deceased lived in the apartment on the top floor. The deceased moved out of the Hawthorn property in 2003 when she moved into the Menzies apartment. Simon Brown said that in 2003 his mother was 87 years old and her health was deteriorating. She was having difficulty coping with the stairs at the Hawthorn property, having had a number of falls. Simon Brown moved out of the property in 2005 when it was sold to Nicholas Brown for $1.6 million.

65 It was contended by Antony Guss that the deceased's name was never on the certificate of title to the Hawthorn property and that she was never paid in full for her half share of the property when it was sold to Nicholas Brown in 2005.

66 Antony Guss tendered documents to establish that the deceased's name was not on the title to the Hawthorn property and that the deceased did not sign a contract of sale for the property. Simon Brown agreed this was the case and explained the ownership structure of the Hawthorn property and the problems with its ownership. The ownership of the property was through the ownership of shares in a company called Beecheson Holdings Pty Ltd. The ownership of each unit in the property was by way of company shares entitling the owner to the relevant unit. Simon Brown said that when the property was purchased, funds were given to Mr Ron Silverstein, a solicitor, to enable the ownership to be finalised but, shortly after the purchase, Mr Silverstein was disbarred from practising as a solicitor and the relevant transfers were not done until the property was sold to Nicholas Brown in 2005. By then, Beecheson Holdings Pty Ltd had been de-registered and the solicitors dealt with ASIC in sorting out the ownership of the property.

67 Simon Brown said that even though the deceased was not on the title to the property in a legal sense, she was so in a moral sense with its ownership regarded as fifty per cent each. He also said the local council thought she was on the title.

68 Both Simon Brown and Nicholas Brown agreed there was no formal contract signed for the sale to Nicholas Brown but that the document headed 'proposed sale agreement' for the Hawthorn property reflected the agreement for the sale to him at $1.6 million.

69 When the deceased moved into her apartment in the Menzies in 2003, the purchase of her apartment was financed partly by the deceased's funds and partly by a mortgage of $220,000 for which Nicholas Brown took responsibility as part of his payment of the deceased's share of the Hawthorn property.

70 In 2005, Simon Brown moved to East Melbourne into a property that was built for him by Nicholas Brown with its value assessed at $785,000 between them. Nicholas Brown paid for the legal fees and transfer of the property, including ASIC fees, and stamp duty for Simon Brown's property. He also paid out the mortgage of $220,000 for the purchase of the deceased's apartment at the Menzies. After payment of these amounts, an amount of $487,140 was to be paid to the deceased. Of the amount of that was to be paid to the deceased, Nicholas Brown (or his company) caused $325,000 to be paid into a company called Browest Pty Ltd, which was a company controlled by the deceased and Simon Brown and was the trustee of a family trust. Simon Brown said that this was where the deceased's money was invested. Nicholas Brown said that he then paid the balance of approximately $160,000. He was not sure when he paid it into the deceased's account, but said he definitely did pay it. He said the deceased did not have any queries of him about the payment of the purchase price for her share of the Hawthorn property.

71 Simon Brown said the deceased did say to him once that she had not been paid for the Hawthorn property and he then gave her the bank statement which showed she had been paid. He denied that the deceased did continually said to him between 2005 until January 2010 that she has not been paid for the Hawthorn property, nor did she say to him 'I'm not going to transfer the title until I have been paid'. He said if he said anything about the sale of the Hawthorn property to the Guss family, the deceased would have 'gone bananas at me, castigated me'. This was because the deceased did not want the Brown family finances discussed with the Guss family.

72 Antony Guss said that when the deceased moved to the Menzies in 2003, she thought she still owned the Hawthorn property and that she had been pushed out of it. He said the deceased believed she had not received the money for its sale and was waiting to be paid. He said the deceased had more than one conversation with him about the payment with her last conversation about it being in early 2010. Antony Guss said the deceased understood in January 2010 that there was a problem about the title and she constantly complained about her name not being on the title to the Hawthorn property. He said he was not sure of the details of the sale of the Hawthorn property, but thought there was a possibility that Nicholas Brown had purchased it.

73 Mr Northam gave evidence concerning what he was told about the Hawthorn property at his meeting with the deceased and Antony Guss on 7 January 2010. He said that all the deceased told him about the Hawthorn property was that her name was not on the title to the property. The deceased had given him a note in her handwriting listing her assets and the note included the words 'Hawthorn? Who owns this?' Mr Northam said that this note reflected the deceased's issue as to whether her name was on the title.

74 Although the Guss family considered there was some improper and dishonest conduct on the part of Simon Brown in relation to the sale of the Hawthorn property and their evidence was that the deceased constantly complained after 2005 until early 2010 about the lack of transfer of the title into her name, Antony Guss agreed that neither he or anyone else in his family took any steps in 2005 or afterwards to protect what he saw as the deceased's position.

75 Joseph Guss said that he did not advise Antony Guss that he could make an application to have an administrator or guardian appointed to allay the concerns that he now seeks to raise in this proceeding.

76 Marilla Guss said she assisted the deceased with the Hawthorn property by getting Kay and Burton to value it. She did not suggest a solicitor or accountant to the deceased as she thought a valuation would be sufficient. She said Simon Brown persuaded the deceased to do the deal with Nicholas Brown as it would save on legal and marketing fees. Marilla Guss found out about the sale after the event. She said it was done at 'significantly less than the true value', given that in the valuation it was valued at $2.3 million or higher. She said that in 2007 the deceased showed her an advertisement for a property in the Melbourne Weekly magazine where she had made a note of the sale price. She also said the deceased felt 'short changed' and thought she had not been paid at all for the Hawthorn property.

77 Marilla Guss was concerned about the sale of the Hawthorn property and believes that Simon Brown pressured the deceased to move to an apartment in the Menzies.

78 In her affidavit sworn 3 August 2013, Marilla Guss said that from the deceased's remarks, 'she apparently believed she didn't own her unit at the Menzies'. In cross-examination, she said this sentence should read 'she believed she did own the Menzies' and she also said that she did not remember a discussion with the deceased about the apartment at the Menzies. She then said the deceased did not consider her unit at the Menzies to be an asset because it did not generate any income for her.

79 Marilla Guss also said she did not have any discussion with Simon Brown about the deceased being 'wrongfully deprived' of her ownership of the Menzies apartment. Finally she said that she did not discuss the ownership of the Menzies apartment with the deceased.

80 Her view was that Simon Brown had 'pulled the wool over the deceased's eyes' on the sale of the Hawthorn property by saying he was going to save her money on GST. She said this was a level of deceit that was hard to believe when the deceased was an eighty year old woman who had never signed a cheque until she was in her sixties. Marilla Guss said she did not speak to Mr von Bibra about this and did not consult any solicitor in relation to the deceased's affairs.

81 Joanne Guss said she formed the view 'a long time ago' that Simon Brown may have been taking advantage of the deceased financially, perhaps depriving the deceased of millions of dollars, and she was aware the deceased's financial affairs were being controlled by him. She considered that going to State Trustees, to VCAT, or elsewhere to see if she could get an administration order so there could be an investigation by an independent person of her financial affairs would be going to 'extraordinary extremes'.

Conclusions in regard to the allegations raised in respect of the Hawthorn property

82 There were two principal allegations made in respect of the Hawthorn property. The first was that the deceased's name was never on the certificate of title to the property. Simon Brown agreed that this was the case and explained the reasons why that was so. He also said that the deceased was regarded by the family as being an owner of half of the property. I accept his explanation on this allegation. I am satisfied there was nothing improper or dishonest about the deceased's name not being on the certificate of title. Such an arrangement, although perhaps a little unusual, is far from unheard of.

83 The second allegation was that the deceased was never paid in full for her half share of the Hawthorn property. The documentary evidence supports that funds to a certain amount were paid to the deceased. However there is no documentary evidence of a balance of $160,000 being paid to her. This was the obligation of Nicholas Brown. In his oral evidence, he said he definitely paid that amount but he was not sure when he did so. For the reasons set out below, I accept the evidence of Nicholas Brown as to the payment of the balance of $160,000.

84 The evidence concerning the alleged failure to pay the deceased for her half share of the Hawthorn property was from the Guss side. Nicholas Brown was never queried about it by the deceased nor apparently by any member of the Guss family. Indeed, the fact that these allegations were only raised for the first time in this proceeding goes some way to explaining why the documentary records of payment are incomplete, although it is by no means a complete explanation. Simon Brown was asked once about it by the deceased.

85 In contrast, Antony Guss, Joanne Guss and Marilla Guss thought that the deceased raised this query about payment with them over the time from when she moved to the Menzies apartment until early 2010. As she moved to the Menzies in 2003 and the Hawthorn property was not sold until 2005, it does not make sense that the queries were raised as early as 2003.

86 All held views that there was something dishonest or improper in the conduct of Simon Brown concerning the transaction. In all that time, from 2005 onwards, not one of them took any sensible step to protect or allay the concerns they now complain about in this proceeding. They could have taken steps to make an application to have an administrator or guardian appointed to protect the deceased. They could not explain their position in this regard. In particular, it is telling that Joseph Guss who acts as the solicitor for Antony Guss in this proceeding as well as being a witness, is familiar with the events now complained of by Antony Guss. Antony Guss clearly had every opportunity and the ability to seek advice from his father or, if he did not know what advice to give, he had the means to obtain it. All of them did so in relation to the transfer of the Dalby property referred to below.[7]

87 I found the evidence given by the Guss witnesses on this allegation to be not credible. They spoke in generalities and mostly of their views and feelings on the issue. Mr Northam's evidence on the Hawthorn property does not add anything to the allegation, showing only that the deceased was possibly concerned about who owned the Hawthorn property. In my view, his evidence is compromised by the fact that he attended the meeting with Antony Guss present at all times, save possibly for a short time when Antony Guss may have done some photocopying.

88 The allegations made in respect of the dealings with the Hawthorn property are serious allegations. Allegations of fraud should not be made lightly. There is no evidence that provides a satisfactory reason why the Guss family did not take any steps to protect what they now put as the position of the deceased in respect of the Hawthorn property while the deceased was still alive - a position they say they knew about over a period from 2003 to early 2010 and.

89 To make these serious allegations about the Hawthorn property after the death of the deceased in this proceeding, is a matter of grave concern. If Antony Guss or the members of his family were so concerned about the Hawthorn property, as he now maintains, it does not sit comfortably that the allegations were saved to be ventilated in this proceeding. Action could have been taken by him from 2005 onwards during the lifetime of the deceased.

90 The evidence before the Court is not sufficient to establish affirmatively that the deceased was paid in entirety for her interest in the Hawthorn property. To do so requires documentary evidence which Simon Brown and Nicholas Brown were not able to produce. But neither is the evidence sufficient to establish that something improper was done. Ultimately, the issue of the transfer of the Hawthorn property was raised in this proceeding not for the purpose of settling definitively the details of that transaction, a process that could have been done long ago had Anthony Guss acted on his claimed suspicions. Instead, the issue was raised in order to support an allegation that Simon Brown has for a long period of time exercised a degree of control over his mother such that her last will was brought about by his undue influence. On the evidence before me, I am not satisfied that the deceased's interest in the Hawthorn property was somehow swindled from her.

91 I am satisfied that Simon Brown has not acted improperly or dishonestly in respect of his dealings with the Hawthorn property in 2005. I consider that the lack of action during the deceased's lifetime by Antony Guss or any other member of the Guss family concerning these allegations strongly supports the inference that the allegations did not have any substance.

92 The 2007 will appoints Simon Brown and Nicholas Brown as the deceased's executors and trustees. It provides for:

(a) various bequests of jewellery and other items to Simon Brown, Marilla Guss (in the will described as Marilla McInnes Brown) and Joanne Guss;

(ii) $30,000 to each of Antony Guss and Marilla Guss;

(iii) $10,000 to each of Edward Brown, Millicent Brown and William Whitehead;

(iv) $20,000 to each of Camille Guss, Samuel Guss, Zara Guss and Ellison Guss;

(v) $20,000 to Zara Guss and Ellison Guss for their education; and

(c) the residue of the deceased's estate to Simon Brown absolutely.

93 The 2007 will was prepared by Mr Euan Bruce McLean ('Mr McLean'), an experienced solicitor. The deceased's signature was witnessed by Mr McLean and his wife, Mrs Sandra McLean. The codicil in 2008 was witnessed by Mr Michael Sisson, accountant, and Simon Brown. Its purpose was to correct Marilla Guss' surname from 'Brown' to 'Guss' and to make it clear that the two children of Marilla Guss were to receive $20,000 each for their education.

The circumstances of the making of the January 2007 will

94 The circumstances surrounding the creation of the deceased's 2007 will were deposed to by Mr McLean in his affidavit sworn 22 May 2013. Mr McLean is a solicitor with over 50 years' experience. He was not cross-examined.

95 He was contacted in September 2007 by Simon Brown who asked him whether he could attend on the deceased as she wanted to make a new will. Mr McLean knew the deceased, having known the Brown family for almost 50 years, both socially and commercially. Mr McLean arranged a mutually convenient time with the deceased to obtain instructions for making her will. He obtained instructions from the deceased for her 2007 will. He described the deceased in detail on that occasion and concluded that she had testamentary capacity.

96 On 27 September 2007, he returned to the deceased's apartment with his wife, Mrs Sandra McLean, to arrange for the deceased to sign her 2007 will. Mr McLean handed the 2007 will to the deceased and she read it and confirmed she was happy with its contents. She read each and every clause in the presence of Mr and Mrs McLean. He asked her if she understood and approved of its contents and she replied, 'Yes. Fully.' She then signed the 2007 will in the presence of both Mr and Mrs McLean, who then witnessed her signature.

97 Mr McLean deposes that at no stage did he receive instructions from anyone else apart from the deceased in respect of the instructions for and drafting of her 2007 will, and apart from the telephone conversation from Simon Brown asking him to attend on the deceased to obtain instructions, he did not have any further communications with him prior to the deceased signing her 2007 will.

98 Mr McLean further deposes that the 2007 will was not procured by undue influence of any kind and he had no doubts or concerns as to the deceased's testamentary capacity, otherwise he would have undertaken his usual practice of arranging for a medical report from the deceased's doctor prior to obtaining her instructions and arranging for her to sign her will. Mr McLean also deposes that he has never told either Mr Joseph Guss or anyone else that the instructions for the 2007 will 'came from Simon Brown'.

99 An affidavit sworn by Mrs Sandra Jeanne McLean on 22 May 2013 was filed. Mrs McLean has also known the deceased for more than 50 years primarily, through Sandra Guss, whom she knew socially. She was not cross-examined.

100 On 27 September 2007, her husband asked her to attend with him on that day on the deceased at her apartment in Malvern for the purpose of witnessing the signing of her will. Mrs McLean attended with her husband on that day. No one else was in attendance. Her husband asked the deceased to read and confirm that she was happy with the contents of her will. The deceased then read the will and told Mr McLean she was completely happy with it or words to that effect. Mrs McLean deposes that the deceased appeared physically well and mentally alert and observant. She was pleasant and calm during the visit. She has always been a very well-groomed and elegant lady who looked and sounded much younger than her years. She possessed a very strong personality and was not easily swayed. Mrs McLean witnessed the deceased sign her will and then was asked by her husband to sign as a witness, which she did so in the presence of both the deceased and her husband. Her husband also signed as a witness in the presence of both the deceased and her.

101 As stated, Antony Guss objects to the application by Simon Brown in respect of the 2007 will on the basis that there was a later will, being the January 2010 will. Although Antony Guss alleged in his particulars that the 2007 will was procured by the undue influence of Simon Brown, the evidence concerning the circumstances of the taking of instructions and the execution of the 2007 will was not challenged or contested by Antony Guss at trial. The allegation of undue influence affecting the 2007 will was in truth only an allegation incidental to the allegation of undue influence on which Anthony Guss seeks to importune the April 2010 will.

102 On the evidence of the McLeans, and without any evidence being led by Anthony Guss to undermine that evidence, I am satisfied that the 2007 will was made without any undue influence on the part of Simon Brown, and consider that no inference can be drawn from that will to support a pattern of undue influence preceding the making of the April 2010 will.

103 As stated, Antony Guss alleges that the last valid will of the deceased is the January 2010 will. The validity of the January 2010 will is challenged by Simon Brown. In addition to that document, there is evidence of further instructions being given by the deceased to Mr Northam on 1 and 5 February 2010 respectively, the effect of which was to change the division of the residuary estate between the three residuary beneficiaries named in the January 2010 will.

104 Antony Guss relies on some of the circumstances surrounding the creation of the January 2010 will in support of his allegations of the deceased's lack of testamentary capacity and of allegation of undue influence in respect of the April 2010 will. He also alleges that Simon Brown forced the deceased to terminate the retainer of Mr Northam of Septimus Jones & Lee to support the allegation of undue influence.

The circumstances of obtaining instructions for the January 2010 will

105 In late 2009, the deceased was in hospital after a fall from her scooter accidently caused by the children of Marilla Guss. While the deceased was in hospital, Antony Guss and the deceased discussed the financial circumstances of Marilla Guss, as he said he had on many occasions with the deceased, and he told her she should formalise what she wanted to do for Marilla Guss in a will. Antony Guss asked the deceased who had prepared her will when her husband was alive and the deceased told him it was Mr von Bibra. Antony Guss knew of Mr von Bibra and thought he was retired. He found Mr von Bibra's telephone number by searching online and gave it to the deceased. In examination-in- chief, Antony Guss said Mr Northam told him that Mr von Bibra had arranged for Mr Northam to come to the deceased's apartment on 7 January. In cross-examination, Antony Guss agreed that because of his discussions with the deceased about 'getting her house in order' he facilitated the meeting with Mr Northam by giving the deceased the telephone number for Mr von Bibra.

106 Mr Northam said that on 7 January 2010 he was asked by Mr von Bibra to contact the deceased, who was a former client and friend, for the purpose of changing her will. He understood from Mr von Bibra that there were two issues for the deceased, namely, the re-distribution of the residue of the deceased's estate and the possibility of Mr Northam becoming an executor of the estate. Mr von Bibra gave the deceased's telephone number to Mr Northam. He then called the deceased, making a time to see her at quarter-past three that afternoon at the Menzies. He said their meeting took two hours and he thought Mr Guss was present for the whole two hours of the meeting.

107 Although Mr Northam was initially uncomfortable about Antony Guss being present at the meeting, he said he found Antony Guss to be of assistance because he set out the family tree, volunteered information and made some observations. In those circumstances, Mr Northam felt there was no harm in Antony Guss remaining at the meeting. Mr Northam also said the deceased indicated the need to have Antony Guss present at the meeting to assist her.

108 Mr Northam's written evidence of this meeting is set out in his affidavit sworn 23 May 2013 as follows:

I took notes concerning Mrs Brown's family, including children and grandchildren and her desire to assist in the education of the children of her granddaughter Marilla, namely Zara and Ellison. She referred to prior wills dated 16 June 2005 and 27 September 2007 and said a new will was now needed. In respect of the 2005 will, Mr Antony Guss informed me that Mrs Brown had had a discussion in 2005 with her daughter, Mrs Sandra Guss, who was dying, and they agreed that Mrs Brown would change her will to make provision for Sandra's dependents in her place. Also, Mrs Brown instructed me that she did not want Nicholas Brown to be a trustee of her will, saying that there should be an independent trustee. Antony Guss said that his sister Marilla a single mother, had two children to whom the present will bequeathed $20,000 each. He said that, to really help, the estate could easily pay Marilla's mortgage of $500,000, and that if the same were done for Antony Guss, that would leave Simon Brown with $2,800,000. Mrs Brown said that she did not know that Simon would approve of her paying Marilla's mortgage. Now produced and shown to me and marked with the letters 'AHN-1' as a bundle is a true copy of my file note, together with two handwritten lists of assets, in different hands, which she handed to me.

109 In his oral evidence, Mr Northam said the deceased had given him a copy of her 2007 will, the last page of her 13 July 2001 will and two pages of notations listing properties in her estate, one being in her handwriting. The deceased gave an indication of the value of her estate by reading out from her handwritten document. They talked about the various gifts to the grandchildren and the great grandchildren and said the deceased's instructions for those gifts were extracted from her 2007 will, apart from the last gift where the deceased wanted to increase the gift to Maria Bertolin from $4000 to $5000.

110 The evidence in respect of the deceased's alleged testamentary intentions in the three months preceding the death of Sandra Guss on 15 September 2005 is set out at above.[8]

111 Mr Northam said the whole purpose of his involvement was for the deceased to change her will in relation to the splitting up of her estate, and to have an independent trustee in place of Nicholas Brown. Neither of these changes are recorded in his file note. Mr Northam said that because he discussed these two purposes with Mr von Bibra, he thought they were obvious and uncontentious matters and he did not record them in his file note. He said he discussed these two changes with the deceased at the meeting. The deceased wanted Mr Northam to be a joint executor of her will and she wanted to divide her residuary estate in equal parts between Simon Brown, Antony Guss and Marilla Guss. Mr Northam agreed that he was making significant changes to the deceased's will.

112 Although the proposed change to the residuary clause meant around $1 million for each residuary beneficiary, Mr Northam was not concerned that Antony Guss remained in the room while he took instructions from the deceased. Mr Northam said the instructions for the division of the residuary estate were logical in the context that

(a) there was a concern by the deceased that her name was not on the title to the Hawthorn property,

(b) Simon Brown was paid an allowance from the estate and was employed by his son, Nicholas Brown, to help run the properties, and

Mr Northam said Antony Guss made the observation that Simon Brown had been an employee of the deceased's estate for fifteen years but did not say anything about Simon Brown having received benefits in the past.

113 Mr Northam said that all the deceased told him about the Hawthorn property was that her name was not on the title to the property. He thought what was clearly at the front of the deceased's mind was that there was a mystery about the Hawthorn property and she did not know what had happened to it. She thought that her name had been surreptitiously removed from the title to the Hawthorn property by Simon Brown. Mr Northam agreed that, as a consequence of the proposed changes, Simon Brown's share of the estate was reduced by at least $2 million and said that was also logical because the estate was prosperous. Mr Northam also agreed that these matters were not recorded in his file note of the meeting.

114 Antony Guss said that upon arrival at her apartment, Mr Northam was let into the apartment by him. Antony Guss was present throughout the meeting which he said was for an hour and a half, maybe two hours. In cross-examination, he said the meeting was for two hours and he did leave the apartment for a short time to photocopy some papers. He said no one asked him to leave the meeting and he did not turn his mind to the meeting being private in nature.

115 He said he 'painted just a brief picture of the family tree' and 'we had some discussions about Marilla and myself'. He heard all of the instructions for her will given by the deceased to Mr Northam and said he provided no instructions, apart from when something needed clarification. He said he would not be true to say he was silent for the whole meeting but it also would not be true to say he had any influence on the discussion. He said the deceased was against Nicholas Brown being a trustee of her estate. The deceased's instructions also included the residue of the estate being divided equally between Simon Brown, Marilla Guss and himself. He said he did not hear all of the discussions about that part of the will as he was 'making tea and sitting on the couch and doing things' and he did not 'take an active part in the ... discussion after the initial stages'.

116 In cross-examination, Antony Guss said he also spoke about their mortgages, about the schooling of Marilla Guss' children and that there 'was going to be a fair and equitable split of the estate'. He said he opened the meeting on the basis that the deceased and he had discussed the mortgages, that both he and Marilla Guss had mortgages and that would be something that the deceased 'could easily do with her assets'. He agreed that what he actually said to Mr Northam was something like

to help, the estate could easily pay Marilla's mortgage of $500,000 and the same be done for you [and] that would leave Simon [Brown] with $2.8 million.

Mr Northam said he thought this last comment by Antony Guss was unwise, indiscrete and inappropriate but he still thought it appropriate for Antony Guss to remain in the room. This, he said, was because the deceased dismissed the idea of paying off their mortgages when she told him that Simon Brown would not approve of it.

117 After the meeting on 7 January 2010, Mr Northam drafted a will for the deceased and forwarded it to her by letter dated 19 January 2010. In the letter, Mr Northam referred to his conference with the deceased on 7 January 2010 and confirmed her instructions to prepare a new will and for Mr Northam to act as her executor and trustee.[9]

Mr Northam meets with the deceased and Simon Brown on 19 January 2010

118 Mr Northam next met with the deceased on 19 January 2010 in her apartment at the Menzies. Simon Brown was also present at the meeting. Mr Northam brought a copy of the deceased's amended will and gave a copy to both the deceased and Simon Brown. The will provided for the residue of the deceased's estate to be divided equally between Simon Brown, Antony Guss and Marilla Guss. He said that Simon Brown was 'forcefully displeased' with the residue clause in the will saying to the deceased that she did not need a new will, that it was all arranged by Henry von Bibra because Leonard Brown's will did not leave anything to Simon Brown and the deceased's will was to be a mirror image to rectify that situation. He said there was no need for a change to a three way split of the residue.

119 Mr Northam described Simon Brown's tone as angry and exasperated and he observed that the deceased was distressed for having displeased Simon Brown. Mr Northam said the deceased said as an aside to nobody in particular, in a resigned tone, words to the following effect: 'Oh, I don't know, Simon. You do what you want. ... You should write on the will what it is you want'. Mr Northam described the deceased as distressed and on the verge of crying and he thought she was 'bending to the will of' Simon Brown.

120 Simon Brown's evidence was that he said to the deceased in the presence of Mr Northam 'I can't tell you what to do. You'll have to make up your own mind'. Mr Northam does not recall that being said but also thought it could have been said.

121 Mr Northam did not want to be present at such a 'disputatious' meeting between them and Simon Brown showed him out. In his letter to the deceased sent to her on 9 February 2010, Mr Northam said of this meeting on 19 January:

... it was not appropriate for me to be present during the discussion between you and Simon, as I required instructions from you alone, uninfluenced by any other person, and left.

122 Mr Northam and Simon Brown then had a discussion in the car park at the Menzies. In that discussion, Simon Brown spoke of the situation with the will being in his favour because of the father's will and he discussed the Guss family. He said Marilla Guss was unmarried with two children and with 'no father in sight' and he told Mr Northam the Guss family ought not be enriched by the Browns because they were not people worthy of trust or respect. In cross-examination, Mr Northam said he already had a general inkling or understanding about what he described as the poor reputation of some members of the Guss family and Simon Brown elaborated on that in the discussion. In cross-examination, Mr Northam said that he found Simon Brown to be a man of strong views, loud and overbearing. Although he was not obnoxious to Mr Northam, he was to his mother. He said Simon Brown made it clear to him that he was angry but he was not discourteous to him in the discussion in the car park.

123 Antony Guss said that Mr Northam had told him that he had visited the deceased and had met Simon Brown who was at her apartment. He said that Mr Northam related to him that he was 'thrown out' by Simon Brown and he was not happy visiting the deceased on his own.

124 Mr Northam's file note of the meeting that day, other than notes he made on the draft will, does not record that the deceased said that Simon Brown should write what he wanted on the will. It records the meeting as taking one hour and that Simon Brown said to him:

father's will gave money to deceased sister. The arrangement with Henry von Bibra was that this new arrangement would be a mirror image of that in favour of Simon who got nothing from his father. Twins have no father.

Events after the 19 January 2010 meeting with the deceased and Simon Brown

125 Simon Brown said that after this meeting, he was cross and disappointed with the deceased and he had a discussion with the deceased about her will. He was disappointed because, as he told the deceased, he had built up a successful business over the years. He said he did not scream or yell at her but he told her that he thought she no longer loved him and he left her apartment.

126 In cross-examination, he agreed he had an expectation of inheritance. This went back to when his parents did 'mirror wills' prepared by their then solicitor, Mr von Bibra. They each left a legacy to Sandra Guss with the residue of their estate to the surviving spouse and then to him. The family affairs had been organised while Mr Brown senior was alive on the basis that Sandra Guss would receive a legacy on his death with the rest of the estate left to the deceased who, after her death, would leave her estate to Simon Brown. His father died first so that Sandra Guss received her legacy and the balance of his estate passed to the deceased. Mr von Bibra told him that he would have to wait until after his mother died before he would receive his inheritance.

127 Simon Brown said he felt he had worked in the family business and had taken over the role of his father in looking after the deceased's financial affairs. He had built up the family assets, particularly in relation to the Dalby property, which in turn provided an income to the deceased. He said he did not speak to the deceased for three days after this discussion.

128 He went to see the deceased a few days later, either on 21 or 22 January, and they discussed the draft will. In that discussion, he made the above points about the draft will and his position to her and said the deceased agreed that she would transfer the Dalby property to him so that it would be out of her estate.

129 Simon Brown also prepared a handwritten note, either on 19 January or within a couple of days, addressed to Mr Northam that read:

Dear Hugh

I have marked the changes I want on the Draft will you provided & initialled [sic] them. Please re do the will and make a time next week to sign it.

Yours

NB

130 Simon Brown agreed that the note was written by him. He said it was probably correct that the deceased was to copy the note and send it to Mr Northam. The changes referred to in the draft will were the changes he made on the instructions of the deceased at the time they spoke about the draft will.

131 Mr Northam does not have a record of receiving the letter. Simon Brown said the note was not in the deceased's papers after she died. He said Antony Guss confronted him with the note when they had a heated discussion on the evening of 27 January 2010 at the Cabrini hospital. Antony Guss said he found the letter and kept it.

132 On 26 January 2010, the draft will dated 26 January 2010 with a watermark 'draft' marked across each page was altered further, as set out below, by Antony Guss and then signed by the deceased in the presence of, Joanne Guss and an employee at the Menzies, Pauline Torrance ('Mrs Torrance'). Mr Northam was not told that this had occurred despite having two subsequent conversations with the deceased and a number of conversations with Antony Guss after 26 January 2010.

133 The signing of the will took place in the deceased's bedroom. The deceased remained in bed. Antony Guss, Joanne Guss and Mrs Torrance, an emergency response attendant doing shift work at the Menzies, were present. Joanne Guss and Mrs Torrance witnessed her deceased's signature on the January 2010 will.

134 In his affidavit sworn 30 April 2013, Antony Guss stated:

I had a discussion with [the deceased on 26 January 2010] about her will. Although I can't recall the details my general recollection was that I had been contacted by Mr Northam with a request to arrange for my grandmother to see him alone. In that conversation he related to me that he had visited my grandmother and had met Simon at her place. Mr Northam related to me that he was 'thrown out' by Simon and that he was not happy visiting my grandmother on his own. My recollection is that he said he was quite fearful of seeing her while Simon was there. I therefore spoke to grandmother about Mr Northam seeing him alone. On the Australia Day visit I raised this issue with her. She asked me to go and find the will from its hiding spot. I looked for it but it wasn't where I had hidden it. Instead it was on her desk. I saw that the document had been amended in Simon's handwriting. I took the will back to my grandmother. I sat on her bed. I showed her the document and told her that Simon had amended it. My grandmother said that it should just be finalized then and there. I showed her that the document had been changed and she said 'No' to the changes.

135 In his oral evidence, Antony Guss said he first saw the draft of the January 2010 will sometime between the first meeting with Mr Northam on 7 January and mid-January 2010. He saw it because he was discussing it with the deceased and she showed it to him. The deceased asked him to put the will in the drawer in the second bedroom so it was out of the way.

136 On 26 January 2010, he said he most probably saw the deceased twice, first in the morning, and then again in the evening. When he arrived, they discussed her will. The will had been moved from the drawer out on to the table and he saw there had been some markings on it. He thought the markings looked like Simon Brown had been all over it, crossed sections of it out and made some amendments. The deceased told him that Simon Brown had been around and played with the will. The changes made by Simon Brown were to cross out Mr Northam's appointment as a trustee and to change the beneficiaries of the residue of the estate by deleting the names of Antony Guss and Marilla Guss, leaving his name only.

137 He initially said the deceased told him that Simon Brown had been pressuring her. He then he said this was not the case that day but it was the case on a later day. Antony Guss asked the deceased if the will as originally drafted by Mr Northam was what she wanted. The deceased told him she wanted to be fair and wanted it left as it was, that is, as originally drafted by Mr Northam.

138 Antony Guss then reconstructed the will as it had been drafted by Mr Northam and, with the agreement of the deceased, he also added a legacy to one more grandchild. The handwritten changes on the January 2010 will were made by Antony Guss in the presence of the deceased. Antony Guss said that deceased was happy for the changes to be made and she wanted to get it signed, so he facilitated the signing.

139 Antony Guss then asked Mrs Torrance to come and witness the deceased's signature. Joanne Guss arrived sometime after the changes to the document were made. He cannot recall how Joanne Guss came to be there. First, he said that Joanne Guss was coming to visit the deceased and she arrived after or about the same time as Mrs Torrance. He also said Joanne Guss arrived a little before Mrs Torrance. He then said he may have given her a call to come and witness the document. They were all in the deceased's bedroom with the deceased before the signing of the document.

140 Before the signing, Antony Guss said the deceased read it, and he read out the changes made to the document. He again asked the deceased whether she was happy with its contents and she said three times 'I just want to be fair. I want it as it was. I want it to be fair'. He cannot recall any discussion with Joanne Guss other than what he had already mentioned.

141 After the signing, Mrs Torrance left fairly quickly and Joanne Guss and Antony Guss ensured the deceased was comfortable before leaving. Antony Guss kept the document and said to the deceased that she really ought to deal with Mr Northam.

142 Joanne Guss said Antony Guss called her saying the deceased had asked for her to be a witness to the document. After she arrived at the deceased's apartment, Joanne Guss sat on the deceased's bed and asked the deceased if she really wanted her to be a witness. They did not discuss the contents of the will but Joanne Guss did read it because the deceased asked her to do so. She felt uncomfortable about reading it. She thought the deceased seemed relieved after signing it and said there was no pressure on the deceased to sign the document.

143 In cross-examination, Joanne Guss was taken to the following paragraphs of her affidavit sworn 30 April 2012:

I was present at Neridah's unit at Menzies on 26 January 2010. I don't recall the nature or extent of any discussions about the contents of her will. There was a carer present, Pauline, and there needed to be a second witness. Gran asked if I would be a witness. I said, 'only if you want me to be a witness to your will' and I also said that I wasn't sure if I could be. She said that she wanted me to be a witness.

I don't recall the discussion about the various pieces of handwriting on the will. I may or may not have been present, I don't recall. My view generally was that this had nothing to do with me. I made an effort not to listen or to read what she was wanting as the contents of her will. These were matters to do with her and nothing to do with me.

I can recall being in her bedroom at Menzies with Antony. I heard him say to her words to the effect 'Is that what you want?' She responded saying that she wanted to be fair. He asked again whether it was what she wanted. I can remember her saying words to the effect 'I want for you and Marilla to get a share of my will'. She did not state a specific percentage share. She read the document and asked 'where do I sign?' She then proceeded to sign in the presence of me, Pauline and Antony. I don't recall which of Pauline or I signed next, however we both signed in each other's presence and in Gran's presence as well.

144 Joanne Guss said she did not recall the specifics of the conversation that she has related in her affidavit. Although she said in her oral evidence that she received a telephone call while she was at home and the deceased asked her to come to the Menzies, she then said the call was made by Antony Guss. She agreed she did not put this in her affidavit, but just said 'I was present'. In her oral evidence, she said she was called to come to the apartment to be a witness whereas, in her affidavit, she said the deceased asked if she would be a witness when she arrived there. She also said she got the call from Antony Guss and she then asked to speak to the deceased to ask her if she wanted her to be a witness. She agreed that this was not stated in her affidavit. She said there were two instances when she asked the deceased if she wanted her to be a witness. She said the deceased loved and trusted her and wanted her to be a witness to her signature on the document.

145 Although Joanne Guss said in her affidavit that she made an effort not to read or listen to what the deceased wanted to do in her will, she said she only read the handwriting and concentrated where she was asked to sign and initial. She said she scanned the document but felt uncomfortable about doing this. She then said the deceased asked her to read the will before she signed it. She did not know why she did not include this in her affidavit.

146 Joanne Guss did not recall whether anyone suggested the will be put in proper form before it was executed. She does not recall that she suggested it nor did it occur to her at the time that it might be a good idea. She said it did not occur to her that it might be inappropriate for Antony Guss to be involved in the way she has described or herself, being the wife of a major beneficiary. Joanne Guss denied that the deceased was hounded and pressured by Antony Guss to execute this will.

147 Mrs Torrance usually started her shifts at the Menzies after 5pm and mostly saw the deceased after that time. She recalled that on one shift, she was asked by Antony Guss to witness a document. She went with Antony Guss him to the deceased's apartment. She understood from either Antony Guss or the deceased she was being asked to witness the deceased's signature on her will. The deceased was in her bed in her bedroom at her apartment. She said the deceased knew who she was and knew who everyone else was in her bedroom. Antony Guss and Joanne Guss were present at the signing of the document. Mrs Torrance did not recall the details of any conversation or the exact order in which the document was signed. She does not believe she had a conversation with the deceased or anyone else. She felt unsure about whether it was appropriate for her to be witnessing a document. She did not read the document. She signed the document as a witness to the deceased's signature and then left the deceased's apartment.

148 The January 2010 will was filed away by Antony Guss, and was not seen by anyone until Antony Guss contended in these proceedings that this will was the last valid will of the deceased. Mr Northam did not become aware of the January 2010 will until the trial despite the fact that he was named as an executor in it. He was also not aware that Antony Guss had made application for a grant of letters of administration of that will.

Conclusions in respect of the January 2010 will

149 Because the validity of the April 2010 will is to be determined prior to determining the validity of the earlier wills, the conclusions in respect of the validity of the January 2010 will are set out after the findings on the validity of the April 2010 will.

Events after the execution of the January 2010 will

150 The next contact after 19 January 2010 for Mr Northam was when Antony Guss called him on 27 January 2010, the day after the signing of the January 2010 will. According to Mr Northam's file note, they spoke for approximately 25 minutes. Antony Guss told Mr Northam that there would be a letter from the deceased. Mr Northam's file note recorded:

Instructions? It's meant to be even, Grandfather left Anthony's mother $60,000. Grandfather bailed Simon out of debt. Simon harass [unclear] for 20 years. Has caused money to go to Nicholas.

151 Mr Northam also received a handwritten fax sent at 10.34am that day signed by the deceased agreeing to the terms of the retainer for Mr Northam's firm. At the same time as receiving the signed retainer letter, Mr Northam received a two handwritten letters, both not in the deceased's handwriting, but bearing her signature. The first reads as follows:

I refer to your draft will and wish you to proceed as per draft will, which I will execute in that form.

152 The second, in the handwriting of Antony Guss, read as follows:

Attn Hugh Northam

Re Will Neridah Brown

Dear Mr Northam,

A small amendment to my earlier instructions regarding my will the main beneficiaries should be split as follows: Simon Brown (son) 50%, Marilla Guss 25%, and Antony Guss 25% (the latter both children of Sandra Guss), my daughter who predeceased me.

153 Antony Guss said he saw the deceased twice on 27 January 2010. On the first occasion, around 10am, there was an authority from Mr Northam that needed signing. He said that he at that point felt uncomfortable that the January 2010 will placed Marilla Guss and himself on an equal status with Simon Brown. He suggested to the deceased that it would be fairer to have 'Sandra Guss's share' divided fifty-fifty rather than into thirds as was the case in the January 2010 will. He said the deceased thought that was reasonable. Antony Guss said he would write that out and they would 'send it to the solicitors for an update'. Antony Guss faxed these three documents to Mr Northam. He did not say anything to Mr Northam about the fact that the January 2010 will had already been signed by the deceased.

The re-signing by the deceased of her 2007 will on 27 January 2010

154 Antony Guss alleges that Simon Brown forced the deceased to re-sign the 2007 will on 27 January 2010. He said he did not know whether he was aware of the re-signing of the 2007 will when he saw the deceased (twice) on that day.

155 Simon Brown said he visited the deceased on 27 January 2010 and the deceased asked him about her 2007 will at his visit. He then got a copy of the will for the deceased and they discussed it. He read the will out to the deceased and they talked about updating some of the legacy amounts. On that visit, he made some handwritten changes to the copy 2007 will at the request of the deceased. He said to the deceased that if she wanted to update the figures, she should call a solicitor and do it, otherwise if she was happy with it, she should just re-sign the document. He said the deceased was happy to re-sign it and Simon Brown then wrote the word 're-signed' on the last page of the document and the deceased signed and dated the last page. He denied that he stood over the deceased and made her re-sign the copy 2007 will and said that what had occurred was what the deceased wanted to do.

Conclusion as to the allegation that the deceased was forced to re-sign her 2007

156 Simon Brown is the only person who can give evidence of this allegation. There is no evidence of him forcing his mother to re-sign the 2007 will. I would reject that allegation, and do not draw any inference from the fact that the will was re-signed in support of allegations of undue influence by Simon Brown.

Events after the re-signing of the 2007 will by the deceased

157 Simon Brown said the deceased was not ill when he saw her on 27 January 2010 at the Menzies. Later that evening, Antony Guss visited the deceased between 5 and 7 that evening and the deceased told him that Simon Brown had been around 'pressuring her'. Antony Guss was concerned about her health and thought she was sufficiently ill to go to hospital. He telephoned Simon Brown to tell him this. Antony Guss said that Simon Brown told him he was not to take the deceased to hospital and he would come around and take her. Simon Brown then collected the deceased and she was admitted to the Cabrini hospital with a bronchial infection. Antony Guss said he followed the deceased to the Cabrini.

158 During the evening of 27 January 2010, Simon Brown and Antony Guss had what Antony Guss described as a heated discussion for an hour in the waiting room at the hospital, finishing around 9pm. He said that all manner of issues were discussed and that 'for the first time he understood the nature of Simon Brown'. He referred to the letter that Simon Brown had written out for the deceased on either 19 January or a couple of days after telling Mr Northam what to do in the deceased's will. Antony Guss thought this letter was a fraud. He had found it next to the deceased's chair in her apartment and had taken it. He told Simon Brown this, and said that Simon Brown became agitated and wanted the letter back. Antony Guss thought that because Simon Brown was insistent on getting the letter back, this confirmed his belief it was a fraud. He does not know whether he was aware that the deceased had re-signed her 2007 will at the time of the discussion. He made a handwritten note of the discussion later that evening, finishing the note around 1am.

159 Simon Brown said that any discussions with Antony Guss about the deceased's will were all initiated by Antony Guss. The first discussion with Simon Brown in a hospital waiting room was in late 2009 when the deceased was in hospital for a bad gash on her leg. The second discussion was when the deceased was in hospital for bronchitis. He said both discussions with Antony Guss were similar. Antony Guss wanted to 'do a deal with the deceased's will'. He said the argument became heated at one stage and Antony Guss would not take 'no' for an answer. Simon Brown did not know of the existence of the January 2010 will at this time.

160 The deceased remained in hospital for three days. The next day, 28 January 2010, Antony Guss told her about the discussion with Simon Brown the night before. He told her that Simon Brown was trying to strip her of her assets, referring particularly to the Dalby property. He said the deceased did not want to transfer the Dalby property to Simon Brown. Antony Guss said the deceased signed a letter to that effect while she was in hospital although he was not able to produce a letter signed that day. Antony Guss then had discussions with Mr Northam. He first said Mr Northam had called him, but then said he could not remember who rang whom.

161 Antony Guss alleges, as a particular of his allegation of undue confluence, that Simon Brown forced the deceased to terminate the retainer of Mr Northam.

162 On 28 January 2010 Mr Northam had three telephone conversations with Antony Guss. In the first conversation, Antony Guss called Mr Northam. His file note records:

[The deceased] was told of conversation [with Simon Brown] last night. She says she never transferred her assets over. 11.00 or early evening around 5.00 rather than 2.00.

163 Mr Northam's next file note records Mr Northam calling Antony Guss. They spoke for 54 minutes. The file note records Antony Guss's version of the discussion with Simon Brown the night before.

164 Mr Northam then spoke with his partner who suggested that the deceased should leave 60 per cent of the residue to Simon Brown, that Antony Guss and Marilla Guss should receive 20 per cent each of the residue and that Mr Northam should also obtain a geriatrician's report in respect of the deceased.

165 Mr Northam then called Antony Guss to tell him that he needed a 'geriatrician or psychiatrist to report on [the deceased's] testamentary capacity'. Mr Northam then made enquiries as to suitable practitioners who might be able to provide such a report.

166 On 29 January 2010, the deceased telephoned Mr Northam and told him she wanted to change her will so that the residue would be divided with Simon Brown to receive fifty per cent and Antony Guss and Marilla Guss to receive twenty-five per cent each. Mr Northam said he told the deceased that he would ring her to make a time to see her on 1 February 2010.

167 Mr Northam re-drafted the deceased's will to incorporate the deceased's instructions that the residue of the estate be divided as to one half to Simon Brown and as to one quarter each to Antony Guss and Marilla Guss. He called the deceased on 1 February to arrange to see her at 5pm with the draft will and to ask her to arrange with her doctor to see a psychiatrist to get a report as to her testamentary capacity. Mr Northam thought that, given his discussion with Simon Brown, it appeared there would be a dispute about changing the will and it would be prudent to have the deceased tested for her capacity in case there was a challenge to the amended will. Mr Northam then called the deceased again to ask her if he could make the appointment at 4pm that day and he said Simon Brown answered his call. He told Mr Northam in a short conversation that:

Mrs Brown will not be changing her will. Did Henry von Bibra tell you about the Gusses? Your services are not required. Please send the bill and Simon Brown will pay all the bills.

168 Mr Northam then sent a letter dated 1 February 2010 to the deceased. It was posted just after midday on 2 February 2010. In his letter, he enclosed a draft amended will which incorporated the deceased's instructions on 27 January, namely, that the residue of her estate should pass as to one half to Simon Brown and as to a quarter each to Antony Guss and Marilla Guss. He then confirmed that he had been informed on 1 February by Simon Brown that she did not 'now wish to proceed with these changes' and he enclosed an account for his work.

169 On 2 February 2010, Mr Northam received an undated handwritten letter from the deceased thanking him for his call 'today (Mond 1st Feb)'. It stated that she had decided against employing his services and that he should forward his account for prompt payment. On the same day, Antony Guss called Mr Northam telling him that the deceased's letter was written in the deceased's handwriting but she was forced to write it by Simon Brown, that the deceased is not happy about it but did not 'want to fight with him'.

170 The next contact with Mr Northam was a telephone call from Antony Guss on 5 February 2010 telling him that the deceased had written another letter to counterveil her earlier letter and that this week Simon Brown had asked the deceased to sign a document moving all of her assets into a specific trust. Antony Guss also said that the deceased was happy to sign the amended will and had not signed the document that Simon Brown asked her to sign.

171 Mr Northam received a call at 1.25 pm on the same day from the deceased asking if Mr Northam could see her alone. They arranged for that appointment to be on Monday at 11am. The deceased said the reason for the appointment was to change her will as she felt it was not enough to give fifty per cent of the residue of her estate to Simon Brown and she instructed Mr Northam to make Simon's share seventy per cent. She also discussed the addition of her granddaughter Zoe Whitehead to receive a legacy of $10,000 and said the independent trustee should not charge a high commission.

172 Mr Northam did not see the deceased. Instead he wrote a letter to her. The first page of the letter was dated 5 February 2010 and the second and last pages were dated 9 February 2010. The letter was posted on 10 February 2010. In his letter, Mr Northam confirmed the deceased's recent instructions to her will and he then set out a history of his acting for the deceased and concluded that because of the circumstances outlined in his letter, he would withdraw from acting for the deceased.

Our advice in all of the circumstances is that, because the conversations I have had with both Simon Brown and Anthony [sic] Guss, each of whom has a conflicting interest in the terms of your will, may give rise to a perception of conflict on my part, and/or the firm's part, if we were to continue to act for you, it would be better if we withdrew from the matter, ceased to act, and advised you to appoint another solicitor.

...

PS 8 February 2008 [sic]

We have received this morning, after the 11.00am appointment was postponed, your letter dated 4 February 2010, confirming our [sic] instructions to act for you, for which we thank you. However, we remain of the opinion that it would be better for us to withdraw in order to ensure that there is no perception of any conflict which might give rise to a challenge to the will in the future.

174 The letter dated 4 February 2010 referred to in Mr Northam's letter is stamped as received on 8 February 2010. It is a typewritten letter signed by the deceased as follows:

Dear Hugh

I refer to a letter written to you under my handwriting earlier this week.

I wish to advise I was coerced into writing such letter by my Son and did not devise or intend to send you such letter.

I wish to proceed as per original instructions and as such advise you to disregard that letter, and I will proceed to sign the new will as prepared by you.

I declare that I am of sound mind.

I apologise for the letter and contents but it was not my wish to write such a letter - but rather to avoid a conflict with my Son.

The letter then finishes with the typed name of the deceased, with her signature next to it.

175 Antony Guss said he typed this letter for the deceased. He said he had a discussion with the deceased in which she said Simon Brown had pushed her to write the letter terminating Mr Northam's services, that it was his idea, and that she did not want to do it but felt she had no other option. The deceased told him that Simon Brown had put the termination letter in front of her and she signed it, because she did not have a choice. The deceased told him that Simon Brown had asked her to sign the transfer of the Dalby property to a trust for some saving of GST. Antony Guss told the deceased there was no need to transfer the Dalby property now as it had been safe with her for the past twenty-five years.

176 The deceased also told him that she wished to proceed with her original instructions because she wanted to fulfil the will as she had instructed Mr Northam. Antony Guss put the words 'of sound mind' in the letter because he felt it appropriate to ensure that he was not influencing the deceased but acting on her instructions. He also put in the sentence about 'conflict' because it reinforced that Simon Brown had pushed the deceased to it and she had told Antony Guss to get Mr Northam 'back on the job'.

177 By letter dated 24 February 2010 to the deceased, Mr Northam referred to a conversation with the deceased 'this week' and confirmed to her that he had advised her by letter dated 5 February he found it necessary 'to cease acting for you in this matter because of any perception of conflict should there be changes to the Will and the changes challenged'.

Conclusion as to whether Simon Brown forced the deceased to terminate the retainer

178 In my view, the evidence does not establish that Simon Brown forced the deceased to terminate Mr Northam's retainer. It is clear from the evidence that Simon Brown was unhappy. He said so to Mr Northam in the telephone call of 1 February 2010, and I would accept Mr Northam's evidence on that call, especially insofar as it is supported by his file note. But it is also abundantly clear that Mr Northam's services ceased not because the deceased ended his retainer, or because Simon Brown forced her to do so. If anything, the deceased's repeated attempts to contact Mr Northam show that she was more than able to resist Simon Brown's wishes. Such were the circumstances that Mr Northam found himself that he, correctly, informed the deceased that he could no longer act for her and gave her detailed reasons for why this was the case. Surprisingly, however, he did not come to this conclusion earlier when he was dealing only with Antony Guss and the deceased. Be that as it may, it was ultimately his decision to end his retainer.

The background to the deceased's ownership of the Dalby property

179 At some stage, the deceased and her husband invested funds in mortgages organised by Mr Silverstein, the family solicitor who, as previously noted, was later disbarred.[10] The deceased's funds with Mr Silverstein, along with the funds of others, were invested in a mortgage secured by the Dalby property, upon which was operated the Dalby Parkview Motel.

180 After Mr Silverstein was disbarred, a receiver was appointed to Mr Silverstein's mortgage practice. In 1999, agreements were executed whereby the deceased and two other entities, Pawelloyd Pty Ltd and Reynolds and Family Co Pty Ltd, took over the ownership of the Dalby property by way of transfer of the relevant mortgages.[11] Mr Jonathan Ivanisevic ('Mr Ivanisevic'), a solicitor at HopgoodGanim Lawyers in Brisbane, gave evidence that the relevant documents demonstrated that there was an arrangement between the deceased and the other entities in which they each contributed funds for the purchase of the Dalby property. Mr Ivanisevic did not act for the deceased in that transfer.

181 In 2007, the deceased, as mortgagee in possession, appointed HopgoodGanim, to act on her behalf in relation to the transfer of the relevant mortgage from Kevin Power to Pawelloyd Pty Ltd and the deceased and then a transfer of the relevant mortgage from Pawelloyd Pty Ltd to the deceased in respect of the Dalby property. The result of the suite of transactions was that the Dalby property and its associated business ended up in the ownership of the deceased, that is, the deceased acquired the other contributing members' interests in the Dalby property, with her acquisition being approved by the Supreme Court of Queensland.

182 In appointing HopgoodGanim to act on her behalf, the deceased confirmed that HopgoodGanim could take and act on instructions in relation to these matters from Simon Brown or Mr Nicholas Brown, sign on her behalf any transfer of the mortgage and do all such acts and things as is necessary to facilitate the transfer of the mortgages. Mr Ivanisevic was the solicitor who acted on behalf of the deceased in respect of the transactions and he said that he dealt primarily with Simon Brown.

The allegation that the deceased was forced to transfer the Dalby property

183 Simon Brown said that around 21 or 22 January 2010, he went to see the deceased and they discussed the issue of the draft will prepared by Mr Northam which he had first seen on 19 January 2010. The details of the discussion are set out above.[12] As a result of the discussion, the deceased said that she would transfer the Dalby property to him so that it was not in her residuary estate.

184 He said over the next few days, he spoke to Nicholas Brown about the transfer of the Dalby property. Nicholas Brown said he was asked by both the deceased and Simon Brown to get in contact with the solicitors in Queensland to organise the transfer of the Dalby property. He said that they were both keen to get it done. The solicitors who acted for the deceased were HopgoodGanim, with Mr Ivanisevic being the responsible partner. Nicholas Brown agreed that he was involved in a lot of the dealings with HopgoodGanim for the transfer.

185 The instructions for the transfer of the Dalby property from the deceased were first recorded in writing by Mr Ivanisevic in his e-mail dated 28 January 2010 to Nicholas Brown. The property was to be transferred by way of gift to Drayton Thirty One Property Group Pty Ltd ('Drayton Thirty One') as trustee. Simon Brown is the director of that company.

186 Mr Ivanisevic's e-mail records a conversation with Nicholas Brown earlier that day. Mr Ivanisevic said this was the first contact he had with Nicholas Brown about the transfer of the Dalby property from the deceased to another ownership structure. Nicholas Brown provided the information as to the ownership structure in respect of the original transfer to the deceased. Mr Ivanisevic did not have any contact with the deceased herself until he spoke with her by telephone on 16 February 2010.

187 On 29 January 2010, Mr Ivanisevic sent an e-mail to Mr Tony Baldwin, his partner, and forward an e-mail from Nicholas Brown to Ms Tammy Berghofer, the solicitor at HopgoodGanim having conduct of the matter. In that e-mail, Nicholas Brown gave instructions to Tammy Berghofer for the transfer of the Dalby property to a family trust, the trustee of which was Drayton Thirty One Property Group Pty Ltd. Mr Ivanisevic said he did not get the impression that there was any sense of urgency for the transfer because he was not dealing with it himself. By e-mail dated 2 February 2010, Ms Berghofer arranged with Nicholas Brown and valuers to obtain a valuation of the Dalby Motel. Nicholas Brown told Ms Berghofer that it was important for the transaction to be done urgently. Ms Berghofer recalled that it was quite urgent.

188 By letter dated 3 February 2010 from Ms Berghofer to the deceased, care of Nicholas Brown, Ms Berghofer referred to her earlier e-mail on the same day to confirm that Nicholas Brown would give instructions on her behalf. She then set out the instructions from Nicholas Brown given on the deceased's behalf and sought and subsequently obtained authority from the deceased to carry out those instructions. The file for the transfer of the Dalby property was opened in the deceased's name, as she was the client. Nicholas Brown was the agent for the deceased. The authority authorises HopgoodGanim to take instructions from Nicholas Brown on behalf of the deceased.

189 The preceding pages of the 3 February 2010 letter contain an outline of the transaction and requested the deceased's instructions on certain particulars for the lease that Mrs Berghofer had not yet received instructions on, such as the type of rent review. Ms Berghofer did an asset company extract which confirmed the deceased was a director of Dalby Parkview Motel Pty Ltd. Ms Berghofer also stated that she understood a family member may be concerned about the terms of the transaction and could perhaps contest its legality. She stated that to avoid any arguments in the future concerning her capacity, her strong recommendation was for her to obtain a doctor's certificate verifying her capacity and to use an independent law firm when signing any documentation. She said she would be happy to recommend a law firm in Melbourne.

190 Ms Berghofer said it was not in her mind that Nicholas Brown was her client. She said the deceased had given written authority for Nicholas Brown to provide instructions to HopgoodGanim and her e-mail is a reflection of her instructions.

191 On 3 February 2010, Antony Guss visited the deceased. When he arrived, the deceased was with Simon Brown and Mrs Bortolin. He said Simon Brown was standing over the deceased thrusting a document at her and asking her to sign it. He also said Simon Brown was forcing the deceased to sign the document. He said he demanded to know what the document was, and thought that it was the transfer for the Dalby property. He told Mrs Bortolin she was under no obligation to Simon Brown, after which she left. Antony Guss and Simon Brown then 'had some words' and Simon Brown went off in a huff. Antony Guss was surprised the deceased had signed the transfer because previously she had told him she did not want to transfer the Dalby property.

192 Antony Guss said he then discussed this with the deceased, saying 'it's typical' to which the deceased responded 'Oh dear, you know, what can I do?'. Mrs Bortolin did not give any evidence that was specific to this event although she did give general evidence concerning Simon Brown wanting the deceased to sign documents sometimes.

193 Simon Brown said that the deceased only ever signed what she wanted to sign. She could not be forced to sign anything if she did not want to do so. He said on this day there was no discussion about the document as the deceased knew about it, and knew what was going to happen as they had discussed it previously. The deceased had signed the document on that day, and it was the witnessing of her signature that was an issue, as Mrs Bortolin had not witnessed it. He said the deceased told Antony Guss to go home and that it was none of his business. He agreed that Antony Guss told Mrs Bertolin very loudly that she was not to sign the document. Simon Brown said that he had to get a new document for the deceased to sign.

194 Nicholas Brown said he received the documents from HopgoodGanim on 3 February 2010 by e-mail. He said that his signature was on the document dated that day. The document was an authority signed by the deceased for HopgooGanim to act on her behalf in the transfer of the Dalby property. He cannot remember but said when he received the papers, he would have taken steps for the deceased to sign the document. He witnessed the deceased's signature.

195 On 8 February 2010, at 10.37 am, Ms Berghofer had a two minute telephone conversation with the deceased. This was the first time they had spoken with each other. Ms Berghofer said she made a file note promptly after her conversation with the deceased, as is her usual practice. She believes her file note to be an accurate record of their conversation and any changes made on the file note have been made by her and are in her handwriting. The file note records:

At 10.37am outgoing call to Mrs Brown on 03 9509 2254. I explained to Mrs Brown that I was working with Nick and looking after her and the transfer of the property at 31 Drayton Street, Dalby which was the Dalby Park View Moel. She said that I should meet with her in attendance with her son, Simon and she said she was in bed and didn't really feel like getting up today. I said that's okay and that I was in Brisbane. I said I was just calling to let her know that I had sent the documents through to her grandson and she said that she would prefer if I sent the documents to her directly. I said that's fine and I'll express post them this evening and she should have them tomorrow. I said I would send them to apartment 412 at 1286 High Street, Malvern VIC 3144 and she said that's good. She sounded as though she understood what was happening with the Dalby Park View Motel. When I said that I was working on the transfer of the Motel to her son, Simon she did not query that. We left it at that.

196 Ms Berghofer recalls the discussion with the deceased in respect of the tone and inclination of her voice but not their conversation word for word. She said that the deceased picked up and answered her telephone call. She said the deceased's tone was that of an elderly person. Ms Berghofer's impression was that the deceased understood who Ms Bergfhofer was and what she was talking about. She said the deceased was not confused by their conversation or about what Ms Berghofer was instructed to do. The deceased told her that she was still in bed and did not feel like getting up that day. The deceased told Ms Berghofer she would prefer it if the documents were sent to her directly. After this conversation, Ms Berghofer arranged to send the documents express post to the deceased at her address at the Menzies in High Street Malvern. Ms Berghofer e-mailed Nicholas Brown to tell him she was posting the documents to the deceased. She had previously e-mailed the documents to Nicholas Brown.

197 In cross-examination, Ms Berghofer said that during this phone call, she explained who she was and the deceased responded by saying Ms Berghofer should meet with Simon Brown in attendance. Ms Berghofer said it was not apparent to the deceased that Ms Berghofer was in Queensland and Ms Berghofer would not expect it to be apparent to her. Her conversation with the deceased was to let her know that documents were coming through to Nicholas Brown and the deceased said she would prefer the documents to come direct to her. Ms Berghofer said the deceased did not query what Ms Berghofer was doing. This conversation occurred after Ms Berghofer's letter dated 3 February 2010 to the deceased and after Ms Berghofer had received the deceased's signed authority. Ms Berghofer agreed that prior to this conversation, she had sent everything by e-mail to Nicholas Brown.

198 The transfer for the Dalby property was dated 9 February 2010. The deceased's signature on the transfer was witnessed by Mr Anthony Brearley, solicitor and partner of Mills Oakley. Mr Brearley is an experienced solicitor at Mills Oakley. He was asked to attend on the deceased at the Menzies at the request of Nicholas Brown so that he could witness her signature on the transfer. Simon Brown met Mr Brearley at the Menzies and let him into the deceased's apartment. He introduced Mr Brearley to the deceased and then left.

199 Mr Brearley explained to the deceased that he needed to witness her signature on some documents that he had with him. The deceased signed the transfer and he then witnessed her signature. They had a discussion about where each of them lived (Mr Brearley lived close by to the deceased) and she also spoke about a court case in Queensland (which was a reference to the caveat lodged the day before over the Dalby property by Antony Guss and Marilla Guss) where there was a fight about her will which she thought was silly considering she was not deceased.[13]

Antony Guss and Marilla Guss register a caveat over the Dalby property

200 On his visit to the deceased on 3 February 2010, Antony Guss thought the deceased had signed the transfer document for the Dalby property. As a result, he said he was fearful, so he said he took steps to protect the deceased's asset for her by putting a caveat on the title to the property. He arranged for his father to retain solicitors in Queensland the purpose which was for a caveat to be lodged on the Dalby property on behalf of himself and Marilla Guss. He also got the deceased to sign a letter stating that she did not want to transfer the Dalby property. He created the letter on 4 February 2010 by typing it at his home, and gave it to the deceased to sign later that day. Antony Guss said he was cross and not happy because on 2 February 2010 the deceased had spent the night on her bathroom floor after she fell and then could not get up. She was very bruised. Mrs Bortolin had found her the next morning after the fall and said that the deceased was 'pretty distressed' after the fall.

Re: Attempted transfer of property

To Whom It May Concern

I refer to my signature attached to transfer of my asset of Dalby Motel yesterday 3rd February. I was coerced to do so by my Son.

This was witnessed by the person who refused to witness my signature Maria Bortolin.

There was no value to me to do such a transfer. I was not aware at the time of the consequences of signing such document at the time, however the person who was requested to witness the signature refused to do so on the basis they believed my signature was placed on the document only to avoid conflict with my Son who was pressing me to do so.

I had fallen in the night and been unable to call for assistance or to move myself - I spent 12 hours on the bathroom tiled floor the night of 2nd February, and as such was relieved to have been found by my house assistant Maria Bortolin at approximately 11am yesterday morning. It was entirely inappropriate that my Son on learning this pressed me to sign and attempt to consider the signing of such document which I could not at the time.

As the signature was not witnessed in my presence I consider such signature to be invalid, however in the case it is, I revoke such authority to transfer the property for any reason.

I declare I am of sound mind.

Further should my son again attempt to press me to sign such transfer, and is somehow successful, I forward that such transfer is probably illegal and unenforceable unless reference to this letter and a copy over signed is accompanied.

This letter also finishes with the typed name of the deceased, with her signature written above it.

202 In February 2010, Joseph Guss, acting on behalf of Antony Guss and Marilla Guss, instructed Lillas & Loel, solicitors in Queensland, to lodge a caveat on behalf of Antony Guss and Marilla Guss over the Dalby property in an attempt to prevent the transfer of that property from the deceased's name into the name of an entity controlled by Simon Brown.

203 On 8 February 2010, Lillas & Loel registered a caveat dated 8 February 2010 claiming 'an equitable interest or estate as co-owner in equity'. The grounds of the claim were 'as beneficiaries of a resulting trust as a result of the Last Will and Testament of the Registered Proprietor'.

204 On 12 February 2010, Ms Berghofer spoke again with the deceased. She made a file note of her conversation and had an independent recollection of the conversation. Ms Berghofer recalls the deceased spoke in a clear and unequivocal manner, pre-empting some of her questions. The deceased understood that Ms Berghofer was calling about the transaction dealing with the transfer of the Dalby property and she had no hesitation in answering the questions from Ms Berghofer. Ms Berghofer's file note records:

I said to Mrs Brown that I was helping her out with the transfer of the Dalby Motel. She said yes and she understood that. She said that there was a problem and I said yes, Nick may have talked to her earlier today about a caveat that had been lodged. She asked if that was Antony and I got a copy of the caveat and I said yes, it was Marilla Guss and Antony Guss. She said they're the grandchildren. I said Nick had mentioned that Neridah didn't want this caveat on the property and is that correct. She said yes, the caveat has to come off. I said we're working on that for her and she said oh good, that's good.

I said that I understood that she wanted Simon to have the Dalby Park View Motel and the property and she said yes, Simon was to have that. I asked if she was sure about that now and she said yes, she was sure. I said that neither Simon nor Nick had mentioned that Marilla and Antony had gone to visit Neridah and had given her a will to sign and I asked if she remembered that and she said yes. I asked he she remembered if she had signed the will or not and she said she doesn't remember and it's all getting very confused now. She said she shouldn't have signed it but she can't remember. I asked her if they'd made nay promises to her if she did sign it. She asked what I meant and I said did they make any promises, for example, to look after her if she signed the will and she said no, they didn't make any promises. She was confident about that. I said that Simon was going to send a copy of the will that he has through to us. I said is it true that she wanted Simon to get everything and she mentioned that yes, she wanted Simon and then she referred to the grandchildren. She was muffled at this point.

I asked her if it was the will that she remembers signing that she wants to keep in place and she said yes, the original will. I sail well we're looking into the caveat now and will try to get it off the property for her and would keep her updated. I said I would give her a call to let her know how things are going she said she would like that.

205 Ms Berghofer said that the deceased understood her role, that is, Ms Berghofer's role, in the context of what was happening with the grandchildren. She said the deceased said more than just saying 'yes' to her or acknowledging what Ms Berghofer was saying to her.

206 Simon Brown said the deceased was aware that the caveat had been lodged over the Dalby property. He got a copy of it and showed it to her. The deceased told him to 'get rid of it' and also said that Antony Guss and Marilla Guss were 'cheeky little bastards'. He said these were strong words for the deceased to use.

207 On 12 February 2010, Ms Berghofer sent an e-mail to Mr Ivanisevic advising of the content of the conversation with the deceased, including that her instructions were the deceased wanted the caveat over the Dalby property removed.

208 Later that same day, Mr Ivanisevic e-mailed Nicholas Brown advising that by letter, he had requested the solicitors for Antony Guss and Marilla Guss to withdraw the caveat immediately. He had also asked that Antony Guss and Marilla Guss not attend on the deceased as he understood she was elderly and he did not want people overbearing her. Mr Ivanisevic said that Nicholas Brown might have asked him to write the letter but said he would have done it anyway as the deceased was his client. He also asked Nicholas Brown to send him a copy of the deceased's will and agreed that he received it on 16 February 2010.[14] Mr Ivanisevic said he did not recall speaking to Simon Brown and said he probably did not.

209 Later that day, by e-mail at 7.06pm, Ms Berghofer received a valuation from Herron Todd White dated 5 February 2010 as to the freehold interest of the Dalby Parkview Hotel, subject to hypothetical lease. The e-mail confirms that duty on the transfer of $1.7 million was $74,925. Ms Berghofer provided this information to Nicholas Brown.

The application for the removal of the caveat over the Dalby property

210 The deceased instructed Mr Ivanisevic to make an application for the caveat over the Dalby property to be removed. On 16 February 2010, Mr Ivanisevic had a telephone conversation with the deceased. He said that he was able to recall that conversation, in addition to his file note. He telephoned her because of the caveat. He called the deceased about the affidavit that needed to be filed in order to remove the caveat and to find out if she was able to give the evidence that she ultimately recorded in her affidavit.

211 Mr Ivanisevic thought the deceased's will should be exhibited to her affidavit but counsel informed him that a lot of people are uncomfortable having their will on public record and said that the deceased should be asked about this. He spoke with the deceased and said he was from HopgoodGanim. The deceased said she knew 'who we were'. Mr Ivanisevic spoke to the deceased about the reason for his call and, in particular, whether she wanted the Dalby property transferred. She said she did. She also said she did not want her will included as part of the exhibits to the affidavit. Mr Ivanisevic said he would prepare an affidavit on the basis of their conversation and that either Nicholas Brown or Simon Brown would give it to her. He told her then if there was anything incorrect in it or if she wanted it changed, she should feel free to make the changes. Mr Ivanisevic thought the deceased understood what he was saying. He was comfortable she understood him and understood that he was providing a document to her that she would read and confirm as being accurate. Mr Ivanisevic then prepared an affidavit for the deceased which he e-mailed to either Simon Brown or Nicholas Brown so that it could be provided to the deceased.

212 In cross-examination, Mr Ivanisevic identified the information in the affidavit which he obtained from Nicholas Brown. Mr Ivanisevic did not have any independent recollection of Nicholas Brown telling him of the deceased's family background. He said the focus of his conversation with the deceased was the interest claimed in the caveat and how the Dalby property would be disposed of by her. Mr Ivanisevic believed he had a copy of the deceased's will because he was thinking of exhibiting it to the affidavit and remembers saying to his counsel that the interest claimed is not reflected in the will in any event. He said that the only way he could have known that would have been because he had a copy of the will. He confirmed with the deceased that she did not want to disclose the contents of her will in her affidavit.

213 Mr Ivanisevic said that when he spends time on the telephone, he then dictates a file note and checks it on once it is typed, which is usually short time after dictating it on the same day. He said he was the type of solicitor that talks to the witness to make sure they can give the evidence in their affidavit.

214 Mr Ivanisevic's file note of his conversation with the deceased records:

I told Neridah that I was a solicitor who had been retained to assist her in having the caveat removed. I confirmed with her that she wanted the caveat to be removed.

I explained to Neridah that in order to do so, I needed to file an application with the Supreme Court of Queensland and with it, some affidavits. I told her that I needed her to swear an affidavit in support of it, dealing with the caveat.

I confirmed with Neridah that she did not want to disclose her will. I explained to Neridah that on that basis, I would try and deal with things by explaining the way in which she wanted the property deal with. I said to Neridah that I understood she wanted the property to go to Simon, if she were to pass away. She said that was correct.

I said to Neridah that I would send her an affidavit via Simon and Nick. I told her that if there were any errors in it, she should let me know and I would amend it.

215 In her affidavit, the deceased described herself as the registered owner of the Dalby property and referred to the caveat lodged on the property by Marilla Guss and Antony Guss. The deceased deposed that she was alive and well and of sound mind. She further deposed:

My last will and testament is a confidential document and I do not wish to produce it in evidence. However to the extent that I wish to disclose my testamentary intentions, no provision is made in my will for the creation of any trust in respect of the property for either Marilla or Antony (which together or individually) and I wish for my son Simon Leonard Mendoza-Brown, to receive the property in the event of my death.

My son Simon is alive and well and of sound mind.

Marilla and Antony visited me at my home in January 2010 and told that they wanted me to change my will to make greater provision for them in it by gifting them, amongst other things, the property. I felt under pressure as a result of their attendance and request. However I do not wish to change my dispositions and it remains my wish for my son Simon to receive the property, in the event of my passing. However since Marilla and Antony visited me at my property in January 2010 I have entered into an agreement to transfer the property. The transfer is a confidential matter which I do not wish to produce in evidence. The caveat which has been lodged by Marilla and Antony is preventing the registration of the transfer of the property. Marilla and Antony have no interest in the property and I would like the caveat to be removed. All the facts and circumstances deposed to are within my knowledge save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my affidavit.

216 Nicholas Brown contacted Mr Brearley and asked him to attend on the deceased to witness the deceased's signature on the affidavit drawn by Mr Ivanisevic. Because Mr Brearley had been to the deceased's apartment before, he knew where to go and went there on that day with his daughter (as she was with him). On both occasions when he witnessed the deceased's signature, Mr Brearley described her as well groomed and elderly. He said that her demeanour and manner reflected that she in had a full knowledge of everything they talked about. She was, he said, 'on the ball'. Mr Brearley said he did not observe anything that caused him concern as to the deceased's ability to execute the documents.

217 After the deceased signed the affidavit and Mr Brearley witnessed her signature, it was sent to Mr Ivanisevic in Queensland. He then issued an originating motion filed on 17 February 2010 against Antony Guss, Marilla Guss and James Beresford Loel seeking, inter alia, removal of the caveat over the Dalby property.

218 On 24 February 2010, the application for the removal of the caveat on the Dalby property was heard by Justice Byrne in the Supreme Court of Queensland. The representative for the respondents, Antony Guss and Marilla Guss, made an oral application for an adjournment of the application. In support of the application for the adjournment, Craig Antony Livermore, a solicitor in the employ of Lillas & Loel, the solicitors for Antony Guss and Marilla Guss, swore an affidavit on 24 February 2010 seeking an adjournment of the application until 11 March 2010 on the basis that Antony Guss, who also provides instructions for Marilla Guss, was overseas until 4 March 2010.

219 In his affidavit, Mr Livermore exhibited a typed facsimile from the deceased dated 17 February 2010, as well as typed letter from the deceased dated 4 February 2010, the detail of which is set out above.[15]

220 The typed facsimile dated 17 February 2010 states:

To Whom It May Concern

Re: Myself-v- MS Guss, AD Guss and JB Loel

Queensland Supreme Court Proceeding 1586/2010

I hereby request that the application to be heard in the above matter on 24 February 2010 in the above matter be adjourned for 30 days, and will instruct my solicitors to arrange same. I request this adjournment in anticipation that this matter can be resolved following the return of my grandson who is the second respondent from overseas expected on 4 March 2010.

Yours faithfully

221 Justice Byrne refused the application for an adjournment, ordered the caveat removed and ordered indemnity costs against the third respondent, James Bereford Lole, the solicitor who signed the caveat on behalf of Antony Guss and Marilla Guss.

222 Nicholas Brown said the deceased was already wary of Joseph Guss and after the caveat proceeding, she became very wary of Antony Guss and Marilla Guss.

Conclusions regarding the allegations in respect of the Dalby property

223 Over the years, Antony Guss and Marilla Guss held many conversations with the deceased concerning the disposition of her estate. These conversations took place from as early as 2003, and probably before. From December 2009, it is clear that both Antony Guss and Marilla Guss were working towards shoring up what they perceived as their entitlement under the deceased's will. Antony Guss was keen to get something in place that would secure their positions. These discussions caused him to contract Mr von Bibra, and assist in arranging the meeting with Mr Northam on 7 January 2010.

224 It is after this meeting, and after the attempted significant changes to the previously longstanding disposition of the deceased's residuary estate, that the transfer of the Dalby property occurred. It is evident from each of the wills of the deceased executed from 1988 until 2007 that the deceased wished to leave her residuary estate to her only son, Simon Brown. Mr Northam's draft will, drawn up in January 2010, dramatically alters that disposition. As a result of seeing that draft will, and talking to the deceased, Simon Brown was understandably cross. He did not talk to the deceased for a few days. The deceased then said she would transfer the Dalby property to him so that it would not be part of her estate. After that there occurred on the evening of 27 January 2010, a discussion between Antony Guss and Simon Brown which, Antony Guss, described as a heated discussion and, Simon Brown, described as a discussion that became heated when Antony Guss realised he could not 'do a deal' on the deceased's will.

225 Antony Guss contends that when he told the deceased about the discussion with Simon Brown on the evening of 27 January 2010, she told him that 'she never transferred her assets over'. He then told that to Mr Northam. He contends that the very fact that the deceased never mentioned to Mr Northam that she was transferring the Dalby property makes the transfer 'attended with its own doubt'. I disagree. Because of the circumstances that the deceased found herself in at that juncture, it was entirely rational, in my view, for the deceased to decide not to say anything to Mr Northam, or to Antony Guss, about her decision to transfer the Dalby property.

226 As a result of the discussions between the deceased and Simon Brown, Nicholas Brown was asked to contact Mr Ivanisevic in Queensland about the transfer of the Dalby property to Simon Brown. Thereafter, as the evidence set out above demonstrates, Ms Berghofer of the Queensland firm dealt with both the deceased and Nicholas Brown concerning the transaction. The deceased had authorised Ms Berghofer to take instructions from Nicholas Brown. It was clear in Ms Berghofer's mind that her client was the deceased. Ms Berghofer spoke with the deceased concerning the caveat over the Dalby property but thereafter the removal application was handled by Mr Ivanisevic.

227 In dealing with the transfer of the Dalby property and the caveat, Ms Berghofer dealt with the deceased over the telephone. She was careful in making contemporaneous written records of her conversations with the deceased and she had a good memory of all the conversations with her. Her evidence demonstrated that, contrary to what Antony Guss contended, it was not the case, that Ms Berghofer simply asked a series of leading questions to which the deceased responded in the affirmative in a mindless manner. Ms Berghofer was aware that the deceased was elderly and she took that into account in taking instructions from her. Ms Berghofer formed the view when she spoke to the deceased that she understood what was happening. She was an impressive and credible witness. She was careful and thorough and conducted herself in a professional manner.

228 Mr Ivanisevic was the solicitor who dealt with the deceased concerning the removal of the caveat over the Dalby property. In his dealings with the deceased, he also spoke with her over the telephone. He, like Ms Berghofer, was careful in making contemporaneous written records of his conversations with the deceased. He was also aware the deceased was elderly. His evidence demonstrated that the deceased did not respond mindlessly to his questions. He talked to the deceased to make sure that she could give the evidence that was in her affidavit. He formed the view that the deceased understood what was in her affidavit. Mr Ivanisevic was also credible witness. He had a good memory of events, made careful notes that he checked once they were typed. As with Ms Berghofer, I accept his evidence.

229 Mr Brearley witnessed the deceased's signature on the transfer for the Dalby property as well as her signature on the affidavit in support for the removal of the caveat. His professional view was there was nothing he observed on those two occasions to cause him any concern as to the deceased's ability to execute the documents, describing the deceased as being 'on the ball' on each occasion. Mr Brearley is an experienced commercial solicitor and he impressed me as a credible witness. Although he has no contemporaneous file notes of either occasion, I would accept his evidence.

230 At no stage when the deceased spoke to either Ms Berghofer or Mr Ivanisevic, nor when she saw Mr Brearley on the signing of the transfer and the affidavit, did the deceased say or indicate to any of them that she was being overborne in any way, bullied or harassed or not acting of her own free will. At no stage was there any suggestion that the deceased lacked capacity in respect of these transactions. It was contended by Antony Guss that Mr Brearley did not converse with the deceased about the contents of the documents that she was signing and he was witnessing. It is correct that he did not converse with her in any manner about the contents of the document. However, what he did come away with was a firm view that on both occasions she was 'on the ball'.

231 I also accept Simon Brown's evidence that the deceased told him to get rid of the caveat and the deceased's strongly worded reaction to discovering that the caveat had been lodged. In my view, it is understandable that after the experience of the caveat the deceased became wary of Antony Guss and Marilla Guss, not just Joseph Guss.

232 I am satisfied the deceased understood and was well aware of what she was doing, and was acting of her own free will and voluntarily when she undertook and gave instructions in respect of the matters dealing with the Dalby property. I am satisfied that the deceased was not forced to transfer the Dalby property nor was she forced to remove the caveat over the property. The fact of the transfer alone does not support the allegation by Antony Guss that the April 2010 will was the produce of the undue influence of Simon Brown.

Allegations of bullying, influencing and coercing the deceased

233 The allegations of bullying, influencing and coercing the deceased are, in many cases, general in nature. By the generality of the allegations, they appear to adopt a 'scatter gun' approach to establishing undue influence. The allegations include:

(a) the sale of the Hawthorn property to Nicholas Brown;

(b) the signing of documents concerning the transfer of the Dalby property;

(d) showing extreme aggression towards Marilla Guss in the presence of the deceased;

(e) habitually bullying, shouting and yelling at, and intimidating the testatrix, both alone and in front of witnesses;

(f) forcing the deceased to terminate Mr Northam's retainer;

(g) habitually raising his voice and yelling at the testatrix when requiring her to sign document; and

(h) habitually exercising domination over the testatrix' will over an undefined period.

234 Where the allegations do not refer to a person, I have assumed they are made against Simon Brown. Some of the evidence concerning these matters has already been set out and conclusions made in respect of them. To the extent that the evidence relied on for the remaining allegations of undue influence has not been set out, they are now dealt with as best they can be, notwithstanding the generality of such allegations. Again, where the allegations do not refer to a person, it is assumed they are made against Simon Brown.

Allegation that cash was taken from the Dalby business

235 Antony Guss alleges that Simon Brown took cash from the Dalby business without the deceased's knowledge, consent or approval. The allegation is non-specific in time or fact. There is no evidence to support the allegation, only the mere assertion. It is denied by Simon Brown. His evidence concerning the management of the Dalby property was that he assisted in the management of the Dalby property, which included the motel business. The deceased received the income from the business until she died. She had an accountant who prepared her tax returns and no queries were ever raised in respect of the treatment of the income from the Dalby property.

Allegation of controlling and restricting the deceased's finances

236 Antony Guss alleged that Simon Brown assumed control of the testatrix's finances and controlled and restricted the money available to the testatrix for living expenses'. Simon Brown said he had a close relationship with his parents. He handled the deceased's financial affairs after his father died in 1991. Prior to his death, Mr Leonard Brown managed the family's financial affairs. Simon Brown said that in looking after his mother, he paid her accounts and helped her out. He said it was his mother's idea for him to manage the finances as his father had done while he was alive, and she expected Simon Brown to do it.

237 He said the deceased always knew what was going on with her finances. In December 2005, he made a list of her assets for her and he brought this list up to date in 2006, 2007 and 2008. Every month he gave the deceased a list of her assets and her bank balance. He also updated the list of her assets with their rough values every twelve months so that the deceased could see the progression of the value of her assets. This document tendered was in evidence. He left the monthly summaries with her cheque book.

238 Simon Brown described the deceased as 'quite tight' with her money. He said that sometimes she did not want to sign cheques he had written out for her to sign. The deceased kept a cheque account and an interest bearing account. He transferred money across from the interest bearing account when she needed it. He said that the deceased could do this herself but she left it to him to do. She also had credit cards that she could access at any time.

239 He said over the years the deceased would write out cheques, including cheques to Marilla Guss for her twins and she would forget to tell him she had done so. She also wrote a cheque to Antony Guss' daughter, Camille, for her to go overseas. When the deceased wrote out that cheque, there was not enough money in her cheque account and he told the bank to transfer the money across from the deceased's interest bearing account. He said the cheque account did not bear interest so most of her funds stayed in the interest bearing account.

240 Simon Brown said there were two instances where the deceased's bank statement went into debit. This was easily fixed by transferring funds across to the account. If the deceased's ATM card declined, she also had other credit cards, including an Amex, a Visa and a MasterCard and a bank debit card. He said there were a couple of instances where Mrs Bortolin was with the deceased and the deceased's card was declined. This happened because the deceased had written a cheque which made her account go into debit. He said the deceased did not bother about checking her statement balance, she just wrote out a cheque and it was up to him to keep up with her.

241 Mrs Bortolin said she would go occasionally shopping and there would be no money in the bank book and, in the last six months before her death, the deceased's credit card would decline payment. Mrs Bortolin would tell the deceased who, in turn, called Simon Brown to tell him there was no money in the bank. Mrs Bortolin thought the deceased was embarrassed by this. Mrs Bortolin did not answer when she was asked how many times the credit card was declined. Mrs Bortolin proffered her view that she felt something was not right because there was not enough money in the bank and she thought Simon Brown should be 'clearer to his mother' about her money.

242 Antony Guss said he had been present when Simon Brown would tell the deceased that would put some money into her account. He also said he did not hear the deceased ask Simon Brown about financial matters over the telephone or face-to-face. Antony Guss said he used the deceased's desk from time to time and all her documents were either on her desk or in the drawers. While he did not trawl through it, it was never locked and he had occasion to see bank statements or bills sitting there. As far the deceased's assets were concerned, he said the real register were little pieces of paper that Simon Brown drew up for her which he saw on the deceased's desk.

243 Joanne Guss said that, in July 2005, she had a conversation with Simon Brown at the hospital. Joanne Guss asked Simon Brown to organise a car to take the deceased to the hospital. He said the deceased could catch a taxi and Joanne Guss said the deceased thought she had no money. She said Simon Brown responded by saying the deceased has over $1 million in the bank and more than $5 million invested offshore. Joanne Guss also said that Simon Brown told her at the hospital in July 2005 that he had organised a new will for the deceased.

244 In cross-examination, Joanne Guss was taken to her affidavit sworn 30 April 2013 where she swore:

In the period leading up to Sandra's death, I was speaking to Simon at the hospital and he said to me 'I've remade Neridah's will and have found a loophole that can't be challenged'... He also said to me 'she wouldn't know her assets. She has over a million dollars invested in her bank account and five million invested offshore'. He said words to the effect that she 'wouldn't have a clue how much she has' and he would 'like to keep it that way'.

245 Joanne Guss said the conversation came up because she had said to him that the deceased 'thinks she is poor' and Simon Brown volunteered the information. Joanne Guss was shocked when he said this to her and he said it 'out of the blue'. Joanne Guss told Antony Guss of her conversation with Simon Brown. She did not say anything about the conversation to Joseph Guss but she was sure that Antony Guss told him. She said she was not lying about it.

246 Simon Brown denied having any discussions with Joanne Guss about the deceased's financial affairs or any discussions with her leading up to the death of Sandra Guss about the deceased's will making intentions. He denied that he said to Joanne Guss: 'I've re-made Neridah's will'. He said he never discussed the family financial affairs with the Guss side of the family. Joanne Guss agreed that it was not usual for Simon Brown to discuss family financial affairs with her.

247 Marilla Guss thought the deceased was being deprived of information and could not get it from Simon Brown. She said this came up in her conversations with the deceased over a number of years, from 2005 onwards and certainly from 2008 onwards. She said that the focus of discussions with the deceased on finances was unfortunate and undesirable but the deceased often felt she was put in a position whereby Simon Brown restricted her funds. She felt she was constantly poor. The deceased wanted to know she could pay for her carers and groceries. Marilla Guss said she spoke to the deceased about this in 2005 because the deceased thought she could not afford to get taxis to the hospital to see Sandra Guss. Marilla Guss said sometimes 'it was of more concern and sometimes less' to the deceased.

248 This allegation is wide ranging in time and content. It provides various examples over a significant period of time given in the hope that they may be substantiated. Simon Brown denies the allegation. In my view, the evidence does not support this allegation. The explanation given by Simon Brown as to the management of the deceased's finances is credible and is consistent with the long held family arrangement not to discuss finances with the Guss family.

Allegation of berating the deceased to sign documents

249 Marilla Guss said she witnessed Simon Brown berating the deceased to sign documents. Simon Brown said he has not been with Marilla Guss in the deceased's apartment, apart from one meeting sometime in March 2010, which did not relate to this allegation. Marilla Guss' allegation is non-specific, and contradicts Simon Brown's account.

250 Mrs Bortolin said she witnessed Simon Brown berating the deceased to sign documents. She also said she was present many times when Simon Brown asked the deceased to sign documents or cheques. He would ask the deceased 'to sign here, Mum'. She said the deceased would ask Simon Brown what the document or cheque was. However, Mrs Bortolin did not stay and listen to what they talked about. Mrs Bortolin's view was expressed by her thus - 'but I just feel that, I think she wanted to know more what was going on. I don't - I think she was confused at what she was signing'. Mrs Bortolin could not put a time frame on this issue. In the five years up until the death of Sandra Guss, Mrs Bortolin thought the deceased just went along with Simon Brown because he was her son. She also said there were occasions when she heard the deceased asking questions and Simon Brown would give her an answer. Mrs Bortolin said she did not really listen on the occasions that she was present when the deceased and Simon Brown were talking and he asked her to sign things. She also said the deceased would sometimes sign documents that Simon Brown wanted her to sign and then go quiet.

251 She said the deceased asked Simon Brown quite a few times for some statements that she thought related to the Dalby property and Simon Brown said he had to go to Brisbane to get them. Mrs Bortolin said the deceased asked for statements on more than one occasion. Mrs Bortolin said that after Simon Brown left, she told the deceased that Simon Brown did not have to go to Brisbane for them because she felt 'that was justice' to tell her that.

252 Mrs Bortolin said that sometime in the six months before the deceased died, when the deceased was half asleep in bed, Simon Brown stormed into the apartment and asked the deceased whether she had signed anything. Mrs Bortolin thought the deceased said she had not signed anything. Simon Brown then looked around the apartment to see if he could find anything.

253 Mrs Bortolin said that on one occasion which could have been six months before the deceased's death, 'they wanted me to sign' what she thought was a will and she said 'no, get someone else' because she did not want to be involved. She did not know what the document was and said that Simon Brown was present with a solicitor, whom she thought had a child with him, on that occasion. She said she did not want to be involved because she saw things that she thought were not right. She said that she heard the deceased say 'don't ever bring that solicitor with that child here again'. She supposed that the deceased did not like children who were strangers to her in her home. She also said the deceased said to her that a business person should not bring a child, he should get a babysitter. Mrs Bortolin could not remember the solicitor's name because she did not want to get involved.

254 Mrs Bortolin was not a credible witness nor was she independent of the Guss side. Her evidence was in large parts coloured by what she considered to be the 'just' outcome. When pressed in cross-examination, it became apparent that she had difficulty separating in her mind evidence of events that had occurred, on the one hand, and what she should tell the court in order to achieve what was in her opinion the fair result. Although she was a long-term employee and friend of the deceased, it was clear from her evidence that in the wake of the deceased's death she has very much thrown her allegiances in with the Guss side of the family. This tainted much of her evidence.

255 I reject the allegation that Simon Brown forced the deceased to sign documents.

Allegation of habitually intimidating, threatening and inducing fear in the deceased

256 There is an allegation 'habitually threatening the testatrix and habitually inducing fear of him in the testatrix'. This allegation is too unclear and non-specific. To the extent that it is relied upon by Antony Guss, Simon Brown said he had a good relationship with the deceased. His pattern was to visit the deceased a couple of days a week when he was in Melbourne and he would have a meal with her in a restaurant once a month. He was away from Melbourne when he went to Queensland to Dalby to manage the motel when the manager was on holiday. He also went gliding for recreation and was generally away for about three months of the year. In the six months before her death, he visited the deceased two or three times a week.

257 Antony Guss made his own observations to the court on the relationship between Simon Brown and the deceased. He said Simon Brown loved his mother but he thought that Simon Brown did not really show it because he did not take her out and they never went to the movies or the park. He said Simon Brown would come to the apartment, do what he had to do and say he was off in his 'big blustery big oaf way'. He did not find it very pleasant seeing them together. He also said the deceased would 'have a go' at Simon Brown from time-to-time and would go off in a huff.

258 Antony Guss has heard the deceased speaking to Simon Brown over the telephone. His view was that it was not always pleasant and he thought the deceased was disappointed. He said they did not shout at each other. He felt Simon Brown did not keep the deceased notified of where he was going or what was going on and she would get quite curt with Simon Brown. Antony Guss said Simon Brown would 'blunder in response' but there was nothing nasty in his responses to the deceased.

259 When speaking of the retainer of Mr Northam, Antony Guss said he tried to get an independent solicitor for the deceased and was unsuccessful because Mr Northam was shown the door by Simon Brown. Antony Guss said he spoke with the deceased who told him she was coerced into terminating Mr Northam's retainer. Antony Guss also said that Simon Brown 'is a bully and an oaf and he pretty much gets what he wants'.

260 Marilla Guss said there was at times actual physical intimidation by Simon Brown towards the deceased but she did not ever see him strike the deceased. She said he is a physically enormous man and the deceased was small. She has seen Simon Brown stand over the deceased and flick papers if he does not get his own way. She said he is very insistent. Marilla Guss said she thought it was, at its highest, disgraceful and she said the deceased thought so as well. When things were not going Simon Brown's way and when he was not in control, he could be an 'absolute ogre and a disgrace. His greed and manipulation is a disgrace'.

261 Marilla Guss thought the overwhelming majority of the intimidation of the deceased by Simon Brown was that he deprived her of information, was dismissive of her, and knew she was a relatively meek woman who was financially unsophisticated and he took enormous advantage of that.

262 Mrs Bortolin said that Simon Brown's behaviour towards the deceased was not rude but that he did raise his voice sometimes and the deceased 'would probably be intimidated because she did not want anyone raising their voice'.

263 Simon Brown denies the allegations and I accept what evidence he was able to give in light of the general nature of the allegation.

264 I am not satisfied on the basis of the assertions of these witnesses that the deceased was intimidated by Simon Brown.

Allegation of threatening to throw the deceased down the lift well

265 There is an allegation 'threatening to throw the testatrix down the lift well'. In cross-examination, it was put to Simon Brown that he told Mrs Bortolin that he would like to push the deceased down the stairs. Simon Brown denied this and also said there are no stairs at the Menzies, but that there were lifts. Mrs Bortolin did not give any evidence on this allegation.

266 There was no evidence had in support of this allegation. This allegation is not made out and is rejected.

Allegation of denying the deceased access to her mail

267 There is an allegation 'denying the testatrix access to her mail'. This allegation is said to be for a period from sometime in February 2010. Antony Guss said he was in the habit of assisting the deceased to collect her mail and but this changed when Simon Brown took the deceased's key ring in February 2010. He said the deceased told him that no mail was coming through to her because Simon Brown had taken the key. He said the deceased asked him to speak to the girls at reception and get her mail. He went and collected the deceased's mail. He also said that he was away from Melbourne from mid-February until 14 March 2010.

268 Simon Brown denied the allegation. In cross-examination, he was asked when he took the deceased's mailbox key from her key ring. He responded by saying that this was 'an out and out lie'. He said the deceased had the key on her key ring until the day she died and she collected her own mail ninety per cent of the time. He speculated that the deceased may have said this to someone else because she did not want them to open her mailbox. Simon Brown also collected mail from the deceased's mailbox when she told him she had not done so. He said that if the deceased were sent anything by e-mail, it was sent to either him or Nicholas Brown as the deceased was not connected to e-mail.

269 In respect of this allegation, because he was away from mid-February onwards, Antony Guss must have meant the period 1 to 14 February 2010 or thereabouts. In the scheme of all of the allegations in this proceeding, this allegation is by far the most trivial and it adds little to Antony Guss' case. In any event, I would reject it. There is evidence that the deceased received mail in this time, when Ms Berghofer sent her the transfer documents by express post. The allegation was expressly rejected by Simon Brown in his evidence. Even if Antony Guss' account is taken at face value, it is only evidence that the deceased told him she did not have access to her mail. This could be explained by a reluctance on her part to allow him to access her mailbox, an explanation consistent with Simon Brown's evidence that after the caveat was lodged, the deceased grew suspicious of Antony Guss and Marilla Guss.

Allegation of intercepting the deceased's telephone

270 There is an allegation 'intercepting the testatrix's telephone'. No evidence was led by Antony Guss that Simon Brown habitually intercepted the deceased's telephone. There is evidence of one occasion when Simon Brown answered the deceased's telephone for her and this was on 1 February 2010 when Mr Northam called the deceased. This allegation is a nonsense and, in any event, is not made out.

Allegations of habitually exerting undue influence over the deceased

271 There is an allegation 'habitually exerting undue influence and coercion over the testatrix in respect of her financial affairs, her property and her testamentary intentions and wishes'. The allegations are vague and general and it is assumed that they encompass the matters already set out in relation to the deceased's wills, the Hawthorn property and the Dalby property. They express a legal conclusion rather than a factual allegation.

Allegation of what was said to Antony and Marilla in May 2010

272 The evidence of this allegation is unclear and confusing. The particulars of this allegation are that Simon Brown informed:

[Antony Guss] and Marilla Guss in May 2010 at the testator's apartments that the will and the Dalby property were nothing to do with the testatrix, that she didn't know how much she had, and that he was going to determine it anyway.

273 Antony Guss said he did not know anything about the April 2010 will. He left to go overseas again in mid-May 2010. In his evidence-in-chief, he spoke of another meeting at the end of March 2010 with the deceased and Simon Brown which he said took place around 23 March. Because he had just spoken about the April 2010 will and going away in May 2010 in his evidence, he may possibly be referring to the alleged May meeting. In any event, he said at that meeting he had a discussion with the deceased about the same issues again, that is, paying the mortgages and the like and leaving adequate bequests to Marilla Guss and himself. He said the deceased said she would have to ask Simon Brown because she did not know if she had enough money to deal with it.

274 Considering that Antony Guss said Simon Brown was at the meeting and the particulars refer to Marilla Guss being present as well, and Simon Brown was not cross examined about a meeting in May 2010, this allegation is not established on the evidence.

Allegation of domination and influence over the deceased in respect of her wills

275 There is an allegation of 'exercising domination over the deceased's will and her testamentary wishes and intentions as well as seeking to influence the deceased against changing her will'. There is also an allegation:

seeking to influence the testatrix against changing her will by telling her that he was her only surviving child, that an independent executor would end up obtaining the benefit of Sandra's 50% share, and discouraging the worthiness of the defendant and Marilla to inherit any share of her estate.

276 These allegations might be directed specifically at the April 2010 will, however, in case they are directed generally towards the deceased's wills and testamentary wishes, the deceased's pattern in her will making over the years does not bear out any of these allegations.

277 In evidence were the previous wills of the deceased before the 2007 will, the January 2010 will, the subsequent instructions in February 2010 to Mr Northam, draft wills and the 1988 will of the deceased's husband, Leonard Brown, who predeceased the deceased.

278 The following table summarises the benefits given by the deceased to Sandra Guss, Simon Brown, Antony Guss and Marilla Guss in each of the relevant documents:

279 Apart from the January 2010 will and the further instructions given on 1 and 5 February 2010 to Mr Northam, in all of her other wills or draft wills, going as far back as June 1988, Simon Brown was the residuary beneficiary of the deceased's estate.

280 To the extent that any sense can be made of these general allegations of domination and influence over the deceased in respect of her wills, it is clear from the deceased's previous wills that the deceased made a consistent disposition of her residuary estate to Simon Brown starting as far back as 1988 when Mr Leonard Brown was alive. These documents establish a longstanding and consistent demonstration of the deceased's testamentary wishes.

281 They are consistent with the family affairs being organised on the basis that Sandra Guss would receive a legacy and Simon Brown would receive the rest of the estate after the death of his mother. It is consistent with Simon Brown working in the family business, assisting his mother in her financial and family affairs, building up the assets of the Brown family (particularly in relation to the Dalby property, which provided the deceased with her income) and consistent with the longstanding arrangement that the Guss side of the family should not be involved in the Brown financial affairs and that Joseph Guss should not, in any way, benefit from the Brown financial assets.

282 The January 2010 will is the inconsistency in terms of the residuary disposition of the deceased's estate. The further instructions given on 1 and 5 February 2010 confirm that inconsistency.

283 In addition, as stated, no challenge was made by Antony Guss to the 2007 will in the trial of this proceeding

Joseph Guss visits the deceased on 1 March 2010

285 On 1 March 2010, the deceased was visited by Joseph Guss at her apartment at the Menzies. At that meeting, he gave her two letters typed by him.

286 His first letter dated 1 March 2010 reads as follows:

Dear Neridah

I understand from Antony (who as you know is overseas) and Marilla recently that Simon and Nick have been saying to you as justification for transfer of your assets to them or to testamentary trusts which they control, that this was to protect your assets from me.

Not only is this untrue, but impossible and I personally could not and do not have any claim. I accordingly thought that this was important to put this in writing.

I however learn that Simon and Nick are causing you to transfer their assets to them or testamentary trusts under their control, so as to defeat any claim that Antony and Marilla may have in respect to your estate. I cannot see that this is to your benefit, and would leave you totally dependent on Simon and Nick. This would also incur unnecessary substantial legal costs and stamp duty in addition.

It is also true that your assets have been perfectly safe in your name for the 19 years since Len's death, and even before that. It is therefore completely without justification to remove assets from your name into a trust that Simon and Nick control, and you do not.

You will recall that shortly prior to Sandra's death, it was agreed by you and her in July/August 2005 at St Vincent's Hospital, that your estate would after certain specific bequests to your grandchildren and possibly Maria, would be left as to 50% to Sandra and in view of her prospective death at that time, her 50%, as to 25% to each of Antony and Marilla, and the other 50% to Simon, and that you would make a will to that effect.

Sandra died content as a result of the above agreement with her and that she had been informed by you that a new will would be made by you to that effect and that Antony and Marilla and their children would accordingly be suitably be provided for by you (sic). It is accordingly disappointing to hear that you are succumbing to Simon and Nicks treaties to seek to defeat what Sandra died content in the knowledge of your above agreement with her, with the intention of getting 100% for themselves.

Although I have no personal interest, I am concerned for Sandra's memory that you would allow yourself to be manipulated by Simon and Nick in such a way.

I also have been informed in the last few days that Simon and Nick are scurrilously alleging things against Antony and Marilla, obviously intending to turn you against them in their own interest, including that they are bankrupt (which is untrue) and other matters which are probably libellous too.

I accordingly urge you to hold a family conference at which Antony when he returns this week, Marilla, Simon and Nick, can openly discuss the resolvement of the above with you, and that in everyone's interest Simon and Nick hold any action on asset transfer from you to them or trusts which they control in the meantime.

If I can be of any assistance in such resolution, please advise, and I will do what I can, bearing in mind however that I have no personal interest save that I would naturally like to see that what was agreed between Sandra and you prior to her death is fulfilled.

Sincerely

Joe Guss

287 His second letter dated 1 March 2010 read as follows:

Dear Neridah

Marilla has told me recently that you have told her and that Simon is giving as a reason for asset transfers from you to him and Nick that I caused Len a loss on investments, and accordingly that for this reason Antony Marilla and their children have somehow been provided for.

This is untrue. I did manage some investments for Len, including his interests together with mine in a Bourke Street property but following sale and realisation of such investments the capital invested was repaid, and during the currency of those investments a monthly return was paid regularly to him.

I recall you saying some years ago that if the Bourke street property had not been sold it would have increased in value in subsequent years. Notwithstanding the ups and downs of the real estate market, it would have if held long enough but you should recall that Len reinvested the capital received by him, and accordingly it was up to him where he reinvested it. I do not of course know what he invested in and whether he or you obtained the benefit of any market appreciation from such investments thereafter.

As far as Simon is concerned you (and he) should also remember that I caused him to be the beneficiary of a substantial insurance register which enabled him to establish his insurance broking business. Properly managed he should have made a lot of money therefrom. The fact that he apparently didn't was the cause of his own bad management, although he obviously made a living from it for a number of years.

I thought that I would put the above in writing to you so that you may know the truth of what Simon may have been saying to you.

I have written to you separately concerning your agreement with Sandra before her death as to provision for Sandra (and after her death for Antony and Marilla), and Simon in your will. I trust the clarification of the above will enable you to properly balance what Simon sees is his justification for asset transfers from you to himself and Nick while you are still alive, which I believe for the reasons given therein are not in your interests.

In respect of what I can provide for Antony and Marilla and their children, you will be aware that following my brain tumour in 1990 and the difficult financial conditions while I was recovering around that time, I suffered substantial financial loss. Having regard to my own age and future needs I will of course provide for them on my death what I can but I expect that this may be modest, and should not accordingly affect provision for them by you as agreed by you with Sandra.

Sincerely,

Joe Guss.

288 Simon Brown said the deceased was irate that Joe Guss had visited her, giving her the two letters which contained 'multiple untruths'. He said the deceased was incensed, quite indignant, and was strongly concerned to write a new will. She was particularly concerned about his reference to the agreement in the letters about leaving Sandra Guss one half of her residuary estate. She was very wary of and annoyed with Joseph Guss. Simon Brown said she was vocal that she did not want any benefit out of her estate to pass to Joseph Guss. Simon Brown denied that the deceased going to a solicitor to make a new will was his idea.

289 Nicholas Brown was asked to organise a solicitor to see her and he contacted Mr Brearley, who was his main contact at Mills Oakley. Mr Brearley had acted for Nicholas Brown in the past in connection with his property development and construction business.

290 As set out above, Simon Brown was aware that, in January 2010, Antony Guss was trying to get the deceased to make a new will. He had seen a draft of a new will prepared by Mr Hugh Northam on 19 January 2010 when the deceased had asked him to attend with her at a meeting with Mr Northam. The deceased had also told Nicholas Brown that Antony Guss and Marilla Guss had tried to get her to make a new will.

Antony Guss visits the deceased in March 2010

291 Antony Guss said that after he arrived back in Melbourne around 14 March 2010, he had two meetings with the deceased. The first meeting was after the caveat was removed from the Dalby property when he spoke to her about the costs of the proceeding.

292 The second meeting was at the deceased's apartment when he arranged for Simon Brown and Marilla Guss to be there. He did this because he wanted all of the family matters 'on the table' in the presence of the deceased. Antony Guss said he had a discussion with the deceased before the meeting telling her that he felt Simon Brown was 'pushing this issue very hard'. He said the deceased's wealth would not make any difference to Simon Brown's situation but it would make a huge difference to his situation and that of Marilla Guss and they should have an open forum to discuss all these issues.

293 At the meeting, he said that since he had discovered Simon Brown had been 'systematically stripping all of the deceased's assets' over the years, which he said had been admitted by Simon Brown in the heated discussion at the hospital on 27 January 2010, he thought it appropriate to have a discussion on the issue.

294 Antony Guss said that Simon Brown had been 'squirrelling away' the deceased's assets in trusts and other things to protect himself. He said all of Simon Brown's assets had been paid for or gifted to him, he had no mortgages, he and did not have to work and he was in a good financial position. Antony Guss said he then highlighted to the deceased the fact that Marilla Guss had a mortgage, two children and no husband. He said that when he raised this issue of paying her mortgage with the deceased in December 2009, she had said to him that he should ask Simon Brown about this.

295 The subject of Joseph Guss came up at the meeting. The deceased said it was not for her to provide for Antony Guss or Marilla Guss and said 'what about your father? Where is all his money?' She also mentioned that Joseph Guss had caused her to lose 'all of those millions'. Antony Guss thought it unusual for the deceased to say this as she had never mentioned this previously and he thought it was irrelevant. He said the deceased seemed to think Jospeh Guss should look after his children and that she would look after Simon Brown. Antony Guss thought this was a total change of the deceased's recent attitude. Simon Brown thought that Marilla Guss should move further out to say, Glen Iris, and reduce her mortgage that way. The deceased thought Marilla Guss should move to a modest house further out and a new house that would not need as much upkeep as her existing old house that needed renovation and repairs done to it.

296 They also discussed payment of the twins' schooling. Antony Guss felt that the deceased did not have any concept that schooling was approximately $20,000 per child each year. He went over the cost of school fees and explained to her that Simon Brown would have the 'lions share' of her estate and had a very comfortable life. He said the deceased seemed to defer to Simon Brown. Antony Guss said to the deceased 'you told me you want to make sure that Marilla and her children are looked after'. The deceased said that even after this, Simon Brown would always make sure Marilla Guss would be looked after. Antony Guss then looked at Simon Brown and said he refused to respond. He said not long after that, Simon Brown left the apartment and Antony Guss told the deceased that she needed to deal with these issues and she could not rely on Simon Brown.

297 At some stage during the meeting, Antony Guss said there was major incident which he described as Simon Brown going 'absolutely stark raving nuts'. He stood up and 'shirt-fronted' Marilla Guss calling her all manner of words that were disparaging and sexually orientated. He described 'shirt-fronting' as Simon Brown standing tiptoe with Marilla Guss, staring down at her and wanting to 'absolutely blow her over'. He said Simon Brown was beside himself and he thought her would have to rugby tackle him. He said the deceased called for Simon Brown to calm down and sit down. Antony Guss thought the deceased was upset because of the 'shirt-fronting incident' and thought she was a bit shaken up but he does not remember her comment in reply.

298 Marilla Guss described the 'shirt-fronting' as physical intimidation by Simon Brown. She said to be 'chested' (meaning that he bumped her in the chest) by a grown man showed a complete lack of control and respect and to be called a slut for no reason was 'beyond extraordinary'. She said Simon Brown pushed his large belly against her, lent forward and pushed her. He was enraged and shaking, his face was puce and he was out of control. She said she stood her ground because she is stubborn and an athlete and Antony Guss was there as well. Marilla Guss was afraid that Simon Brown was going to strike her although she said he did not raise his hand but he did flinch his shoulder.

299 In cross-examination, Marilla Guss described Simon Brown as very quickly becoming upset at the meeting. He was unable to control his language, he swore and called her a 'slut'. He shouted, his face was red and he was so enraged that he was shaking and physically not able to control himself. She said Simon Brown is a big man and he pushed his chest against hers, and made physical contact with her. He was out of control, enraged and infuriated that he was not in complete control. Marilla Guss said she 'absolutely disagrees' that Simon Brown was upset because she was harassing the deceased to pay her mortgage and that the conversation was not about the mortgage but about the transfer of the Dalby property without the deceased's approval or understanding.

300 Simon Brown said he attended the meeting with the deceased, Antony Guss and Marilla Guss in March 2010 at her apartment at the Menzies. Antony Guss wanted the deceased to pay off the mortgages of himself and Marilla Guss, asking for about $500,000 each. The deceased thought that was not a good idea and told them she had given them enough in their lifetime and it was up to Joseph Guss to look after them. The deceased suggested to Marilla Guss that she sell her house and move further out. The meeting ended and Antony Guss was quite annoyed. On the way out, he said 'it doesn't matter what you put in your will, Nan. My dad's a solicitor and we'll appeal against it and he always wins'. The deceased's reaction to this was that he was a 'cheeky bastard'.

301 In cross-examination, it was put to Simon Brown that the meeting was called by the deceased so that he could explain 'what was going on with her assets'. Simon Brown denied this and said the deceased knew what was going on with her assets. He referred to the longstanding arrangement within the Brown family that the Brown family assets were not to be discussed with the Guss side of the family. He said the deceased knew she had transferred the Dalby property to him and she knew where her income came from and how it was disbursed. He said the deceased did some talking at the meeting. He said that Marilla Guss said to the deceased that he was stealing her money and the deceased responded by saying 'Well, if he's stealing my money it's going to be his anyway. He's only stealing from himself'.

302 Another issue that came up at the meeting was whether or not the deceased could afford to leave gifts in her will that paid for the mortgages of Antony Guss and Marilla Guss. Simon Brown said that both he and the deceased were annoyed by this. The deceased told them that she and her husband had assisted them to buy their houses and she had left them a good enough allocation in her will.

303 Simon Brown agreed that at the meeting he called Marilla Guss 'a slut'. He said the deceased did not approve of Marilla Guss having children when she was not married. The deceased did not say anything to Marilla Guss about this because, if she attacked her, she would not have brought the children to visit her and she loved them and wanted to see them.

304 Simon Brown said that he berated Marilla Guss because he was annoyed with her, as well as with Antony Guss because they kept coming to the deceased asking for money. He said he stood up at least six feet away from Marilla Guss. He denied that he stood close enough so that Antony Guss thought he might have to intervene, saying that Antony Guss was 'daydreaming'. He said the deceased was 'just disgusted with what was going on'. He agreed that the deceased did probably tell him 'calm down' and that he could have spoken over her. He said his mother was disparaging to him after the meeting because she was cross with him for his behaviour.

305 Simon Brown agreed that it also came up at the meeting that if anything was left to the Guss children, Joseph Guss would get it. He said that both he and the deceased knew that and had agreed on that many times before.

306 In the particulars of undue influence, Antony Guss alleges that 'showing extreme aggression towards Marilla Guss in the presence of the deceased' was an aspect of the undue influence by Simon Brown. It was not made clear exactly how that might be, however, to the extent that it is alleged, in my view, this meeting was arranged by Antony Guss and formed part of his strategy to change the deceased's will or do a deal. Their evidence does not support an allegation of undue influence by Simon Brown towards the deceased at this meeting.

307 The April 2010 will appoints Simon Brown and Nicholas Brown as the deceased's executors and trustees. It provides for:

(a) various bequests of jewellery and other items to Simon Brown, Marilla Guss and Joanne Guss;

(iii) $10,000 to the great-grandchildren, Edward Brown, Millicent Brown, William Whitehead and Zoe Whitehead;

(iv) $20,000 to each of Camille Guss, Samuel Guss, Zara Guss and Ellison Guss;

(v) $45,000 for each of Zara Guss and Ellison Guss for their education; and

(vi) $5,000 and an oriental pot plant to Maria Bortolin; and

(c) the residue of the deceased's estate to Simon Brown for his use and benefit absolutely.

308 The April 2010 will was drawn by Anne (also known as Anna) McKenna ('Ms McKenna'), a senior law clerk from Mills Oakley. The deceased's signature was witnessed by Ms McKenna and Mrs Win McKay, a resident known to Ms McKenna at the Menzies apartment complex.

The circumstances surrounding the making of the April 2010 will

309 Nicholas Brown, Mr Anthony Brearley, Ms McKenna and Simon Brown were all involved in the making of the April 2010 will by the deceased.

310 Nicholas Brown sent an e-mail on 22 March 2010 to Mr Brearley attaching certain documents for review prior to a meeting with Mr Brearley the next day. The documents attached to the e-mail included the deceased's 2007 will. In his e-mail, Nicholas Brown stated that:

• Transfer of remaining assets to Simon Brown.
• Provide advice and actions in order to prevent/discourage contest of [the deceased's] last will and testament by various members of the Guss family.

311 On receiving this e-mail, Mr Brearley forwarded it, with the attachments, to Ms McKenna, asking her whether she would like him to open a file. Ms McKenna gave evidence that she was contacted by Mr Brearley and confirmed that he sent her the e-mail.

312 Ms McKenna said she spoke with another partner of the firm to confirm that she should only take instructions from the deceased. She knew the deceased was not a client of Mills Oakley, and the firm would not have had any previous dealings with her. Ms McKenna considered there were a number of matters that were relevant the deceased was a new client, the age of the deceased and Ms McKenna did not know of the deceased's prior will making history.

313 In answer to Mr Brearley's e-mail, Ms McKenna responded by e-mail, also dated 22 March 2010, stating:

We don't yet have instructions to act from [the deceased], do we? I don't think we should open a file until we have direct instructions from [the deceased] to act on her behalf. Otherwise, if we act on [Nicholas] Brown's instructions, we could be inviting problems regarding who is actually giving us instructions.

314 As a result of these e-mails, Mr Brearley contacted the deceased and told her that he would not handle the matter but Ms McKenna would attend on her as she was the person in the firm who attended to the wills. An appointment was made with the deceased for the next day, 23 March 2010. In cross-examination, Mr Brearley said that he does not have any specific recollection of talking to Nicholas Brown about the making of a will but said that, if he did, he would have told him that he would not handle it but someone else within the firm who was experienced with wills would do so.

315 Ms McKenna said she understood the deceased had mobility issues and she had to see her at her residence at the Menzies. Ms McKenna did not open a file for the deceased until she knew she had the deceased's instructions and her testamentary capacity could be confirmed through an independent source.

316 On 23 March 2010, Ms McKenna's went with Mr Brearley for her first meeting with the deceased at her apartment at the Menzies. Mr Brearley had met the deceased on two earlier occasions when he attended on her on 9 and 17 February 2010 respectively.[18] Ms McKenna said that upon arrival at the deceased's apartment, they were met by Simon Brown who let them into the apartment, introduced Ms McKenna to the deceased and then left.

317 At the meeting on 23 March 2010, Mr Brearley also introduced Ms McKenna to the deceased. He said that he would have recalled if the deceased did not know him. Mr Brearley did not stay while Ms McKenna took instructions from the deceased for her will. During the time he was in the deceased's apartment that day, which he said could have been up to 20 minutes, he said they engaged in general conversation until the deceased and Ms McKenna started to discuss her instructions for her will. Ms McKenna said, as does her file note, that Mr Brearley left after 20 minutes. During the time that he was with the deceased on this visit, Mr Brearley described the deceased's demeanour on this occasion as being the same as on the other two occasions he met with her.

318 Ms McKenna said she took a chronology with her to the meeting as well as some correspondence provided to her and a copy of the 2007 will, which had some handwritten notations on it. She described the deceased as well dressed and well presented. The apartment was clean and the deceased had a lot of reading material. The deceased remained seated and Ms McKenna sat in front of the deceased for two reasons: to see the deceased directly and to ensure the deceased was not on the side of Ms McKenna's bad ear.

319 Ms McKenna said she had no trouble hearing the deceased as her hearing was better back in March 2010 and the apartment was quiet. She took instructions from the deceased and took notes of those instructions. Those notes were written by her while she was with the deceased and immediately afterwards while she waiting for a tram back to head back to the city. Ms McKenna subsequently typed up her file notes the following day, basing them on her handwritten notes. She said that her notes are an accurate record of what took place at the meeting with the deceased.

320 Ms McKenna said she clearly remembers meeting with the deceased and having the discussions with her. She said she believes the deceased was not in any way confused as to why she was there or as to the purpose of the meeting, being to take instructions to amend her will.

321 Ms McKenna said that the deceased had a copy of her 2007 will in her possession which had handwritten notations on it. Simon Brown said the deceased had asked him for a copy of her 2007 will for the meeting with Ms McKenna. Ms McKenna was not sure whether these were the same handwritten notations as appeared in her copy of the 2007 will. She said the foundation point for their discussion was the 2007 will that the deceased already had with her and Ms McKenna assumed that this was the will the deceased wanted to amend.

322 Ms McKenna told the deceased several times that she would only take instructions from the deceased. She said this was because she had been given a note written by Simon Brown and signed by Nicholas Brown by e-mail prior to the meeting with the deceased. She said that note was not on her file. She said the deceased did not ask why Ms McKenna was just dealing with her or whether Ms McKenna should be dealing with Simon Brown. Ms McKenna told the deceased that she had been given correspondence by Nicholas Brown regarding a will that was attempted to be made by the other grandchildren. She confirmed to the deceased that she would be seeking the deceased's instructions only and it was those instructions that would actually form the basis of the will that she would prepare for the deceased.

323 Ms McKenna said that during the meeting the deceased spoke clearly and audibly, and asked questions of her. Ms McKenna actively engaged the deceased in conversation to make sure she was not merely repeating rehearsed instructions and the deceased was fully able to engage in conversations on other topics. Ms McKenna asked the deceased about her family history and the members of her family. She gave clear responses to these questions. Ms McKenna said there was no confusion or ambiguity about the deceased's instructions to her. She was completely rational and gave reasons why she wished to do the things that she wanted in her will. Ms McKenna said she had a wide ranging discussion with the deceased about who her family members were and who she wanted to benefit. They went through the 2007 will and Ms McKenna made notes of the discussion, including on her copy 2007 will.

324 Ms McKenna said there was no discussion about an executor. The deceased was not hesitant at all and was insistent that she wanted to make better provision for Marilla Guss, who had two children. The deceased was concerned because Marilla Guss was unmarried and, as a single mother, the deceased felt Marilla Guss would need better provision. The deceased told Ms McKenna that she wanted to increase the amounts given to the grandchildren to take care of their education.

325 Ms McKenna asked the deceased if she knew the extent of her assets or her wealth. The deceased told her she could not recall all of her assets or their extent but she knew she had cash or capital from which she wanted to make her gifts to her grandchildren. In cross-examination, Ms McKenna said the deceased said she had cash and capital but could not say anything more about what they were worth.

326 She recalled that the deceased wanted to ensure that there was no benefit left to Joseph Guss because there had been some prior financial dealings with him by her and her husband and those dealings had not turned out well. Ms McKenna believed that the deceased's explanation about not wanting Joseph Guss to share in her estate was not a driving motivation for the deceased. Rather, she wanted to change the legacies to Marilla Guss and Antony Guss and her great-grandchildren, as noted by Ms McKenna on the 2007 will at this meeting.

327 Ms McKenna was taken to the sentence on the second page of her notes which reads '[the deceased] doesn't remember signing the transfer of land and she thinks that perhaps her grandson, Antony Guss, put it in front of her to sign and she did so'. In respect of that sentence, Ms McKenna said the only document she had in her possession at the meeting was a typed letter dated 4 February 2010 which referred to a transfer.[19]

328 Ms McKenna showed this letter to the deceased. When she wrote down 'transfer' in her file note, she said it was a reference to the transfer of land that was the subject of the letter. Ms McKenna said the question of the signing of the transfer and the subsequent court case in the Queensland Supreme Court were not the subject of a long discussion between them but rather it was a query raised by Ms McKenna and the deceased gave that response to her query. Ms McKenna could not recall if she had a copy of the court decision with her at the meeting.

329 Ms McKenna observed that the deceased had poor recollection regarding certain events and dates, not being able to give her exact age or the exact date of her daughter's death. Ms McKenna thought there was a short term problem regarding the deceased's recollection of dates of certain events. She said she found that otherwise the deceased's recall was very good and observed that given she was in her early 90s, short term memory problems can sometimes occur. The deceased could recall that she had fallen recently in the bathroom and had been there for a short time. She was able to tell Ms McKenna the medication she was taking and confirm her medical condition. They also had a discussion about her motorised scooter and she told Ms McKenna she was not using it and wanted to sell it. She asked Ms McKenna whether she knew how to sell it. Ms McKenna thought the deceased's long term memory was good when they were discussing the family tree and her housekeeper, Maria Bortolin. She knew the housekeeper had been with her for a long period of time and she regarded her almost as a family member. She told Ms McKenna that she wanted Mrs Bortolin to have the items in the apartment that she had previously expressed an interest in and she told Ms McKenna what those items were.

330 Ms McKenna said that although she formed a view as to the deceased's capacity at the meeting she did not want to draw the will until the deceased's capacity had been independently assessed. Ms McKenna said she discussed getting an independent assessment with the deceased who agreed with her and said she would speak with her general practitioner about getting an assessment.

331 After the meeting, Ms McKenna left the deceased's apartment. She said she thought that she called Simon Brown to let him know that she was finished with the deceased. At no time was Simon Brown present in the apartment, save for letting Mr Brearley and Ms McKenna in to the apartment and introducing her to the deceased.

332 Subsequently, on 26 March 2010, Ms McKenna received a record of the deceased's Aged Care Assessment Team assessment ('ACAT assessment') conducted by Ms Penny Wong from the Caulfield ACAS dated 9 March 2010. Ms McKenna said she received the ACAT assessment from Mr Brearley, who, in turn, had received it from Nicholas Brown. Ms McKenna agreed in cross-examination that there was nothing in her file to say that the deceased went to her general practitioner for an assessment of her capacity.

(a) Ms Wong met with the deceased on 23 February 2010;

(b) the deceased's primary health condition was polymyalgia rheumatica. Her other health conditions that had an impact on her need for assistance were high blood pressure, congestive heart dis, upper respiratory tract infection-viral and peripheral vascular disease;

(c) the deceased's cognitive behaviour was recorded as occasional short term memory problems and no long term memory problems;

(d) Ms Wong commented that the deceased had an alert, pleasant, bright presentation. It also records:

MMSE 26/30 Orientation time 3/5 recall 3/3 attention calculation 3/5. Orientated to own home environment. No depression or insomnia. Happy to be at home alone, declined socialisation. Has occasional confusion related to poor memory.

(e) Ms Wong recorded, amongst other things, that the deceased was frail, slow with mobility and gets tired easily; and

(f) Ms Wong recommended high level care for the deceased being an extended aged care at home package and high level residential respite. Ms Wong noted the deceased's wish to remain at home and that she had a very supportive son, Simon, who visits daily and is totally committed to care for the deceased at home and that he had organised additional carers for the deceased's care needs.

334 In cross-examination, Ms McKenna was referred to an e-mail, dated 29 March 2010, where it was said she made the observation of the deceased 'confusion related to poor memory'. She said that when she made that comment she was thinking of her questions to the deceased about her age and when Sandra Guss had died and that the deceased was unable to recall those dates.

335 Having observed and conversed with Mrs Brown and read the ACAT assessment, Ms McKenna was satisfied that the deceased had testamentary capacity and she prepared her will based on the deceased's instructions given on 23 March 2010.

336 On 30 March 2010, Ms McKenna called Simon Brown to make an appointment with the deceased, which she scheduled for 2.30pm on 1 April 2010. This was so she could discuss the draft will with the deceased.

337 On 1 April 2010, Ms McKenna attended on the deceased. Simon Brown let her into the deceased's apartment. Ms McKenna asked Simon Brown to leave them, which he did. Ms McKenna said she prepared a file note of the meeting with the deceased on the same day. They spent time reading through the will and she said the deceased wanted to make some amendments. This was done and the amendments initialled. The deceased also went through the legacies contained in her will and wrote out some calculations of them in the presence of Ms McKenna to make sure that her cash reserves would be adequate for the legacies. In cross-examination, Ms McKenna said she was not able to say from her file notes that the deceased understood whether, in reality, she had enough cash to meet the legacies in the will.

338 In her file note, Ms McKenna records all of the matters discussed with the deceased with a reference to the deceased's queries on certain clauses in the will. Ms McKenna said that she pointed out to the deceased the further clauses 7, 8 and 9 contained in the will and the deceased agreed with and confirmed the inclusions of those clauses. These clauses refer to the deceased's wish not to make provision for her grandson, Alistair; that Joseph Guss cannot make a claim or obtain a benefit from her estate; that the deceased had made gifts to her grandchildren during her lifetime; and that bequests were also made from her late husband's estate to benefit those grandchildren and she had therefore made adequate provision for them.

339 Ms McKenna then used the telephone and arranged for another resident, Mrs Win McKay, at the Menzies to attend and witness the deceased signing her will. Mrs McKay is the widow of a former partner of Mills Oakley, formerly known as Mills Oakley McKay, and was a resident at the Menzies. Ms McKenna had been to see Mrs McKay earlier that day so she knew she was there and available, if needed, to witness the deceased's signature. She said the deceased recognised Mrs McKay even though they lived in different parts of the Menzies apartment complex.

340 After the signing of the April 2010 will, Ms McKenna left the deceased. She then met with Simon Brown and confirmed that the will had been executed and thereafter left him. Ms McKenna recorded that the total time spent with the deceased was 1.5 hours.

341 The principles in respect of testamentary capacity are well-established. In Bailey v Bailey, the High Court upheld an appeal from Weigall AJ in this Court. In that case, the testator was eighty-eight years old and on his deathbed when he gave instructions and executed his will. Weigall AJ held that the testator was not of sound mind, memory and understanding. On appeal, Isaacs J (with whom Gavan Duffy and Rich JJ concurred) summarised the effect of the existing authorities in twelve 'working propositions':[20]

(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.[21]

(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.[22]

(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.[23]

(4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.[24]

(5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments.[25]

(6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.[26]

(7) As instances of such material circumstances may be mentioned:

(a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries;[27]

(b) the exclusion of persons naturally having a claim upon the testator;[28]

(c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.[29]

(8) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.[30]

(9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.[31]

(10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.[32]

(11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.[33]

(12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.[34]

342 Knox CJ and Starke J (in dissent, but not in respect of the applicable legal principles) summarised what their Honours described as the 'well settled' law governing cases of this kind:[35]

A testator is 'left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make',[36] but 'it is essential to the exercise of such a power that a testator ... shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect.'[37] 'Mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.'[38]

The testator's 'memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?'[39]

It is 'a practical question, one in which the good sense of men of the world is called into action, and ... it does not depend solely on scientific or legal definition.'[40]

We were exhorted to bear in mind, also, in this case, the law laid down by Sir James Hannen in Parker v. Felgate,[41] approved by the Judicial Committee in Perera v Perera:[42] -

If ... a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, 'I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.'[43]

343 These principles have been consistently applied in more recent times at intermediate appellate level across Australia.[44]

344 Recently in the English Court of Appeal in Simon v Byford, Lewison LJ noted in respect of testamentary capacity:

Capacity depends on the potential to understand. It is not to be equated with a test of memory. The point made by Peter Gibson LJ is not a new one. In Harwood v Baker, Erskine J giving the judgment of the Privy Council said:

... in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property.[45]

He did not say that the testator must actually remember the extent of his property. Mrs Simon did in fact remember the extent of her estate, partly as a result of executing the deed of gift, and partly as a result of the discussions that followed. In my judgment, when the judge said that Mrs Simon was not 'capable' of remembering why her earlier will had benefited Robert, he meant no more than that she had forgotten. Once I knew the dates of all the Kings and Queens of England, and the formula for Hooke's law; and was 'capable' of remembering them. Now I would have to look them up. The judge's important finding was not that Mrs Simon had forgotten the terms of and reasons for her earlier will. It was that she was capable of accessing and understanding the information; but chose not to.[46]

345 I agree with his Lordship.[47] As I have noted before,[48] in our day and indeed for a long time, many elderly persons choose to give a degree of control of their finances to their relatives and advisors.[49] That is their decision, and very often it is a wise decision. When assessing their testamentary capacity, a court should in light of this look not to the testator's actual understanding of their precise financial situation, but to their capacity to understand the nature of their assets, the extent of their assets, how they wish those assets to be divided, and who they should consider when dividing those assets. Making a will is not an exercise in memorisation, but in disposition. It is the soundness of the testator's ability to dispose that concerns this Court.

346 As the plaintiff, Simon Brown bears the onus of showing that the deceased possessed testamentary capacity. A presumption of testamentary capacity arises if the will is rational on its face and duly executed. That the will has been duly executed is not in question.

347 I am satisfied that the April 2010 will is rational on its face. It is consistent with the previous wills of the testator executed in 1988, 1995, 2001 and 2007 in leaving the residue to Simon Brown and substantial pecuniary legacies either to Sandra Guss or, in her place, to her children and grandchildren. It is consistent with the explanation given by Simon Brown that as he received no legacy under his father's will, he was to receive the residue of the parental estate under his mother's will. It is also readily explicable by the close relationship between Simon Brown and the deceased, by the fact that after her husband's death the deceased entrusted Simon Brown to manage her financial matters and was predominantly responsible for her living and financial arrangements. There is nothing in the provisions in the April 2010 will that appear irrational.

348 Accordingly, Simon Brown has the benefit of a presumption that the deceased did indeed have testamentary capacity. However, this is merely a presumption. In circumstances where the deceased is elderly, frail, has mobility problems and has some short term memory problems, the Court should necessarily be careful in making any finding that the deceased had the requisite disposing mind and memory when making the will.

Did the deceased have capacity to give instructions for the April 2010 will?

349 The Court must be satisfied that the deceased understood the nature of the act of making a will, and the effects of that act; understood what it is that she was disposing; and understood properly the claims of those who may be expected to benefit from her will.

350 Ms McKenna gave very careful and detailed evidence as to how she obtained instructions from the deceased for her will. She made contemporaneous handwritten notes of her meeting with the deceased. She then checked them, arranged for them to be typed immediately and checked the typed notes. She also had an excellent memory of her meeting with the deceased. She approached her task adopting the highest professional standards, and was aware of the relevant facts that her firm had not had any previous dealings with the deceased, her age and that she did not have a history of the deceased's prior will making history. In my view, Ms McKenna was an impressive and credible witness.

351 It is common ground that by 23 March 2010, the deceased was elderly, frail, slow with mobility and tired easily. She coped with living at the Menzies with the help of carers and Mrs Bortolin coming in one day a week. She wanted to continue living at the Menzies and was recorded as being oriented to her own home environment. She did not suffer from any long term memory problems but did have occasional short term memory problems. Ms McKenna noted this in taking instructions from the deceased on 23 March 2010 when the deceased was unable to give her correct age or the exact date of her daughter's death. A loss of memory as to correct age and exact date of death is not sufficient to establish lack of capacity.

352 Ms McKenna conversed with the deceased concerning the fact that she was attending on the deceased in order to obtain instructions for her will and that only the deceased could give those instructions. No one else was present when the instructions for the will were given to Ms McKenna. She conversed generally with the deceased to get a sense of her in her surroundings. The deceased was clear in her instructions, showing no confusion or ambiguity, and gave reasons for what she wanted to do in her will. She wanted to change the legacies to Antony Guss and Marilla Guss and her great grandchildren and she was concerned that Marilla Guss needed better provision because she was a single mother. The deceased also gave clear instructions that she did not want any benefits to be left to Joseph Guss and she gave clear reasons on this point.

353 Although the deceased was not able to recall all of her assets or their extent, she knew she had cash and capital but not exactly what they were worth. That this was the case is not remarkable in her circumstances. For the entirety of her life, the deceased had never managed her assets or her income. She relied on her husband whilst he was alive and, after his death, she relied on Simon Brown entirely. What is important in assessing testamentary capacity is not the testatrix's grasp of the exact assets of which she disposes, but their extent, both in a relative and an absolute sense. A testatrix who cannot recall the existence of large portions of her estate, or significantly overestimates or underestimates the value of portions of their estate, may lack the sufficient capacity. But an inability to be precise with figures will not disqualify a person from making a will.

354 Ms McKenna's conclusion that the deceased could not recall the precise extent of her assets is nevertheless of some concern to the court. That concern is alleviated in this case by two factors.

355 First, the provisions made in the will are, in relative terms, straightforward. This is not a case where the will disposes of significant assets or assets with values that are difficult to ascertain between equal and competing claimants. Rather, it distributes a number of small but not insubstantial pecuniary legacies to the deceased's grandchildren and great-grandchildren, and the residuary to her only son and only surviving child. A testator who left a small pecuniary legacy to one child, and a large residuary to the other, in the belief that such gifts were comparable, would not have testamentary capacity. A testator who left a small pecuniary legacy to one child, and a valuable property to another, again the belief that such gifts were comparable, would not have testamentary capacity. But where a testator leaves pecuniary legacies to a number of relatives, and understands that the bulk of their estate remains to pass through a residuary clause, then a lack of certainty over precisely how much is in that bulk will not disqualify them from making a will. I am satisfied that the deceased was capable of understanding that her will left the bulk of her estate to Simon Brown, which is the crucial division undertaken in the will.

356 Secondly, when Ms McKenna attended on her to execute the will, the deceased had obtained an up-to-date record of her assets so that she was able to calculate how much of her estate was left as specific legacies. While Ms McKenna agreed she could not give evidence that the deceased in fact made those calculations, there was no evidence that the deceased was in the habit of feigning competence. I am prepared to accept that when she appeared to be doing those calculations, she was indeed doing so. I would also infer from her capacity to do so at that later date that the deceased was also capable of doing so on giving her instructions, had she had an accurate record of her assets available.

357 It was contended by Antony Guss that because the deceased did not discuss her executors with Ms McKenna yet did so with Mr Northam on 7 January 2010 when giving instructions for her January 2010 will, this pointed to a lack of capacity. Although the evidence of Mr Northam was that he discussed the appointment of himself as an executor of his will at the meeting on 7 January 2010, he said this was something Mr von Bibra had raised with him. Mr Northam agreed that his appointment as the deceased's executor was a significant and important change to the deceased's will yet he did not record anything about this in his notes of the meeting. It was also irrational, in my view, for the deceased to appoint as her executor a person that she had never met before and with whom she had no connection whatsoever. It is a telling facet of that meeting that Antony Guss was present throughout the meeting between the deceased and Mr Northam and, in my view, it was a meeting in which he intended to impose his views as to how the deceased should be disposing of her estate as well as who should be her executor. The evidence of the meeting supports the conclusion that he gave considerable input into the instructions for the deceased's will. For reasons that are unfathomable, Mr Northam was unable to see that his position as solicitor taking instructions for a new and elderly client was compromised by allowing Antony Guss to be present at the meeting on 7 January 2010.

358 Antony Guss also contends that because the deceased discussed the Hawthorn property with Mr Northam but not with Ms McKenna, this also pointed to the deceased lacking capacity. Mr Northam said the principal concern of the deceased as expressed to him was whether her name was on the title to the Hawthorn property. The evidence of the alleged concerns of the deceased in respect of the Hawthorn property are all from the Guss family. On the Brown side, the deceased made one query of Simon Brown and he answered it for her. The fact that the deceased did not discuss the Hawthorn property with Ms McKenna supports the conclusion that she was not concerned about it. It is completely understandable that she would not raise this with Ms McKenna

359 Antony Guss relies on the fact that the deceased was unable to recall signing the transfer for the Dalby property or 'a letter about that transfer'. He also relies on the fact that the deceased did not make any reference to Mr Brearley witnessing anything to do with the transfer of the Dalby property. I have concluded that the transfer of the Dalby property was made voluntarily by the deceased. It would not, therefore, be any surprise that the deceased did not talk about signing the transfer. She was not asked to recall whether she signed the Dalby transfer because it was unnecessary to do so. The letter referred to was the letter dated 4 February 2010 typed by Antony Guss and it was this letter that the deceased was saying that perhaps Antony Guss 'put it in front of her to sign and she did so'. The Dalby property was mentioned by the deceased in that context, that is, when Ms McKenna showed her the letter dated 4 February 2010. Ms McKenna's note, in my view, does not refer to the actual transfer document, but rather this letter. There was also no need to mention Mr Brearley at all in the circumstances.

360 Antony Guss relies on the fact that the deceased had 'forgotten, or falsely denied' there was any arrangement made by the deceased with Sandra Guss as to her half share of the deceased's estate being given to Antony Guss and Marilla Guss despite having been attested to by a number of witnesses. For the reasons set out above,[50] this alleged arrangement has not been established. That allegation was denied by the deceased in her handwriting next to the statement in a typed letter by Joseph Guss dated 1 March 2010.[51]

361 It was said by Antony Guss that, in early 2010, the deceased made inconsistent statements about her understanding of her ownership of the Dalby property. I have already concluded that, because of the circumstances that the deceased found herself in at that juncture, it is entirely rational not to say anything to Mr Northam and to tell Antony Guss what she did regarding the Dalby property.[52]

362 It was contended by Antony Guss that because the deceased said she had to defer to Simon Brown to 'explain everything' and other like statements concerning her finances, then this meant that she did not have capacity. Again, the deceased was, in my view, keeping with the longstanding arrangement of the Brown family in not discussing her finances with the Guss side of the family. It is particularly understandable in early 2010 where Antony Guss was discussing or attempting to discuss a re-arrangement of the residuary provision in her will.

363 It was contended that the deceased made statements about wanting to provide benefits to Marilla Guss and this was at odds with the provision that she ultimately made to Marilla Guss and her children in the April 2010 will. This contention is premised on a failure by the deceased to leave any part of her residuary estate to Marilla Guss. As has been demonstrated by the deceased's earlier wills (apart from the January 2010 will), the Guss side of the family were always to receive pecuniary legacies for reasons already stated. This fact does not reflect any antipathy towards Marilla Guss. It was a reflection of her long held wishes that she did not want any part of her assets to go to Joseph Guss. Whether rightly or wrongly is not to be decided in this proceeding.

364 Finally, the medical evidence contained in the ACAT assessment and subsequently sent to Ms McKenna supports the conclusion that the deceased had capacity and, as stated, Ms McKenna carefully assessed the deceased throughout the meeting. Some instances of memory loss as referred to by Ms McKenna are not sufficient to conclude a lack of capacity.

365 Accordingly, I am satisfied that when the deceased had the requisite mental capacity to give instructions for her April 2010 will to Ms McKenna on 23 March 2010.

Did the deceased have capacity to execute the April 2010 will?

366 To admit the will to probate it is sufficient that the court is satisfied that the deceased had capacity sufficient to meet the Parker v Felgate test,[53] that is, she understood that what she was doing was executing the will, and she understood that the will she was executing was the one for which she had given instructions, even if she could not recall the detail of those instructions.

367 After taking the deceased's instructions, Ms McKenna received a copy of the ACAT assessment by Ms Wong and she was satisfied from that assessment as well as her own assessment of the deceased that the deceased had testamentary capacity to execute the April 2010 will.

368 On the occasion that Ms McKenna attended on her to execute the will, the deceased actively engaged with the process, asking for certain amendments to be made, calculating legacies, and reading the will. She did not query who Ms McKenna was or why she was there, and also recognised Mrs McKay.

369 I am satisfied that when the deceased executed the will, she knew that it was the will for which she had previously given instructions, and knew that it was the document that would determine how her assets were to be disposed of on her death. I am satisfied she had capacity to execute the April 2010 will.

370 Isaacs J provided a summary[54] of the principles to be drawn from the leading cases on the question of knowledge and approval in Nock v Austin.[55] In that case, Edward Nock gave instructions for his will to Samuel Austin, an estate agent, who conveyed those instructions to Alfred Morgan, Nock's lawyer. Morgan prepared the will, but did not speak to Nock. Instead, Austin took the will to Nock, and read it over to him without anyone else present, although the signing was later attested to by two strangers who were present along with Austin at the execution. Austin and Morgan were substantial beneficiaries under the will. The Court upheld the decision of Harvey J at first instance that the testator knew and approved of the will.

371 In summarising the principles, his Honour said:[56]

(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.[57]

(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.[58]

(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.[59]

(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.[60]

(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.[61]

(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.[62]

(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.[63]

372 Barton and Gavan Duffy JJ also referred to the decision of Sir Samuel Evans in the case of In the Estate of Osment:

It is well established that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and cause it to be vigilant and jealous in examining the evidence in support of the instructions for the will; it ought not to pronounce for the document unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.[64]

373 Their Honours, quoting from Tyrrell v Painton,[65] considered that although this rule shifts the onus of proof onto those propounding the rule to affirmatively establish knowledge and approval, it does not require the Court to do any more than carefully examine the evidence and draw conclusions on the balance of probabilities.[66] Subsequent authority is clear that where there is suspicion, there is no requirement of any more satisfaction than the conventional civil standard of proof.[67] However, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008, the cogency of the evidence necessary to displace the suspicion will depend on the circumstances of each case.[68]

Did the deceased know and approve of the April 2010 will?

374 Again, while Simon Brown bears the onus of showing that the deceased knew and approved of the will that he propounds, a presumption arises where the Court is satisfied that the testatrix had capacity and the will was duly executed. As both of those are satisfied here, Simon Brown has the benefit of that presumption.

375 Where there is a just ground of suspicion, the onus in a sense returns to a plaintiff to show that the deceased knew and approved of the will. Where there is proof that the deceased gave instructions for the will, and there is proof that the deceased had the will read over to her, understood what was read to her, and still chose to execute the will, that suspicion can be allayed. The question is whether the testatrix actually knew the substantive content of her will, and approved of that content. True, I must be satisfied of this only on a careful examination of the evidence. But the 'suspicious circumstances' rule is not an opportunity to litigate an allegation of fraud by another means or on flimsy or incomplete evidence.[69]

376 In this case, Simon Brown and Nicholas Brown were undeniably involved in the preparation and execution of the will. Nicholas Brown, through Antony Brearley, arranged for the deceased to visit the deceased with a view to obtaining instructions for and drawing up a will. Simon Brown provided Ms McKenna with a draft will on which he had made annotations. Although neither Simon Brown or Nicholas Brown actually took instructions or drew up the will, their involvement is at least sufficient to give rise to a suspicion of foul play. More specifically, the suspicion that concerns the Court is that any solicitors procured by Simon Brown or Nicholas Brown were acting merely as their instruments, and drew up a will on their instructions rather than the instructions of the deceased. Accordingly, the Court must be satisfied that the deceased did know and approve of the contents of the April 2010 will.

377 For the reasons that follow, I am satisfied that those suspicions can be allayed, and that the deceased knew and approved of the contents of the will.

378 In Nock v Austin, Isaacs J expressed the view that the solicitor who had drawn up a will in his own favour had undeniably fallen short of a duty of care owed, and ought to have ensured that the testator had received independent advice.[70] Notwithstanding this, his Honour dismissed the appeal, on the basis that as the trial judge had found the evidence of those present with the testator when the testator executed the will, tested under cross-examination, was sufficient to remove the suspicion.[71] Where a witness gives evidence that the testator had the will read over, and gave express approval to its contents, and the court considers that witness to be trustworthy, 'there can be no escape from the position that the ... issue must be found in the proponent's favour'.[72]

379 In this case, the deceased did receive independent advice. Ms McKenna was independent from the Browns in taking instructions, drawing up the will, executing the will, and giving evidence to this Court. Ms McKenna gave a complete and clear account of her meeting with the deceased on 1 April 2010 when the deceased signed her will. Before doing so, they spent time reading through the will and amendments were made to it. The clauses in the will were gone through and either discussed or pointed out to the deceased by Ms McKenna. The deceased agreed with the clauses in the will. In going through this process with the deceased, Ms McKenna satisfied herself that the deceased knew and approved of the contents of her will. Again, Ms McKenna made notes of her meeting with the deceased and her time of 1.5 hours spent with the deceased in order to discuss, amend and confirm the contents of the April 2010 will. As with her earlier attendance on the deceased, Ms McKenna again conducted herself in a professional, careful and competent manner. Her evidence is the best available evidence on whether the deceased knew and approved of the will.

380 Accordingly, for the reasons set out, I am satisfied that the deceased knew and approved of the contents of the April 2010 will.

381 I would note that if it were to matter, I consider the circumstances surrounding the execution of the January 2010 will raise questions as to whether the deceased knew and approved of that particular will. However, as this was not argued by counsel for Simon Brown, I have not considered that question.

382 For a will to be admitted to probate, it must have been the free will of the testator. A will that has been the subject of undue influence, within the meaning recognised by the courts of probate, is invalid.[73] Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, 'to be undue influence in the eye of the law there must be - to sum it up in a word - coercion'.[74]

383 However, courts have long acknowledging 'the difficulty of defining with distinctness what is undue influence',[75] and in particular 'the point at which influence exerted over the mind of a testator becomes so pressing as to be properly described as coercion'.[76] The Lord Chancellor in Boyse v Rossborough, Lord Cranworth, considered that the influence must be in the nature of either coercion or fraud, noting the clearest example:

If I meet a man I the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand; or if a neighbour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it, - in both these cases it was my will to hand over the purse and the horse; but the law deals with the case as if they had been obtained against my will, my will having been the result in one case of fear, and in the other of fraud. The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will.[77]

384 As his Lordship then acknowledged, however, most cases will be more nuanced than outright theft or blatant deception:

In the interpretation of these words, some latitude must be allowed. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and make him execute as his will an instrument which, if he had been free from such influence, he would not have executed.[78]

385 In Hall v Hall, Sir J P Wilde instructed the jury as to the dichotomy between 'convincing the judgment' on the one hand, and 'overpowering the volition' on the other:

Persuasion, appeals to the affections 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 upon a testator.

[...]

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 the 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.[79]

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 some one else's.[80]

386 In Wingrove v Wingrove, Hannen P colourfully illustrated the same distinction:

A young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favour, to the exclusion of his relatives. It is unfortunately quite natural that a man so entangled should yield to that influence and confer large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those contingencies.[81]

His Lordship then further described what the law regards as sufficient coercion:

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence.[82]

387 Whether influence exercised over the testator is regarded, in law, as undue, is a question of the nature and extent of that influence. It is not a question susceptible to a neat definition. Instead, it must be ascertained through the analysis and comparison to cases in the classic common law sense, as opposed to law derived from the analysis and exposition of authoritative texts.[83]

388 In an enlightening discussion in Nicholson v Knaggs, Vickery J explored the manner in which in England, the United States and in Australia, the test has come to be liberalised such that actual physical coercion or physical threat are no longer required (if indeed they ever were).[84] As his Honour noted, the test remains distinct from the equitable concept of undue influence.[85] The Rubicon between permissible and impermissible influence remains coercion:

The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle. The effect can be achieved in the context of a variety of circumstances and relationships. It can be the product of a chain of events, or a single event. It may be achieved by the conduct of one person or several, whether acting in concert or quite independently. Further, the influence need not be intentionally exercised by any particular person or persons for the purpose of overbearing the free and independent will of the testator.[86]

389 One final point should be noted. As was pointed out by the High Court in Bridgewater v Leahy, the circumstances in which a court acting in its probate jurisdiction will refuse to admit a will to probate on the grounds of undue influence are different, and are narrower, than the circumstances in which a court acting in its equitable jurisdiction will set aside a transaction on the grounds of undue influence.[87] At equity, there are a number of relationships in which it is presumed there has been undue influence, including and especially familial relationships. Such a doctrine would be untenable in the field of probate, where 'appeals to affections or the ties of kindred' are not just normal, but are expected.[88] In disposing of property by will, testators will inevitably give great weight to the very relationships that a court of equity would presume to be undue. The freedom of testators to do so should not be unduly impeded.

390 The onus of proof of undue influence rests upon the person alleging it,[89] and the standard of proof is the civil standard. In Boyse v Rossborough, the Lord Chancellor famously required that:

In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with the contrary hypothesis.[90]

391 In Nicholson v Knaggs, Vickery J rejected this approach as being 'in conflict with the general law as it currently applies in Australia', declaring that:

The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.[91]

In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation.[92]

392 In both cases, the judges considered that given the seriousness of an allegation that a will had been procured by coercion or fraud, the principles expressed in Briginshaw v Briginshaw were applicable.[93] These principles, also contained in s 140(2) of the Evidence Act 2008, require that the gravity of the allegation of undue influence, the significance of property passing under a will, and the inability of the testator to give evidence, should be taken into account in considering the evidence.

393 I would add only one further observation on this point. The statement of principle by the Lord Chancellor in Boyse v Rossborough does not, on my reading, impose any standard or onus of proof that differs from the general law as it applies in Australia.[94] 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. The standard to which they must show that the circumstances are so is 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 must be more likely than the contrary. I do not believe that in so stating the test, I am saying anything controversial.

Was the deceased under the undue influence of Simon Brown?

394 The various allegations said to support a finding of undue influence alleged against Simon Brown, and a summary of the particulars, are set out above.[95] They range in time from at least 2005 onwards up until the date of the April 2010 will. I have concluded in respect of all of the allegations that each have not been established by Antony Guss.

395 It was also contended by Antony Guss that when Simon Brown became upset at the meeting on 19 January 2010 when he was presented with Mr Northam's draft will that substantially re-arranged the longstanding disposition of the deceased's residuary estate, this was a ground in support of an allegation of undue influence. Simon Brown agreed that he was upset with the deceased and felt that she had succumbed to the pressure of Antony Guss and the Guss family. The draft will was inconsistent with all other wills made by the deceased and was inconsistent with all promises made to him. In my view, there is nothing in the conduct of Simon Brown as alleged that could be said to amount to undue influence. The authorities recognise that a person is entitled to press a legitimate claim to benefit from a testator. This is what Simon Brown was doing.

396 In respect of the April 2010, at no stage when the deceased gave her instructions to Ms McKenna or when she executed her April 2010 will did the deceased say or indicate to Ms McKenna that she was being overborne in any way, bullied or harassed or not acting of her own free will. Ms McKenna was an independent and professional law clerk. I am satisfied that she established in her mind that the deceased was not overborne, bullied or harassed or not acting of her own free will.

397 In respect of her 2007 will, the transfer of the Dalby property and the removal of the caveat over the Dalby property, the deceased had independent solicitors acting on her behalf and they also satisfied themselves as to the capacity of the deceased and her free will in carrying out the transactions. No challenge was made to the 2007 will. The solicitors' involvement in the transactions concerning the Dalby property was not a case of simply asking the deceased leading questions and obtaining mindless affirmative responses in reply. The evidence from the solicitors confirms that the deceased was well aware of what was happening, what she was doing, that she wanted to do it and was acting freely and voluntarily.

398 The case put against Simon Brown, taken at its highest, in truth alleges that the relationship between him and the deceased was one of almost permanent undue influence. By virtue of factors inherent in his characteristics and circumstances - the closeness of his bond with his mother, the fact that after his father's death he took over managing the family finances, and his physical size and assertive nature - he is said to have manipulated and abused his mother for years, if not decades.

399 The evidence, in summary, establishes no more than the characteristics and circumstances of Simon Brown and the deceased named above. It does not establish that he took advantage of the relationship. On the account of all the witnesses, apart from Marilla Guss, the deceased was always her own woman. She regularly stood up to Simon Brown, she required constant updates of her finances from him, and she was able to spend her money on her grandchildren and great-grandchildren. She was certainly somewhat old-fashioned in handing over control of her finances to the family patriarch, but that is perhaps to be expected in a woman born during the First World War.

400 The onus rests on Antony Guss to show that the April 2010 will was made under the undue influence of Simon Brown. He has not satisfied that onus.

401 I am satisfied that when the deceased gave instructions for her April 2010 will and when she executed it, she did so voluntarily and of her own free will and was under no undue influence from Simon Brown. Accordingly, I am satisfied that the April 2010 will is the last valid will of the deceased.

Was the deceased under the undue influence of Antony Guss?

402 Simon Brown contends that the January 2010 will is surrounded by many circumstances that support the view that it is not the genuine will of the deceased but was produced as the result of the undue influence of Antony Guss. This is denied by Antony Guss. Although not strictly necessary to decide, if it matters, I consider the January 2010 will to be the result of the undue influence of Antony Guss.

403 Mr Northam said he initially took instructions for the January 2010 will from Mr von Bibra in respect of two issues, his appointment as an executor of the deceased's will and a change in the disposition of the deceased's residuary estate. Mr von Bibra was not called as a witness in the proceeding.

404 On the same day as receiving those instructions, Mr Northam also attended on the deceased in her apartment at the Menzies. The deceased had not previously been Mr Northam's client or of his firm. They had never met at all before the meeting on 7 January 2010. He was aware that the deceased was elderly and house bound.

405 He proceeded to take instructions from the deceased and Antony Guss, who remained present throughout the meeting. It was at that meeting that he was given a copy of the 2007 will and a draft will dated 16 June 2005.

406 He did not make a file note of his instructions for the two crucial matters for which he was originally retained his appointment as an executor and the significant changes to the division of the deceased's residuary estate. In addition, these important changes were done in the presence of one of the named beneficiaries and from whom he took instructions, Antony Guss. Mr Northam did not query the substantial reduction of the residuary estate for Simon Brown compared to the deceased's existing will.

407 At no stage did Mr Northam take instructions from the deceased on her own. At no stage did he query the change to the division of the residuary estate, in particular, where he said he was told of the alleged agreement between the deceased and Sandra Guss in 2005 which was of different proportions again. He was unconcerned that Antony Guss was actively involved in giving instructions for the deceased's will, actively setting a scenario that was unfavourable to Simon Brown and painting a picture of Simon Brown having acted improperly in respect of the deceased's assets.

408 In his letter to the deceased informing her that he would withdraw from acting for her, he cited as a reason for withdrawing the fact that there may be 'a perception of conflict on my part' because he had had conversations with both Simon Brown and Antony Guss. He failed to recognise a perception of conflict of interest based on Antony Guss being present at the meeting with the deceased, as well as giving instructions for her will at the meeting. He even continued to have many conversations with Antony Guss about the deceased's will and take instructions from Antony Guss after the meeting and after Antony Guss argued with Simon Brown.

409 In the circumstances that he found himself in at the outset of his retainer, Mr Northam should have immediately become conscious of the possibility of a conflict of interest and of possible undue influence by Antony Guss in respect of the deceased by Antony Guss.[96]

410 Antony Guss was actively and purposely involved in attempting to get the deceased to change her will in his favour and Marilla Guss's favour. He actively started campaigning in late 2009. There was constant talk with the deceased about this.

411 At the meeting on 7 January 2010 with Mr Northam, Mr Guss described a rather unfavourable picture of Simon Brown. Surprisingly, in the circumstances, Mr Northam did not query this at all with the deceased. This was also in the context that Mr Northam said he already had an inkling or understanding about what he called 'the poor reputation' of some members of the Guss family.[97]

412 The execution of the January 2010 will took place in quite extraordinary circumstances, almost a 'hothouse' environment. It was undertaken with a sense of urgency. It was not an orderly or calm process nor was Mr Northam present. It occurred without any rational explanation, in circumstances where the deceased ostensibly had Mr Northam as her solicitor. In fact, Mr Northam was not told about the execution of the January 2010 will at all.

413 The document had many handwritten changes on it from previous discussions between the deceased and Simon Brown and then Antony Guss crossed those out and made his own changes allegedly with the deceased's agreement. It had draft stamped across it on every page.

414 The actual signing of it was a disordered and chaotic for the execution. The deceased remained in bed with three other people in her bedroom. Both Joanne Guss and Mrs Torrance were called to the bedroom at very short notice. The actual signing took place with the deceased remaining in her bed surrounded by three people in her bedroom.

415 The signed document was then taken away by Antony Guss. He failed to mention it to Mr Northam despite having many discussions with him afterwards. The first Mr Northam knew about the January 2010 will was when he was called to give evidence. The first that Simon Brown knew of it was when Antony Guss alleged in this proceeding that the January 2010 will was the last valid will of the deceased despite Antony Guss having had arguments with him shortly after the signing. Curiously, when Antony and Marilla Guss lodged a caveat over the Dalby property, the grounds of claim relied, wrongly in legal terms, on the 'last will and testament' of the deceased although that last will was not identified by him.

416 The whole episode bears the hallmark of Antony Guss wanting a document in place that provided him with a negotiating tool. He had failed to negotiate a change with Simon Brown in his discussions in March 2010 and, as stated, made no mention of the January will at that time.

417 I consider that the most probable, and perhaps the only reasonable, explanation of the deceased's signature appearing on the January 2010 will is that she was pressured into signing the document by Antony Guss. All of the other wills for which evidence was led of the execution were executed in the presence of the solicitor who had drafted the will. None were on a document labelled 'draft'. None were the product of instructions given in the presence of a major beneficiary. None were executed by the deceased when she was in bed. The hasty execution and incomplete nature of the January 2010 will were wholly inconsistent with the deceased's previous will-making practices, and the substantive dispositions were likewise inconsistent.

418 In all the circumstances, I am satisfied that the circumstances surrounding the taking instructions of the deceased's January 2010 will establish that those instructions were not genuine instructions of the deceased, but were the instructions of Antony Guss. I am satisfied that the January 2010 will was the product of the undue influence of Antony Guss.

419 I shall hear the parties as to the appropriate form of orders, reflecting my decision that:

(a) subject to any requirements of the Registrar of Probates, probate of the will of Neridah McInnes Brown, deceased, dated 1 April 2010 be granted to Simon Leonard McInnes Brown; and

(b) the application by Antony Guss for a grant of probate of the will of Neridah McInnes Brown, deceased, dated 26 January 2010 is dismissed.

420 Because of these findings, the alternative application by Simon Brown for a grant of probate of the deceased's will dated 27 September 2007 and the codicil to that will dated 3 June 2008 should also be dealt with by appropriate orders.

421 I shall adjourn these proceedings to a date to be fixed to hear the parties as to costs.

[1] Pursuant to r 8.03 of the Supreme Court (Administration and Probate) Rules 2004.

[2] A ground that the April 2010 will was not executed in conformity with s 7 of the Wills Act 1997 was expressly withdrawn.

[3] Stott v Cook (1960) 33 ALJR 447, 453-4 (Taylor J).

[4] Fast v Rockman [2013] VSC 18 (7 February 2013) (Habersberger J).

[5] [1938] HCA 34; (1938) 60 CLR 336. As also contained in s 140(2) of the Evidence Act 2008.

[6] (1992) 110 ALR 449; [1992] HCA 66 (16 December 1992).

[7] See below paragraphs [179]-[232].

[8] See above paragraphs [33]-[63].

[9] This was done prior to Mr Northam receiving the deceased's signed retainer agreement dated 27 January 2010, of Mr Northam's firm, Septimus Jones & Lee, to act on her behalf.

[10] See above paragraph [66].

[11] As evidenced by an agreement dated 30 November 1999 between the deceased and Pawelloyd Pty Ltd and Reynolds and Family Co Pty Ltd; a deed headed 'Deed collateral to transfer of mortgage' dated 21 December 1999 between Kevin Joseph Power and Pawelloyd Pty Ltd and the deceased, together with a letter dated 4 January 2000 from Kevin Joseph Power addressed to The Dalby Parkview Motel.

[12] See paragraphs [125]-[128].

[13] See paragraphs [200]-[222].

[14] It is not clear which will of the deceased Mr Ivanisevic received. However, Nicholas Brown had a copy of her 2007 will in March 2010: see below paragraph [310].

[15] See above paragraph [201].