Plaintiff v Defendant

1 The plaintiff, Rudi Frahm, is the brother and next of kin of the late Christa Renate Hobbs who died on 4 October 2015. He is the executor of, and seeks to propound, a Will made by Ms Hobbs on 1 May 2008 ('2008 Will'). Under the 2008 Will, the whole of Ms Hobbs' estate passes to Mr Frahm.

2 The defendant, Janice Davis, is Ms Hobbs' step-daughter and has lodged a caveat in relation to the application for probate of the 2008 Will. She contends that Ms Hobbs made two informal wills respectively dated 21 December 2008 ('first document') and 15 February 2009 ('second document'). Ms Davis contends that probate should be granted in respect of the second document, or if the Court is not minded to do this, in respect of the first document.

3 The 2008 Will and the first and second documents contain very different provisions.

4 The first document is in the form of a copy of an office copy of a will made by Ms Hobbs on 25 November 1980 ('the 1980 Will'). On the final page of the first document, there is a handwritten annotation, purportedly by Ms Hobbs, confirming the 1980 Will and cancelling all other wills. The annotation is dated 21 December 2008. There are no attesting witnesses.

5 Under the 1980 Will, Ms Hobbs' husband, Alan Hobbs, is appointed executor. Should he predecease her, Ms Davis is appointed executor. A legacy of $20,000 is given to Helmuth Frahm, the brother of Ms Hobbs and Mr Frahm. Any residence and the contents of that residence pass to Mr Hobbs, and should he predecease her, to Ms Davis. The will then directs that the residue of the estate be shared equally between Ms Davis and Helmuth Frahm.

6 The second document is an overwritten copy of an office copy of the 1980 Will. There are additions made and clauses crossed out in what appears to be Ms Hobbs' handwriting.[1] The overwritten document bears what appears to be Ms Hobbs' signature. There are no attesting witnesses. Mr Hobbs is again appointed executor, and should this appointment fail, Ms Davis is appointed executor. The value of the family home at 11 Yarrabee Court, Mount Waverley ('the family home') is left to Ms Davis, as is the residue of Ms Hobbs' estate. No part of the estate is left to Mr Frahm or Helmuth Frahm.

7 Mr Frahm filed affidavits sworn by him on 31 March 2016, 16 September 2016, and 14 November 2016, and an affidavit of his solicitor, David Boots, sworn on 25 November 2016.

8 Ms Davis filed an affidavit sworn by her on 2 August 2016, and three affidavits of her husband, Patrick Davis, sworn on 2 August 2016, 17 October 2016 and 7 November 2016 ('first affidavit'), 'second affidavit' and 'third affidavit' respectively). She also filed the affidavits of a retired general practitioner, Dr Geoffrey Francis, sworn on 7 April 2017, and a nurse, Ms Karin Baumert, sworn on 8 May 2017.

9 Mr & Ms Davis were cross-examined during the trial. No other witness was cross-examined. Subject to some objections to evidence which were upheld, all affidavits were received into evidence.

10 I accept the evidence as set out in the affidavits of Mr Frahm, Dr Francis, Ms Baumert and Mr Boots. I will address the evidence of Mr and Ms Davis later in these reasons.

11 Ms Hobbs was born in Hamburg on 20 November 1937. She had a sister and two brothers, Mr Frahm and Helmuth Frahm. On 25 August 1961, she married Alan Hobbs. He was then a senior manager with Sigma Pharmaceuticals and later its managing director. He was a widower. Ms Davis was born on 1 October 1948. Her mother died on 31 December 1960 when Ms Davis was 12 years of age.

12 About a year after his remarriage, Mr Hobbs sold a home at Glen Iris and bought the family home. In 1976, he had a stroke and suffered right side paralysis. By a will dated 20 April 1977, he appointed Ms Hobbs to be his executrix. The whole of his estate was to pass to Ms Hobbs subject to a legacy of $20,000 to Ms Davis.

13 In about November 1977, Mr Hobbs established the Alan Hobbs Family Trust ('the family trust'). The trustee of the family trust was a company known as Marmsdorf Pty Ltd ('Marmsdorf'). It had a paid up share capital of $2. The directors and shareholders of Marmsdorf were two solicitors, Alfred Bowles and Trevor Bignell. They were later appointed by Ms Hobbs as her attorneys.

14 In a letter to the directors of Marmsdorf received in April 1978, Mr Hobbs requested that after his death the fund of the family trust should be held as to both capital and income for Ms Hobbs. After her death, he expressed the desire for the trustees to pay the income from one quarter of the trust fund to Frieda Frahm, Ms Hobbs' mother, and on her death or should she predecease Ms Hobbs, to Helmuth Frahm. The trustees were to pay the income from another one quarter to Norman Hobbs or Pauline Hobbs during their lifetime (or the lifetime of the survivor of them), and on the death or the survivor or should they predecease Ms Hobbs, to pay the quarter to Ms Davis. He requested that the trustees pay the remaining half of the trust fund to Ms Davis.

15 Mr Hobbs died on 6 May 1981. Ms Davis received $20,000 from his estate and the residence passed to Ms Hobbs.

16 As at 30 June 1981, the assets of the family trust amounted to $345,458. On Mr Hobbs' death, his interest in the assets of the family trust passed to Ms Hobbs.

17 Ms Hobbs made the 1980 Will with the assistance of Gair & Brahe, solicitors. As stated above, in the event that Mr Hobbs predeceased her, Ms Hobbs devised to Ms Davis, 'any residence which I may own and normally reside in at the date of my death together with all articles of furniture and household use therein'. The residue of the estate was to be given to Helmuth Frahm and Ms Davis equally. The effect was that if the family home was sold before Ms Hobbs' death, the proceeds of sale would form part of residue and be divided equally between Helmuth Frahm and Ms Davis.

18 On 15 August 1981, Ms Hobbs signed a typed letter ('1981 letter') which referred to a longstanding covenant to hold the family home in trust for Ms Davis. If the home was sold, Ms Davis was to take an amount equal to the market value of the home.

19 In around April 1982, Ms Hobbs was diagnosed with Wernicke-Korsakoff syndrome.

20 On 8 November 1995, Ms Davis applied to the Guardianship and Administration Board ('the Board') for the appointment of a guardian and administrator to act on behalf of Ms Hobbs. Ms Hobbs objected to Ms Davis' application. In a signed statement filed in the proceeding, Ms Hobbs said that she had seen little of her step-daughter, perhaps once a year for the last 13 or so years. She said that she was very happy living in her own home, with the assistance of a friend and with the guidance given by her attorneys.

21 Ms Hobbs said that she could not understand why the applications had been made as she was content with her quality of life. She was not housebound; she was able to go on outings and take trips to Warrnambool with a friend. Ms Hobbs said that she discussed her financial situation regularly with her two attorneys and did not believe any changes were necessary at the present time.

22 She added that she was 'shocked that this application has been made by Janice Davis, who has always been difficult since I have known her'. She was 'particularly concerned that someone who has little contact with me over the last thirteen years has the power to affect how I wish to live my life'.

23 On 7 March 1996, Ms Hobbs made a new will through Garland Hawthorn Brahe ('the 1996 Will'). The 1996 Will was significantly different from the 1980 Will. Ms Hobbs appointed a professional trustee company, Sandhurst Trustees Limited, as her executor. After payment of debts and duties, Helmuth Frahm received the whole of her estate. Ms Davis was not a beneficiary under the 1996 Will.

24 On 3 May 1996, the Board appointed Ms Hobbs' attorneys, Mr Bowles and Mr Bignell, as administrators of her estate. The Board dismissed the guardianship application. After their appointment, Ms Davis wrote to the administrators about Ms Hobbs' financial position.

25 On 11 October 1996, Mr Bowles and Mr Bignell relinquished their appointment. The Board appointed State Trustees Limited ('State Trustees') as Ms Hobbs' administrator. State Trustees sold the family home on 13 December 1997 for $290,400. A report dated 12 July 2011 from State Trustees to the Victorian Civil and Administrative Tribunal ('VCAT') refers to State Trustees having received regular telephone calls from Ms Davis enquiring about Ms Hobbs' various investments.

26 When she was no longer able to live in the family home, Ms Hobbs lived with Mr Frahm and his family for about six months. She was admitted to the Tabulam and Templer Nursing Home in Bayswater ('nursing home') on 7 March 1997. She lived there until her death in 2015.

27 Mr Frahm said that in about April 2008, a staff member of the nursing home asked him to arrange to have an advanced care plan reviewed by Ms Hobbs and signed in front of a solicitor. He took Ms Hobbs to see Brendan Hardiman, a local solicitor. Mr Hardiman prepared a new will for Ms Hobbs.

28 In the 2008 Will, Ms Hobbs appointed Mr Frahm as her executor and trustee, and gave the whole of her estate to him. She stated in her will that she had not made greater provision for Ms Davis 'after serious consideration and after being informed of the existence of the provisions of Part IV of the Administration and Probate Act' and 'not for any lack of love for her'.

29 The 2008 Will is rational on its face and was executed and attested in the manner required by law. In the absence of evidence to the contrary, it is presumed to have been made by a person of competent understanding.[2]

30 Dr Geoffrey Francis, a retired general practitioner, deposed that he had been treating Ms Hobbs since May 1997.

31 In a letter to State Trustees in 17 November 2008, he stated that Ms Hobbs had been treated by a psychiatrist since 1976. Her bipolar affective disorder was well controlled with medication. In February 1998, the psychiatrist noted the obvious onset of marked short term memory loss. Dr Francis described Ms Hobbs' mental condition as having slowly deteriorated over the years.

32 Dr Francis interviewed Ms Hobbs on 13 November 2008 at the request of State Trustees. She was disoriented in time, but fully oriented in place. She could remember only two out of three words on the recall test both immediately and after two minutes. On other tests, she scored normally. Her test result indicated mild to moderate mental impairment.

33 Ms Hobbs informed Dr Francis that she had recently changed her will in favour of her brother, Mr Frahm, and that she had another brother in Germany and a sister in Sweden. She stated that she felt that her step-daughter had received her inheritance at the time of Mr Hobbs' death. Dr Francis concluded that Ms Hobbs had adequate mental capacity to change her will.

34 Ms Hobbs' statements and reasons are consistent with the 2008 Will.

35 In his first affidavit, Mr Davis said that in late 2008, he visited Ms Hobbs and took a file from her home that she had requested. He also took office copies of the 1980 Will and a copy of the 1981 letter.

36 In his second affidavit, Mr Davis said that in late 2008, Ms Hobbs spoke with him recalling the arrangements she had made with her husband. She asked him what had happened to the family trust. She said that in the 1980 Will, she had helped her brother, Helmuth, who needed financial help at that time, but that he now no longer needed that help.

37 In cross-examination, Mr Davis said that he had become aware of the 2008 Will when that will was produced to VCAT. He admitted that he had spoken with Ms Hobbs about her will many times over 30 years including in late 2008. He was pressed in cross-examination as to whether he put copies of the 1980 Will and the 1981 letter in front of Ms Hobbs and emphasised to her that Ms Davis had a claim to the proceeds of sale of the family home. He denied that he did so. He said that he and Ms Davis took in the folder, and Ms Hobbs took out what she wanted. He said he did not know what she did with the documents after that. He said that he probably talked to her in the weeks and months ahead and asked her what she did with that, but he could not recall and at that point he 'didn't really care what she did with them'.[3]

38 Ms Davis said she saw a filing cabinet in Ms Hobbs' home, but had no knowledge of what was in it. She said that she never discussed Ms Hobbs' will with her, or the proceeds of sale of the family home.

39 Ms Davis suffers from post-traumatic stress, depression, bipolar affective disorder and anxiety. She has had periods of involuntary admission to facilities on mental health grounds over the years and received psychiatric treatment. She takes medication which affects her memory and recollection.

40 In a letter of 19 July 2011, Mr Davis requested a hearing by VCAT to discuss the accuracy of the financial statements from State Trustees and a contractual agreement between Mr and Ms Hobbs that he said may have been breached. He requested VCAT to direct State Trustees to hold the proceeds of sale of the family home and income earned on the sale proceeds in a separate fund for Ms Hobbs for life and after her death for Ms Davis. In the letter, he also requested that the remaining funds of the family trust be held for Ms Hobbs, and after her death for the beneficiaries specified by Mr Hobbs as appointor of the family trust.

Visit by Mr and Ms Davis to Ms Hobbs on 25 June 2015

41 In his first affidavit, Mr Davis said that when he and Ms Davis visited the nursing home on 25 June 2015, Ms Hobbs gave him an envelope addressed to Gair and Brahe that contained a signed handwritten note and a typed document as well as two unsealed envelopes. The handwritten note requested that Mr Brahe send someone to see her about 'the Family Trust and other things'.

42 The first page of the typed document was headed 'The Alan Hobbs Family Trust & Marmstorf [sic] Pty Ltd'. It was signed by Ms Hobbs and dated 15 August 1981. The second page was headed 'Will of Alan Keith Hobbs'.

43 The first unsealed envelope was addressed to Gair and Brahe and contained the first document.[4]

44 The second unsealed envelope was addressed in Ms Hobbs' handwriting 'To my trustee and executor - not to be opened'. It included the second document. A number of alterations had been made to the 1980 Will:

(a) Clause 4(b) had been crossed out, and signed and dated 15 February 2009.

(b) The words 'Page 1 of my will confirmed' had been added at the foot of page 1 and signed.

(c) On page 2 in cl 4(d)(i), the words 'if my house is sold I leave Janice M Davis the value of 11 Yarrabee Court' had been added. That insertion had been signed and dated '15.2.2009'.

(d) The name 'Helmuth Ernst Frahm' had been deleted from cl 4(d)(ii).

(e) At the foot of the second page were the words 'Page 2 of my will confirmed', and Ms Hobbs' signature.

(f) On page 3 the words 'I can confirm that these 3 pages are my current will. By will agreement I said that my home was to go to Janice Davis. If it is sold Janice is to receive the market value of 11 Yarrabee Court' were added.

(g) Ms Hobbs' signature and the date '15.2.2009' were added.

45 Mr Davis said that Ms Hobbs asked him to send the envelope and its contents to Mr David Brahe at Gair & Brahe.

46 In cross-examination, Mr Davis elaborated significantly on his evidence as set out in his three affidavits. He said that when Ms Hobbs requested that he send the letter to Gair & Brahe asking for somebody to come out and see her, he immediately noticed that the address on the envelope and the amount of postage were wrong. The envelope to 'Gair and Brahe' was addressed to '32 Queen Street', but the correct address of what was now Garland Hawthorn Brahe was 31 Queen Street. He said that he asked Ms Hobbs what the other two envelopes were and she replied 'Oh, that's my will'.[5] According to Mr Davis, he then said to her 'Well, what do you want me to do with that?'[6] to which she replied 'Oh, can you take them and hold onto them for me?'.[7]

47 There is no evidence to this effect in Mr Davis' three affidavits, or in Ms Davis' affidavit, or in any letters or documents passing between solicitors for Ms Davis and Mr Frahm. The words 'Oh that's my will' said to have been uttered by Ms Hobbs to Mr Davis on 25 June 2015 are of crucial importance when used in the context of documents said to be informal wills. Yet they are not found anywhere in the affidavits or in the outline of argument prepared by counsel for Ms Davis filed on 13 April 2017. They are not found in the Pre-trial Document prepared by the parties' legal practitioners listing agreed facts and essential facts not agreed. They are of such importance that they could not have been overlooked by Ms Davis' legal practitioner when preparing affidavits for Mr Davis over a period of months in 2016. I conclude they are of recent origin and are an embellishment.

48 Mr Davis' elaboration and embellishment in the witness box regarding what transpired on 25 June 2015 as compared to his affidavits casts doubt on the accuracy of his evidence overall.

49 In his first affidavit, Mr Davis said he took photocopies of the envelopes and their contents. He then posted a covering letter along with the envelope containing the original handwritten note and typed document as well as the unsealed envelope containing the original second document to David Brahe of Garland Hawthorn Brahe on 27 June 2015. He said that he did not send the first document to Garland Hawthorn Brahe because he thought it had been superseded by the second document.

50 In the covering letter, Mr Davis said that he had explained to Ms Hobbs many times that State Trustees looks after her affairs following a VCAT administration order in 1996. He wrote that 'due to the nature of her illness and memory deficit, [Ms Hobbs] still believes that Gair & Brahe "pay her bills" from the Alan Hobbs Family Trust'. He did not refer to any of the enclosures as an informal will or as a testamentary document.

51 In cross-examination, Mr Davis said that after he had gone home, he noticed that the documents were not witnessed. He did not consider them of any particular value and did not consider them to be legal wills. If he had considered the documents to be in any way important, he would have sent them by registered mail. He posted them from a post office box near his home.

52 When asked by the Court why he withheld one document from those sent to Ms Hobbs' solicitors, he responded that 'it wouldn't fit in the envelope'.[8] When questioned about this further, Mr Davis said that he was meant to send the addressed envelope asking Gair and Brahe to send somebody out to see Ms Hobbs. The other documents were meant to stay with him. He said that he realised that they were not witnessed and he did not want to hold onto them. It was up to the solicitors, if they wanted, to go out and talk to Ms Hobbs and take instructions for another will.

53 After Ms Hobbs' death, Mr Davis was advised by Ron Lane of Garland Hawthorn Brahe that his letter and the enclosures had not been received. Mr Lane told Mr Davis that he opened up all the mail.

54 The envelope containing Mr Davis' letter and the enclosures has not subsequently been located. The original of the second document for which Ms Davis seeks probate is lost with only a photocopy available.

55 On 27 October 2015, Mr Davis hand delivered a copy of the second document as well as the original of the first document to Garland Hawthorn Brahe.

Non-disclosure of the existence of the first and second documents

56 According to Mr Davis, he received the first and second documents on 25 June 2015. This is over six years after they had apparently been overwritten and signed by Ms Hobbs.

57 On 4 November 2015, Mr Lane of Garland Hawthorn Brahe wrote to Mr Frahm on behalf of Ms Davis. He advised that Ms Davis intended to pursue a claim under Part IV of the Administration and Probate Act 1958 (Vic) for the purpose of securing suitable provision for her. The letter referred to Ms Hobbs' health issues which gave rise to serious doubt as to whether she was mentally competent to provide instructions for the 2008 Will.

58 The letter advised that Garland Hawthorn Brahe held the 1980 Will and the 1996 Will. It makes no mention of the existence of any informal wills or other testamentary papers. The first and second documents are not mentioned at all.

59 On a number of occasions in cross-examination, Mr Davis said that he did not at this point care what was in the first or second documents. He considered that, if his wife had a claim, it was a claim for a constructive trust, or maybe about testamentary capacity, but not about informal wills. In his mind, the first and second documents were not legal wills.

60 On the available evidence, it appears that Mr Davis did not disclose their existence to other family members until early 2016 - about six months after he said that he first received them.

61 In his third affidavit, Mr Davis said that before he posted the letter to Garland Hawthorn Brahe on 27 June 2015, he scanned the first and second documents and saved the files on his computer. He produced a screenshot of his computer. On the screenshot appears a folder entitled 'Wills scanned 27 June 2015', and two documents in this folder dated 27 June 2015 at 8:02am and 8:12am relating to the scanning of wills dated 15 February 2009 and 21 December 2008 respectively.

62 Mr Davis was cross-examined as to the true dates when he scanned the documents found on his computer. He denied that he received and scanned the first and second documents long before June 2015. He admitted that he labelled the files describing the first and second documents as wills, even though he did not think they were legal wills.

63 There are some differences in the evidence as to the relationship between Ms Hobbs and Ms Davis. In her evidence in Court, Ms Davis denied that she had a difficult or strained relationship with Ms Hobbs. She said that she believed that she had a good relationship with her stepmother, although like every relationship, there were a few ups and downs.

64 Mr Davis said that he always had a good relationship with Ms Hobbs. As for his wife's relationship with Ms Hobbs, he said that there was love between them, but that they were not always well.

65 In his affidavit, Mr Frahm said that Ms Davis had many arguments over the years with Ms Hobbs. They did not get along. In a nursing note written on 4 July 2006, Ms Hobbs is recorded as having stated that she did not want Ms Davis notified in the event of her death. A nursing home record of 2 December 2009 is to like effect.

66 I accept Mr Frahm's account as to the state of relations between Ms Hobbs and Ms Davis. He was not cross-examined and his evidence is consistent with Ms Hobbs views as recorded at the time of the guardianship application, in the nursing records and in the 1996 Will and the 2008 Will.[9]

67 Section 7 of the Wills Act 1997 (Vic) ('the Act') requires that there be two attesting witnesses present at the time a testator signs and makes a will. However, s 9 of the Act permits the Court to dispense with these requirements. It empowers the Court to admit to probate a document that has not been executed by a testator in accordance with the requirements of the Act if the Court is satisfied that the person intended the document to be his or her will. The Court may have regard to any evidence relating to the manner in which the document was executed, and of the testamentary intentions of the testator including evidence of statements made by the testator.[10]

68 The principles relating to the admission to probate of informal wills are well established and are set out in recent decisions.[11] The Court's power is tempered by the consideration that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[12]

69 The onus of proving testamentary intent and testamentary capacity lies on the propounder of an informal document[13] on the balance of probabilities.[14] In order to admit an informal will to probate under s 9 of the Act, the Court needs to be satisfied on the balance of probabilities that:

(b) the document expresses or records the testamentary intentions of the testator; and

(c) that document was intended by the testator to be his or her will.[15]

70 In the present case, the first requirement is satisfied. The second and third requirements are disputed.

71 In resolving disputed issues, the Court may receive direct evidence of statements made by a testator and evidence surrounding the making of a 'will'. Statements of a testator are admissible as evidence of the testator's intentions.[16]

72 The application of s 9 of the Act and the standard of proof required is that outlined in Briginshaw v Briginshaw[17] which equates with the standard required under s 140(2) of the Evidence Act 2008 (Vic).[18] The Court should evaluate the evidence with great care.[19]

73 The intention of a testator is a matter of fact and each case depends on its own facts and circumstances.[20] An application under s 9 of the Act is assessed by reference to the requisite document, and whether there was an intention that the document take effect as a testamentary document.[21] It is necessary for the Court to be satisfied that the testator possessed the relevant intention.[22] A will that has not been validly executed but satisfies the requirements of s 9 of the Act can still be refused probate where the testator lacks testamentary capacity, does not know and approve of the will, or is affected by undue influence in making the will.[23] If the testator lacks the capacity to make a will, then the Court cannot be satisfied that the testator intended the document to be his or her will. If the testator did not know and approve of the document, then the Court cannot be satisfied that the testator intended the document to be his or her will.[24] If the testator was subjected to undue influence such that his or her will was overborne, then the Court cannot be satisfied that the testator intended the document to be his or her will.[25]

74 In considering the question of whether Ms Hobbs intended one or both of the first or second documents to be her will, the Court must be satisfied that she, by some words or act, demonstrated an intention that, without any alteration or reservation, one or both documents should have effect as her will. She must have intended the execution of one or both to be a legally operative act that disposed of her property on her death.[26]

75 Issues related to the capacity of a deceased, the knowledge and approval of the deceased and undue influence of the deceased are relevant factors in considering whether an informal document satisfies s 9 of the Act.[27]

The effect of irrationality on the validity of a will

76 In Timbury v Coffee,[28] the High Court held that a will, rational on its face, executed and attested in the manner prescribed by law, is presumed in the absence of any evidence to the contrary to be made by a person of competent understanding.[29] But if there are circumstances in evidence which counterbalance that presumption, the Court must find against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when the will was executed.[30]

77 In the case of the propounder of an informal will, there is no presumption to the effect that it was made by a person of competent understanding.[31] It is necessary for the propounder to satisfy the Court on the balance of probabilities to the requisite level that the informal document expresses or records the testamentary intentions of the deceased, and was intended by the deceased to be his or her will.[32] This is made more difficult if the document suffers from basic factual misunderstandings or serious irrationality.

78 As McMillan J highlighted in Re Kelsall,[33] testamentary capacity may be transient in a person suffering from a slow degeneration of their faculties.[34] Irrationality in an informal document may point to the conclusion that a person lacked testamentary capacity at the time when such a document was executed, or did not intend the informal document to record his or her testamentary intentions, or be a will.

79 In the present case, the original of the second document has been lost and cannot be found. Only a copy can be produced to the Court.

80 Where an original will has been lost, it must be established that:

(1) there actually was a will or a document embodying the testamentary intentions of the deceased;

(3) the presumption that when a will is not produced it has been destroyed must be overcome;

(b) due execution or that the deceased intended the document to be his or her will.[35]

81 While these requirements arise from cases where a will executed in accordance with the requirements of the Act has been lost, they are, in my opinion, relevant to cases where an informal will has been lost.

82 The standard of proof of these requirements is on the balance of probabilities. However, it has been said that these should be 'clear and convincing proof' similar to that appropriate in other classes of case where the law requires, or the parties have chosen, that a particular matter be recorded in some formal way. This requires the party bearing the onus of proof to be sufficiently diligent in calling available evidence, because the Court will not be prepared to act on material which it considers inadequate.[36]

83 The main submissions for Mr Frahm in propounding the 2008 Will are:

(1) the first and second documents are written on copies of office copies of the 1980 Will not on copies of the 1980 Will itself;

(2) there was no attempt to cross out the appointment of Mr Hobbs as executor even though he died more than 26 years before the dates of the first and second documents;

(3) there is no attempt in the first document to delete reference to the 'residence which I may own and normally reside in' even though the family home had been sold about 11 years earlier;

(4) the use of the additional words 'If my house is sold I leave [Ms Davis] the value of 11 Yarrabee Court' are inexplicable given that the property was sold years earlier. The same concern arises about the writing to like effect on page 3 of the second document;

(5) the first document is dated less than six months after the making of the 2008 Will and the purported signature of Ms Hobbs includes her middle name (in contrast with her signature on the executed 1980 Will, 1996 Will and 2008 Will);

(6) the reference to 'other things' in Ms Hobbs' handwritten note is a reference to the first and second documents, and indicates that she wished to see a solicitor about her will;

(7) the Court should conclude that neither the first nor the second document goes beyond initial instructions for the preparation of a new will;

(8) the provision of the first and second documents to Mr Davis at the same time with the direction that they both be retained or sent to solicitors is inexplicable; and

(9) Ms Hobbs expressed her views about Ms Davis on a number of occasions as recorded by her signed statement to VCAT about the extent to which she had seen Ms Davis over 13 years and her instructions to the nursing home. It is unlikely that the first or second documents contain her testamentary instructions.

84 Counsel for Mr Frahm further submitted, inter alia, that:

(1) neither the first nor the second document is rational on its face; both fail to have regard to events which occurred many years before either document was made;

(2) Ms Hobbs' capacity at the alleged time of the making of the first and second documents is in doubt;

(3) Ms Hobbs would have been aware of the formalities of a formal will had she been lucid, having made the 1980 Will, the 1996 Will and the 2008 Will. Ms Hobbs always used a solicitor to prepare her wills, and requested when the first and second documents were handed over to Mr Davis that they be sent to her solicitors, and that her solicitors be contacted to advise her;

(4) Mr Davis' evidence is uncorroborated, and his evidence regarding the second document is not strong enough to rebut the presumption that Ms Hobbs destroyed it. The Court has only Mr Davis' evidence that he posted it;

(5) there is no evidence as to the making of the first and second documents. The making of each document is attended with suspicion in the circumstances. Suspicion is also aroused by the health issues and age of Ms Hobbs;

(6) it is inherently unlikely that Ms Hobbs made the first and second documents and then secretly held them for over six years;

(7) if Ms Hobbs did prepare the first or second documents, it is likely that she would give them to Ms or Mr Davis shortly after making them;

(8) Mr Davis' evidence about unsuccessful posting is suspicious. He s says that he received the first and second documents from Ms Hobbs on 25 June 2015 and handed copies to Garland Hawthorn Brahe on 27 October 2015. This would be the first time that any independent person saw the documents or copies of them and occurred four months after Mr Davis received them and over three weeks after Ms Hobbs died;;

(9) the assembly and drafting of documentation as described by Mr Davis by a person in a dementia ward is unlikely;

(10) no one saw Ms Hobbs annotate, sign or date the first document or the second document, not even Mr or Ms Davis. The circumstances surrounding the execution and handing of the documents are unusual and there are no independent witnesses. The uncorroborated evidence of Mr and Ms Davis could never be sufficient to admit the first and second documents to probate; and

(11) State Trustees investigated the issue of Ms Hobbs' capacity at the time she executed the 2008 Will and received confirmation of her capacity.

85 The main submissions for Ms Davis in support of a grant of probate in respect of the second or alternatively the first document are:

(1) the handwriting and signatures on the first and second documents are those of Ms Hobbs;

(2) Ms Hobbs wrote, signed and dated the first and second documents voluntarily and without any involvement of Mr or Ms Davis;

(3) the first and second documents do not operate to revive the 1980 Will as the Ms Hobbs' writing on each document was not written on the original 1980 Will;

(4) Ms Hobbs intended the first, and then the second, document to be her will so that the document could be admitted to probate;

(5) the original of the second document was lost in the post. This evidence overcomes any presumption of revocation by destruction;

(6) the Court should accept the evidence of Mr and Ms Davis; and

(7) probate of the 2008 Will should only be granted if the Court does not accept Ms Davis' case in its entirety.

86 Counsel for Ms Davis also submitted, inter alia, that:

(1) Mr Davis gave Ms Hobbs photocopies of the 1980 Will and the 1981 letter;

(2) Ms Hobbs retained possession of the first and second documents until she gave them to Mr Davis on 25 June 2015;

(3) Mr Davis sent the documents that Ms Hobbs gave him, except the first document, to Garland Hawthorn Brahe two days after Ms Hobbs gave them to him;

(4) the failure to produce the original of the second document is not significant as it was not lost while in the possession of Ms Hobbs;

(5) Ms Hobbs and her husband had an agreement or arrangement about Ms Davis receiving the family home or the proceeds of its sale. What Ms Hobbs did on 21 December 2008 and on 15 February 2009 was no more than recognise a long held obligation to Ms Davis as evidenced in the 1981 letter;

(6) Ms Hobbs' circumstances did not change from May to December 2008. The evidence of Dr Francis and Ms Baumert supports the view that Ms Hobbs had testamentary capacity at the relevant times;

(7) the only person who was involved in making the handwritten additions to the photocopy wills was Ms Hobbs on 21 December 2008 and 15 February 2009. There is no evidence that anyone else was involved;

(8) Mr Frahm has not sought to show that the handwriting on any document relied on was not that of Ms Hobbs. There is consistency in Ms Hobbs' signature on all the documents that allows the Court to conclude that Ms Hobbs signed the first and second documents;

(9) the omission to cross out Mr Hobbs' name on the first and second documents is of no consequence;

(10) the evidence of Mr and Ms Davis is inherently probable;

(11) there is no conduct or action of Mr or Ms Davis that can give rise to suspicious circumstances as that expression is known in probate law; and

(12) although Ms Hobbs may have known that solicitors prepare wills and that there were certain formalities, this is not determinative.

87 In McKinnon v Voigt,[37] the Full Court of the Supreme Court of Victoria held that where the circumstances excite the suspicion of the Court, it is for those who propound a will to remove the suspicion and prove affirmatively that the testator knew of and approved the contents.[38] It is only when the suspicion is removed that the onus is thrown on a person resisting a grant to the propounder to prove the facts relied on to displace the prima facie case in favour of the propounder.[39] In that case, there was an unexplained failure of the propounder, whose children had acted as witnesses to the will, to produce the handwritten will for three months after the death of the testator.

88 To be 'suspicious', a circumstance must relate to the preparation or execution of a will, or its intrinsic terms, and not to events happening after a testator's death.[40] As stated in Tobin v Ezekiel:[41]

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case... Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or inclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator.[42]

High level of vulnerability and advanced age of Ms Hobbs

89 I now turn to the circumstances which have led me to the conclusion that neither the first or second document should be admitted to probate.

90 Ms Hobbs was of advanced age and suffered from serious long term health issues. Dr Francis refers to her history of bipolar affective disorder and psychiatric treatment since 1976. In February 1998, Dr Francis requested that a psychiatric review be conducted because Ms Hobbs was displaying increased confusion and paranoia. Her psychiatrist noted at this time the obvious onset of marked short term memory loss.

91 Dr Francis states in November 2008 that Ms Hobbs' mental condition slowly deteriorated over the years, and that she lived in the closely supervised environment of the nursing home. She is recorded as suffering from mild to moderate impairment following an interview and test conducted on 13 November 2008.

92 Ms Baumert conducted an interview of Ms Hobbs on 11 March 2009. She achieved a score of four on the PAS Cognitive Impairment Scale consistent with mild impairment.

93 By 25 June 2015, Ms Hobbs was residing in the dementia wing of the nursing home. Nursing records on 29 June 2015 show her recording a score of 11 on the PAS Cognitive Impairment Scale. This equates to moderate impairment on that scale.

94 I am satisfied that Ms Hobbs was suffering from serious cognitive and memory loss and mental health issues including bipolar affective disorder. She was by December 2008 and later, an ill and vulnerable person. She was highly exposed to influence by other persons.

Lack of evidence concerning the execution of the first and second documents

95 There is no evidence before the Court as to how the first or second documents came to be used, overwritten or signed by Ms Hobbs. Mr and Ms Davis say that they were not present when this was done. While nursing staff were continually present at the nursing home and nursing records were maintained, there is no evidence or information which provides any insight as to what occurred when the first and second documents were prepared and signed. There is no evidence that Ms Hobbs knew the contents of either the first or second documents, or appreciated the effect of these documents.

96 In addition, while the overwriting and signature on the first and second documents appear to be in the handwriting of Ms Hobbs, the dates written on the documents have no independent verification. There is no evidence at all apart from what is written as to her wishes and intentions when the first and second documents were prepared or whether any person influenced or assisted her at the time when the documents were prepared.

97 Dr Francis provides direct and reliable evidence of Ms Hobbs' testamentary intentions in November 2008. He states in his letter of 17 November 2008 to State Trustees that Ms Hobbs had recently changed her will in favour of her brother, Rudi Frahm of Montrose. She was aware of her brother and sister and their countries of residence, and her step-daughter who she felt had received her inheritance at the time of Mr Hobbs' death.

98 As Ms Hobbs' general practitioner since 1997, Dr Francis' evidence is independent and highly persuasive that as at 13 November 2008, Ms Hobbs' testamentary intentions remained those that she had expressed in her 2008 Will six months earlier, namely that her estate should pass on her death to her brother, Mr Frahm, and not her step-daughter.

Lack of rationality in the first and second documents

99 I accept the submission on behalf of Mr Frahm that each of the first and second documents suffers from a basic misunderstanding and serious irrationality in ways that would have been obvious to Ms Hobbs.

100 In both documents, the late Mr Hobbs is appointed executor of Ms Hobbs' estate. It was, of course, well known to Ms Hobbs that her husband had died 26 years earlier. She had attended his funeral and administered his estate. It is plain that she did not understand that in signing the first and second documents, she was appointing her late husband as her executor.

101 The appointment of an executor to administer the estate of a testator is a matter of considerable importance. Ms Hobbs must be taken to have been aware of the importance of appointing an executor, even if she made a second appointment of an executor in the event that the first nominated executor predeceased her or declined appointment. She had executed three previous wills on the advice of solicitors.

102 A second major irrationality relates to the family home. State Trustees sold the family home in 1997 - long before the dates of the first and second documents. Ms Hobbs was aware that the family home in which she had lived had been sold.

103 As did the 1980 Will, the first document provides for Ms Davis to receive 'any residence which I may own and normally reside in at the date of my death together with all articles of furniture and household items therein'. Of course, there was no such residence, and none had existed since the sale of the family home in 1997.

104 The second document contains a similar provision. However, overwritten is a provision for Ms Davis to receive the value of the family home '[i]f my house is sold'. As I have said, the family home was sold years earlier. At the foot of page 3 of the second document, similar words are again written apparently as at 15 February 2009. Both provisions are misplaced and strange, if not bizarre, in the circumstances. They may be reflective of the health issues affecting Ms Hobbs.

Inconsistency between the first and second documents

105 The first and second documents contain very different provisions for the distribution of Ms Hobbs' estate. According to Mr Davis, both documents were handed to him on 25 June 2015 when visiting Ms Hobbs at the nursing home. It is far from clear what Ms Hobbs intended. Her wishes and intentions for each document are uncertain. She was seeking legal assistance regarding the family trust and other things.[43]

106 Mr Davis is strongly disposed to the view that Ms Davis should have received the entitlements described in the second document as a consequence of the agreement made between Mr and Ms Hobbs embodied in the 1981 letter and the request made by Mr Hobbs of the directors of Marmsdorf in April 1978.

107 When Ms Hobbs executed the 1996 Will, and then the 2008 Will, she departed from what Mr and Ms Davis consider should be Ms Davis' inheritance. Although both deny that they actually did so, over the period from 2008, Mr and Ms Davis had many opportunities to persuade Ms Hobbs to make a will more favourable to Ms Davis, and to provide documentation to her that might influence her to change her position.

108 Mr Davis believes that Ms Davis is entitled to the proceeds of family home. He considers that there is a constructive trust over the proceeds of sale of the family home for the benefit of Ms Davis. He agrees that he has advanced that claim on behalf of his wife many times including to Ms Hobbs directly over the years, and in the VCAT proceeding. He says that he has always considered his wife's claim to be an equity matter rather than a probate matter. In late 2008, he admits to a discussion with Ms Hobbs about the agreement between Mr and Ms Hobbs and his wife's claim to the proceeds of the sale of the family home. He also says that he raised the matter of the contract between Mr & Ms Hobbs on numerous occasions. He probably talked to her in the week and months following the provision by him of the copy 1980 Will and the 1981 letter and asked 'Oh what did you do with that?'[44]

109 Having regard to the whole of the evidence, there is significant doubt as to what really took place when the first and second documents were prepared and signed. There is a significant risk that Mr or Ms Davis exerted pressure or influence on Ms Hobbs in order to obtain her writing and signature on the first and second documents. Those documents contain provisions much more advantageous to Ms Davis than the 2008 Will. The second document largely or entirely reflects the disposition of Ms Hobbs' estate that Mr and Ms Davis would consider appropriate.

Concealed storage of the first and second documents

110 If the evidence of Mr Davis is accepted, Ms Hobbs stored the first and second documents from December 2008 and February 2009 respectively until they were given to Mr Davis on 25 June 2015, a period of over six years. On this account, she informed no-one of their existence, not even those who were to benefit. There is no record in evidence that suggests that any member of the nursing staff or any medical or legal practitioner was aware that this was happening. No other family member was informed of what Ms Hobbs is said to have been doing.

111 Given Ms Hobbs' age and serious health issues, it is very difficult to accept that this is a credible scenario. It is much more likely that had she personally prepared informal wills she would have told someone what she had done.

112 In addition to the very long period between the signing of the first and second documents, there is the failure of Mr Davis to disclose what had occurred on 27 June 2015 until 27 October 2015 when Mr Davis says that he informed Mr Lane of Garland Hawthorn Brahe of the existence of the first and second documents. However, the existence of the first and second documents was not disclosed to other family members until about six months after they had been received by Mr Davis.

113 The concealment of the existence of the first and second documents and the failure to disclose their existence over a very long period does not inspire confidence in their authenticity, and is inconsistent with the expectation of the Court if either document is to be admitted to probate as an informal will.

114 Ms Hobbs' first three wills and her husband's will were all drawn up by legal practitioners. She acted as executor of her husband's will and was experienced in the giving of instructions to legal practitioners and in the execution and attestation of wills before witnesses. She had employed Gair and Brahe, later Garland Hawthorn Brahe, on a number of occasions. She was familiar with David Brahe and Ron Lane, both principals of that firm.

115 By Mr Davis' account, Ms Hobbs handed over the documents on 25 June 2015, and one of the documents made it clear she was requesting legal assistance from Mr Lane. It is entirely possible that she was requesting assistance not only in relation to the family trust but also in relation to her will and affairs in general.

116 Given her request for legal assistance from a firm of legal practitioners that she had used over many years, and her past experience in making or administering wills, there is serious doubt that Ms Hobbs intended either the first or second document to be her will.

117 An explanation has been given for the loss of the original of the second document; Mr Davis says that it was lost in the post. There is no independent evidence to confirm or negate this account. However, the loss of the original version of the second document raises additional issues. It does not help when added to the other doubts and uncertainties surrounding the first and second documents.

118 I agree with the submissions on behalf of Mr Frahm that the claims made in relation to the first and second documents are improbable and unrealistic. Ms Hobbs was in a nursing home and had significant and increasing mental illness and dementia. It is inherently unlikely that she conceived, wrote and signed additions and changes to the 1980 Will on two separate occasions without assistance from someone else, and then held the two signed documents for over six years without telling anyone. It defies common sense that she would not tell someone, even her nurse.

119 In reality, it is most likely that Ms Hobbs would have found it exacting to conceive and make the amendments made to the 1980 Will in the second document, and to conceive and write the words she added to each of the first and second documents without assistance. There would have been slips, errors and deletions. It is unlikely that she had the capacity to conceive, or complete the first or second documents without guidance or assistance.

120 Ms Davis said that her husband did not discuss a lot of Ms Hobbs' affairs with her. He did not tell her at the time that Ms Hobbs had given him the three envelopes including the first and second documents. Ms Davis also said that Mr Davis did not tell her that he had sent the second document and the other documents to Garland Hawthorn Brahe.

121 In all of the circumstances, I entertain serious doubt that the version of events advanced on behalf of Mr and Ms Davis is correct. I am not persuaded that either the first or second documents should be admitted to probate.

122 I am not persuaded to the requisite standard that either the first document or the second document should be admitted to probate. There are simply too many factors and uncertainties which excite suspicion or mitigate against the admission to probate of either document. I am not satisfied that either the first document or the second document expresses or records the testamentary intentions of Ms Hobbs, or that either document was intended by her to be her last will.

123 I hold that Ms Hobbs' 2008 Will should be admitted to probate. The first and second documents will not be admitted to probate under s 9 of the Act.

[2] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283.

[3] Transcript of proceedings, In the Matter of the Will of Christa Renate Hobbs (Supreme Court of Victoria, S PRB 2016 05959, Garde J, 30 May 2017) 69, 12-13 ('Transcript').

[4] See above [4] for details of the first document.

[10] Act s 9(3).

[11] Jageurs v Downing [2015] VSC 432; Re Kelsall [2016] VSC 724; Re Sanders [2016] VSC 694; Estate of Peter Brock [2007] VSC 415; Re Stuckey [2014] VSC 221.

[12] Estate of Peter Brock [2007] VSC 415 [20]; Jageurs v Downing [2015] VSC 432 [13].

[13] Re Kelsall [2016] VSC 724 [22].

[14] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 771 [48].

[15] Jageurs v Downing [2015] VSC 432 [14]; Re Stuckey [2014] VSC 221 [33]; Re Kelsall [2016] VSC 724 [14]; Fast v Rockman [2013] VSC 18 [46]; Rowe v Storer [2013] VSC 385 [32]. See further. See further the cases listed in Re Kelsall [2016] VSC 724 n 8.

[16] Act s 9(3); Re Becroft [2009] VSC 481 [10].

[17] [1938] HCA 34; (1938) 60 CLR 336, 362.

[18] Nom v DPP (2012) 38 VR 618, 653 [113] quoted in FFF v BBB [2017] VSCA 156 [29].

[19] Fast v Rockman [2013] VSC 18 [48] quoted in Jageurs v Downing [2015] VSC 432 [21].

[20] Jageurs v Downing [2015] VSC 432 [19].

[22] Re Kelsall [2016] VSC 724 [17] citing Hatsatouris v Hatsatouris [2001] NSWCA 408 [56]-[57].

[23] Re Stuckey [2014] VSC 221 [40].

[25] Ibid; Jageurs v Downing [2015] VSC 432 [19].

[26] Re Brown [2017] VSC 24 [10]; Jageurs v Downing [2015] VSC 432 [16]; Oreski v Ikac [2008] WASCA 220 [54]; Mitchell v Mitchell [2010] WASC 174 [42].

[27] Jageurs v Downing [2015] VSC 432 [20].

[28] [1941] HCA 22; (1941) 66 CLR 277.

[30] Ibid quoting Symes v Green (1859) 1 Sw & Tr. 401, 402.

[31] Re Kelsall [2016] VSC 724 [22] citing Veall v Veall (2015) 46 VR 123, 174-5 [168]-[171].

[32] Re Kelsall [2016] VSC 724 [22].

[33] [2016] VSC 724.

[35] Cahill v Rhodes [2002] NSWSC 561 [53]-[55] quoting Curley v Duff (1985) 2 NSWLR 716, 718-9.

[36] Cahill v Rhodes [2002] NSWSC 561 [56].

[37] [1998] 3 VR 543.

[39] Ibid referring to Re Breen [1927] VicLawRp 22; [1927] VLR 164 and Tyrrell v Painton [1894] P 151.

[40] McKinnon v Voigt [1998] 3 VR 543, 562-3; Robertson v Smith [1998] 4 VR 165, 173-4; Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 771 [45]-[46].

[41] [2012] NSWCA 285; (2012) 83 NSWLR 757.