Plaintiff v Defendant

2 Probate of the deceased's last will dated 7 April 2015 ('the 2015 will') was granted to the plaintiff on 28 December 2016. The plaintiff was the deceased's longstanding solicitor and friend. The 2015 will bequeathed a total of $2,790,000 comprising legacies of $100,000 to each of the deceased's surviving siblings; $40,000 to the plaintiff 'not dependant on him acting as his executor'; certain bequests to other family members, Mary McKillop aged care facility and various charities amounting to $2,350,000; and devised his Tasmanian real properties valued in the inventory at $210,000 to his sister's two children. The deceased left his residuary estate 'upon trust to be

re-distributed among a charity or charities which my Trustee determines at such time and in such proportions at my Trustees [sic] absolute discretion'.

Applicant's application for revocation of grant of probate

3 By summons filed 16 July 2018, the applicant seeks revocation of the grant of probate and a grant of administration of the deceased's penultimate will dated 26 May 2003 to the applicant, who is not a named executor under that will. The applicant filed an affidavit sworn 4 July 2018 in support of the application. He did not file any particulars of his grounds of revocation. On 31 August 2018, the applicant was ordered to file and serve particulars of his grounds of objection by 14 September 2018.

4 On 14 September 2018, the applicant filed grounds of revocation and particulars alleging two grounds:

(a) the deceased lacked testamentary capacity shortly before and at the time of executing the 2015 will as a result of a head injury sustained in or about June 2012 and a diagnosis of cancer in or about February 2015; and

(b) the 2015 will was obtained or procured by the plaintiff taking a benefit under the 2015 will.

5 On 10 October 2018, orders were made granting leave to the applicant to file amended grounds for revocation by 9 November 2018. The applicant filed amended grounds for revocation on 12 November 2018. The existing grounds were deleted and a new ground of suspicious circumstances was relied upon by the applicant. Many of the original particulars were repeated in the amended document but as the changes were inadequately tracked, it was difficult to ascertain the differences between the old and the new particulars.

(a) deleted the grounds of lack of testamentary capacity and that the 2015 will was obtained or procured by the plaintiff taking a benefit under the 2015 will, and all the particulars under those grounds;

(b) added a heading entitled 'Background' and re-inserted the particulars of the head injury and diagnosis of cancer, and added headings entitled 'Relationship with the Plaintiff' and 'Terms of the Will'; and

(c) added a ground alleging that the 2015 will was executed in suspicious circumstances giving rise to a presumption that the deceased did not know or approve of the contents of the will, re-inserted the details of the deceased's previous wills dated 12 March 1985, 18 November 1992, 3 August 1999 and 26 May 2003 and other particulars previously relied on under the deleted grounds.

7 The new particulars are set out under the following headings:

(a) 'Head Injury' - paragraphs 1.1.1-1.1.15 provide background about a head injury sustained by the deceased in or about June 2012 and that subsequent to sustaining the head injury, the deceased had poor memory, was prone to angry outbursts and had a more aggressive attitude towards his siblings;

(b) 'Cancer' - paragraphs 1.2-1.2.3 provide a brief background of the stomach cancer that ultimately led to the deceased's death. The applicant states that the deceased was diagnosed with cancer in or about February 2015 and, at the time of diagnosis, it was estimated that the deceased had three months to live, however, after commencing chemotherapy he lived for a further seventeen months;

(c) 'Relationship with the Plaintiff' - paragraphs 1.3-1.5 note that the plaintiff was the deceased's solicitor for 25 years and is the founding director of a

not-for-profit public company named Aaries Australian Academy Robotic Innovation Education Simulation Limited ('Aaries') registered on 8 June 2017;

(d) 'Terms of the Will' - paragraphs 1.6-1.8 state that clause 14 of the 2015 will provide for re-distribution of the deceased's residuary estate 'among a charity or charities which my Trustee determines at such time and in such proportions at my Trustees [sic] absolute discretion'. The applicant notes that subsequent to the death of the deceased, Aaries signed terms of settlement for a Part IV claim brought against the estate by the deceased's sister, Cecily O'Callaghan.

8 Paragraphs 2.1-2.30 set out the circumstances now relied on by the applicant as suspicious so as to give rise to a presumption that the deceased did not know or approve of the contents of the 2015 will.

9 The applicant sets out the terms of the 2015 will and the deceased's four previous wills as follows:

2.1 In the will dated 12 March 1985 ('the 1985 will') the Executors were the deceased's wife, Frances Mary O'Callaghan ('Frances') and [the plaintiff]. The deceased left his residuary estate to Frances if she survived him by 30 days; in the event of Frances not surviving him by 30 days the balance went to his siblings in equal shares and in the event of the deceased dying without issue the balance was to be paid in equal shares to his siblings and some relations by marriage of Frances; by clause 9 of the Will the [plaintiff] was entitled to charge and be paid all professional or other charges for all business or acts done by him or his firm in connection with trusts therein including acts which a Trustee could have done personally.

2.2 In the will dated 18 November 1992 ('the 1992 will') the Executors were Frances and [the plaintiff]. The deceased left his residuary estate to Frances but, in the event of Frances not surviving him by 30 days, to his siblings and other relations in equal shares; by clause 10 of the will [the plaintiff] was entitled to make all the usual and proper charges for both his professional and other services in the administration of the trusts in the will and for his reasonable time and trouble that he would have been entitled to make if not Trustee and so employed.

2.3 The wills dated 3 August 1999, 26 May 2003 and the [2015 will] effected a substantial change to the deceased's previous and long-standing testamentary intentions with respect to [the plaintiff], his siblings and their children.

2.4 In the 1999 will the Executors were Frances and [the plaintiff]. The deceased made numerous bequests including a bequest of $10,000 to [the plaintiff], left his residuary estate to Frances but, in the event of her not surviving him, left the residue to his siblings, some relations by marriage of Frances and [the plaintiff] in fifteen equal shares.

2.5 In the 2003 will the Executors were Frances and [the plaintiff]. The deceased made a number of bequests including a bequest of $10,000 to [the plaintiff] and left the residuary estate to Frances but, in the event of her not surviving him, to his siblings, other relations and [the plaintiff] in fifteen equal shares.

2.6 In the last will dated 7 April 2015, [the plaintiff] was the sole executor save that, if [the plaintiff] had died or was unable to act, the partners in the firm of Campbell & Shaw would be executors of the deceased. The deceased made bequests of $100,000 to each of his surviving siblings, a bequest of $40,000 to [the plaintiff] 'not dependant' on him acting as solicitor, bequests to other family members and a devise of real property on Bruny Island in Tasmania to Anton and Kate Huon, children of Cecily O'Callaghan, freed from all monies secured on it. The residuary estate was to be 're-distributed among a charity or charities' determined by [the plaintiff] in his absolute discretion. Under that will, the firm of Campbell & Shaw, solicitors, was to provide advice and legal work to complete the administration of the estate and [the plaintiff] or the partners of the firm Campbell & Shaw were entitled to all usual professional fees as if they were not executors and, in addition, might apply to the Court for commission not exceeding 2% for his or their pains and trouble.

10 Paragraphs 2.7(a)-(d) and 2.8(a)-(d) set out the plaintiff's entitlements under the prior wills and 2015 will and states that the 2015 will does not divide the residuary estate amongst the deceased's siblings and the plaintiff, as occurred in the deceased's prior wills.

11 Paragraph 2.9 states that the plaintiff has not furnished any evidence as to the deceased's capacity at the time he made his last will.

12 Paragraphs 2.10(a)-(c) set out the plaintiff's duties to inform the deceased that the plaintiff or his firm could claim for commission and charge legal costs in relation to administration of the estate, pursuant to Rule 10.1 of the Professional Conduct and Practice Rules 2005. The applicant also refers to the plaintiff's duty to inform the deceased that he had a right to appoint an executor who might not claim for commission.

13 Paragraphs 2.11-2.14 state that the applicant contacted the plaintiff on 25 June 2018 and 7 November 2018 to request copies of any information provided to the deceased pursuant to Rule 10.1 and that he has not received any response and infers that the plaintiff did not properly advise the deceased, as required by Rule 10.1.

14 Paragraphs 2.15-2.16 state that the plaintiff, as the long-time solicitor to the deceased, owed the deceased a fiduciary duty not to place himself in a position of conflict between his duty and his personal interest. The applicant also contends that the plaintiff had a duty to ensure that the deceased knew and approved of the contents of his 2015 will.

15 Paragraphs 2.17-2.19 outline the establishment of Aaries, as well as the plaintiff's entitlements as director of that company.

16 Paragraphs 2.20-2.27 detail a family provision proceeding commenced by Cecily O'Callaghan in 2017.

17 Paragraphs 2.28-2.29 contend that the deceased could not have intended for Aaries to benefit from his residuary estate as it did not exist at the time the deceased prepared and executed his 2015 will. The plaintiff notes in paragraph 2.28.2 that the 2015 will had been made in the context of a 'significant trauma to the head and a diagnosis of metastatic [sic] gastric cancer'.

18 The particulars conclude with paragraph 2.30 that state that '[t]he last Will is so different from the 1985, 1992, 1999 and 2003 wills that the Court should be satisfied that there are suspicious circumstances surrounding the making of the last Will.'

19 The Court in its probate jurisdiction has the power to revoke a grant, with such power exercised at the discretion of the Court, having regard to all the relevant circumstances in the particular case.[1] An applicant seeking to revoke a grant must show:

(a) standing to make such an application;

(b) a reasonable explanation for the delay in bringing the application; and

(c) a prima facie case to challenge the grant of probate or letters of administration.[2]

20 The applicant is a beneficiary under the 2015 will and the 2003 will. If the grant of probate is revoked, the 2003 will would stand as the last valid will of the deceased. Under the 2003 will, the applicant would receive a different and greater benefit from of the estate of the deceased. Thus, the standing of the applicant is not in issue between the parties.

21 The second requirement is in issue, that is, the applicant's explanation for his delay in bringing the application to revoke the grant of probate.[3] An applicant seeking to revoke a grant of probate must provide a reasonable explanation for the delay in bringing the application.[4] Lapse of time is itself not a bar, but it may be, taken in conjunction with other circumstances. In some cases, where there is a later valid will, the power may be exercised almost automatically. In others, a real question may arise that will be decided in light of all the circumstances.[5]

22 The third requirement for the applicant to establish a prima facie case of suspicious circumstances is also in issue. An applicant seeking revocation of a grant of probate is required to establish a prima facie case at the commencement of an application for revocation.[6] This requirement is grounded in the Court's concerns to prevent 'frivolous or vexatious'[7] proceedings, to ensure applicants 'show some ground for making the application',[8] to ensure that there is 'a case for investigation'[9] and to provide 'a substantial safeguard against attempts to revoke probate'[10] before an application proceeds to trial. This process is consistent with case management principles and the overarching obligations in the Civil Procedure Act 2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[11] In administering its probate jurisdiction, the Court must seek to give effect to that purpose.[12]

23 Before a will can be admitted to probate, the Court must be satisfied that a testator knew and approved of the contents of the document at the time that he signed it. Probate of the 2015 will has been granted to the plaintiff. By reason of the grant of probate of the 2015 will, the Court was satisfied that the testator had testamentary capacity and knew and approved of its contents.[13] In order to establish a prima facie case for revocation of the grant, an applicant must provide a sufficient factual basis for his or her grounds of revocation.[14] The applicant bears the initial onus of proof to point to circumstances that raise a suspicion that the deceased did not know and approve of his will, such that an investigation is required as to whether or not there are sufficient grounds to revoke the grant of probate.

24 Mere assertion of facts is insufficient. A causal connection must be shown between the facts asserted and the grounds of revocation. The provision of a sufficient factual basis will define the questions for trial, provide an opposing side with a precise understanding of an applicant's case and avoid surprise at the trial. Particulars based on mere inference, rather than direct evidence or circumstantial facts that are sufficiently particularised, will be insufficient to support a prima facie case for revocation of a grant of probate.[15]

25 Any assertion that a will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, an assertion that goes beyond lack of testamentary capacity.[16] An inquiry into suspicious circumstances concerns the circumstances surrounding the execution of the will or its intrinsic terms. In Nock v Austin, Isaacs J provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:

(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.

(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.

(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.

(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.

(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.

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

(7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it.[17]

26 Numerous authorities on knowledge and approval refer to these principles.[18] The most frequently cited suspicious circumstance arises where the person who propounds a will has drafted or arranged for the will to be drawn and takes a substantial benefit under the will.[19] Recent examples can be seen in Dore v Billinghurst[20] and Able Australia Services v Yammas.[21] The degree of suspicion and the weight that can be accorded to the particular suspicious circumstances varies depending on the factual circumstances of the particular case, for example, the size of the benefit left to the drafter of the will and its proportion to the estate as a whole and where the testator reposes trust in the drafter of the will.[22] Any inquiry relating to knowledge and approval concerns the circumstances surrounding the execution of the will. Evidence of what occurs after the death of the testator is not readily capable of throwing light on the question of the testator's knowledge and approval of a will executed during the testator's lifetime and is not relevant to raising a suspicion. In certain circumstances, such as where there is a delay in producing the will, such delay may support contemporaneous evidence raising a suspicion.[23]

27 The applicant is a practising solicitor. He obtained a copy of the 2015 will in the first half of 2017, many months after the death of the deceased on 6 September 2016. After obtaining a copy of the 2015 will, the applicant did not commenced this application until 20 July 2018. By that time the administration of the estate was well advanced. Save for the legacy to the plaintiff, all other legacies had been paid, the Tasmanian real properties transferred and a family provision claim had been compromised, leaving the residue of the estate undistributed. The residue is now held on trust pending the outcome of this application.

28 At the hearing, counsel for the applicant informed the Court he was specifically instructed that if the 2015 will was revoked, neither the applicant nor his surviving siblings would attempt to take away the distributions made to the charities and Mary McKillop aged care facility which amount to $1,760,000. No written authorities to this effect by the siblings were produced by the applicant. The applicant did not refer to other distributions already made amounting to $1,410,000. Further, it is not clear what the applicant meant by this statement. Revocation of a grant does not invalidate the transfer or payment of assets made by the personal representative prior to the revocation and the personal representative is not liable in relation to assets disposed of under a grant in good faith prior to its revocation.[24]

29 In early July 2018, the applicant also issued a separate proceeding seeking the removal of the plaintiff as the executor of the estate.[25] A removal application is predicated on there being a valid grant of probate. In contrast, an application to revoke a grant of probate seeks to challenge the validity of a will. By his separate applications, the applicant has taken contradictory positions in relation to the validity of the 2015 will: on the one hand he accepts its validity and, on the other, he challenges its validity.

30 In the removal application, the preliminary issue of the applicant's standing was listed for hearing on 12 September 2018, however, the parties subsequently stayed that hearing pending the outcome of the revocation application.

31 The applicant did not lodge a caveat with the Registrar of Probates so that notice would be given to him when an application for a grant was made. He did not obtain a copy of the 2015 will until the first half of 2017. With the applicant's reliance on particular provisions contained in the 2015 will, it is inexplicable that he commenced his application for revocation so long after the grant of probate was made on 28 December 2016.

32 The applicant's prima facie case of suspicious circumstances is wide ranging and prolix. It relies on four clauses in the 2015 will, as well as the 2015 will being very different from the deceased's previous wills made in 1985, 1992, 1999 and 2003 and that the 1999, 2003 and the 2015 wills were substantially different from the 1985 and 1992 wills. The four previous wills were not in evidence and the only details of them are set out in the applicant's particulars.

33 The applicant relies on clause 17 of the 2015 will which provides:

1. ANY of my Executors who practises a profession:

1. is entitled to be paid all usual professional fees for work done by that Executor or his or her firm (as Executor Trustee or both) on the same basis as if he or she were not one of my Executors but employed to act on behalf of my Executors; and
2. may in addition apply to the Court for commission not exceeding 2 per cent (2%) for his or her pains and trouble.

34 The applicant submitted that as the plaintiff was the deceased's solicitor, the plaintiff owed a fiduciary duty to the deceased not to put himself in a position of conflict between his duty and his personal interest. In drafting the 2015 will and before execution of it by the deceased, the plaintiff had a duty, pursuant to pursuant to Rule 10.1, to inform the deceased in writing of any entitlement:

(a) of the plaintiff or his firm to charge legal costs in relation to the administration of the estate; or

(b) to claim commission or if the plaintiff or his firm had an entitlement to commission, that the deceased could appoint as executor a person who might make no claim for commission.[26]

35 The applicant submitted that unless clause 17 was included in the 2015 will with the deceased's informed consent, its inclusion amounts to a breach of fiduciary duty by the plaintiff as he was in a position of conflict between his duty and interest. When the applicant sought information from the plaintiff as to whether he had complied with Rule 10.1, the plaintiff did not provide that information. The applicant submitted it was reasonable to infer the deceased was not informed of the matters in Rule 10.1.

36 In submissions, the applicant referred to the cases of Szmulewicz v Recht[27] and In the Will of Shannon.[28] In Szmulewicz v Recht, a will was prepared by a solicitor who was one of the named executors, together with another solicitor. The will included wide ranging charging clauses for professional charges and entitlements to commission equal to 3.5 per cent on gross capital and to 5 per cent on income. The residuary beneficiaries issued the proceeding against the executors after the estate had been distributed seeking declarations that the executors held any benefits received pursuant to the charging clauses on trust for them as it would be inequitable for the executors to rely on the charging clauses. The Court found that by including the clause that entitled the solicitor to charge, in addition to professional fees, commission equal to percentages of the capital value of the estate and its income, the solicitor executor was in breach of his fiduciary duty in the absence of fully informed consent by the testator. The Court ordered the defendants to repay the relevant amounts to the deceased's estate and to be held pending the determination of the defendants' claim for commission.

37 In Shannon, the deceased's executor, a solicitor, drafted the will and included a charging clause and commission clause. The Registrar of Probates referred to the Court the question of whether the particular clause or some part of it ought be omitted from the grant on the ground that the clause or part of it was void and ineffective as an attempt to oust the jurisdiction of the Court with regard to remuneration of executors, or that it was improper as its inclusion placed the drafter of the will in a position of conflict of interest and duty. Holland J rejected the submission that the clause was contrary to public policy as an attempted ouster of the jurisdiction and also ruled that, in the circumstances of the case, there was no conflict of interest and duty on the part of the solicitor drawing the will.

38 If a solicitor is to be appointed a personal representative and the will does not contain a charging clause, the solicitor is unable to charge for any legal work undertaken without the consent of the beneficiaries, save for disbursements.[29] In Shannon, Holland J commented on this situation as follows:

I was informed by counsel that a provision in the above terms was not uncommon in wills drawn by solicitors who had been requested by their clients to be their executors, and that frequently solicitors were not prepared to undertake the office of executor for a client, unless the will contained such or similar provision. Thus it appears that the admissibility of such a clause to probate is a matter of some importance. One can understand a testator's desire to have his solicitor act as his executor. Frequently a trusted solicitor will become familiar with his client's family, property and affairs and, because of this and his professional knowledge and experience, will appeal to the client as the most suitable person to administer his estate. One can also understand that a solicitor, being in a professional practice and often with duties to partners, may be unwilling to commit his or his firm's time and expertise to the office of executor unless adequately remunerated.[30]

39 The plaintiff was a trusted friend of the deceased and his long term solicitor. The charging clause in the 2015 will is not unusual or suspicious in those circumstances.

40 In respect of commission, an executor is generally expected to act gratuitously and, in most cases, an executor will act gratuitously, especially where he or she is also a beneficiary under the will. The exceptions to an executor acting gratuitously are where the will includes a clause entitling the executor to commission, the affected beneficiaries agree to the payment of commission, or where an application is made to the Court for commission, pursuant to s 65 of the Administration and Probate Act 1958.

41 Section 65 provides that the Court may allow executor's commission, such commission or percentage not exceeding five per cent of the assets of the estate for pains and troubles as is just and reasonable. A solicitor executor is not precluded from making an application for commission to the Court and his professional work is taken into account in fixing any commission. If the plaintiff applies to the Court for commission, the commission clause in the 2015 will clause restricts the amount of the commission, as it must not exceed two per cent for his pains and troubles. In this way, any commission awarded to the plaintiff is substantially restricted when compared with the potentially higher commission under the statutory provision.

42 The applicant's submissions as to suspicious circumstances are based on the failure by the plaintiff to respond to the applicant's inquiries about the plaintiff's compliance with Rule 10.1. The applicant characterised such failure as supporting a reasonable inference that the deceased was not informed of the matters in Rule 10.1. Probate of the 2015 has been granted without either the charging clause or commission clause being omitted from the grant. A failure to respond to the applicant's inquiry in such circumstances does not excite the suspicion of the Court nor is it reasonable to infer non-compliance with Rule 10.1 simply because the plaintiff did not respond to the inquiries. This ground cannot be regarded as a suspicious circumstance.

43 The applicant submitted that the legacy of $40,000 to the plaintiff placed the plaintiff in a position of conflict between his duty as a fiduciary and his personal interest, and requires close scrutiny.

44 As stated, the plaintiff was a long standing friend of the deceased and his long term solicitor. The legacy was expressed as 'not dependant on [the plaintiff] acting as my executor and is in recognition of his loyal service and personal assistance over a period in excess of forty (40) years'. The strength of the relationship between the plaintiff and the deceased is evident by this statement. Although not relevant in the consideration of this application, the strength of their relationship is seen in the deceased's previous four wills where the plaintiff, with the deceased's wife, is named as an executor, left a legacy of $10,000 under the 1999 and 2003 wills as well as a share of the residuary estate (with 14 others) in the event of the deceased's wife not surviving the deceased for 30 days.

45 The amount of the legacy to the plaintiff is extremely small relative to the size of the estate of $5,740,000. It is explicable in the context of the long standing relationship between the deceased and the plaintiff. The legacy does not create a conflict of interest and cannot be regarded as a suspicious circumstance.

46 The residuary clause in the 2015 will provides for the residue to be held 'upon trust to be re-distributed among a charity or charities which my Trustee determines at such time and in such proportions at my Trustees [sic] absolute discretion'.

47 The applicant submitted that as the name 'Aaries' was on the signing page of the terms of settlement in the family provision proceeding, there was a signature under the name, and this meant the plaintiff intended for Aaries to receive the residue of estate of the deceased. He stated that the plaintiff is a founding director of Aaries, which is a public company limited by guarantee registered on 8 June 2017. As a director of Aaries, the plaintiff is entitled to remuneration, travel expenses and other expenses properly incurred in attending meetings and in connection with company business, pursuant to s 202A of the Corporations Act 2001. Accordingly, the applicant submitted that it appears the plaintiff as a fiduciary is in a position of conflict between his duty and personal interest.

48 Any remuneration of a director of Aaries, pursuant to s 202A of the Corporations Act 2001, is a matter for the board of directors of Aaries and does not raise a prima facie case of suspicious circumstances.

49 The applicant also submitted that the words 're-distributed among a charity or charities which my Trustee determines' should be interpreted as including one or more of the charities referred to in the 2015 will. This means that the plaintiff has 'clearly misinterpreted' the word 're-distributed' as empowering him to distribute the residue to a charity that came into existence after the deceased's death, and not a charity already referred to in the 2015 will.

50 The applicant's characterisation of the meaning of the residuary clause are questions concerning the proper interpretation of residuary clause. This clause provides that the plaintiff, as trustee, has an absolute discretion as to the distribution of the residue to charities that he determines. The applicant's submission as to the interpretation of the residuary clause or that the plaintiff has misinterpreted the residuary clause cannot be a suspicious circumstance. In the event that the trustee has questions concerning the interpretation of the residuary clause, he is able to seek the advice of the Court, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

51 The residuary clause cannot be regarded as a suspicious circumstance, either at the time of execution of the 2015 will or afterwards.

52 The applicant also submitted that the 2015 will is a significant departure from the deceased's four previous wills made in 1985, 1992, 1999 and 2003 as they provided for the deceased's family to share in the residue in the event that the deceased's wife predeceased him and made no bequests to charities. Conversely, he also relies on the 1999, 2003 and the 2015 wills being substantially different from the 1985 and 1992 wills.

53 Radical changes to testamentary dispositions may give rise to suspicious circumstances, especially where the person who benefits is in a position to influence a testator.[31] That is not the case in respect of the 2015 will as the disposition of the estate, save for the small legacy to the plaintiff, was not to a person or entities that might be in a position to influence the deceased. Further, the deceased's change of testamentary dispositions in the 2015 will continued to provide significant benefits to his family in an amount of $1,200,000. Testamentary freedom means that a testator is entitled to change his testamentary dispositions as he wishes. In doing so, the deceased has retained the services of his long standing solicitor and friend. The deceased's wife predeceased him and he had no children. Prima facie, there were no persons who had a claim on his testamentary bounty. The disposition of the estate under the 2015 will cannot be regarded as a suspicious circumstance.

54 The applicant has been given ample opportunity to file amended particulars of his grounds for revocation of the grant of probate. Save for the amended ground relied upon, the amended particulars of his grounds did not differ substantially in their content from his original particulars of the grounds of revocation.

55 The applicant has not provided any explanation for his delay nor has he established a sufficient factual basis for a prima facie case to revoke the grant of probate of the 2015 will. Accordingly, the applicant's summons for revocation of the grant of probate is dismissed.

[1] Re Lamont [1881] VicLawRp 179; (1881) 7 VLR (I) 86; Re Goode (1890) 11 NSWR (Eq) 281; Re Gillard [1949] VicLawRp 67; [1949] VLR 378; Re Egan [1963] VicRp 46; [1963] VR 318; Re Gardiner [2016] VSC 541 (9 September 2016).

[2] See, eg, Offley v Best [1793] EngR 778; (1793) 1 Lev 186; (1793) 83 ER 361; Re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [1963] VR 318, 320; Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285]-[288], [310]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53]; Re Watson [2017] VSC 322 (8 June 2017) [15].

[3] Re Lamont [1881] VicLawRp 179; (1881) 7 VLR (I) 86; Re Gillard [1949] VicLawRp 67; [1949] VLR 378, 382-3.

[6] Re Gardiner (No 3) [2018] VSC 414 (31 July 2018) [15].

[7] Re Egan [1963] VicRp 46; [1963] VR 318, 320; Nicolson v Knaggs [2009] VSC 64 (27 February 2009) [78].

[8] Wrigley v Buxton [1893] VicLawRp 13; (1893) 19 VLR 37, 44 (Madden CJ).

[9] Re Egan [1963] VicRp 46; [1963] VR 318, 320. See also Re Watson [2017] VSC 322 (8 June 2017) [41].

[10] Wrigley v Buxton [1893] VicLawRp 13; (1893) 19 VLR 37, 44 (A'Beckett J).

[11] Civil Procedure Act 2010, ss 7(1), 16-27, especially s 18.

[12] Ibid ss 8-9; Gardiner v Hughes [2017] VSCA 167 (29 June 2017) [93].

[13] Guardhouse v Blackburn (1866) LR 1 P&D 109, 116 (Sir J P Wilde); Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698.

[14] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242]; Montalto v Sala [2016] VSCA 240 (7 October 2016) [29]-[30]; Re Watson [2017] VSC 322 (8 June 2017) [16]-[17].

[15] See, eg, Re Smith [1951] VicLawRp 53; [1951] VLR 368, 377; Re Watson [2017] VSC 322 (8 June 2017) [38].

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

[17] [1918] ArgusLawRp 113; (1918) 25 CLR 519, 528 (citations omitted).

[18] See, eg, In re Breen [1927] VicLawRp 22; [1927] VLR 164; McKinnon v Voight [1998] 3 VR 543; Veall v Veall [2015] VSCA 60; (2015) 46 VR 123.

[19] In the Will of Walsh (1892) 18 VLR 723; Barry v Butlin (1838) 2 Moo 480; [1838] EngR 1056; 12 ER 1089; Wintle v Nye [1959] 1 All ER 552.

[20] [2006] QSC 140 (16 June 2006).

[21] [2010] VSC 237 (3 June 2010).

[22] Nock v Austin (1918) 25 CLR 528; Re Proud (1922) 18 Tas LR 10.

[23] McKinnon v Voigt [1998] 3 VR 534; Thompson v Bella Lewis [1996] QCA 27; [1997] 1 Qd R 429, 451 (McPherson JA). McPherson JA delivered a dissenting judgment, however, not on this point.

[24] Administration and Probate Act 1958, s 10.

[25] Proceeding number S ECI 2018 00191 issued 3 July 2018.

[26] The Professional Conduct and Practice Rules 2005 were replaced by the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, where the equivalent rule is r 12.4.1.

[27] [2011] VSC 368 (10 August 2011).

[28] [1977] 1 NSWLR 210, 217-18 ('Shannon').

[29] Re Edmonds [1943] VicLawRp 19; 1943 VLR 97; G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017) 476-7 [13.69]).

[30] [1977] 1 NSWLR 210, 212. See also Re Estate of Zsuzanna Gray [2010] VSC 173 (30 April 2010).

[31] See, eg, Veall v Veall [2015] VSCA 60; (2015) 46 VR 123.