Plaintiff v Defendant

1 Constance Besanko died on 26 February 2014. She was survived by her three children: Robert Besanko ('Robert'), Mandy Dorothy Besanko-Hoppen ('Mandy') and Joanne Fiebiger ('Joanne').

2 Probate of the deceased's last formal will dated 26 November 1986 (the '1986 will') was granted to Mandy on 18 November 2015, with leave to Robert to come in and prove the will at any time.

3 According to the inventory filed in the application for probate of the 1986 will, the deceased's estate was valued at approximately $1,810,000. The principal asset of the estate, a property at 4 Bates Street, Malvern East ('the Bates Street property'), was valued at $1,800,000.

4 Pursuant to the 1986 will, the deceased's estate was divided as follows:

(a) a gift of $100,000 was left to Joanne;

(b) the deceased's personal chattels, as defined in the Administration and Probate Act 1958, were left to Robert, Mandy and Joanne in equal shares; and

(c) after payment of funeral and testamentary expenses, the residue of the estate was divided between Robert and Mandy as tenants in common in equal shares.

5 By originating motion filed 20 December 2019, Robert seeks probate of a video recording of the deceased speaking to him on the evening of 8 January 2014 ('the video will'), pursuant to s 9 of the Wills Act 1997 ('the Act').

6 Robert contends that the terms of the video will appoint him as sole executor of the deceased's estate and confer on him a life interest, alternatively, a right of residence, in the Bates Street property. Robert's counsel accepted that the current liabilities of the estate are approximately $200,000 and that payment of the liabilities required the sale of the property. In that event, if the video will granted Robert a life interest, Robert submitted that he would be entitled to a life interest in the sale proceeds of the property. However, if his interest was a right of residence in the property, then he would have no interest in the sale proceeds.

7 Robert relied upon two affidavits sworn by him on 20 December 2019, he also gave viva voce evidence and was subject to cross-examination.

8 Mandy conceded that the video will constitutes a 'document' for the purposes of s 9 of the Act, but submitted that it neither records the deceased's testamentary intentions, nor was it intended to be her will. Mandy also submitted that, at the time of the making of the video will, the deceased lacked testamentary capacity.

9 Mandy relied on her affidavit sworn 10 February 2020 and Joanne's affidavit sworn 19 February 2020. Neither Mandy nor Joanne were cross-examined at trial.

10 The deceased's 1986 will was formally executed by her at a time when she had testamentary capacity and was able to live an independent life. There was a suggestion in Robert's evidence that, at or around the time she was diagnosed with myeloma in 2012, the deceased made an updated will. No such will was produced at the trial.

11 In January 2013, the deceased commenced medical treatment for her illness. She was admitted to a rehabilitation facility in April and September of that year, and otherwise resided at the Bates Street property with Robert and his partner, Barbara. Robert claimed that, on 3 May 2013, the deceased appointed him as her power of attorney, however, no evidence of such appointment was produced by him.

12 Mandy lives in Germany. She visited the deceased in December 2012, August 2013 and January 2014. She deposed that between her visits, the deceased had deteriorated significantly both physically and mentally. Joanne, who resides in Melbourne, recorded similar observations. The evidence suggests that some disagreement arose between Mandy, Joanne and Robert during Mandy's visits in August 2013 and January 2014, in which she was told by Robert that she was not welcome at the family home. These disagreements are not relevant to the determination of Robert's application.

13 The video will was made on the evening of 8 January 2014, between approximately 7.40pm and 8.18pm. The video will was followed by a second conversation, also recorded, which took place on 12 January 2014.

14 The deceased died on 26 February 2014, aged 91 years.

Joanne and Robert commence separate family provision proceedings in May 2016

15 On 3 May 2016, Joanne filed an application for further provision from the deceased's estate, pursuant to Part IV of the Administration and Probate Act 1958. On 17 May 2016, Robert also filed a proceeding seeking further provision from the estate. At that time, Robert had the benefit of legal representation by Meerkin and Apel Solicitors and he later retained Maddocks Lawyers. Robert's evidence was that he told his solicitors about the video will but none of them viewed the video. Both proceedings were settled at mediation on 14 December 2016.

16 The terms of settlement dated 14 December 2016 provided for an 'Agreed Distribution' in favour of Robert of 37.5 per cent of the net sale proceeds of the Bates Street property. The Agreed Distribution was conditional upon Robert and Barbara vacating the Bates Street property by 30 June 2017, so that it might be prepared for sale.

17 Relevantly, clause 3 of the terms of settlement provided:

3. Robert agrees to accept the benefit of the Agreed Distribution:

(a) in full satisfaction of and in substitution for his entitlements under the Will;

(b) in full settlement of his claim pursuant to the provisions of Part IV of the Administration and Probate Act 1958 for provision to be made for his maintenance and support out of the estate of the Deceased; and

(c) in full satisfaction of all other claims or rights which he had, now has, or may hereafter have against the estate of the Deceased or to participate in the distribution of the estate of the Deceased in any other way whatsoever.

18 Clause 4 of the terms contained a further general release, in the following terms:

4. Upon the making of the Agreed Distribution:

(a) ...

(b) Robert agrees that he will thereupon release and forever discharge the Defendant (both personally and in her representative capacity) and the estate of the Deceased, from all actions claims and demands which he had, now has, or may hereafter have; and

(c) the Defendant, in her representative capacity, agrees that she will thereupon release and forever discharge Joanne and Robert from all actions claims and demands which she or the estate had, now has, or may hereafter have, arising out of or in connection with the estate of the Deceased.

19 Robert and Barbara failed to vacate the Bates Street property by 30 June 2017. On 17 October 2017, Mandy obtained orders for possession of the Bates Street property. On 14 August 2018, the orders were refreshed by further possession orders. On 20 November 2018, Mandy issued a warrant of possession, which was lodged with the Sheriff's Office in early 2019.

20 On 20 June 2019, Robert filed an urgent application in the Practice Court to stay the warrant of possession. On this occasion, one of Robert's grounds for seeking a stay was an assertion that the deceased had made an informal will. Robert's application for a stay was dismissed and he and Barbara were removed from the Bates Street property.

21 On 6 August 2019, Robert filed a summons in the probate proceeding seeking revocation of the grant of probate of the 1986 will.[1] The grounds for revocation were that the deceased made the informal video will. No informal will was produced at that stage. It was explained to Robert that any determination of an informal will could not be dealt with in the probate proceeding, and that any application for a grant of the video will must be commenced by a separate proceeding by him as the plaintiff. It was also explained that the video will must be filed with the Court. Robert failed to make a timely application and he failed to produce the video will. On 6 December 2019, orders were made that by 20 December 2019 he file a separate proceeding if he wished to seek to prove the video will. On 20 December 2019, Robert filed this proceeding. Robert is self-represented in this proceeding, however, as from approximately June to August 2019 he has had the benefit of counsel acting pro bono.

22 Robert subsequently produced a recording taken by him on a home video camera. The video is recorded over 28 minutes and 50 seconds. The material produced by Robert was saved on a digital memory card and was split into 35 separate electronic files. Robert explained that the separation of the video was a function of the camera technology that he was using. The first 14 of the 35 files comprise the video will recorded on 8 January 2014, the remaining 11 files comprise recordings of the deceased made by Robert on 12 January 2014 ('the additional recordings'). The additional recordings were not alleged by Robert to form part of the video will.

23 Robert also filed a version of the video will saved on a USB memory stick. That version combined the first 14 of the 35 separate files into a single video. Robert explained that he had hired a professional video editor to combine the 14 files, but disclaimed any expertise of his own. The video editor did not give evidence in the proceeding. Both versions of the video will were viewed for the purposes of the trial and it appears that the substance of the recordings are identical.

24 The video will shows the deceased in the centre of frame. Her body is covered by the bed covers and only her head resting on the pillow is visible. A bright light is shining on her face and her eyes are mostly closed throughout the video. She appears very frail and thin and states that she is tired on two occasions in the video will. Robert is not in frame, but his voice can be heard throughout the recording. Robert and Barbara enter the frame at one point to assist the deceased to prepare for bed. A black box which is on screen at all times displays the date and time at which the recording was made.

25 A typed transcription of a section of the video will, comprising approximately the first five minutes, was exhibited to one of Robert's two affidavits. A second transcription of the entire video will was handed to the Court at trial. There were several minor differences between the two versions but nothing turns upon them in any material sense. In cross-examination, counsel challenged Robert on several inconsistencies between the time attributed to certain comments in the second transcription and the time displayed on screen in the video will. Robert could not explain those discrepancies, save to say that the times were determined by reference to metadata in the video file. The Court is content that nothing materially turns upon the time discrepancy. For the avoidance of doubt, reliance will be placed on the times as shown on the face of the video itself.

26 The key exchange said by Robert to form the basis of the video will occurred between 7.43pm and 7.47pm. The essence of that exchange is recorded as follows:

Constance: Thing is, I had three children, and they're all going to have equal amounts and then Barbara's been like one of them now, and she's the only one added, would a fourth.

And you... you're the boss, whatever they call that.

Robert: Trustee.

Constance: Mmm Trustee.

Robert: Mmm.

You would like me to be the trustee?

Constance: Mmm... eh?

Robert: You would like me to be the trustee?

Constance: Yes yes that's in the original.

Not... well that's what I'd like, how I would like to word it. See I didn't have these three children when I, when the other one was done, I don't think so.

But we could go there and actually they gave me the money, that I had from that there, just gave me the money.

TIME JUMP - 3 SECONDS

Constance: Barbara's been involved in all the others.

Robert: You have...

TIME JUMP - 10 SECONDS

Constance: Rather than say til I die because [INDISTINCT]... well I could, I know definitely that said.

TIME JUMP - 12 SECONDS

But I'd like... like my son Robert to live in the house, um... til he... til... he dies.

But I wouldn't write anything like suit yourself to sell, just because that wouldn't be fair.

TIME JUMP - 10 SECONDS

Constance: Be the boss, I, you just, I told you what it was.

Robert: The boss? You want... So what you mean is by boss is you want me to be the trustee?

Constance: Yes, the trustee.

Robert: Mmm.

Constance: Which makes it... and the others are all the same, all the same amount that they have.

Have it done properly yourself, and I'll read it and sign it or whatever I have to do.

I'm really tired now Robert.

Robert: I know.

27 The video continues after that exchange, as follows between 7.47pm and 7.52pm:

Constance: And I've written that.

Robert: Hang...

TIME JUMP - 7 SECONDS

Robert: Ok.

Constance: What I said was the four included... that's right with Barbara there also, to remain as it is until you yourself... are not able to cope with it.

Robert: Until I die, you mean?

Constance: Well yes.

Then, I'd sell it if you were to die, but I wouldn't like any argument about it.

TIME JUMP - 61 SECONDS

Constance: And what I've just said, yes what I've just said to Robert is what, is how I want to be. Now let me go to sleep.

TIME JUMP - 101 SECONDS

Robert: Do you think it's a good idea to transfer the title to me now?

Constance: Um, it's not an idea...

TIME JUMP - 3 SECONDS

Constance: [INDISTINCT]

TIME JUMP - 3 SECONDS

Constance: To be... with Robert and then I'll have to think.

Robert I'm too tired.

28 In cross-examination, counsel identified several points at which the time displayed on the face of the video will inexplicably skips forward. These time jumps are reflected in the above extract. Some of the time jumps were as short as ten seconds, others lasted several minutes. It was put to Robert that he had started and stopped the recording at times that suited him, and had likely discussed relevant matters with the deceased in the non-recorded periods. Robert accepted that he had stopped and started the recording, but denied that anything relevant was discussed in the non-recorded periods, or that he had encouraged the deceased to say certain words when the video recording was switched on.

29 Section 9 of the Wills Act 1997 provides that the Court may dispense with the formal requirements for execution of a will, as prescribed by s 7 of the Act, and admit a document as the will of a deceased person 'if the Court is satisfied that that person intended the document to be his or her will.'

30 In order to admit an informal will, the Court must be satisfied of three conditions:

(a) that there is a 'document';

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

(c) that the document was intended by the deceased to be his or her will.[2]

31 In Re Springfield, Powell J made the following observation as to the Court's task:

[T]he ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will ... while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.[3]

32 It is not disputed that an original video can be a 'document' for the purpose of s 9.[4]

33 In order to record the testamentary intentions of a deceased person, an informal will must deal with the disposition of that person's property in contemplation of their death. It is not sufficient that the deceased recorded their intention to make an inter vivos transfer or gift.[5]

34 In determining whether a document was intended by a deceased person to be their will, the Court may consider 'any evidence relating to the manner in which the document was executed' and 'any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.'[6] Whether the evidence is sufficient to satisfy the Court of the testator's intention will vary from case to case.[7] It is not necessary that the testator intended the document to be a will in the formal sense, but merely that it be a testamentary document as distinct from a mere precatory statement of intention.[8]

35 In contrast to a will that complies with the formalities of s 7 of the Act, the usual presumptions as to testamentary capacity do not apply to an informal will.[9] An applicant seeking a grant of representation of an informal will must also prove, on the balance of probabilities, that the deceased had testamentary capacity at the time of making the informal will. It is therefore necessary for the proponent to establish that the deceased understood the nature and effect of making a will, was aware of the general nature and value of their estate, was aware of those who would have a natural claim on the estate, and was able to evaluate or discriminate between such claims.[10] If the deceased lacked the testamentary capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will.[11]

36 An applicant seeking a grant of representation of an informal document must establish the requisite elements on the balance of probabilities, evaluating the evidence in accordance with the principles established in Briginshaw v Briginshaw, that is, reasonable satisfaction of the Court should not be attained by inexact proofs, indefinite testimony or indirect inferences.[12] Further, s 140(2) of the Evidence Act 2008 requires that in applying the balance of probabilities, 'the nature of the cause of action or defence', 'the nature of the subject matter of the proceeding' and 'the gravity of the matters alleged' must be taken into account.

37 Robert submitted that the video will ought be admitted to probate as the deceased's comments 'clearly stated her testamentary intentions'. He denied that the deceased's statements were mere precatory words in contemplation of a future will. He further submitted that the deceased confirmed her intentions later in the same week, as evidenced in the additional recordings.

38 Robert referred to several authorities in which documents in the form of recorded media were admitted as informal wills. Particular reference is made to the decision of the Supreme Court of New South Wales in Re Estate of Wai Fun Chen Deceased,[13] and the decisions of the Queensland Supreme Court in Radford v White,[14] Re estate of Carrigan (deceased),[15] and Re Estate of Leslie Wayne Quinn (deceased).[16]

39 Robert's application was made approximately four years after the grant of probate of the 1986 will. Robert and Barbara remained living in the Bates Street property until late June 2019. This was notwithstanding the terms of settlement in the family provision proceeding that he and Barbara agreed to vacate the property by 30 June 2017. With respect to the question of his delay in making the application, Robert's evidence was that he suffered from depression after his mother's death and had difficulty functioning. No medical evidence was adduced by Robert to support this explanation. Robert told his solicitors about the video will at the time of the mediation in December 2016 but he did not show it to them. His evidence was that he was unaware of the significance of the video will at that time. Nevertheless, it must have had some significance otherwise he would not have told his solicitors about it.

40 Robert's evidence was that he only became aware that the video might be a testamentary document when he heard a radio program concerning digital wills. Robert placed that report sometime in October 2017. Robert did not explain why he did not take any steps to obtain a grant of the video will between October 2017 and 6 August 2019. It may be inferred that the reason for his substantial delay was the fact that in June 2019 the estate had issued a warrant for possession of the Bates Street property.

41 As observed, the terms of settlement resolved the family provision claims against the estate and contained certain releases by the respective parties. Robert submits that on a technical reading of that document, the releases only become operative when the 'Agreed Distribution' has been paid. To date, distribution has not been made so as to enliven the releases. In any event, even if the release was enlivened by the expectation of receipt of the Agreed Distribution, it ought to be read down in light of the facts known to the parties at the time of the agreement,[17] that is, that Robert was not aware of the significance of the video will at the time of the settlement negotiations and did not raise it at that time. Robert submits that the releases apply only to claims concerning the 1986 will and not to the present application, which was not in contemplation at that time.

42 Mandy submitted that the Court can have no confidence in the veracity of the compiled video will and, in any event, it should not be admitted to probate as a matter of law. Mandy's opening submissions identified approximately eight minutes of missing footage as a result of the aforementioned time skips. The missing time was omitted from the first fifteen minutes of the video, which is when the alleged testamentary statements were said to have taken place. Mandy submitted that it is open to conclude that the omitted sections of video contained Robert prompting the deceased as to what he wanted her to say.

43 In any event, Mandy submitted that the video will did not contain the testamentary intentions of the deceased, nor is there any evidence that the deceased intended the video to act as her will. At its highest, Mandy says that the video will contains precatory statements of the deceased's wishes, rather than her testamentary intention. She submitted that those statements were answers to leading questions from Robert. Mandy says that the lack of testamentary intention is evidenced by the deceased's statements to Robert after answering his questions, such as:

[H]ave that done properly yourself - I'll read it and sign it or whatever I have to do... I'm really tired now Robert.

I'm tired now Robert... but you can give it to me again... whatever you work out and I'll go with you to wherever I've got to go to.

44 Mandy also referred to a conversation recorded on 12 January 2014, in which the following exchange took place:

Robert: You know how we spoke about what to do with the property in your will?

Constance: [INDISTINCT]

Robert: Are you sure you want me to live here forever, you know, until I die?

Constance: That's something I hadn't thought of.

Robert: We spoke about it the other day again.

Constance: Yeah, I said I hadn't thought of [indistinct]... you can't cover everything.

Robert: No, but you asked me to organise it. Do you still want me to do that?

Constance: Oh yes, of course.

Robert: Are you sure?

Constance: Yes... Barbara knows about it?

Robert: No, she doesn't.

45 Mandy submitted that Robert adduced no evidence that the deceased had testamentary capacity on 8 January 2014. She points to the circumstances of the deceased's poor health and that her medical records from 2013 indicated ongoing cognitive decline. Mandy submitted that on the face of the video, the deceased appeared confused, in particular, by reference to the following incidents:

(a) in the video will, the deceased misremembered the names of her daughters in a family story concerning Mandy's return from hospital;

(b) in the video recorded on 12 January 2012, the deceased was unable to recall whether she had eaten lunch earlier that day;

(c) later in the 12 January 2012 video, the deceased was unable to recall whether she had taken her medication;

(d) later on in the 12 January 2012 video, the deceased did not appear to recall the conversation that forms the substance of the video will at all, as reflected in the exchange extracted at [44] above.

46 With regard to the terms of settlement, Mandy accepts that none of the parties to the terms have received the 'Agreed Distribution' and that the reason for this was because Robert and Barbara refused to vacate the Bates Street property by the date specified in the terms. Otherwise, the terms of settlement speak for themselves.

47 The mechanism for propounding an informal will pursuant to s 9 of the Act is legislative recognition of the possibility that a deceased person may create a document with the intention that it serves as his or her will, which document does not comply with the formal requirements of s 7 of the Act. Although s 9 of the Act provides a mechanism for the Court to admit an informal document, its reach ought not be expanded to cover any statement of future intention of a deceased person. Deference must be given to the fact that, generally, the interests of all concerned with a deceased estate are best served by compliance with the formal requirements of s 7 of the Act.

48 It is not controversial that the video will is a 'document' for the purposes of s 9. In opening submissions, Mandy's counsel questioned whether the video will filed with the Court was the original video will, or a copy. As observed, the Court has received two versions of the video will, one which was split across 35 separate files, and one which stitched together the first 14 of those files. The Court has viewed both versions and, on balance, there is no material difference between the content of each version.

Does the video will reflect the deceased's testamentary intention?

49 It is evident from the video will that the wishes expressed by the deceased were testamentary in nature. Although the deceased did not expressly state that she wished Robert to live in the Bates Street property 'when I die', it is clear from the context and from the conversation as a whole that her wishes were expressed in contemplation of her death. At the beginning of the video, the deceased recounts the contents of the 1986 will before stating her wishes, albeit with the erroneous recollection that one of her children was not yet born at the time. At the conclusion of the video, the deceased also instructs Robert to 'have it done properly', in reference to the drafting of a formal will, and that she will sign it. It is also of note that the deceased appears to have rejected a suggestion from Robert that she transfer title to the Bates Street property to him inter vivos. Although the deceased's response is not clear on the face of the video, her rejection of the suggestion is indicative of an intention that her wishes will be carried out upon her death.

50 The later recording on 12 January 2014 also places the conversation in the context of contemplation of the deceased's will. However, it is of note that Robert, not the deceased, places the conversation in the context of a discussion about the deceased's will. In that video, the deceased does not appear to recall the conversation said to form the video will at all.

Did the deceased intend the video will to be her will?

51 The gaps in the recording of the video will are problematic. Although Robert denied that he coaxed or assisted the deceased to formulate certain thoughts, there are times in the recorded sections of the video will where he did just that. For example, at around 7.52pm, Robert assisted the deceased to recount a family story where she misremembered or confused the names of her children. Further, the statements made by the deceased immediately before and after the time jumps often changed topic - for example, from discussion of the trustee to Robert's interest in the property and back to the trustee. The sudden changes in topic around each time jump indicate that relevant discussion was omitted from the recording. The deceased often appears to be answering questions or responding to suggestions from Robert rather than presenting a continuous stream of consciousness.

52 There is no indication in the extracts outlined above, or anywhere else in the video will, that the deceased held any intention that the video be her will. There are several indications throughout the video will that the deceased's statements were merely precatory indications of her testamentary intention.

(a) First, the video begins with the deceased appearing to recoil from the camera. The reasons for this are unknown, suffice to say that she appears uncomfortable.

(b) Secondly, the deceased gave instructions to Robert to 'have it done properly', suggesting that she intended to sign a formal document at some later time.

(c) Thirdly, toward the end of the video will, the deceased indicates that a lawyer could come to her to take instructions for the production of a formal will.

53 The cases referred to by Robert's counsel do not assist in a material sense. They are examples of the proposition that a recording of a deceased person may be an informal will. When regard is had to the particular circumstances of each case, the distinctions between those cases and the circumstances in this proceeding on the issue of intention are clear.

54 In Re Estate of Wan Fai Chun, the deceased commenced a DVD recording by stating the date as well as an express claim to be 'of a clear and sound mind' followed by a series of short, considered statements of intent.[18]

55 In Radford v White, the deceased made a video recording at the insistence of his partner after he purchased a motorbike. The video in that case began with the following declaration:

It's Monday the 21st November 2016. My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I'll just say it. Everything goes to Katrina Pauline Radford if anything was to happen to me.[19]

56 In Re Estate of Carrigan (deceased), a voicemail recording of the deceased shortly prior to his suicide was admitted to probate. The deceased also made a recording on a tape recorder, which began as follows:

My name is Grant Patrick Carrigan of Goondiwindi helicopters.

It is the 30th January 2017.

This is my last will to be the final one over everything else I've got written.[20]

57 In Estate of Leslie Wayne Quinn (deceased), the deceased made a video recording on his own phone some four years before his death by suicide in 2015. A transcript of the recording was admitted to probate. The transcript began: 'It's Sunday, 26th of June, 2011. This is the, my last will, I am making by video.' The transcript concluded as follows: 'That, I think is basically it so, this is my only will. I may make a copy of this but it'll be a written copy of this but it will be exactly the same as this.'[21]

58 In each of the cases, the deceased made clear their intention that the recording ought act as their will. No such statement was made by the deceased in the video will. Although an express statement of intention is not required in all cases, there is also nothing said in the video will from which any intention may be implied. Further, as observed, there are several aspects of the video will that indicate that the wishes expressed by the deceased were merely precatory statements to be included in a formal will at a later date.

59 Robert's evidence as to the deceased's testamentary capacity constituted his own observations that the deceased did not have dementia, as well as bare denials when it was put to him that the deceased appeared confused on the face of the video will. Robert accepted that he was not a medical expert but confirmed that he knew what dementia was. With respect to alleged confusion of the deceased, Robert suggested that the deceased was merely having difficulty speaking.

60 In addition to the observations of Mandy and Joanne as to the deceased's capacity, referred to above at [12], Mandy exhibited substantial medical records of the deceased that covered the period 13 March 2013 to 31 December 2013. The records reflect that the deceased's cognitive state fluctuated in the year leading up to the creation of the video will. The doctors' notes reflect that the deceased was sometimes confused and agitated and was at other times alert and orientated and that states of confusion became more common as the year progressed. Although the medical records are of some assistance in determining the deceased's general cognitive state leading up to 8 January 2014, their utility is limited. It is evident from the additional recordings that the deceased was on medication as she is seen being given a number of tablets at one time. However, that medication was not the subject of evidence by Robert. The Court has no recorded assessment of the deceased's cognition on the day of the video will that would assist in determining testamentary capacity at the time. The only conclusion that can be drawn from the medical records is that the deceased had periods of confusion and other periods of lucidity.

61 Such a conclusion is, in any event, evident on the face of the video will itself. Instances of confusion on the part of the deceased on or around the date of making the video will have been identified above. Those instances of confusion give rise to a serious question over the deceased's testamentary capacity. Taking those instances together with the deceased's age and state of health, the Court is not satisfied that on 8 January 2014 the deceased was of sufficient capacity to understand the nature and effect of making a revised will. It is unclear whether the deceased had any awareness of the value of her estate or was able to properly discriminate between claims.

62 The apparent lack of testamentary capacity on the part of the deceased makes the pauses in the video will even more problematic. There is no way for the Court to know exactly what transpired between Robert and the deceased when the recording was switched off. Robert denied that he coached or guided the deceased towards any conclusion. However, after each time jump in the extract outlined at [26] above, the deceased appears to have been moved from a state of confusion back toward the subject of the deceased's will. The content therefore casts grave doubt upon whether Robert did in fact coach or guide the deceased toward particular thoughts or conclusions.

63 Accordingly, the Court is not satisfied that the deceased intended the video will to be her will or that the deceased had testamentary capacity as at the date of the video will.

64 In light of these findings, it is unnecessary to determine whether Robert's claim is, in any event, precluded by the terms of settlement dated 14 December 2016 or by his delay in bringing the application.

65 The Court orders that the proceeding be dismissed. The parties are to forward short written submissions on the question of costs.

[2] See, eg, Equity Trustees v Levin [2004] VSC 203, [15] (Whelan J); In the Estate of Masters (dec'd); Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA); Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535,537-9 (Powell J); In the Estate of Graham (dec'd) (1978) 20 SASR 198 (Jacobs J).

[3] Re Application of Brown; Estate of Springfield (n 2) 539-40.

[4] See Wills Act 1997 (Vic) s 9(6); Interpretation of Legislation Act 1984 (Vic) s 38(e).

[5] Romano v Romano [2004] NSWCA 37, [42]-[43] (Hodgson JA, Sheller and Ipp JJA agreeing).

[6] Wills Act 1997 (Vic) s 9(3).

[7] Re Estate of Brock; Chambers v Dowker [2007] VSC 415, [44] (Hollingworth J).

[9] Re Serar [2019] VSC 139, [34].

[10] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ); Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 566-7 (Knox CJ and Starke J).

[11] Re Stuckey [2014] VSC 221, [40]-[41]; Jageurs v Downing [2015] VSC 432, [19].

[12] Fast v Rockman [2013] VSC 18, [48] (Habersberger J).

[13] [2015] NSWSC 1107.

[14] [2018] QSC 306.

[15] [2018] QSC 206.

[16] [2019] QSC 99.

[17] Citing Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112, 129-30; Burness v Hill [2019] VSCA 91.

[18] Re Estate of Wan Fai Chun (n 13) [62]-[64].

[20] Re Estate of Carrigan (deceased) (n 15) [12].

[21] Estate of Leslie Wayne Quinn (deceased) (n 16) [10].