Plaintiff v Defendant

Sullivan v Moody (2001) 207 CLR 562; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180; Hill v Van Erp (1997) 188 CLR 159; CAL No. 14 Pty Ltd v Motor Accidents (2009) 239 CLR 390; Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649; Norris v Tuppen [1999] VSC 228; Easter v Griffith (1995) 217 ALR 284; Kantor v Vosahlo [2004] VSCA 235.

1 Irene May Ellis ('Dolly') was the niece of the famous billiard player Walter Lindrum. On 10 January 2019, Dolly passed away. Between 3 October 1991 and 30 November 2012, Dolly executed at least 12 wills. On 30 November 2012, Dolly made her final Will prior to her death ('Will').

2 Tanya Maree Dunn, ('the Plaintiff') was Dolly's niece and only surviving blood relative. The Plaintiff was provided for in each of the wills. Over time the value of the gifts to the Plaintiff declined, as the wills gradually increased the provision for Dolly's goddaughters, Tammy Lindrum, Margaret Taylor and Pamela Chrisfield.

3 At the time of making the Will, Dolly owned four properties:

(a) 32 Page Street, Albert Park;

(b) 61 Page Street, Albert Park;

(c) 158 Kerferd Road, Albert Park; and

(d) 160 Kerferd Road, Albert Park.

4 The Will bequeathed each of the properties separately to four people: the Plaintiff, Tammy Lindrum, Margaret Taylor and Pamela Chrisfield. The bequests were each in the same terms. Clause 8 of the Will bequeathed the property at 32 Page Street, Albert Park ('32 Page Street') to the Plaintiff in the following terms:[1]

8. I GIVE my interest in the property situate at and known as 32 Page Street, Albert Park, Victoria ("32 Page Street") as and if owned by me at the date of my death to my niece TANYA MAREE DUNN ("Tanya") if she survives me. If I am not the registered proprietor of 32 Page Street as at the date of my death (including because I have sold 32 Page Street since the date of this my Will) or I am the registered proprietor but prior to my death I have signed a binding contract to sell 32 Page Street, I DIRECT my trustee to pay to Tanya if she survives me, a sum of money in lieu of the gift of 32 Page Street ("the Sum"). The Sum shall be calculated as being the amount of the consideration on a registered transfer of land on which I am named as transferor of 32 Page Street less the amount of the discharge of any mortgage, charge or debt secured over 32 Page Street (including bank fees relating thereto) as at the date of such transfer (being the settlement date) and less any capital gains tax paid or payable by me as a result of the sale of 32 Page Street. I DECLARE that the decision of my trustee in determining the amount of the sum shall be final and binding on all beneficiaries of this my Will.

5 Perhaps unusually, but certainly quite specifically, Dolly chose to gift a property to each of the four nominated individuals rather than aggregate the entirety of her estate for distribution in specified proportions to the nominated beneficiaries.

6 On 9 April 2019, a grant of probate was made by this Court. At the time of her death, the inventory of the assets and liabilities in Dolly's estate filed with the grant of probate was $12,745,544.57, principally consisting of the real property at:

(a) 61 Page Street, Albert Park;

(b) 158 Kerferd Road, Albert Park; and

(c) 160 Kerferd Road, Albert Park.

7 Before her death, in October 2016, it became clear to the Defendant and Dolly's guardians that there were not sufficient cash reserves to continue to fund the cost of Dolly's ongoing care and living expenses. The property bequeathed to the Plaintiff (32 Page Street) was sold to fund Dolly's care and expenses while she remained alive. All of the proceeds of the sale of the property were expended on Dolly's care, and just prior to her death the Defendant had to consider the future sale of a second property.

8 The Will is silent as to what might happen in this situation. The terms governing the payment of a sum of money in lieu of a gift of the property in specie to any of the beneficiaries assume that the funds from any sale will be applied to the payment of taxes, discharging any mortgage and the like. The Will does not deal expressly with Dolly's need for liquidity to fund her care and expenses during her lifetime. If the need arose for a sale of one or other of the properties, the intended effect of the Will is that the beneficiary to whom that property was bequeathed might lose some or all of the benefit of the gift. Nothing in the Will did or could constrain Dolly from choosing to sell a property and to use the proceeds from the sale during her lifetime. Nothing about the terms of the Will were precluded by law. Dolly was perfectly entitled to dispose of her assets in the manner described in the Will. There is no suggestion that Dolly lacked testamentary capacity at the time of making the Will in 2012.

9 Dolly did not make the decision to sell a property, or to sell the particular property at 32 Page Street in 2016. Some years before her death, on 17 December 2003, Dolly executed an enduring power of attorney, appointing joint and several attorneys with respect to financial matters: Trust Company of Australia Limited (the predecessor in law to Perpetual Trustee Limited - the Defendant) and Bruce Graham Barker.

10 In 2014, the enduring power of attorney was activated. From that time, the Defendant (along with Mr Barker[2]) became empowered to make decisions on Dolly's behalf under the terms of the enduring power of attorney. On the motion of the attorneys, guardians were appointed by the Victorian Civil and Administrative Tribunal ('VCAT') under the Guardianship and Administration Act 1986 (Vic) in 2014.

11 In October 2016, the Defendant was required to make decisions which would secure funds for the ongoing care of Dolly. Dolly's financial position at that time might be described as 'asset rich, but cash poor'. It is sufficiently clear that one obvious and practical way of obtaining the required cash was to liquidate one or more of Dolly's properties. At that time, the Defendant was aware of the terms and effect of the Will on the beneficiary to whom a property was bequeathed under the Will, should that property be sold, but the others retained. The Defendant considered a number of possible alternatives, and ultimately proposed that three of Dolly's four properties should be sold, and the cost of Dolly's care be funded in rateable proportions from the proceeds of the sale. The Defendant considered that this approach would ensure that all of the beneficiaries would receive some benefit from the estate, as compared with a situation where some beneficiaries received their full benefit, and others received nothing.

12 In the end the Defendant, in its capacity as attorney for Dolly, decided to sell only one property - the property bequeathed to the Plaintiff. In deciding to do so, the Defendant sought the input of Dolly. At a critical meeting which took place on 25 October 2016, Dolly listened to the Defendant's proposal to sell all three properties, rejected that proposal and expressed her wish that only one property be sold - the property at 32 Page Street - that was bequeathed to the Plaintiff.

13 The Plaintiff complains that in deciding to sell the property at 32 Page Street, the Defendant was negligent in not taking steps to apply for and secure an adjustment of the Will which would ensure that the Plaintiff received a benefit from Dolly's estate.

14 The Plaintiff pleads that the Defendant, as the attorney for Dolly, owed the Plaintiff, as a potential beneficiary of Dolly's estate, a duty of care to 'ensure that a statutory will would be prepared on Dolly's behalf that would adjust the Plaintiff's interest'. By further and better particulars the Plaintiff alleges that the Defendant owed a duty to 'ensure that she received a proportionate benefit under the Will after the sale of 32 Page Street'.

15 The Defendant says that the Plaintiff is not entitled to recovery because no duty of care arises as between the Plaintiff and the Defendant. Even if a duty exists, there was no breach of the duty, and that in any event it cannot be said that the so called breaches caused the Plaintiff's claimed loss.

16 For the reasons which follow, the Plaintiff's claim fails.

17 In an action for negligence, the Plaintiff must establish that the relationship between her and the Defendant gave rise to a duty of care. The existence of a duty of care is a question of law.[3] The common law and statute recognise the existence of such a duty inherent in certain types of relationships: employer/employee; doctor/patient; lawyer/client; trustee/beneficiary - to name a few.[4]

18 The categories of relationship in which the law might impose a duty of care are not closed. The law will recognise the existence of a duty of care arising between a plaintiff and a defendant beyond the categories of relationships where a duty has already been held to subsist. Such a duty arises from the nature of the relationship in question and the facts of the individual case under consideration.[5] In assessing whether a novel duty of care arises, the authorities are clear that the features of the relationship must warrant the imposition a duty of care upon a defendant.[6]

19 In her written submissions, and in oral argument, the Plaintiff refers to two decisions describing the relationship between trustees and beneficiaries as one which gives rise to a duty of care,[7] seeming to suggest that the relationship between the Plaintiff and Defendant was one of trustee and beneficiary, thus giving rise to a duty of care already recognised by the authorities, or perhaps (though unclear) that the claimed duty was one analogous to a duty already recognised by law.

20 Either way, as the Defendant submitted, the present case is concerned with events which transpired while Dolly was alive. During that time the Defendant's role was confined to performing the role of Dolly's attorney, and did not involve the administration of any trust of which the Plaintiff was a beneficiary.

21 The nature of the relationship between a person, acting in the capacity of an attorney administering the affairs of another while they are alive, and a potential beneficiary of that person's estate, is not a fiduciary relationship and does not give rise to any duty of care yet recognised by the authorities. There is nothing inherently analogous between such a relationship and that which arises between trustee and beneficiary in the context of the authorities relied upon by the Plaintiff.

22 The Plaintiff claims the existence of what must be described as a novel duty to take reasonable care to ensure that a person in the Plaintiff's position does not suffer economic loss. In Caltex Refineries (Qld) Pty Ltd v Stavar ('Caltex'), Allsop P, after charting the history of the evolution and rejection of successive approaches to the ascertaining whether a novel duty of care exists, observed that the resultant absence of any particular formula or methodology for determining whether the law imputed such a duty, and if so, the scope and content of that duty, meant that:[8]

If...the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

23 The claimed duty, here, is that once the decision was made to sell 32 Page Street, the Defendant owed a duty of care to:

(a) ensure a statutory will would be prepared on Dolly's behalf that would adjust the Plaintiff's interests;

(b) ensure that the Plaintiff received a proportionate benefit under the Will after the sale of 32 Page St; and

(c) take the necessary steps to prepare and apply for a statutory will at the same time, or immediately after the decision was made to sell 32 Page Street.

24 The Defendant submits that the Plaintiff cannot succeed because:

(a) the claimed duty has been framed by reference to the alleged breach, and as such, impermissibly conflates duty and breach; and

(b) having regard to the relevant salient features described in Caltex, the Plaintiff's relationship with the Defendant is not one upon which the law would impose a duty to take reasonable care of the kind claimed.

25 Before addressing these matters, it is appropriate to set out in more detail the circumstances in which the Plaintiff asserts that the duty of care arises.

26 A central feature of the Plaintiff's case on duty is her contention that the Defendant owed a duty to her, as a potential beneficiary of Dolly's estate, to prepare, apply for and obtain a statutory will with the result that the new will would have the effect of redistributing the gifts to ensure that the Plaintiff would not be wholly deprived of any gift from the estate after the sale of 32 Page Street. It is convenient to set out the key features of the statutory framework in which the postulated duty is said to arise.

27 Section 21(2) of the Wills Act 1997 (Vic) ('Wills Act') permits any person to apply on behalf of another for a will to be made by the Court for that person. An application could have been made either by the Defendant, as an attorney, or by the Plaintiff. On any application the Defendant, the Plaintiff and any of the other beneficiaries of the Will would have had a right to be heard.[9] Notice of any application for a statutory will would likely have been given to all of the beneficiaries of the Will, regardless of who made the application.

28 Before making such a will, the Court must be satisfied that the person in whose name the will is to be made (the propositus - in this case Dolly) lacks testamentary capacity and is unlikely to be regained.[10]

29 Section 21B(b) of the Wills Act provides that the Court must also be satisfied that the proposed will reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity and was able to make their own will.

30 If the Court requires it, an applicant for a statutory will must, in formulating the application, provide: any evidence available to the applicant of the wishes of the propositus;[11] and any evidence available to the applicant of the ability of the propositus to participate in the proceedings and express the their own wishes.[12] Evidence of the wishes of the propositus is not confined to past utterances of the propositus. To the extent practicable, the Court may inquire as to the current wishes of the propositus, despite the fact that they lack testamentary capacity.

31 This brief summary of the statutory framework is sufficient for present purposes, but I will return to the provisions in more detail in addressing aspects of the Plaintiff's case on duty and causation.

32 Each of Dolly's previous wills before her last Will are characterised by her thoughtful and prescriptive dispositions of the content of her anticipated estate, at a time when there is no evidence of cognitive decline in Dolly.

33 The evolution of the wills shows a marked change in Dolly's wishes for the distribution of her assets, and in particular, the distributions to the Plaintiff. In 1991 Dolly's will made the Plaintiff the principal beneficiary of her estate, with others (including the Plaintiff's mother Zelma) receiving gifts of specified chattels or amounts of cash. In the four wills executed by Dolly before 2009, the Plaintiff was bequeathed $100,000 in cash, the property at 32 Page Street and income for life on the residue of the estate, which at the time would have included two other properties. In each of those wills the Plaintiff's mother, Zelma, was gifted the property at 61 Page Street. In the 2009 iteration of Dolly's will, a gift to the Plaintiff of $100,000 was removed, but otherwise all other gifts to the Plaintiff were maintained.

34 In 2010 Dolly gave instructions for a new will. The instructions were intended to effect a reduction in the amounts to be given to both the Plaintiff, and her mother. Dolly's instructions were to make a significant contribution to a charity, and to remove the gifts of property in specie to the Plaintiff and her mother.

35 Ms Eliza Newson was an employee of the Defendant and had personal carriage of Dolly's affairs in the preparation of the Dolly's 2010 Will.

36 Ms Newson made a file note at the time that Dolly's instructions were given to prepare the 2010 Will, which records Dolly's reasoning:[13]

Zalma has cancer and the client thinks she doesn't need the property. The client is also concerned that should Zalma survive her, but then die, the property will pass to Tanya as her only child. She thinks that $50K will be more than sufficient to assist Zalma - as she is wealthy in her own right - in any event she is not expected to live much longer and the client believes she will outlive Zalma.

37 As to the Plaintiff, the file note also records:[14]

Tanya is hanging out with the wrong crowd, in particular she is hanging around with one of the Nikolic's who is known to be corrupt in the racing world. She would hate to think that any of her money would end up at the race track or for criminal purposes. She thinks that the income from 1/3 of the balance of her estate should be more than sufficient to provide for her needs, without giving her access to a substantial part of the capital. She mentioned that Tanya never visits her and doesn't seem to really care. Also that the only reason she was leaving her anything was because she promised her brother that she would look after Tanya and she felt she must honour that and thought that income from 1/3 would do.

38 Ms Newson later gave Dolly written advice about the implications of the proposed reduction of gifts to both the Plaintiff and the Plaintiff's mother. The written advice confirmed the basis of Dolly's instructions, which recorded that at that time, in 2010, it was Dolly's view that she had very little to do with the Plaintiff. The advice also recorded Dolly as saying that the Plaintiff did not visit her, and was not then and had never been supported financially by Dolly.[15]

39 In a subsequent discussion with Dolly at the time the 2010 Will was executed, and recorded in a file note taken by Ms Newson, Dolly told Ms Newson that she really did not want to give the Plaintiff anything, and that the only reason that provision had been made for the Plaintiff at all was because Dolly had promised her brother when he was dying that she would look after the Plaintiff. Dolly explained that she thought she was providing adequately for the Plaintiff.[16]

40 In 2011 Ms Newson was instructed to amend Dolly's will further, by removing the gift to the Plaintiff's mother, Zelma, following her death. Ms Newson made a note that: [17]

She mentioned to me that she thought she was being generous to Tanya as she had been quite rotten.

41 The 2011 iteration of Dolly's will was executed on 11 October 2011, at which time Ms Newson took a further note regarding Dolly's attitude toward the Plaintiff:[18]

She also confirmed that she was only leaving 1/3 of her estate to her niece b/c she felt as though she had to b/c her niece could claim and she felt some kind of duty to do so. She mentioned to me that she thought her niece would receive about $100K income & had expressed the wish it be paid quarterly.

42 Dolly's last Will was prepared in 2012, when she made gifts in the terms already described. Her instructions to prepare the Will were given in the following terms:[19]

We discussed different property values [therefore] different benefit to [each] of the major benes. Discussed alternate approach to [divide] balance into parts + give parts to benes. Client adamant it was to be a specific gift of the p'pty.

43 A further note as to the instructions records:[20]

I asked why is Tanya's share [reducing] + Tammy, Pam's + Margaret's [increasing] so substantially. The latter 3 have been v supportive celebrated her 90th b'day w her. Tanya has done nothing- no contact.

TFM advice given, risk of claim by Tanya, Dolly said she knows she will b/c she has already threatened to do so, but she doesn't care b/c this is what she wants.

44 Ms Newson attended Dolly on the day that the last Will was executed and took a note of that attendance which records the following exchange:[21]

I asked her to explain to me in her own words how her estate would be distributed. She said:

• Well her god-daughters had been very good to her and her niece lived in the US now and she didn't even have an address for her which is why she has changed the provision for her niece and increased for her god-daughters.

...

45 In mid-2014 concern arose as to Dolly's ability to continue to care for herself, such that it was considered necessary to have Dolly assessed to determine whether or not it was time to activate the enduring power of attorney. At that time a neuropsychologist, Dr Lang, assessed Dolly as follows: [22]

The current neuropsychological profile in the context of the history and clinical presentation raises the possibility of a dementing process, most likely a dementia of the Alzheimer's type at a moderately advanced stage.

The nature and extent of Mrs Ellis's cognitive difficulties will significantly undermine her capacity to use information about her options to make appropriate decisions in matters of accommodation and lifestyle. It is recommended that application be made for Guardianship in these matters. The neuropsychological findings currently would strongly support such an application.

[Emphasis added]

46 The assessment was not undertaken for the purpose of determining testamentary capacity. Rather, as the report makes clear, the purpose was to assess her cognitive ability to make decisions about her lifestyle and accommodation.

47 Up to that point, Dolly had managed her own finances. In light of the neuropsychologist's assessment, Dolly's treating doctor formed the view she no longer had the capacity for financial decision making. The Defendant assumed that role from mid-June 2014.

48 Shortly after, on 23 June 2014, an application was made by the Defendant to VCAT for the appointment of guardians, which was duly granted on 22 July 2014. Dolly's friend Margaret Day and her neighbour Michael Tinsley were appointed guardians. They each remained in that role until Dolly's death in 2019.

49 After the guardians were appointed, Dolly continued to reside in her home at 158 Kerferd Road, Albert Park, where she received in home care from a private provider.

50 By 2016, Dolly's health had continued to deteriorate, both physically and cognitively. She had been in hospital, but then returned home. The cost of her in-home care and expenses had, by October 2016, depleted her cash reserves.

51 On 11 October 2016, the Defendant applied to VCAT under s 116 of the Powers of Attorney Act 2014 (Vic) ('Powers of Attorney Act') for permission to sell Dolly's property to fund her future care at home. At the time of making the application, no decision had been made as to which of the properties was to be sold. The covering letter accompanying the Defendant's application to VCAT advised that it was necessary to sell 'one or more' of Dolly's properties to meet the cost of her care. VCAT scheduled a hearing of the matter for 31 October 2016. The Defendant advised Mr Barker (the other attorney) and the guardians of the hearing date. The Defendant did not notify the beneficiaries of Dolly's Will.

52 As part of assessing how Dolly's liquidity position could be improved, the Defendant prepared modelling exploring alternative scenarios. All modelled scenarios retained Dolly's residence at 158 Kerferd Road, Albert Park in which it was anticipated she would continue to reside until her death. One scenario contemplated the possibility of selling the three remaining properties. This was regarded by the Defendant as the preferable scenario. In making this qualitative assessment, the Defendant proceeded on the basis that selling the three properties would secure Dolly's financial position, as she continued to reside in the fourth property. The Defendant also expressed the view that this approached seemed, at least to it, to be the fairest outcome for the beneficiaries.

53 The Defendant seems to have recognised that the terms of the Will, as it stood, would mean that the sale of only one property would negatively affect the position of the beneficiary to whom the property to be sold was bequeathed, but not the others. It seems to have been assumed that, if three of the properties were to be sold, then it might be that each of the beneficiaries might get something, and that no-one would miss out entirely. This may have been the case, but it is difficult to imagine how that could have been arranged without some alteration to the Will. Dolly intended to continue to live at 158 Kerferd Road, Albert Park until her death. The intended beneficiary of that property would, without alteration to the terms of the Will, receive the gift of that property in specie in full. If the three remaining properties were sold, then, under the terms of the Will, each of those three beneficiaries might have received a proportion of the proceeds of the sale, but only on the assumption that the cost of Dolly's care was to be met in rateable proportions by each of those beneficiaries.

54 On 25 October 2016 the Defendant organised a meeting to discuss the forthcoming hearing, to advise Dolly of the options and to understand her wishes. In addition to Dolly, present at the meeting were two representatives of the Defendant, Ms Newson and Mr Carrigan. Also present were Dolly's two guardians. None of the beneficiaries of Dolly's Will were invited to the meeting.

55 A file note of the meeting was taken by Ms Newson.

56 The Plaintiff initially submitted that Ms Newson's file note may not have been contemporaneous. In response the Defendant tendered without objection the affidavits of Ms Newson and Mr Carrigan, both sworn 17 June 2025. The affidavits were admitted into evidence and attest to the contemporaneity of the note, and otherwise corroborate the events at the meeting as recorded in the note. Ms Newson and Mr Carrigan were made available for cross-examination. The Plaintiff elected not to cross-examine either of the witnesses.[23] I proceed upon the basis that the accounts given in the file note and on affidavit of what transpired at the meeting are reliable as far as they go. The file note is not a transcript of the meeting, but it captures the key elements of what was discussed, it accurately records what Dolly said as to her wishes and it also captures details of what transpired which reinforces its authenticity, a subject to which I will return. The file note is written with abbreviation. It records Mr Carrigan as JC, Dolly as DL, and refers to Michael being is Dolly's guardian. The full file note reads as follows:[24]

• To keep paying, we are considering selling one of her properties

• That decreases the share of the beneficiary who would have received that property in her Will

• Propose to sell all three non-PPR properties so they all lose a bit

• Doesn't want to sell 61 Page St because that was left to her by her grandfather, so she would always have a roof over her head and she doesn't want it sold, sentimental value

• Ok to sell 32 Page St because she doesn't care if Tanya is the only one to miss out.

• She said Tanya has not chosen a good path and she was the beneficiary she cared the least about. If Tanya received nothing she would be ok with that.

• Doesn't want to sell Kerferd Road because she thinks selling the two Kerferd Road properties together will get a higher value

• Doesn't want to sell all three at once, only 32 Page St, she thinks she'll be gone by Christmas because she is getting worse day-by-day.

JC explained to DL that PPT has to plan for the best - that she will live a long time and she has been saying she's on the way out for three years now.

Michael raised the question of debt. JC explained PPT doesn't usually agree to this but will investigate.

DL got a bit confused in using the phrase - Tanya will need to pay the interest - I took this to mean if a beneficiary is to miss out by receiving less because of interest it should be Tanya.

DL apologized for her views and repeated a number of times, only 32 Page to be sold and she doesn't care if Tanya misses out or gets less and if there is any dispute she won't have to worry about it and that she doesn't want to think about this anymore because she has not been sleeping and finds it very upsetting.

Although it is clear that DL has become frailer than the last time I saw her and her speech is faltered and she had to search for words sometimes she seemed to me to be able to reason thru her wishes and understood the concept of how much her care is costing and that she doesn't have enough money so something has to change.

57 Following the meeting, the Defendant filed written submissions in anticipation of the hearing in VCAT, listed for 31 October 2016. Those submissions set out the options available to fund Dolly's care, including the possibility of selling all three properties. The submissions also recorded Dolly's wish that only 32 Page Street be sold. On 31 October 2016 VCAT made orders endorsing the sale of 32 Page Street, noting Dolly herself identified the specific property she wished to sell, and that the sale was endorsed as necessary by Dolly's guardians to enable the provision of her care.

58 The Plaintiff alleges that, from 31 October 2016, the Defendant was under a duty to prepare a statutory will. The Plaintiff alleges that the duty was breached by failing to take steps to progress that outcome, at all, or quickly enough.

59 In December 2016, the Defendant determined that it was appropriate to brief Counsel on the possibility of making a statutory will application, who would be asked to wait for payment in order not to delay the provision of advice.

60 On 16 January 2017, Counsel was briefed to advise as to the merits of a statutory will application by the Defendant, and by 24 February 2017, Counsel provided advice by email. The advice was that, on the available material, it was not clear that Dolly lacked testamentary capacity - being a necessary prerequisite to any application for a statutory will. A factor in reaching that conclusion were the reports of the meeting on 25 October 2016, in which Dolly considered the Defendant's proposal and conveyed her wishes. Accordingly, Counsel advised that Dolly's testamentary capacity should be assessed by a geriatrician and a legal practitioner and that any application for a statutory will should be deferred pending those steps. In late March 2017, Counsel further advised that a report from the treating doctor would suffice for the purposes of a statutory will application.

61 There was a small delay in actioning Counsel's advice of late March 2017 and providing instructions to Dolly's general practitioner. Instructions were given for a report to be obtained from Dr Clifforth on 30 May 2017, and was actioned on 1 June 2017, when Dr Clifforth was instructed in the following terms:[25]

As Dolly's treating General Practitioner, I would be most grateful if you could prepare a report which addresses the legal tests for testamentary capacity (Report).

Your Report will need to certify, positive responses or not, to the following statements:

(a) Dolly understands (or does not) the nature and the significance of the act of making a Will;

(b) Dolly understands (or does not) the extent, character and value of the property of which she is disposing;

(c) Dolly understands (or does not) "the objects of her bounty", i.e. who her relatives are, which of them may have a claim on her wealth and who would inherit her wealth in the event that she died without a Will;

(d) Dolly understands (or does not) the manner in which "her bounty" should pass;

(e) Dolly is aware (or not) of those who might reasonably be thought to have claims upon "her bounty" and the basis for and nature of those claims;

(f) Dolly has the ability (or not) to evaluate and discriminate between the respective strengths of these claims;

(g) "no disorder of the mind poisons Dolly's affections, perverts the essence of right or prevents the exercise of her natural faculties"; and

(h) "no insane delusion" influences Dolly's will in disposing of her property and brings about a disposal of it, which, if the mind had been sound, would not have been made.

62 The report was not completed until 2 March 2018. The Plaintiff says that the Defendant is responsible for the delay, but the correspondence reveals that the delays were attributable to a number things:

(a) In response to a follow up on 13 June 2017, the Defendant was informed that Dr Clifforth's clinic was awaiting a specialist report.[26]

(b) A further follow up occurred on 28 June 2017 and the Defendant was informed on 1 August 2017 that Dr Clifforth was away until mid-August.[27]

(c) A further follow up occurred on 17 August 2017, and on 29 August 2017, it was revealed that a referral for a geriatrician report was issued by Dr Clifforth's clinic.[28]

(d) A consultant psychiatrist provided a report dated 30 October 2017 to Dr Clifforth, however, it did not address the issue of testamentary capacity.[29]

(e) In late October, a geriatrician visited Dolly.[30]

(f) A second report from the consultant psychiatrist, dated 13 November 2025, was provided to the Defendant, however, it again did not directly address testamentary capacity.[31]

(g) In response to another follow up, on 22 February 2018 a letter was received from Dr Clifforth's clinic, but did not address the questions asked in respect of testamentary capacity.[32]

(h) A request was sent to Dr Clifforth's clinic on 25 February 2018, that the specific questions be answered, and a report in response to the request was received on 2 March 2018.[33]

63 On 5 March 2018, the doctor's report was sent to Counsel, and on 15 March 2018, Counsel agreed that the statutory will application should be prepared. The Defendant's lawyers, KCL Law, started preparing a draft statutory will application, which required further information to be completed.

64 New Counsel was briefed on 22 June 2018, and on 27 June 2018, Counsel provided advice by email, noting the potential problems with a statutory will application which sought to remedy the loss to the Plaintiff in the face of Dolly's wishes as expressed on 25 October 2016. Over the course of early July this was further discussed in email correspondence, where Counsel reiterated his concern about proposing a will with a gift to the Plaintiff.

65 On 11 July 2018, Counsel requested a family tree and other information, and these requests were passed onto the Defendant. A genealogical investigation service was engaged on 10 September 2018. Further information was provided to the genealogical service on 23 October 2018, and as at 14 November 2018, the genealogist was still waiting for Dolly's birth certificate before being able to complete her investigations.

66 As events transpired, the need arose to further supplement Dolly's cash reserves. In late October 2018, the Defendant made a further application to VCAT seeking authorisation to sell 160 Kerferd Road, Albert Park, and to commence the process of preparing an application for a statutory will. By this time, the Defendant had received advice confirming that Dolly had lacked testamentary capacity, such that a statutory will application was considered appropriate.

67 On 21 November 2018, an order was made in accordance with the Defendant's application authorising the sale of the 160 Kerferd Road, Albert Park, and permitting the Defendant to make application for a statutory will.

68 On 14 December 2018, Counsel communicated with KCL Law requesting confirmation that once the further information regarding family history had been received, he would settle the application.

70 At its core, identifying the existence of a novel duty to take reasonable care depends upon the nature of the relationship in which it is said that the duty arises and the content of that duty. The central premise of the salient features test as expounded and expanded upon by the High Court since Perre v Apand Pty Ltd[34] and Graham Barclay Oysters Pty Ltd v Ryan[35] is the identification of the features of a relationship which inform whether the law will impose a duty to take reasonable care upon a defendant, such that they will be liable for economic loss caused to the person to whom they owe that duty if it is breached.[36]

71 In Caltex, Allsop P set out a list of factors (the so called 'salient features') as developed up to that point to be considered in determining whether or not a duty of care arises. It is important that the list not be considered exhaustive. As can be seen from the list, they are features of the relationship which might point toward or away from the existence of a duty in any given case. The authorities make clear that there may be other features which have not yet emerged from the authorities which might also inform whether a duty of care exists.[37] It is also important to observe that not all features will be relevant in each case. Some features are essential if a duty is to be found, but not necessarily determinative on their own. For example, reasonable foreseeability of the type of harm which might be occasioned by the act or omission of a defendant is a necessary element, but the presence of it alone, and without anything more, is not sufficient to give rise to a duty of care.[38] Other of the factors are unlikely to emerge in every case, but where present, may be determinative of the existence or not of a duty to take care.[39] The application of the salient features test does not invite any form of 'intuitive synthesis' of competing considerations without a chain of reasoning linking these factors with the ultimate conclusion. The High Court has made clear that analogical reasoning which pays close attention to relevant precedents and any risk of incoherence in the principles they establish is required. [40]

72 The Defendant says that having regard to a number of the factors, a duty of the kind pleaded does not arise. The Plaintiff did not directly address the salient features test in written submissions of closing addresses.

73 In my view, a number of factors identified in Caltex militate strongly against the conclusion that a duty exists in this situation. [41] In descending order of importance, a duty of care does not arise in the present case because:

(a) the claimed duty is incompatible with duties arising under other principles of law or statute;

(b) the claimed duty would involve the Defendant imposing upon the autonomy and freedom of Dolly, including her right to determine her own testamentary wishes;

(c) the Defendant had no control sufficient to be able to avoid the harm suffered by the Plaintiff;

(d) the Plaintiff is not relevantly vulnerable to any harm from the Defendant's conduct; and

(e) the claimed duty is not consistent with, or at least does not sit well with, the terms, scope and purpose of statutes relevant to the existence of a duty.

74 The authorities are clear that there can be no duty where its existence would be incompatible with duties arising from other principles of law or statute.[42] Such a situation would result in a legally incoherent obligation, where the person subjected to conflicting duties would breach one duty in the performance of another.[43]

75 The claimed duty, if accepted, would be in conflict with duties owed by the Defendant in two respects:

(a) if the claimed duty is owed to the Plaintiff, it must also be owed to the other beneficiaries in the same terms. In the present case, the interests of each of the beneficiaries diverge from that of the Plaintiff, making it impossible for the Defendant to discharge its duty to one beneficiary without potentially breaching that same duty also owed to other beneficiaries; and

(b) the Defendant's duty to Dolly as her attorney.

76 The Plaintiff submitted that the claimed duty in the present case was analogous to the duty which has been held to exist between a testator's solicitor and beneficiaries under a will. It is true that such a duty has been held to exist - but not in all cases. There is no generally recognised duty requiring a testator's solicitor to take reasonable care to avoid injury or harm to potential beneficiaries under a will.[44] If a duty arises at all, it is where the content of the duty said to be owed to the beneficiary is consistent with the precise, clearly articulated, terms of the retainer between the solicitor and the testator who engaged them.

77 In cases like Hill v Van Erp,[45] the duty of the solicitor to take care in giving effect to the instructions of their client as to their testamentary wishes was not, in any way, in conflict with the interests of the beneficiaries. The coincidence of interest between the testator, and the beneficiary, both reliant upon the diligence and care of the solicitor to give proper effect to the wishes of the testator, eliminates any conflict. The context of the duty imposed by law on the solicitor is to exercise reasonable care for the same end - giving effect to the testamentary wishes of their client, resulting in the beneficiary receiving the gift. The nature of the duty arising in Hill v Van Erp has been described as 'exceptional' in that it empowered the beneficiaries with the standing to enforce their own secondary rights to damages on the basis of the of the wrong done to the deceased testator.[46] This case can be distinguished from those cases where potential beneficiaries failed to establish that a duty of care was owed by the testator's solicitor. In the cases where no duty was found to exist, there was an absence of coincidence between the scope of the retainer of the solicitor, and the interest claimed by the beneficiary.

78 The point is highlighted in Badenach v Calvert[47] where the majority said: [48]

The duty recognised in Hill v Van Erp arose in circumstances where the interests of the testatrix and the intended beneficiary were aligned and where final testamentary instructions had been given to the solicitor. The solicitor's obligation was limited and well defined.

This case might, at least on a first impression, be thought to bear some similarity to Hill v Van Erp. The client's initial instructions disclosed an intention that the respondent receive the client's property interests under his will. The respondent has the status of an intended beneficiary. But there the similarity ends.

The duty for which the respondent contends is not the same as the more limited duty which was recognised in Hill v Van Erp, to give effect to a testamentary intention. It is one, more generally, to give advice as to the client's property interests and future estate.

79 Where a duty has been held to exist between the testators solicitor and beneficiary of the estate stand in contrast to the circumstances of the present case, highlighting the weakness of the Plaintiff's case that a duty of care arises between an attorney acting under an enduring power and a possible beneficiary of the principal's will, in that the claimed duty is not coincident with either the rights of the testator, or with other third parties who might share the same or similar rights as the plaintiff.

80 The Defendant was, at all relevant times Dolly's attorney, exercising decision making power in relation to her financial affairs. The Defendant was operating under an enduring power of attorney made in 2003, under the Instruments Act 1958 (Vic) ('Instruments Act'). General (non-enduring) powers of attorney have been used for centuries to allow a person to appoint another person to act on his or her behalf.[49] In 1981 the Instruments Act was amended to introduce provisions to facilitate the creation of enduring powers of attorney (financial). This allowed a principal to appoint one or more representatives 'to do anything on behalf of the donor that the donor can lawfully authorise an attorney to do'.[50] The Instruments Act also provided that notwithstanding any law to the contrary an enduring power of attorney was not revoked by the subsequent incapacity of the donor.[51] The Instruments Act did not contain any statutory guidance as to the way in which an attorney should make decisions on behalf of the donor in circumstances where the donor became incapacitated.

81 In 2012 the Victorian Parliamentary Law Reform Committee conducted an inquiry into the powers of attorney and recommended that new legislation be enacted in relation to enduring powers of attorney which included statutory guidance as to the manner in which attorneys should approach decision making in circumstances where the principal lacks decision making capacity. The Powers of Attorney Act came into operation on 1 September 2015.[52] Section 21(1) and (2) of the Act contain guiding principles for decision making by an attorney. The provisions require that decisions are made by attorneys in a way that is as least restrictive of the donor's ability to decide and act as is possible in the circumstances, and in doing so, must ensure that the principal is given practicable and appropriate support to enable the principal to participate in decisions affecting them.[53] The attorney must also give all practicable and appropriate effect to the principal's wishes.[54]

82 The transitional provisions of the Powers of Attorney Act provide that the law as in force immediately before the commencement of the Act continues to have effect in relation to enduring powers of attorney created before the Act came into operation unless specified provisions of the Act are rendered operative.[55] Section 21 is not one of the specified provisions and does not apply to enduring powers of attorney created before the Act came into operation.

83 It follows that in 2016, the Defendant derived its guidance from the common law in making any decisions on Dolly's behalf. At common law, attorneys are in a position of trust and confidence and owe their donors fiduciary obligations and duties, which require the attorney to act in the principal's interests, not using their position for profit, avoiding conflicts of interests, acting in accordance with instructions, and acting with due care, skill and diligence.[56] The duty of an attorney is to follow the wishes of the principal and not to defy them.[57]

84 Whether guided by the provisions of the Powers of Attorney Act or by the common law, where an enduring power of attorney reposed in the attorney the power to make decisions on behalf of an incapacitated donor in their best interests, it is incumbent upon the attorney: to engage with the donor; to attempt to gain an understanding of the donor's wishes, either historical or current; and, depending upon the extent of incapacity and level of coherence, to take the donor's wishes into account in making a final decision on the donor's behalf.

85 Put another way, and in the context of this particular case, if an attorney had a clear understanding of the wishes of the donor in any given situation, and the understanding was gained from historical knowledge, and reinforced by recent statements of the donor, whose incapacity nonetheless facilitated communication of those wishes, the attorney would be under a fiduciary duty to give effect to the wishes of the donor to the extent practicable. It would be a breach of the attorney's duty to defy those wishes, or to act contrary to those wishes without a good reason. It may in some cases be impossible, undesirable or not advantageous to the donor to give effect to the donor's wishes. In such a situation, the attorney would nonetheless be required to have regard to the donor's wishes in exercising their discretion and in charting a course, being careful to ensure that any decision that the attorney made was motivated only by what was in the best interests of the donor, and no other.

86 In the present case, the postulated duty would require the Defendant to apply for a statutory will which would have the effect of changing Dolly's plan for the disposition of her estate. The Will was made in 2012 when Dolly was unaffected by incapacity. It had been made only four years before the claimed duty is said by the Plaintiff to have arisen. The Defendant had first-hand knowledge of the circumstances in which the Will was prepared, and the events leading up to the making of the Will. The manner in which the properties were gifted was Dolly's choice. She was entitled to dispose of her estate as she saw fit. The manner of those dispositions was deliberate, carefully thought through and informed by advice.

87 In October 2016, when the Plaintiff says the claimed duty arose, even if Dolly had been completely incapacitated, and thus incapable of engaging with the issues of her future care or conveying her wishes in any way, the Defendant would have been placed in a position of actual or potential conflict with its duty to Dolly if the attorney was also simultaneously under a duty to prepare, apply for and achieve a change to Dolly's testamentary wishes so obviously inconsistent with the content of the Will, and the evidence surrounding its creation. As it happens, Dolly was not so incapacitated as to be incapable of expressing her wishes. Whatever her level or impairment at that time, she was able to engage in a relatively sophisticated discussion about the need to replenish her cash reserves in October 2016, and the need to sell some of her real property to do so.

88 The postulated duty would impose an obligation on the Defendant to ignore the wishes of Dolly completely, both historical and recent, to prepare a will which would adjust (by diminishing) the gifts intended by Dolly for other beneficiaries, for the benefit of the Plaintiff. The conflict between the Defendant's duty to Dolly and the obligations said to be owed to the Plaintiff lacks coherence in that, any attempt to perform a duty owed to either Dolly or the Plaintiff would place the Defendant in breach of its legal obligations to the other. That the claimed duty would give rise to such a situation militates against the its existence.

Inherent conflict: duty to other beneficiaries

89 The claimed duty also fails when it is recognised that the act of attempting to obtain a statutory will which in some way preserved the possibility of the Plaintiff obtaining a part of the estate, would necessarily involve the dilution of the benefit to be derived by other beneficiaries.

90 The necessary implication of the Plaintiff's case is that the Defendant owed a duty to the Plaintiff which was not also owed to the other beneficiaries. This begs the question: if the postulated duty obliges the Defendant to act in the interests of the Plaintiff because she was a beneficiary under the Will, why would the Defendant not also be subject to an equivalent duty to preserve the value of the gifts given to the other beneficiaries of the Will?

91 The duty said to be owed to the Plaintiff, because she is a beneficiary under the Will, must also be owed in the same or similar terms, to the other beneficiaries and neither duty could be discharged without breaching the same duty owed to other beneficiaries.

92 The interests of each of beneficiaries are not coincident. There would be inevitable disadvantage to the other beneficiaries in the restructuring of the Will in the way the Plaintiff alleges the Defendant was under a duty to pursue. The consequence of such a duty would require the restoration of the Plaintiff's interests at the expense of the others.

93 The claimed duty requires the attorney, not to give effect to the stated intention of the principal, but instead to re-engineer the Will according to an imprecise and unguided notion of fairness, countermanding the express wishes of the donor, and using the funds of the donor to do so.

94 In the present case, the form and content of the statutory will that must be contemplated to give effect to the postulated duty is in spirit and intent inconsistent with the terms of the Will itself, which deliberately favours each of the beneficiaries differently and contemplates the possibility that if the asset bequeathed in the Will were to be sold, the corresponding beneficiary might not receive any gift at all, while the other beneficiaries enjoy the full benefit.

95 Leaving aside Dolly's wishes, any attempt by the attorney to disturb the status quo as expressed in the Will would obviously bring the attorney into conflict with any beneficiary whose interest in the estate was to be diminished. A likely consequence is that any application for a statutory will along the lines proposed by the Plaintiff would be opposed, would involve litigation and would necessarily involve the Defendant incurring costs on behalf of Dolly in the pursuit of that application.

96 The nature, content and consequences of the postulated duty give rise to a multitude of conflicts and lacks the legal coherence which is required to impute a duty of care.

97 A person cannot be compelled to make a will, or to make it in any particular form. A will produced under coercion will be rendered void.[58] The content of a will is a matter of free will and choice, which resides in the testator.

98 The law would not impute a duty which would give rise to an obligation to do an act which imposes upon the freedom of individuals.[59] Here the duty would require the Defendant to interfere with the freedom of Dolly as a testator to make such dispositions of her assets as she saw fit.

99 There is no evidence that by 2016 Dolly had changed her mind or altered her position with respect to her testamentary dispositions. Indeed, the available evidence strongly suggests that she understood the terms of the Will in 2016 and their effect on her beneficiaries, including the Plaintiff.

100 The effect of the postulated duty in this case would require the Defendant to impose itself upon Dolly's freedom to make testamentary dispositions of her choosing.

101 While the Defendant had the theoretical ability to prepare and apply for a statutory will, it had no control over the outcome and certainly could not ensure that a statutory will would be made in the terms pleaded by the Plaintiff.

102 An application for a statutory will is made to this Court. On such an application, the Court is entitled, if not required, to consider the views of affected persons who in this case would include the other beneficiaries. It is also required to have regard to the actual wishes of the testator, or evidence of what those wishes would likely have been had they been in a position to make their own will.

103 In the present case the Court would be confronted with the evidence of Dolly's Will, her historical statement reflecting her intentions in making the Will, the evidence of the meeting which took place on 25 October 2016, and the position of the remaining beneficiaries, all of whom with an interest in arguing that the application should be dismissed.

104 At any time from October 2016 there was no guarantee that an application for a statutory will would have been successful, or would necessarily have been to the advantage of the Plaintiff. At the very least, any decision to pursue an application for a statutory will which would have been to the advantage of the Plaintiff would have invited controversy.

105 In determining that controversy, this Court would be required to take into account the terms of Dolly's last Will, which deliberately gave specific gifts of differing value to each of the beneficiaries, with no guarantee that any one of them would receive their gift, or any cash in lieu. It would be impossible, in any application for a statutory will, for the Court to ignore the statements made by Dolly as to her wishes, in assessing the precise terms of any proposed will.

106 It would, in that situation, be hard for the Court considering a statutory will to resist the inference arising from the totality of the evidence that when Dolly was confronted with the need for liquidity, she preferred not to sell all of the properties, nor to dilute the interest of any of the beneficiaries named in her last Will, save for that of the Plaintiff's.

107 In making the application for a statutory will, an attorney would be subject to the testator's known intentions, which may or may not support such an application. In this case, Dolly's stated intentions clearly did not support the application. Indeed, the application could have been construed by the Court as an action in defiance of her intentions.

108 On the evidence before me, the beneficiaries would have had a strong arguable case establishing what were, or would have been likely to be, Dolly's actual wishes, if at the relevant time Dolly was not able to come to court and explain those wishes herself, as she did in the meeting of 25 October 2016.

109 The control required to fulfil the postulated duty rested with this Court and was not within the power or control of the Defendant, beyond merely making the application, which on the evidence confronted significant hurdles.

110 To the extent that vulnerability is a useful analytical tool in ascertaining the existence of a duty,[60] it does not assist the Plaintiff in this case.

111 The Plaintiff was at all times susceptible to the possibility that there would be a need to sell the property which had been bequeathed to her, because on the terms of the Will, the Plaintiff was at risk of not receiving the gift of the property in specie, but also the risk that there would be insufficient funds from the proceeds of any sale remaining at the time of Dolly's death to make any gift of money. The Defendant did not create the risk to the Plaintiff. It was a risk that subsisted since the creation of the Will. It was also a risk to which all the other beneficiaries were exposed under the Will.

112 The overwhelming weight of the evidence is that from the time the Will was created, if a property needed to be sold with the result that any one of the potential beneficiaries might need to miss out on their gift, it was and would have been Dolly's wish that 32 Page Street be sold, and the Plaintiff be the one deprived.

113 In that way, the Defendant was, in October 2016 giving effect to the earlier stated intentions of Dolly as it was required to do. The Plaintiff was not vulnerable to the actions of the Defendant, but rather always susceptible to the risk that Dolly's intentions would be carried into effect by her attorney. The Defendant had very little power to change that situation, and certainly no control over whether the Plaintiff would ultimately be deprived of the benefit of her gift.

114 In this way it is difficult to describe the Plaintiff as relevantly vulnerable in any way which might give rise to a duty on the Defendant to take care.

115 One aspect of the postulated duty is that the Plaintiff says the Defendant was under an obligation to seek advice from VCAT as a step anterior to making the application for a statutory will. The Defendant says that this feature of the alleged duty does not 'sit comfortably' with statutes relevant to the claimed duty.

116 An attorney may seek an advisory from VCAT under the following provisions of the Powers of Attorney Act:

(a) section 116(1)(a) - which invites an application by an attorney in relation to any matter for or with respect to an attorney's power under the enduring power of attorney, including but not limited to the scope and exercise of that power; and

(b) section 121 - which empowers VCAT to give an advisory opinion on any matter relation to an enduring power of attorney.

117 Section 77 exposes an attorney to a claim for compensation for loss where an attorney contravenes the Act. Section 77 applies to enduring powers of attorney created before the Act came into effect. Section 76 of the Powers of Attorney Act also applies to enduring powers of attorney made before the commencement of the Act, and provides that an attorney who acts in accordance with any advice, order or direction of VCAT or this Court is taken to have complied with the Act, in effect indemnifying an attorney from any claim under s 77 if acting on advice given by VCAT. A prudent attorney in the position of the Defendant would sensibly seek advice before taking an important step in the management of the principal's affairs.

118 There are two obvious features of this statutory framework which sit uncomfortably with the existence of a duty of care:

(a) first, it remains entirely in the discretion of an attorney as to whether to apply for advisory opinion; and

(b) second, the resultant advice or orders which might be given by VCAT are entirely within VCAT's discretion, and beyond the control of the attorney.

119 The statutory framework, read as a whole, encourages the making of applications for advice and/or orders, by indemnifying attorneys against claims for compensation where an attorney acts in accordance with such advice. While the statutory regime impliedly encourages applications for advice and orders, it does not compel attorneys to seek advice. Because it is in the nature of advisory opinions that it is not always possible to predict the content of the advice, the may be any number of reasons which are in the principal's best interests why an application might not be made. In the exercise of an attorney's discretion to seek advice, the attorney must consider a range of factors unrelated to the performance of the duty including the:

(a) complexity of the advice sought;

(b) readiness to seek the advice;

(c) cost (ultimately to be borne by the donor) of seeking the advice;

(d) precise nature of the advice to be sought from VCAT; and

(e) likelihood that the advice sought will confirm the appropriateness of any proposed course.

120 The entirely discretionary nature of deciding to seek an advisory opinion rests uncomfortably with the notion that the Defendant is said to have been under a duty to obtain one. In such a situation there is no way for the duty to co-exist with the discretion to seek advice.

121 A further and fundamental problem in the Plaintiff's case is that it presupposes that the advice obtained from VCAT would have been in favour of seeking a statutory will in terms favourable to the Plaintiff at that time. If that advice was not forthcoming, the claimed duty could not be discharged. It would be impossible to know the true content and extent of the duty before the time for fulfilling it arose, because it would always have been subject to the content of the advisory opinion, the application for which the statutory framework encourages, but does not compel, as an anterior step. It is inconsistent with the statutory framework relevant to the claimed duty, that the content of the duty would be contingent upon seeking advice under the Act.

122 Section 63 of the Powers of Attorney Act sets out the duties which are owed by an attorney. Under the Act, breach of duty enumerated in s 63 would be a contravention that attracts compensation under s 77. Section 63(1)(d) imposes a duty on an attorney to avoid acting in conflict with the donor interest, mirroring the Defendant's common law obligation. The Plaintiff also says that the Defendant was required to notify her of the situation which arose upon the sale of 32 Page Street. An obligation to do so would necessarily involve disclosing the content of the Will to the potential beneficiaries. A will is a confidential document, the disclosure of which would involve an attorney in a contravention of s 63(1)(e). A duty of the kind postulated by the Plaintiff would be inconsistent with the statutory framework of the Powers of Attorney Act.

123 On a literal construction of the Powers of Attorney Act, s 63 does not apply to an enduring power of attorney created before the Act commenced. The Defendant referred me to decisions of VCAT in which it has been held that notwithstanding the express terms of the statute, the duties of an attorned contained in s 63 apply to powers of attorney created before the Act commenced.[61] If those decisions are correct, then the performance of the duty claimed by the Plaintiff would also directly contravene of the Act, and consequently sit uncomfortably with that statutory regime.

124 For completeness I address two other factors which, though not pressed by the Plaintiff, might be said to arise.

125 The Defendant was always aware that the effect of Dolly's Will might result in one or more of the beneficiaries being deprived of the benefit of the gifts conferred by the Will. The Defendant had not assumed the responsibility of protecting the beneficiaries from that eventuality as that would have been inconsistent with its principal duty to Dolly. In fact, the Defendant did not undertake any task for the Plaintiff.[62] It is precisely that the Defendant gave effect to Dolly's stated wishes that is at the heart of the Plaintiff's complaint.

126 It might be said that it was foreseeable that if the Defendant did not take steps to protect the Plaintiff from the consequences of the Will as drafted, the sale of 32 Page Street to fund Dolly's care and expenses would likely deprive the Plaintiff of the benefit of her gift under the Will. That observation is relevant to ascertaining whether a duty exists, but it cannot be determinative of it because it does not explore the appropriateness of such a relationship attracting a legal obligation to act with reasonable care to protect the Plaintiff from that outcome. In King v Philcox,[63] Nettle J observed that 'foreseeability alone, however, is not enough'.[64] In making that observation, his Honour cited the following passage, which highlights the insufficiency of reasonable foreseeability of harm as a determining factor:[65]

What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem. The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.

127 In CAL No. 14 Pty Ltd v Motor Accidents Board, Gummow, Heydon and Crennan JJ said:[66]

The second reason for rejecting the duty of care found by the Full Court majority, or any qualified version of it, lies in the following circumstances. The formulation of the duty of care propounded on behalf of the board and Mrs Scott is narrow. It selects a particular chain of circumstances leading towards Mr Scott's death and contends that there was a duty to take care to prevent that chain of circumstances from occurring by preventing Mr Scott from riding the motorcycle. The formulation obscures difficulties in recognising the duty.

Because the duty relied on in this Court was framed so specifically, it merged the separate inquiries about duty of care and breach of duty. The merger that resulted carried with it the vice of retrospective over-specificity of breach identified in Romeo v Conservation Commission (NT) and in the diving cases of Vairy v Wyong Shire Council, Mulligan v Coffs Harbour City Council, and Roads and Traffic Authority (NSW) v Dederer. The duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of the events that had happened. Because the breach assigned was not framed prospectively the duty, too, was framed retrospectively, by too specific reference to what had happened. These are reasons enough to reject the formulation of duty advanced in argument in this Court.

129 In precise terms, the Plaintiff here alleges the existence of the following duty of care:

In the circumstances, the defendant owed a duty of care to the plaintiff to ensure a statutory will would be prepared on Dolly's behalf that would adjust the plaintiff's interests.

130 The Plaintiff refined the allegation in her reply as follows:

[T]he defendant owed a duty to the plaintiff to seek advice from the Tribunal and to apply for a making of a statutory Will and should have, at the same time as or immediately thereafter the application was made to sell the property, have simultaneously made an application for a statutory Will.

131 In her further and better particulars, the Plaintiff expanded upon the alleged duty in the following terms:

The loss to the Plaintiff was foreseeable and as a result, the Defendant-executor breached its duty of care to the plaintiff to ensure that she received a proportionate benefit under the Will after the sale of 32 Page St.

132 Properly synthesising the iterations of the Plaintiff's pleadings, and from the way in which the case was advanced before me, the duty said to be owed to the Plaintiff was one to: seek advice from VCAT to commence a statutory will application; to apply for a making of a statutory will contemporaneously with the sale of 32 Page Street or promptly thereafter; and ensure that the statutory will would adjust the Plaintiff's interest to ensure she received a proportionate benefit after the sale of 32 Page Street.

133 The Plaintiff's particulars of negligence allege that, in breach of its duty, the Defendant failed: to seek an advisory opinion; to seek an advisory opinion as to the preparing of a statutory will; to prepare a statutory will; and to understand that the Plaintiff, as the only blood relative of Dolly and as a person who was partly supported by Dolly, had a claim against the estate.

134 The articulation of the claimed duty by precise reference to the acts which are said to breach it, is an example of the retrospective over-specificity described by Hayne J in CAL No. 14.[68] Perhaps more importantly, the articulation of the claimed duty fails to grapple with (by pleading) precisely what it is about the nature of the relationship itself which gives rise to the imputation of the duty, and in that way fails to engage with the threshold question - are the characteristics of the relationship between the Plaintiff and Defendant such that the law imputes a duty to take reasonable care?

135 For all those reasons, the relationship between the Plaintiff and the Defendant does not give rise to a duty on the Defendant to take reasonable care to protect the Plaintiff in the manner claimed.

136 Such a finding would be sufficient to dispose of this case, but given that all issues were tried it is desirable that I proceed to decide all elements of the claim.

137 Even if it could be said that the Defendant owed a duty in any of the terms described by the Plaintiff, I am not satisfied that the evidence establishes that the Defendant breached those duties, or that the breach of them would necessarily have been the cause of the Plaintiff's loss.

138 The Plaintiff alleges breach of the claimed duty by saying that the Defendant should have made an application for a statutory will for Dolly at or immediately after 31 October 2016, when the application was made to VCAT for approval to sell 32 Page Street.

139 A significant hurdle confronting the Plaintiff is that to make an application for a statutory will, at that time, Dolly must have lacked testamentary capacity. If Dolly did not lack testamentary capacity at the relevant time, the Defendant could not have breached the claimed duty to prepare a statutory will, because no such application could have been made.

140 In the present case, the onus of establishing that Dolly lacked testamentary capacity at that time rests with the Plaintiff.

141 There is no contemporaneous medical evidence as to whether Dolly lacked testamentary capacity at that time. There are medical reports and assessments from 2014 which formed the basis of the decision to activate the enduring power of attorney, and appoint guardians. There are also medical opinions from 2017 and 2018, by which time Dolly's condition had further declined.

142 The only evidence of Dolly's appearance, behaviour and condition in October 2016 from which any inference as to her testamentary capacity might be drawn is the uncontested evidence of Ms Newson and Mr Carrigan, who were present at the meeting with Dolly on 25 October 2016. Neither of them express a view as to Dolly's testamentary capacity. Rather they make observations about the purpose and conduct of the meeting, and Dolly's role in it, including what Dolly said and did at the meeting.

143 On the evidence available at the time, including the observations of Ms Newson and Mr Carrigan, it can be said there is considerable doubt about whether Dolly lacked testamentary capacity. In early 2017, the Defendant sought advice and briefed experienced Counsel for an opinion as to whether an application for a statutory will could be made. The Plaintiff complains that the Defendant was negligent in the preparation of the brief to Counsel. On the contrary, the memorandum to Counsel comprehensively covered Dolly's history, including in relation to the treatment of the Plaintiff in her various wills, and the course of the meeting of 25 October 2016. Counsel advised that, on the basis of that material, an application for a statutory will would be premature because it was not clear on the material that Dolly lacked testamentary capacity.

144 The Plaintiff's case as to Dolly's testamentary capacity in October 2016 rests entirely on the opinion of an expert neuropsychologist, Dr Karen Bird, which is to the effect that it is highly unlikely that Dolly had testamentary capacity.

145 Before turning to the evidence of Dr Bird it is convenient to reprise the applicable principles relating to testamentary capacity.

146 The onus of establishing that Dolly did not have testamentary capacity rests with the Plaintiff on the civil standard. In Easter v Griffith, Gleeson CJ said that:[69]

The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.

147 In Timbury v Coffee, Dixon J re-stated the test of testamentary capacity as follows:[70]

Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner (per Hood J, In the Will of Wilson).

148 In Norris v Tuppen[71], Ashley J made the following observations about the operation of the test of testamentary capacity:[72]

The awareness of those who might naturally be thought to have claims upon the bounty of a testatrix, the basis for and nature of such a claim, and the ability to evaluate or discriminate between the respective strengths of claims may be destroyed in the circumstances described long ago by Cockburn CJ in Banks v. Goodfellow (1870) 5 QB 549 at 565.

Expert (medical) evidence may be important in determining competency. But it does not decide the issue, any more than does the mere fact of the age of the testatrix when the will was made, or the opinions of the attesting witnesses that the testatrix was competent.

The presence of dementia does not necessarily tell against a testatrix having competency. Dementia may manifest itself in imperfect recollection, yet leave intact the awareness and ability to which I have referred.

Delusion does not necessarily tell against a testatrix having competency. The delusion may not have had any influence on the dispositions made. But that is not to say that a delusion which cannot be shown to have directly affected a particular disposition may not be evidence of the existence and extent of a mental disorder which does destroy competency.

In determining a challenge to competency, relevant evidence may be provided by the exclusion of persons naturally having a claim upon the testatrix. So also, provision of a will or codicil rational on its face may appear in quite another light when all the evidence is examined. Whilst it is the privilege of a testatrix to dispose of her property in an idiosyncratic way, if the testatrix is at the time of making testamentary dispositions affected by a mental disorder, the apparent irrationality of particular dispositions could be some evidence of "absence of capacity, not merely its prejudiced exercise", to quote Santow J in Easter v Griffith (Supreme Court of NSW, judgment 17 June 1994, unreported).

The making of an administration order does not prevent the represented person from making a will. Nor does it establish want of competency. But, having regard to the definition of "disability" in the Act, the basis upon which the application was evidently pursued, and the jurisdiction of the Board to make orders, I consider that the parties were right to adopt the common ground that the making and continuance of orders was some evidence of Mrs Tuppen's mental state at the time of the initial hearing and at the time of the reviews.

149 Ashley J's observations are consistent with the observations of the Court of Appeal in Kantor v Vosahlo,[73] which were in turn cited by Santamaria JA in Veall v Veall.[74]

150 Circumstances will vary from case to case.[75] The assessment of capacity must be undertaken at the time the will is to be executed. On the Plaintiff's case the assessment is required at the time when the duty to apply for a statutory will arose. In Veall v Veall, the Santamaria JA said:[76]

The ability of a testator to make a will may fluctuate. A testator who is aged and infirm may suffer from dementia or some other form of impairment. But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval.

151 In summary, to have testamentary capacity, a testator must:

(a) be aware of and appreciate the significance of the act which they are embarking upon;

(b) be aware in general terms of the character, extent, and value of the estate with which she is dealing;

(c) be aware of those who might reasonably be thought to have claims upon her bounty, and the basis for and nature of those claims; and

(d) have the ability to evaluate and discriminate between the respective strengths of those claims.

152 Dr Bird never examined Dolly while she was alive. Dr Bird was provided with documents and instructed to provide a report as to Dolly's testamentary capacity. In her evidence, Dr Bird concludes that it is 'highly unlikely' that Dolly had testamentary capacity in October 2016.

153 For the reasons that follow, I do not accept Dr Bird's conclusion. The weight of the evidence instead points to the conclusion that there was a real possibility that Dolly retained testamentary capacity at that time. At best, Dr Bird's evidence establishes that Dolly might not have had testamentary capacity, but it does not establish that it was more probable than not that Dolly did not have testamentary capacity.

154 Following her preliminary report of 22 November 2021, Dr Bird was asked to consider the following questions:[77]

Further to my report of 22 November 2021, you seek opinion as to whether:

1. on the 25 October 2016, the Deceased

2. was likely to have had testamentary capacity in accordance with the test laid out in the case of Banks v Goodfellow (1870) LR 5 QB 549, 565;

3. was able to provide reliable statement of wishes as contemplated by Section 21A(d) of the Wills Act 1997; and

4. whether Mr John Carrigan's and Eliza Newson's observations of the deceased as set out in the affidavits dated 17 and 23 June 2025, are reliable in the circumstances.

5. the Deceased's aptitude and emotional state could have been affected by the medical conditions as set out in the deceased's medical records.

1. The Deceased was highly unlikely to have had testamentary capacity on 25 October 2016.
2. The Deceased was highly unlikely to be able to provide a reliable statement of wishes on 25 October 2016.
3. No opinion is offered on the reliability of Mr John Carrigan's and Eliza Newson's observations of the deceased as set out in the affidavits dated 17 and 23 June 2025.
4. The Deceased's aptitude and emotional state could have been affected by the medical conditions of dementia and, possibly, stroke.

156 Dr Bird's concession that she can offer no opinion as to the reliability of Mr Carrigan and Ms Newson's observations of Dolly, is fair, but also telling. Dr Bird never met Dolly. She was not at the meeting on 25 October 2016. Her assessment of Dolly's cognitive function at the time of the meeting is based upon interpolating between earlier and subsequent medical reports, but lacked what she described as the 'considerable advantage'[79] of direct observation. In re-examination she described in more detail how such an assessment by direct observation might have been carried out, which if anything, contributed to underscoring the deficiencies inherent in the circumstances of her assessment.

157 Dr Bird's assessment was confined to various documentary evidence. She considered the content of the file note prepared by Ms Newson of the 25 October 2016 meeting against the backdrop of various clinical reports which had been prepared for different purposes in the years between 2014 and 2018.

158 Dr Bird's analysis of documentary evidence was incomplete. Although she was provided with a complete copy of the 861 page court book, she was not directed to, and did not examine in detail, all of the documents. Rather Dr Bird selected the documents which contained clinical assessments of Dolly's physical and cognitive condition. This was a significant omission.

159 Dolly's attitude to the Plaintiff and their relationship, expressed in 2010 and 2012, at a time when Dolly was unimpaired by any cognitive decline, is an important part of understanding the context in which the meeting on 25 October 2016 occurred. Dr Bird was not aware of this background at the time she prepared her report. She agreed that this material would have been of assistance to her in formulating her views. Indeed, when later questioned in cross-examination, she purported to rely upon this history in support of her opinion that Dolly displayed rigidity of thought consistent with her hypothesis that Dolly was significantly impaired, rather than accepting the possibility that this behaviour was also consistent with a strong willed person who had exercised her choice and was simply 'sticking to her guns'.[80] Dr Bird's willingness to deploy facts not known to her at the time she prepared her report in a way which supported her views, but unwillingness to accept the possibility that those same facts could support a conclusion inconsistent with that hypothesis, detracts from the weight that could be attributed to her evidence.

160 In her use of the historical medical documents, Dr Bird misstated the findings of those who had examined Dolly in person, and the context in which those reports were prepared, in each case potentially over-emphasising the extent of decline in Dolly's cognitive abilities. Dr Bird's use and treatment of Dr Lang's report prepared in 2014 is one illustration. Dr Bird accepted that assessing the capacity to make decisions depends upon the type of decision in question. She accepted that a person with a disability could still have the capacity to make decisions, depending upon the nature of the decision.

161 Dr Lang's report was prepared for the purpose of assessing Dolly's ability to make decisions about financial matters, accommodation and lifestyle. It was not an assessment of testamentary capacity. Dr Bird agreed that there are different tests which might be used for assessing capacity for different types of decision making. Dr Bird did not record the limited purpose of Dr Lang's report. When pressed, she maintained that the purpose of Dr Lang's report was not relevant. Dr Bird maintained that she was only looking at Dr Lang's report for her results concerning cognitive functioning. This answer was inconsistent with her earlier evidence that the cognitive function required to support decision making depended upon the type of decision under consideration, and that testing can be different depending on the purpose of the assessment.

162 In summarising Dr Lang's assessment, Dr Bird said that Dolly's history and assessment results 'were considered by Dr Lang to indicate likely Alzheimer's type dementia at a moderately advanced stage'.[81] This summary was a considerable plank of Dr Bird's documentary assessment in reasoning to the conclusion that by 25 October 2016, 'Dolly was highly unlikely to have had testamentary capacity'.[82]

163 Dr Bird's summary of Dr Lang's findings were not accurate. Dr Lang's findings were that Dolly's 'current [as at 2014] neuropsychological profile in the context of the history and clinical presentation raises the possibility of a dementing process most likely a dementia of the Alzheimer's type at a moderately advanced stage.'[83] Dr Lang's assessment lacked the certitude of expression that Dr Bird's summary sought to convey.

164 Taken together with other instances of inexact, or misstated, summaries of the documentary evidence that she reviewed, the Defendant says that Dr Bird emphasised elements of Dolly's clinical record which highlighted possible decline, and overstated those matters in a way which necessarily skewed her conclusions toward a more severe diagnosis, thus undermining the reliability of her conclusions. I agree.

Interpretation of the file note of 25 October 2016 meeting

165 Dr Bird was instructed as to the test of testamentary capacity. Banks v Goodfellows[84] was set out by Dr Bird in her report in the following terms:[85]

5.1.1 Test of Testamentary Capacity

The test laid out in the case of Banks v Goodfellow (1870) LR 5 QB 549, 565 reads:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects, shall understand the extent of the property which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made".

166 The only contemporaneous evidence of Dolly's behaviour which might inform an assessment of her testamentary capacity in later 2016 is the file note of the meeting of 25 October 2016. In cross-examination about the file note, Dr Bird accepted that in the context of the relevant test of testamentary capacity as she understood, the inference could be drawn from the file note that Dolly:

(a) knew that she had run out of money to fund her care;

(b) understood that the advice was to sell the three properties; and

(c) did not agree with the advice, and put forward her own solution - giving reasons consistent with long held views (of which Dr Bird had not been aware before appearing in Court).

167 Dr Bird agreed that Dolly's behaviour could be viewed as consistent with simply having strong, consistent opinions about her affairs - and that Dolly was entitled to hold such views.

168 In cross-examination Dr Bird accepted that a diagnosis of dementia did not necessarily mean an absence of testamentary capacity. Dr Bird accepted that the file note recording the meeting on 25 October 2016 revealed that it was quite likely that Dolly understood the nature and effect of a will and understood in general terms the nature and extent of her property.

169 However, Dr Bird was unwilling to concede that, on the strength of the file note, Dolly showed that she had the ability to weigh the respective strengths of the claims which might be made on her estate. Dr Bird accepted, though, that she would have been in a stronger position to form a conclusion on this matter had she been able to directly observe Dolly. Dr Bird said in her report that Dolly's dementia was capable of affecting her disposition towards her beneficiaries, but that it was 'unclear' to what extent.

170 The long documented history of Dolly's attitude towards the Plaintiff is an important indicator weighing against the conclusion that Dolly's condition had caused her to exclude the Plaintiff in a way which if completely well she might not have made. While on its own, this history may not have been conclusive, it was certainly important to someone whose entire assessment was confined to a review of documents. Dr Bird did not have the benefit of the history of Dolly's attitude to the Plaintiff in preparing her report.

171 Dr Bird was asked, but properly refused, to proffer any opinion on whether or not Dolly's condition did, in fact, affect her dispositions at the relevant time. The evidence of Dr Bird, constrained as it is by the limitations of the material available to her (including the lack of direct observation of Dolly and a thorough review of all of the documentary history of Dolly's relationship with the Plaintiff), makes her conclusions as to the level of Dolly's impairment on 25 October 2016, difficult to accept. In the result, no weight can be given to her conclusion that it was highly unlikely that Dolly had testamentary capacity at the relevant time in light of her evidence that she was unable to say whether Dolly's condition impeded her capacity to make testamentary dispositions.

172 The Plaintiff presented Dr Bird's evidence in this case to offer an opinion as to the inferences that could be drawn from the file note of the meeting on 25 October 2016 as to Dolly's testamentary capacity. Although Dr Bird has expertise as a neuropsychologist, without the considerable advantage of any direct observations of the meeting, or of Dolly at this time, the inferences that she might draw from the file note are of no utility.

File Note: Evidence of observations and inferences

173 The file note of the meeting on 25 October 2025 is the only contemporaneous account of what transpired. From the file note, and the corroborating affidavits of Ms Newson and Mr Carrigan, a number of inferences can be drawn. At the meeting Dolly was advised by Mr Carrigan that:

(a) she had run out of money to fund her care;

(b) the Defendant had considered selling one of the properties, but that to do so would decrease the share of the beneficiary who would have received that property in the Will;

(c) the Defendant proposed that all three properties should be sold, leaving Dolly in her principal place of residence at 158 Kerferd Road, Albert Park; and

(d) the sale of all three properties would ensure that each of the beneficiaries would lose a proportion of their gift, rather than one of the beneficiaries missing out entirely.

174 Reading the file note as a whole, being the best evidence of what transpired at the meeting, it is clear that Dolly appeared to those present to understand the advice which had been given. I reach that conclusion because it is also clear that Dolly actively engaged in the meeting. Ms Newson, who by that stage had known Dolly for more than six years, noted that although Dolly showed signs of having become more frail since their last meeting, Dolly nonetheless seemed to Ms Newson to be able to reason through her wishes.

175 Ms Newson's impressions are borne out by the recorded events of the meeting. Dolly rejected the proposal of the Defendant to sell all three properties. She insisted that only one of the properties was to be sold. In deciding, which was to be sold, she undertook a process of elimination. She excluded 61 Page Street, Albert Park from any sale for sentimental reasons. The property had been given to her by her grandfather so that she would always have a roof over head - a detail recorded in the file note. This is clear evidence of engagement in a process of reasoning. Dolly also excluded the property at 160 Kerferd Road, Albert Park - being next door to her home - on the basis that in her view the property would be worth more when put up for sale together with 158 Kerferd Road, Albert Park. Whether this observation be right or wrong as a matter of property valuation, it evidences the nature of the deliberations in which Dolly was engaged, as a step in the process of rejecting the proposal put by the Defendant and positing her view as to what should occur. She made clear that only one property should be sold, and that it should be 32 Page Street. Dolly's statement that 'if [the Plaintiff] received nothing, she would be ok with that'[86] is consistent with her being aware of the provisions which had been made in the Will for the Plaintiff, and that her wish that 32 Page Street be the only property sold would negatively affect the provision made for the Plaintiff. Dolly's expression of comfort with that outcome is accompanied by reasons. It was Dolly's expressed view that the Plaintiff had cared for her the least and that she had not chosen a good path in life. Dolly's opinions of the Plaintiff were consistent with the views she had expressed in 2010 and 2012.

176 On the available evidence, it is in fact possible that Dolly had testamentary capacity at that time it is said that the claimed duty is said to have arisen. At the very least, it is not established on the balance of probabilities that she lacked testamentary capacity.

177 It follows that even if a duty of care exists to apply for a statutory will if the circumstances warranted such an application, no breach of that duty arises if the prevailing circumstances would have precluded such an application at that time.

178 The Plaintiff further contends that the Defendant breached the claimed duty because it:

(a) acted in its own interests;

(b) failed to advise the Plaintiff as to the application to VCAT to sell 32 Page Street;

(c) failed to advise the Plaintiff to enable her to apply for a statutory will in her own right;

(d) failed to keep the funds from the sale of 32 Page St in a separate account; and

(e) should, at least, have applied for a statutory will leading up to the November 2018 application to VCAT.

179 There is no evidence that the Defendant acted other than in accordance with the express wishes of Dolly in considering whether or not to seek a statutory will.

180 The Defendant was under no legal obligation to give notice to the Plaintiff of either its application to VCAT to sell the property, or to put the Plaintiff on notice so as to enable her to bring an application for a statutory will in her own right. Had the Defendant given notice to the Plaintiff, it is certainly arguable that it may have been acting in breach of its fiduciary duty to Dolly. On the Plaintiff's own case, notice of the kind described would have:

(a) necessitated disclosure of Dolly's Will, which is confidential information; and

(b) invited objection to the sale of 32 Page Street in VCAT; or alternatively, invited an application for a statutory will made by the Plaintiff, either of which may have delayed the sale, and in turn the funds needed by Dolly for her care and other expenses.

181 Equally, the alleged failure to keep the funds from the sale of 32 Page St in a separate account implies that the funds could not have been used for Dolly's care, and presupposes that each and every preceding act of the Defendant amounts to a breach of duty, which for the reasons already explained, they do not.

182 The Plaintiff's complaint is that the Defendant owed a duty to make such an application, and breached that duty by not progressing such an application quickly enough. In truth, the anterior question is: what should such a will contain?

183 The Plaintiff points to the application for a statutory will which was ultimately made in November 2018 and says that this is precisely what the Defendant should have done two years earlier. In substance the Plaintiff invites the inference that the circumstances which justified an application for a statutory will in late 2018 were equally applicable two years earlier. The Plaintiff's pleaded case alleges that the duty arose in 2016 and was breached on and from October 2016 when the circumstances were completely different. By 2018 three important things had occurred. First, Dolly's condition had further declined. Second, the need to sell a second property would have involved disrupting Dolly's testamentary dispositions in a way which would were unguided by any earlier statement by Dolly of her wishes. Rather than just the Plaintiff missing out on a gift from the estate, which Dolly had expressly said she was comfortable with, one of the other properties would need to be sold, which on the terms of her Will would have deprived another beneficiary of a gift unless the Will was altered. Third, by late 2018 it was clear that Dolly lacked testamentary capacity.

184 The situation was different leading up to the 2018 application. Another property had to be sold. Unlike the sale of 32 Page St, this would affect a beneficiary or beneficiaries in relation to whom the only evidence of Dolly's intentions was their previous inclusion in her wills. Moreover, at this point, it appears unlikely that Dolly had testamentary capacity. What had not changed was Dolly's stated intentions regarding the Plaintiff, effectively that she did not care if the Plaintiff received nothing.

185 The Plaintiff complains that, on the strength of the file note alone, that at the meeting on 25 October 2016 Dolly was not advised of any alternatives, and that she was presented only with the option of selling a property, or the property bequeathed to the Plaintiff under the Will, and that other options, such as a mortgage or a loan were not proffered. I assume this to be further allegation of breach. Whether or not that is so, it is not what the file note reveals.

186 It is important to observe that Dolly's guardians were at the meeting. In addition to the proposal advanced by the Defendant, one of the guardians suggested the alternative of borrowing money (presumably) against the security of Dolly's property to fund her care. The file note records that Mr Carrigan explained that the Defendant does not normally agree to such a course. In his affidavit Mr Carrigan explained that the reason for that approach is that when a loan is taken out to fund care, the principal needs to find the funds to service the debt. This reasoning is not explained in detail in the file note. That said, the file note records that Dolly said words to the effect 'Tanya will need to pay the interest'.[87] The file note also records that Ms Newson took Dolly to mean that if the cost of her care was to be funded by debt such as to reduce the benefit to the other beneficiaries, then the cost of the interest should be borne by the Plaintiff. The file note records that in using the phrase 'Tanya will need to pay the interest', Dolly 'got a bit confused'.[88] Even allowing for confusion in the use of that phrase, Dolly's response to the possibility of debt funded care can be read as evidence that an alternative scenario was advanced by her guardians for Dolly's consideration and evidence of Dolly's consideration and cogent response to the suggestion.

187 There is no suggestion in any of the material before me that Dolly was pressured or coerced into expressing her views at the meeting. I infer from the file note that it was Dolly, and not the Defendant, who suggested that 32 Page Street alone be selected for sale. It is clear that in reaching that view, Dolly was in effect rejecting the Defendant's proposal. This is inconsistent with the Plaintiff's suggestion either that she was coerced, or that she did not understand what was proposed. The presence of the guardians, and their active participation in the meeting reinforce the conclusion that the file note of the meeting was a faithful recording of Dolly's wishes.

188 The Plaintiff says that the file note does not record that Dolly was told that her Will would be compromised by the sale of 32 Page Street. It is unclear why Dolly would have been advised in that way. The sale of one or all of the properties was expressly contemplated by, and consistent with, the Will. The file note makes clear enough that Dolly was aware of the effect of her Will, and that if the property were sold, the Plaintiff would 'miss out'.

189 The Plaintiff submits that Dolly's explanations for her wishes are 'no more than a stream of consciousness' and 'rehashing a logic she had previously cited some years prior'. There is no basis for this submission arising from the file note, or any other evidence.

190 The Plaintiff asserts that the file note shows that Dolly herself had become ultimately confused and overwhelmed and may have been confused from the very start. The Plaintiff also relies upon the evidence of Dr Bird that the file note reveals that Dolly:[89]

[A]ppeared to apply a rigid set of ideas to the problem of finding ongoing home based care and was unable to shift her thinking and eventually shutting down the discussion being apparently overwhelmed.

191 This is a selective reading of the file note, which is inconsistent with its content taken as a whole. It also ignores Dr Bird's concession under cross-examination that it may also reveal Dolly had held strong, consistent views over a long period of time.

192 More broadly, the Plaintiff's submissions about these matters must be viewed through the lens that the Plaintiff declined the opportunity to cross-examine those who were actually at the meeting.

193 Section 52 of the Wrongs Act 1958 (Vic) ('Wrongs Act') provides that the Plaintiff bears the onus of proving any fact relevant to the issue of causation.

194 Section 51(1)(a) of the Wrongs Act requires that the negligence alleged was a necessary condition of the occurrence of the harm (factual causation).

195 In Lewis v Australian Capital Territory, Edelman J said:[90]

[T]he test for causation of loss asks whether the wrongful act was necessary for the loss. The "but for" or counterfactual approach "directs us to change one thing at a time and see if the outcome changes". The change is the removal of the wrongful act. If the loss would lawfully have occurred but for the wrongful act then the wrongful act was not necessary for the loss. The counterfactual approach thus involves a hypothetical question where no other fact or circumstance is changed other than those which constituted the wrongful act.

196 In determining the counterfactual, the starting point is to identify the relevant wrongful act which is said to be the necessary condition of the occurrence of harm. Here, it is the alleged failure to apply for a statutory will to the effect pleaded at or around the time of the application to VCAT to sell the property in late 2016.

197 Assuming no change to any other fact or circumstance, the corresponding counterfactual is: would the Plaintiff have received the proportionate benefit from Dolly's estate that she claims to have lost had the Defendant applied for a statutory will to the effect pleaded in around late 2016?

199 At the risk of repeating matters already discussed elsewhere, for completeness and in the context of causation, I observe that had the application for a statutory will been made in or around late 2016 there was no guarantee that the application would have succeeded. Indeed, there was every reason to expect that the application would have failed, for the following reasons:

(a) there was no evidence at the time that Dolly lacked testamentary capacity in October 2016, such that it would not have been possible to satisfy the jurisdictional pre-requisite for such an application; and

(b) even if it could be said that Dolly lacked testamentary capacity, the success of any application for a statutory will was in the hands of the Court, which was required to consider the wishes of Dolly in any event.

200 Leaving aside whether Dolly had testamentary capacity at the meeting on 25 October 2016, or in late 2016, the Plaintiff must establish on the balance of probabilities that no weight would have been given to the expressly stated wishes of Dolly in the Court's consideration of the application for a statutory will, or at least that those wishes would not have been given determinative weight.

201 Even if the Plaintiff could overcome the considerable hurdles of establishing the existence of a duty of care, and breach of it, her claim inevitably fails because she cannot establish that, but for the Defendant's conduct, she would have received her share of the estate.

202 Had the statutory will application been made, whether she would have received her share of the estate was in the hands of this Court. Success was not something that the Defendant could have influenced at all on the material available and in the circumstances as they stood at the time the duty was said to have arisen.

203 In this case, establishing a causal link between what is said to be the Defendant's negligence and the Plaintiff's loss necessarily involves demonstrating that, on the balance probabilities, the Court would have granted the application for a statutory will in the form pressed by the Plaintiff.

204 It is useful to set out the general principles which would arise in an application of this kind in the peculiar circumstances of this case:

(a) It is a serious matter for the Court to determine the contents of a person's will and the Court should only do so if the matters necessary to establish its statutory jurisdiction are present.[91]

(b) In making a statutory will on behalf of a person, the Court must be satisfied that the proposed will reflects what the intention of the person would be likely to be, or what their intentions might reasonably be expected to be, if they had testamentary capacity.[92]

(c) The quest for determining intention is clearly directed at 'subjective' intention.[93]

(d) The making of a statutory will is ultimately a matter of discretion.[94]

(e) In making a statutory will the Court may have regard to any evidence of past wills.[95]

(f) The Court may also have regard to any evidence of the wishes of the person,[96] which may be historical as well as recent.

(g) The weight to be attached to evidence of the wishes will depend on the circumstances of each case.[97]

(h) Evidence that the wishes have been consistently held can be significant.[98]

(i) Despite lacking testamentary capacity, the person may participate in the hearing, or be represented.[99]

(j) Any beneficiary of an existing will would likely be a person entitled to appear and oppose the application.[100]

(k) No assumption should be made that a change in circumstances would result in a change of testamentary arrangement.[101]

205 In light of those principles, the Plaintiff cannot establish that it was more likely than not that an application for a statutory will in or around late 2016 would have succeeded. Indeed, there was a considerable risk, bordering on real likelihood, that the application would have failed, because either:

(a) there was no evidence that Dolly lacked testamentary capacity; or

(b) in the exercise of its discretion, the Court would have refused to make the statutory will in the terms pleaded because:

(i) Dolly's existing Will had deliberately made gifts in terms consistent with her wishes at the time;

(ii) Dolly's attitude toward the Plaintiff had not materially altered over time;

(iii) As recently as 25 October 2016, Dolly's wishes were cogently and rationally explained; and

(iv) The proposed will would have the effect of countermanding the effect of the existing will, and the more recent expression of Dolly's wishes.

206 Therefore, the Plaintiff cannot establish to the relevant standard that the Defendant's acts or omissions caused her loss.

207 For all these reasons the Plaintiff's claim fails.

208 I will hear from the parties before making final orders.

[1] Will of Dolly Ellis dated 30 November 2012, at CB 374-375.

[2] Mr Barker was a former manager of the Attorneys Trust Company (Australia) Limited, succeeded by Perpetual Trustee Company Limited in 2013. Though he was named as an attorney, and received correspondence keeping him informed of events, he did not take an active part in the management of Dolly's affairs.

[3] Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, 677 [105] (Allsop P) ('Caltex'), referencing Sullivan v Moody (2001) 207 CLR 562, 579 [49] (The Court) ('Sullivan'); See also Vairy v Wyong Shire Council [2005] HCA 62, 22 [62] (Gummow J) .

[4] For instance, see non-delegable categories of duty of care in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 685-687 (Mason J); Categories of fiduciary relationships in Hospital Products v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96-97 (Mason J) ('Hospital Products').

[5] Sullivan, 579-580 [50]-[53]; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 217 [94] (McHugh J) ('Perre'), citing Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] AC 1004, 1058-1060 (Lord Diplock).

[6] Caltex, 676 [102] (Allsop P); Sullivan, 579-580 [50]-[52] (The Court); Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25, 13-14 [36] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) ('Mallonland').

[7] Australian Prudential Regulation Authority v Kelaher [2019] FCA 1521; Agricultural Land Management Limited v Jackson (No 2) [2014] WASC 102.

[9] Wills Act 1997 (Vic), s 21C.

[10] Ibid, s 21B(a).

[11] Ibid, s 21A(d).

[12] Ibid, s 21 A(e).

[13] File note prepared by Eliza Newson dated 11 November 2010, at CB 260.

[15] TCL Legal Services letter dated 24 November 2010, at CB 245.

[16] Attendance Note of Eliza Newson dated 26 November 2010, at CB 262-263.

[17] Handwritten attendance note of Eliza Newson dated 15 September 2011, at CB 284-285.

[18] Attendance Note of Eliza Newson dated 11 October 2011, at CB 293.

[19] Estate Planning Fact Finder completed 25 October 2012, at CB 325.

[21] File note prepared by Eliza Newson dated 30 November 2012, at CB 370.

[22] Report of Dr Wendy Lang dated 3 June 2014, at CB 389.

[23] Transcript dated 26 June 2025, 194-195.

[24] File note of Eliza Newson dated 25 October 2016, at CB 455.

[25] Letter to Dr John Clifforth dated 1 June 2017, at CB 517-518.

[26] Email from Jennifer Maher to Eliza Newson dated 14 June 2017, at CB 521.

[27] Email from Jennifer Maher to Eliza Newson dated 17 June 2017, at CB 524; Email from Paul Besant to Eliza Newson dated 1 August 2017, at CB 525.

[28] Email from Johanna Reed to Albert Park Medical Centre dated 17 August 2017, at CB 527; Email from Eliza Newson to John Carrigan dated 29 August 2017, at CB 531.

[29] Letter from Dr Lorien Porter (Consultant Psychiatrist) reporting to Dr John Clifforth dated 30 October 2017, at CB 537.

[30] Email from Eliza Newson to Paul Beasant dated 8 November 2017, at CB 540.

[31] Letter from Dr Lorien Porter (Consultant Psychiatrist) to Perpetual Trustees dated 13 November 2017, at CB 545.

[32] Email from John Carrigan to Jennifer Maher dated 22 February 2018, at CB 556.

[33] Email from Jennifer Maher to Anne Williamson dated 25 February 2018; Email from Anne Williamson to Jennifer Maher dated 2 March 2018, at CB 569.

[34] Perre, 253-254 [198], [201] (Gummow J), referencing Stephen J's approach in Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529, 576-577.

[35] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 597-598 [149] (Gummow and Hayne JJ), 620 [222], 624-625 [236] (Kirby J) ('Graham Barclay Oysters').

[36] See also Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, 530 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 561-562 [123] (Kirby J); Kuhl v Zurich Financial Services Australia [2011] HCA 11; (2011) 243 CLR 361, 370-371 [20] (French CJ and Gummow J).

[37] See Caltex 676 [104] (Allsop P); Sullivan, 579-580 [50] (The Court).

[38] Sullivan, 572-573 [25], 576 [42], 583 [64] (The Court); See also Caltex 677 [106] (Allsop P); Graham Barclay Oysters, 555 [9] (Gleeson CJ); Footscray Football Club Limited v Adam Kneale [2024] VSCA 314, 45 [265] (Beach JA and Forrest AJA).

[40] Mallonland, 14 [37] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ).

[42] Sullivan, 581 [55] (The Court).

[43] CAL No. 14 Pty Ltd v Motor Accidents (2009) 239 CLR 390, 406-407 [39] (Gummow, Heydon and Crennan JJ) ('CAL No. 14').

[44] Hill v Van Erp (1997) 188 CLR 159, 167 (Brennan CJ) ('Hill v Van Erp').

[46] Mallonland, 27 [69] (Edelman J).

[47] [2016] HCA 18; [2016] 257 CLR 440.

[48] Ibid, 455 [435] (French CJ, Kiefel and Keane JJ).

[49] Historically these arrangements were primarily used by wealthy merchants to assist with business transactions.

[50] Instruments Act 1958 (Vic) s 115(1).

[52] Powers of Attorney Act 2014 (Vic), s 2.

[53] Ibid s 21(1)(a) and (b).

[54] Ibid s 21(2)(a).

[55] Ibid s 142.

[56] Hospital Products, 68 (Mason J).

[57] R v Holt (1983) 12 Aust Crim Rep 1, 14 (Tadgell J, with Young CJ and Kaye J agreeing) cited in Dynayski v Grant [2004] NSWSC 1187, 4-5 [19] (Master Macready).

[58] Brown v Guss [2014] VSC 251, 111-114 [382]-[389] (McMillan J).

[59] CAL No. 14, 407-409 [41] (Gummow, Heydon and Crennan JJ).

[60] Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 260-261 [133] (Crennan and Keifel JJ), citing Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, 627 [308] (Hayne J).

[61] DLM (Guardianship) [2018] VCAT 1638, 12-15 [84]-[112] (Judge Harbison, Vice President); MYJ (Guardianship) [2019] VCAT 792, 6-7 [31]-[43] (Senior Member B Steele).

[62] Mallonland, 12-13 [33]-[34] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ), citing Hill v Van Erp, 210-11 (McHugh J); 230-231 (Gummow J).

[63] [2015] HCA 19; (2015) 255 CLR 304.

[65] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, 331 [13] (Gleeson CJ).

[67] Ibid, 418 [68] (citations omitted).

[69] Easter v Griffıth (1995) 217 ALR 284, 290 (Gleeson CJ).

[70] [1941] HCA 22; (1941) 66 CLR 277, 283.

[71] [1999] VSC 228.

[73] Kantor v Vosahlo [2004] VSCA 235, 23-24 [37] ('Kantor') (Buchanan and Phillips JJA, Ormiston JA agreeing).

[74] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 ('Veall').

[75] Kantor, 18 [25] (Ormiston JA).

[76] Veall, 174 [167] (Santamaria JA, Beach and Kyrou JJA agreeing) citing Buchanan and Phillips JA in Kantor, 23-24 [37].

[77] Estate of ELLIS addendum report dated 8 August 2025, 1 in Plaintiff's Statement of Expert Evidence filed 6 November 2025 ('Addendum Report') .

[79] Transcript dated 10 November 2025, 6.

[80] Transcript dated 10 November 2025, 51.

[83] Report of Dr Wendy Lang dated 3 June 2014 , at CB 389 (emphasis added).

[84] (1870) LR 5 QB 549, 565 (The Court).

[86] File note of Eliza Newson dated 25 October 2016, at CB 455.

[87] File note of Eliza Newson dated 25 October 2016, at CB 455.

[88] File note of Eliza Newson dated 25 October 2016, at CB 455.

[90] [2020] HCA 26; (2020) 271 CLR 192, 261 [178] (citations omitted); See also Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, 443-444 [55]-[57] (French CJ, Gummow, Hayne, Heydon and Crennan JJ); Leakes Road Property Development Pty Ltd v Brasse [2024] VSCA 34, 28-29 [141] (Emerton P and Kennedy JA, Niall CJ dissenting but at [219] accepting the counterfactual approach).

[91] Re The Will of Bridget [2018] NSWSC 1509, 37 [151] (Hallen J) ('Re Bridget').

[92] Wills Act, s 21B(b); White v Gillam [2016] VSC 5, 8 [36]-[37] (McMillan J) ('Re Gillam'); Re Bryce Clifford Hall [2023] VSC 482, 14 [48] (Gray J).

[93] Saunders v Pedemont [2012] VSC 574, 26 [95] (Habersberger J), citing Fenwick, Re; Application of J R Fenwick and Re Charles [2009] NSWSC 530, [170] (Palmer J).

[94] Wills Act, s 21(1); Re Gillam, 8 [36]-[37] (McMillan J), cited by Moore J in Re Tarquinio [2019] VSC 164, 6 [21].

[95] Wills Act, s 21A(g).

[96] Ibid, s 21A(d).

[97] Re Bridget, 35 [137] (Hallen J).

[98] Van der Meulen v Van der Meulen [2014] QSC 33, 6-7 [46]-[47] (Jackson J), where similar wishes were expressed by the propositus over 15 years.

[99] Wills Act, s 21C(a) and (b).

[100] Ibid, s 21C(e).

[101] In Re Fletcher [2001] VSC 109, 8 [22] (Byrne J).