Plaintiff v Defendants

1 The plaintiff and the defendants are siblings. They are the adult children of Peter Demediuk, deceased, who died on 15 February 2013.

2 On 26 August 2015, the plaintiff filed an application for a grant of probate of the deceased's will dated 27 June 2012 ('the June will'). The defendants object to the plaintiff's application for a grant on the grounds of undue influence by the plaintiff and that the June will was revoked by the deceased.

3 The plaintiff issued a summons seeking dismissal of certain grounds of the defendants' objections to the grant. Judgment of the summary dismissal application was delivered on 29 September 2016.[1] Orders were made, inter alia, that the defendants file amended grounds of particulars of their claim of testamentary undue influence so as to identify their claim clearly and the parties attempt to reach agreement on the objectionable statements in the defendants' affidavits, failing which the proceeding will be relisted for determining any unresolved objections to the defendants' affidavits.

4 On 9 November 2016, the defendants filed amended grounds of particulars of their claim of testamentary undue influence ('the amended undue influence claim'). In turn, on 15 December 2016, the plaintiff filed amended objections to the defendants' affidavits ('the objections'). The parties reached some limited agreement regarding the disputed parts of the affidavits, however, the defendants dispute the vast majority of the plaintiff's objections.[2]

5 The amended undue influence claim deletes the particulars of undue influence previously contained in 4(a)-(q),[3] and replaces them with paragraphs 4.1-4.13 now set out:

Further and/or in the alternative to paragraph 2 hereof, the June Will was procured by the undue influence of the Plaintiff in support of which the Defendants rely on the following facts, matters and circumstances.

PARTICULARS

4.1 At the time the June Will was made it was apparent that the deceased was vulnerable in that the deceased was 93 years old, widowed, in poor health, had been hospitalised several times, required a carer, was profoundly deaf, became exhausted easily and had limited mobility.

4.2 Prior to the making of the June Will the plaintiff was angry with and resentful of the deceased in that the plaintiff:

(a) the plaintiff considered she had not been treated fairly by her parents and that the defendants Sandra Willis and Nicholas Demediuk had been preferred by her parents

(b) was angry with the deceased because of her belief he had been unfaithful to his wife.

4.3 Prior to the making of the June Will the plaintiff the plaintiff [sic] was actively and purposely involved in altering or attempting to alter arrangements to improve her own financial interests by:

(a) initiating and pressing upon the deceased for immediate transfers of interests in properties at Erskine Street North Melbourne and Dawson Avenue Brighton from the defendant Sandra Willis ("the transfers"); and

(b) pressing the deceased for, and arranging, reimbursement of the income tax she had paid on rental income from properties the deceased had placed in her name, despite it being a longstanding arrangement that the deceased's children paid such income tax without reimbursement.

4.4 The plaintiff wanted the deceased's Will to be changed and communicated that wish to the deceased.

4.5 The plaintiff created in the deceased the impression that the plaintiff was having financial difficulties, that her employment was at risk and that her husband and one of her children were very ill.

4.6 The plaintiff put the deceased under pressure in various exchanges between them concerning the transfers including by yelling and screaming at him, which caused the deceased much distress prior to the making of the June Will.

4.7 The June Will contained unexplained changes from the deceased's Will of 10 February 2012 ("February Will") which significantly benefited the plaintiff by her receiving:

(a) devises of real property of a value exceeding $2M more than she received in the February Will; and

(b) devises of property or interests in property previously left to the defendant Sandra Willis (Cloyne Street Highett), the defendants Peter Demediuk and Nicholas Demediuk (Opawa Street Brighton) and Peter Demediuk (Lusk Drive Vermont).

4.8 The changes referred to in paragraph 4.7 above were unusual in that:

(a) the deceased (and also his late wife) had longstanding and settled intentions that Cloyne Street would pass to the defendant Sandra Willis and Opawa Street would pass to the four children equally;

(b) in the February Will the deceased left the Lusk Drive property to Peter in gratitude for the care Peter Demediuk's daughters took of his late wife during her last illness; and

(c) at the time of the June Will, there was nothing in the circumstances of the relationships the deceased had with Sandra Willis, Peter Demediuk or Nicholas Demediuk to provide any reason for the deceased to change his mind in relation to those devises.

4.9 The June Will was prepared and copied in unknown circumstances.

4.10 The June Will was no prepared with the assistance and supervision of a lawyer.

4.11 The plaintiff, although aware of the existence of the June Will told none of her siblings about it until after the deceased passed away, despite previously having discussed the deceased's testamentary arrangements with some of her siblings.

4.12 None of the defendants were aware of the existence of the June Will until the plaintiff disclosed it.

4.13 The deceased, after the making of the June Will, destroyed the original signing page of the June Will and conducted himself as if it had not force and effect.

6 The plaintiff objects to certain sentences and paragraphs of each affidavit filed by the defendants. The parties provided a table setting out each disputed paragraph, the objection taken by the plaintiff and the defendants' response to each particular objection.

7 The plaintiff provided the following categories of objections:

1. General background matters - not necessarily accepted, but which ought not become the subject matter of a factual battle in affidavits.

1. Conversations between deponent and the plaintiff (not conceded), but from which it is submitted that IN ANY EVENT it is incapable of drawing inferences from those conversations that the plaintiff dealt with the deceased in any manner capable of constituting undue influence.

C(i) (A specific subset of C.) but specifically concerning the inter vivos property transfers.

1. Dealings or conduct the plaintiff purportedly had with the deceased (not conceded) but from which it submitted that IN ANY EVENT such conduct or dealings are not susceptible of drawing the inferences from them that the defendants see AND OR that such inferences (even if drawn) are capable of constituting evidence of undue influence.

D(i) (A specific subset of D.) but specifically concerning the inter vivos property transfers.

1. Discussion related by the deceased to the deponent, or conduct of the deceased purportedly observed by the deponent (not conceded) but from which, in any event, it is submitted is not capable of drawing any inference of undue influence. One example of this is statements said to have been made by the deceased to a deponent, which go no further than providing a possible explanation for dispositions of a property or properties in an earlier will.

E(i) (A specific subset of E.) but specifically concerning the inter vivos property transfers.

E(ii) Facts or assertions by a deponent relating to matters which it is said provide a possible reason or justification for the deceased having made a particular disposition of property to them in an earlier will.

1. Discussions after the death of the deceased, (not conceded) but from which in any event such discussions are not susceptible of having any inference drawn from them of undue influence.

1. Dealings that Sandra Willis had with the deceased, concerning her exercising her 'call option' over the Sydney property or concerning intervivos transfers of interests she held in properties to the plaintiff.
2. Dealings that Sandra Willis had with the plaintiff concerning her exercising her "call option" over the Sydney property or concerning intervivos transfers of interests she held in properties to the plaintiff.

8 The plaintiff submitted that paragraphs 4.2, 4.3, 4.5, 4.6, 4.8 and 4.9 of the amended undue influence claim are not capable, on their own or in combination with other matters, of establishing testamentary undue influence. Accordingly, it was submitted that any parts of the defendants' affidavits which are directed at establishing the matters alleged in those paragraphs 'must necessarily be irrelevant and inadmissible' under s 55 of the Evidence Act 2008 ('the Act'), which reads:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to -

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

9 The plaintiff submitted that the Court needs to have regard to ss 135 and 140 of the Act and, in particular, ss 135(c), 140(2)(b) and (c) as follows:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time; or

(d) unnecessarily demean the deceased in a criminal proceeding for a homicide offence.

140 Civil proceedings - standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

10 The plaintiff referred to certain parts of the reasons for judgment in the summary dismissal application[4] and emphasised the distinction between evidence that suggests the possibility of 'influence' being exercised and that which points to testamentary undue influence being exercised.

11 The plaintiff also observed that most of the affidavits relied upon related to what happened before June 2012, that is, before the June will came into existence. The corollary of this was that this evidence was irrelevant to the revocation ground as only events after the June will was made could be relevant to that issue. Put another way, the plaintiff submitted that 'any facts that occur before June 2012 are inconsistent with an intention to revoke it'.

The defendants' submissions and response to the plaintiff's objections

12 The defendants submitted that the test for relevance under s 55 of the Act is a very broad one,[5] with a relatively low satisfaction threshold.[6] Additionally, the defendants observed that there is a distinction between admissibility and weight, and evidence may be relevant even if 'it only enables the Court to contextualise other evidence'. In this vein, they submitted that each item of evidence should not be considered in isolation, but rather as a whole, applying the 'strands in a cable' approach in Nicholson v Knaggs.[7]

13 The defendants also submitted that in the event the evidence contained in the affidavits was considered irrelevant to the amended undue influence claim, the defendants would rely on much of this evidence to substantiate the alternative revocation ground. The defendants submitted that events occurring before June 2012 could bare upon why the deceased may have wanted to revoke the June will, even if it had been made voluntarily.

14 The defendants also detailed how the disputed material was relevant to the following aspects of the defendants' amended grounds of particulars:

(c) the probability that the June will was not independently conceived by the deceased but, in fact, by the plaintiff;

(d) the need for care of and the care provided to the deceased's wife;

15 The defendants conceded that paragraphs 5, 11, 18, 21 and 22 of this affidavit should be excluded. The plaintiff pressed that the remainder of the affidavit should be excluded,[8] a course objected to by the defendants. In essence, the plaintiff contended that each of the impugned paragraphs was objectionable as being irrelevant to the amended objections, 'either at all or insofar as such grounds are capable of establishing undue influence in relation to' the June will. Additionally or alternatively, the matter deposed to was temporarily irrelevant, was uncertain or vague and was general background.

16 The table below summarises each paragraph of the remaining affidavits to which the plaintiff objects and the particular category of objection relied upon by the plaintiff.[9] For reasons of brevity, the defendants' response to each objection has not been included in this and the tables that follow, but each has been considered in coming to a decision.

Affidavit of Peter Mark Demediuk sworn 4 March 2016

Affidavit of Therese Maria Demediuk sworn 4 March 2016

Affidavit of Lucy Ellen Demediuk sworn 9 March 2016

Affidavit of Nicholas Ivan Demediuk sworn 10 March 2016

17 The principles regarding testamentary undue influence and the evidence that can be used to support such a claim are well settled.[10] It is unnecessary to canvass these principles in any detail, save to make some observations. Testamentary undue influence requires 'coercion' or 'overbearing of the will'.[11] Attempts to convince or appeals to affection are not of themselves sufficient to establish undue influence, and are perfectly legitimate - the volition of the testator must be overpowered to constitute undue influence.[12] As observed in the reasons for judgment in the summary judgment application, 'the distinction between persuasion and coercion will often be subtle and it will almost invariably be difficult to draw a distinct line between them'.[13] In addition, '[a]lthough described by such succinct phrases, the application of these concepts to a particular case is notoriously difficult.'[14]

18 It is uncontroversial that testamentary undue influence may be established by circumstantial evidence, as the defendants seek to do in this case. The problems attendant on establishing testamentary undue influence by circumstantial evidence were summarised by Powell J in Winter v Crichton:

... where what is relied upon is a purely circumstantial case, such as is illustrated by the particulars in this case, the duty of the defendant goes further than merely establishing the circumstances from which it is sought to have the inference drawn. Thus, in Wingrove v Wingrove (at 83) Sir James Hannen P concluded his charge to the jury with the following:

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

So, too, in Boyse v Rossborough:

... The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence; that the instrument, though apparently the expression of his genuine will, might in truth have been executed only in compliance with the threats or commands of his wife, or that he had been led to execute it by unfounded prejudices artfully instilled into or cherished in his mind by his wife against those who would otherwise have been the probable objects of his bounty. But in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.[15]

19 As observed by the plaintiff, with all evidence, admissibility is the antecedent concern and a person alleging that testamentary undue influence occurred must prove his or her claim on the balance of probabilities, in light of the principles expressed in Briginshaw v Briginshaw,[16] and its modern incarnation, s 140 of the Evidence Act 2008.[17]

20 The defendants' reliance on the alternative ground of revocation as a secondary means by which their affidavits might satisfy the relevance test must be rejected. The only basis for the ground of revocation in the defendants' amended grounds of objections is the absence of the third page of the June will. There is no allegation that the surrounding factual matrix, including matters that occurred prior to making the June will, are a basis for revocation of the June will.

21 The conclusions to the plaintiff's objections are detailed in the tables below. Where a conclusion to a specified part of an affidavit is stated as 'inadmissible', it is to be taken to indicate that the plaintiff's submissions on that particular part have been accepted. Likewise with the defendants' submissions, where the conclusion to a specified part is 'admissible'.

10 - My parents were in agreement about their plans for their estates and they were open about who they intended to receive which of their properties.

Inadmissible. In addition, I do not agree that the following subparagraphs justify the particular conclusion. They may justify a statement as to a particular intention at a particular time, but not the broad proposition put forward.

Inadmissible. In addition, this occurred before the death of the deceased's wife and before the penultimate will.

Inadmissible. In addition, this occurred before the penultimate will.

Inadmissible. In addition, the conversation does not relate to any will and may have occurred before the penultimate will.

Inadmissible. There is no evidence in this paragraph that the plaintiff made such statements to the deceased. Accordingly, this cannot make out amended ground 4.5.

Inadmissible. The contention that the substance of the conversation is set out in the paragraph is rejected. She merely says she was 'surprised' given her conversation with the deceased. The rest of the alleged conversation was merely relayed to her by Peter Demediuk.

Inadmissible. In addition, there is no mention of the care of the deceased's wife by Lucy Demediuk in this paragraph to support the defendants' response to this objection.

Inadmissible. The defendants' response to the objection is not reflected in the content of the paragraph, in which the plaintiff is not mentioned.

Inadmissible. These matters have nothing to do with the content of the deceased's June will and, in any event, occurred before the penultimate will.

Inadmissible. In addition, this occurred before the penultimate will.

Inadmissible. It is also possible that this conversation took place before the penultimate will.

Inadmissible. The defendants' contention that this goes to the quality of the deceased's custody, retention and organisation of documents is rejected. It simply states that on that date, Lucy Demediuk observed a document in a purple folder, which the deceased said was his will. This casts no light on the deceased's document retention habits.

Inadmissible. In addition, the defendants' response to the objection includes a reference to the care take of the deceased's wife by the daughters of Peter Demediuk. Her care is not mentioned in the paragraph.

Inadmissible. In addition, the conversation took place before the penultimate will.

91: 'Barbara overheard Dad...' and the rest of the paragraph.

Inadmissible. In addition, it is not evident from this paragraph that it was the plaintiff who communicated those matters to the deceased.

Inadmissible. I do note however that it appears the deceased was involved, albeit to a limited extent.

Admissible. This may be relevant to the deceased having revoked the June will.

Paragraph 1 establishes the premise for his affidavit and paragraph 2 establishes his relationship to the deceased. If any other aspect of the affidavit were admissible, this would also be by way of background and understanding his relationship to the family. Given my conclusions below, this does not arise and the paragraphs are not admissible.

Although paragraph 10 could be relevant to revocation, it is too vague and uncertain to be of any real evidentiary value and is inadmissible.

Accordingly, the entirety of this affidavit is now excluded.

28 The parties are to prepare orders to give effect to the above conclusions.

[1] Re Demediuk [2016] VSC 587 (29 September 2016).

[2] In respect of certain paragraphs of the affidavit of Volodymir Vsevolod Galashchuk sworn 14 March 2016, see [15] and [27] below.

[3] Re Demediuk [2016] VSC 587 (29 September 2016) [9] (McMillan J).

[5] R v Ahola (No 2) [2013] NSWSC 699 (30 April 2013).

[6] Richards v Macquarie Bank Ltd (No 3) (2012) 301 ALR 653; [2012] FCA 1523 (5 December 2012).

[7] Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [44]-[46] (Vickery J).

[8] Namely, paragraphs 1-4, 6-10, 12-17, and 19-20 of the affidavit.

[9] Where 'in part' is noted after a paragraph number this indicates that the plaintiff has only objected to a specified portion of the paragraph.

[10] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757; Brown v Guss [2014] VSC 251 (2 June 2014); Re Demediuk [2016] VSC 587 (29 September 2016).

[11] Wingrove v Wingrove (1886) LR 1 P&D; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (15 June 2007); Nicholson v Knaggs [2009] VSC 64 (27 February 2009); Brown v Guss [2014] VSC 251 (2 June 2014).

[12] Hall v Hall (1868) LR 1 P&D 481, 482-3 (Sir J P Wilde).

[13] Re Demediuk [2016] VSC 587 (29 September 2016) [118] (McMillan J).

[15] Winter v Crichton (1991) 23 NSWLR 116, 121 (citations omitted).

[16] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

1. [17]Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J); McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA); Neale v Bank of Western Australia Ltd [2014] NSWSC 315 (24 March 2014) [198] (Hammerschlag J). See also Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521 (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ); Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).