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[2024] VSC 9
General information, not legal advice.
Supreme Court of Victoria
2024-02-02
Meek J
Original judgment source is linked above.
Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21
Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218
Estate Rofe [2021] NSWSC 257
Gardiner v Hughes (2017) 54 VR 394; [2017] VSCA 167
Gardiner v Hughes (No 2) [2019] VSCA 198
Haberfield v Larsson [2023] VSC 161
In re Smith (dec'd) [1950] VicLawRp 73; [1951] VLR 368
Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168
Ligidakis v Karatjas [2018] VSC 601
Lim v Lim [2023] NSWCA 84
Mekhail v Hana [2019] NSWCA 197
Moloney v Hayward [2022] SASC 79
Montalto v Sala [2016] VSCA 240; (2016) 15 ASTLR 393
Nicholson v Knaggs [2009] VSC 64
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Re Demediuk [2016] VSC 587
Re Gardiner [2016] VSC 541
Re Gardiner (No 2) [2017] VSC 699
Re Gardiner (No 3) [2018] VSC 414
Re Robustelle (No 2) [2023] VSC 72
Re Rudebeck [2019] VSC 804
Romascu v Manolache [2011] NSWSC 1362
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Wrigley v Buxton [1893] VicLawRp 28; (1893) 19 VLR 37
Birtles, Craig, Richard Neal and Caroline Sims, Hutley's Australian Wills Precedents (10th ed, 2021, LexisNexis)
Lindsay J, "Probate Law and Practice: An Introduction" (Paper), NSW Bar Association Succession and Elder Law Committee, 3 March 2022
Supreme Court of Victoria, "Guidelines for Standard Orders in the Trusts, Equity and Probate List" (October 2016)
1 The application before the Court is a claim for summary dismissal (summary dismissal application) of an application to revoke a grant of probate of a Will made on 29 November 2012 (2012 Will) of the late Panagiota Tsialamandris (the deceased) who died on 25 September 2022 aged 91.
2 I have determined to dismiss the summary dismissal application. These are my reasons for so doing.
3 The plaintiffs are respectively Vasiliki Filopoulos (Vicki), a daughter of the deceased, and Arthur Athanasiou (Mr Athanasiou), a solicitor, who were appointed by the terms of the 2012 Will as executors.
4 The proceedings were commenced by originating motion filed on 20 January 2023, by which the plaintiffs sought a grant of probate of the 2012 Will. A grant of probate was made to the plaintiffs on 30 January 2023.
5 On 30 June 2023, the deceased's only other child, a daughter, Nicky Tsalamandris (Nicky) filed a summons seeking revocation of the grant of probate (revocation application). The plaintiffs as executors are named as plaintiffs in that document and Nicky is named as the applicant. Contemporaneously, on 30 June 2023, Nicky filed grounds setting out the basis for the claimed revocation.
6 As several applications have been filed in the Court in which Vicki (and Mr Athanasiou) and Nicky are each respectively applicants, for simplicity, I will refer to the moving parties on the summary dismissal application as being the "plaintiffs" and to Nicky simply by her given name, both in respect of the summary dismissal application and the revocation application.
7 The revocation application was returnable before Judicial Registrar Keith on 18 August 2023. The Registrar made directions including granting leave to Nicky to file and serve amended grounds of revocation (AGR) (which Nicky did on 21 August 2023) and leave for the plaintiffs to file and serve (relevantly) the summary dismissal application (which they did on 1 September 2023). On 24 November 2023, Judicial Registrar Keith listed the summary dismissal application for hearing on 4 December 2023.
8 On the hearing of the summary dismissal application, Shane Newton of counsel appeared for the plaintiffs, instructed by Sladen Legal, and Aphrodite Kouloubaritsis of counsel appeared for Nicky, instructed by Colin Biggers & Paisley (CBP).
9 Counsel provided written submissions prior to the hearing in addition to making oral submissions during the hearing. I will cite the evidence in the summary dismissal application by reference to the Court Book (CB), transcript pages and exhibit numbers and cite the submissions by reference to the plaintiffs' opening written submissions (POS), and Nicky's opening written submissions (NOS).
10 The deceased was born in August 1931 in Filiatra, Greece.[1]
11 There are a number of different variations of spelling in respect of the deceased's given name (including "Panayiota" and "Panayota") and her surname (including, alternatively, "Tsalamandris"). The deceased was also known as "Pamela" or "Pam".[2]
12 In 1956, the deceased married Sotirios Tsialamandris (otherwise referred to in the materials as "Sam").[3] The marriage gave rise to the birth of two children: Vicki, who appears to be aged approximately 62; and Nicky, who appears to be aged approximately 61.[4] The deceased is said to have been a housewife and worked as an employee in the family business, which included a grocery business.[5]
13 Sam was, at least in the 1970s, a Production Superintendent, and operated the family business.[6]
16 George Kosij is referred to in evidence by Vicki as being Sam's brother-in-law[9] and by the deceased as her brother-in-law.[10] He is referred to in the 2012 Will as "Gregor Kosij"[11] in a capacity as alternate executor and is the second attesting witness to the 2012 Will. Underneath his signature his name is printed as being "Gregor Kosij".[12] He is otherwise described as the uncle of the deceased's daughters.[13]
17 The summary dismissal application is somewhat explicable in a context in which sadly there were "disputes" involving each of the deceased, Vicki and Nicky for a period of approximately four years consequent upon Sam's death, at least regarding entitlements to his estate and a family trust.
18 I have described the matter in that neutral way as it is evident that each of the daughters, through their respective legal representatives, have a different perspective on what is disputed and why any such "disputes" have arisen.
19 The deceased made at least two Wills, the details of which I refer to below, being a Will dated on 20 January 1976 (1976 Will) and the 2012 Will.
20 Prior to addressing aspects of the summary dismissal application, it is helpful to first identify a few aspects of the financial affairs of the deceased and Sam, as it is evident that entitlements to property were the subject of the disputes I have referred to above in the years following Sam's death, and are still the subject of dispute.
21 Broadly speaking, property which existed as at the time that the deceased came to make the 2012 Will included the following:
(3) property held jointly as between the deceased and Sam;
(4) property held by the Tsialamandris Family Trust (Family Trust) which was constituted by a deed of settlement dated 7 February 1979 and amended by a deed of variation dated 2 June 1994[14] (collectively Trust Deed); and
(5) property the subject of the Shifrock Nominees Pty Ltd Superannuation Fund (Super Fund).[15]
23 Shifrock Nominees Pty Ltd (Shifrock) was incorporated on 22 February 1978 and is the trustee of the Family Trust[18] and also the trustee of the Super Fund.
24 There is also reference in the inventory of property to Shifrock Holdings Pty Ltd.[19] The relationship between the two companies is not explained on the evidence.
25 The evidence on the summary dismissal application also refers to a number of professional people and/or firms that advised the deceased, Vicki and Nicky. Without purporting to be exhaustive, I note that they include the following:
(1) Patrick Bernard O'Sullivan (Mr O'Sullivan) - a solicitor who at 2012 appears to have been the principal of the firm Bernie O'Sullivan Lawyers (BOL);[20]
(2) Geoffrey Quinn (Mr Quinn) - a partner of Quinn & Quinn solicitors (Quinn & Quinn) at Brighton (described by Ms Kouloubaritsis in the AGR as being one of Sam's long-standing trusted lawyers),[21] being solicitors having at least some initial involvement in or connection with the administration of Sam's estate;[22]
(3) George Vassis (Mr Vassis) - described by Ms Kouloubaritsis in the AGR as being a Greek speaking lawyer and one of Sam's long-standing trusted lawyers[23] (it being unclear whether he is related to Basil William Vassis);
(4) Mark Spittal (Mr Spittal) - of Spittal & Associates - Sam's accountant;[24]
(5) Michael Nurse (Mr Nurse) - a senior associate with Logie-Smith Lanyon (LSL), a firm which in or about 2012 commenced to act on behalf of Nicky. Mr Nurse is now a partner with CBP;[25]
(6) Kate Callil-Roberts (Ms Callil-Roberts) - a senior associate with LSL in or about 2012;
(7) Sladen Legal - the solicitors for the plaintiffs, being a firm into which BOL merged;[26] and
(8) Peter Szanto (Mr Szanto) - of Trumble Szanto Lawyers - who acted on behalf of the deceased at least in 2014.
26 Mr Athanasiou has been a partner of the firm Thomson (now Thomson Geer) (Thomson) since at least about 2012. Letters dated 6 February 2012[27] and 28 March 2012[28] show Mr Athanasiou contending he (then) was acting on behalf of the deceased as his "client". However, based at least on an affidavit by Vicki in February 2013, in which she swears that "[o]n 6 February 2012 I instructed my lawyers, Thomsons Lawyers, to send a letter on my behalf in response to the letter from [LSL]"[29] and "[o]n 28 March 2012, I instructed my solicitors to write to [LSL]",[30] Ms Kouloubaritsis contends that Mr Athanasiou was acting on behalf of Vicki, or at least that there is some material which raises a question of whether Vicki was giving instructions on the deceased's behalf.[31]
27 Sam left a Will dated 19 June 1968. It appears that Sam by his Will directed that his entire estate be divided equally between the deceased, Vicki and Nicky.[32]
28 On or about 7 March 2011, consequent upon Sam's death, each of the deceased, Vicki and Nicky were appointed as directors of Shifrock.[33]
29 On 15 March 2011, Mr Kosij renounced probate.[34]
30 On 31 May 2011, letters of administration with the Will annexed were granted to each of the deceased, Vicki and Nicky.[35]
31 On 2 June 2011, shortly after letters of administration were granted, there was some correspondence suggestive that the deceased, Vicki and Nicky were negotiating a resolution of their disputes.[36]
32 There is no need for me to make any specific finding or comment in relation to that other than to observe that in the second half of 2011 there was some correspondence bearing upon claims regarding what had been agreed and whether any such agreement was resiled from and varied. Again I make no comment about that.
33 On 30 January 2012, Ms Callil-Roberts, then a senior associate with LSL, sent a letter to Vicki on behalf of Nicky requesting copies of accounts that Vicki was expected to have kept in relation to her appointment as power of attorney to manage the deceased's affairs.[37]
34 On or about 1 February 2012, Nicky was purportedly removed as a director of Shifrock.[38]
35 From early February 2012 up until the date of the 2012 Will, there was correspondence between the parties' solicitors.
36 On or about 20 February 2013, that is within three months of the date of the 2012 Will, the deceased and Vicki commenced proceedings against Nicky in this Court seeking the removal of Nicky as co-administrator of Sam's estate (removal proceedings).[39] It is evident that Nicky denied the allegations made by the deceased and Vicki in those proceedings and denied that they were entitled to remove her as a co-administrator of Sam's estate.[40]
37 On 26 August 2014, a deed of settlement and release was signed between the deceased, Vicki, Nicky and Shifrock as trustee of the Family Trust (DSR), purportedly finalising disputes regarding Sam's estate and the Family Trust.[41]
38 The AGR address Nicky's standing and other matters. However, essentially the AGR identify two heads of alleged invalidity of the 2012 Will in particularising the grounds for revocation, namely:
(1) Ground 1 - that the deceased did not know and approve the contents of the 2012 Will;[42] and
(2) Ground 2 - that the 2012 Will was procured by the undue influence of Vicki.[43]
40 The application which is listed before me for hearing is only the summary dismissal application. If the summary dismissal application is wholly successful, then the revocation application will be dismissed. If the summary dismissal application is not successful or only successful in part, the revocation application will remain to be determined and may otherwise progress to a final hearing.
41 In support of the revocation application, Mr Nurse swore an affidavit on 30 June 2023 (Mr Nurse's first affidavit) which referred to a bundle of documents being Exhibit MN-1.
42 On the summary dismissal application, there were two affidavits which were expressly sworn referable to that application, namely:
(1) a second affidavit of Mr Nurse sworn 8 September 2023 (Mr Nurse's second affidavit) and a bundle of documents being Exhibit MN-2 to that affidavit; and
(2) an affidavit of Vicki affirmed on 27 September 2023 (Vicki's 2023 affidavit) and an exhibit to that affidavit being Exhibit VF-1.
43 On the hearing of the summary dismissal application, each of Mr Nurse's first and second affidavits and Vicki's 2023 affidavit, and their respective exhibits, were relied upon.
44 The summons for summary dismissal did not make reference to any express provision under which the application for summary dismissal was brought. On the hearing of the application, Ms Kouloubaritsis commented on this.
45 There is provision under Pt 4.4 Civil Procedure Act 2010 (Vic) (CPA) for what is described as summary judgment.
46 Relevantly, there is provision for both plaintiffs and defendants in civil proceedings to apply for summary judgment.[46]
47 The Court may give summary judgment either on the application of a plaintiff or a defendant if it is relevantly satisfied that the claim or defence has no real prospect of success.[47] However, that is subject to the provisions of s 64 CPA, which provides that the Court may order that a civil proceeding proceed to trial if the Court is satisfied that, despite there being no real prospect of success, the civil proceeding should not be disposed of summarily because (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
48 It is evident that Ms Kouloubaritsis had at least prepared in part on the basis that the summary dismissal application was likely proceeding under the provisions of the CPA. To avoid any misunderstanding about it I asked Mr Newton to clarify the position.[48]
49 Significantly, Mr Newton disclaimed any reliance upon the CPA and referred to the decision of the Court of Appeal in Gardiner v Hughes (No 2)[49] (Gardiner v Hughes (No 2)) and, in particular, to the Court of Appeal's reference to the way the primary judge (McMillan J) had addressed the matter at [10]. Mr Newton observed that the reference to the requirement of an applicant seeking revocation of a grant establishing a prima facie case was sourced in what he described as the Court's inherent jurisdiction.[50]
50 I will address the principles regarding the appropriate test below.
51 Ms Kouloubaritsis proceeded on the basis that the case for revocation in the AGR was essentially a particularised case and, to the extent that certain documents had been included within the Court Book, stated that the reason for doing so was because reference had been made to them in the AGR. She submitted in that context that there is "in this case" no evidence in chief, no cross-examination and no evidence in reply[51] and the case proceeds entirely by way of particulars.[52]
52 In that regard, Ms Kouloubaritsis submitted that the basis for Mr Nurse's second affidavit being relied upon "is for the Court's benefit, to have before it the documents referred to and footnoted in the [AGR]" and "not ... to weigh whether the facts set out in the [AGR], either individually or collectively, can be said to support, or not, an inference that the testator did not know and approve the contents of the 2012 Will, or whether the 2012 Will was executed subject to undue influence".[53]
53 Further, on the hearing, Ms Kouloubaritsis submitted that, for the purposes of considering the summary dismissal application, the Court should understand that Nicky was availing herself of the method of demonstrating a prima facie case for revocation by way of particulars, as contemplated by the Court of Appeal in Gardiner v Hughes (No 2) at [40].[54]
54 Ms Kouloubaritsis submitted that questions about "how" and "why" the documents referenced in the AGR were prepared are matters for trial, where the documents can be properly contextualised.[55]
55 Given that the revocation application per se has not yet been heard or determined, it is or might be, strictly speaking, correct to say that Nicky's prima facie case for revocation proceeds entirely by way of particulars. However, for the purposes of determining whether to accede to the summary dismissal application, it seems to me that I may have regard to not merely the particulars in the AGR, but also the materials read or tendered on the summary dismissal application, in considering whether Nicky has established that there is a "case for investigation" or "something to go on" as to or regarding the claim and grounds justifying revocation.[56]
56 The materials relied upon in the summary dismissal application included some correspondence, emails, affidavits and other documents such as the 1976 Will and the 2012 Will.
57 It is evident from the AGR that part of the factual context alleged by Nicky as the basis for contending that the deceased did not know and approve of the contents of the 2012 Will, and for alleging that it was procured by the undue influence of Vicki, relates to the litigation over Sam's estate.
58 For the purposes of the reasons for judgment I will reference a degree of the above-mentioned material. It is clear that some of the above-mentioned material is essentially common ground between the parties. For example, there is no dispute that certain events occurred such as the fact that some Wills were purportedly made on certain dates, correspondence sent, proceedings were commenced and some affidavits sworn.
59 Part of the materials before me on the hearing of the summary dismissal application includes affidavits sworn by the deceased on 27 February 2013 and 8 April 2013 and by Vicki on 18 February 2013 in the removal proceedings.
60 During the hearing Ms Kouloubaritsis made submissions which seemingly both challenged the deceased's 27 February 2013 affidavit and relied upon it.
61 On the one hand, she cited paragraph 3 of the affidavit, at least to the extent of querying on whose instructions the affidavit had been prepared and who had translated the affidavit.[57]
62 On the other hand, Ms Kouloubaritsis cited paragraph 10 of the affidavit (in which the deceased refers to signing documents requested by Sam despite having no understanding of English) in submitting that "there is a history of the testator signing documents that she has no understanding of".[58]
63 Nonetheless, I am mindful of the fact that at least in Nicky's case, Ms Kouloubaritsis, as I have noted, says that the evidentiary weight of certain of those materials is disputed to some degree and ultimately needs to be contextualised. In setting out the factual background in this judgment and in particular below, my purpose is not to make binding findings of fact in relation to the facts I have recited but rather to give sufficient outline of what is either common ground or contested on either side for the purposes of determining the summary dismissal application.
64 The affidavit of executors sworn by the plaintiffs on 19 January 2023 exhibited an inventory of property of the deceased's assets and liabilities.[59]
65 In summary, as of the date of her death, the deceased held eight pieces of real property. She held two freestanding homes, one of which I will refer to as the "Brighton Property" and the other which I will refer to as the "Hampton Property". She owned two units in Bentleigh, which I will refer to as "Bentleigh Units 1 and 2", and four units at Hampton East, which I will refer to as "Hampton East Units 2, 3, 5 and 6". I note that a number of years prior to her death, but not at her death, the deceased appears to have also had an interest in a fifth unit at Hampton East which I will refer to below as "Hampton East Unit 4".
66 The total amount of the deceased's real estate was valued at $7,860,000.
67 The deceased also held personal estate as follows:
(3) a CBA pensioner security account - $361,574.69; and
(4) six ordinary shares in Shifrock Holdings Pty Ltd - $6.00.
68 In the AGR, the deceased's assets following Sam's death in 2010 are particularised as consisting of the following:[60]
(1) a one-third interest in a property at Brighton East ("Brighton East Property"), as beneficiary of Sam's Will;
(2) a five-ninth interest (both as tenant in common (3/9th) and as beneficiary of Sam's Will (2/9th)) in the five Hampton East units;
(4) her interest as sole proprietor of the Brighton Property, the Hampton Property and Bentleigh Unit 1.
69 On the hearing of the summary dismissal application, neither party adduced precise evidence of the assets and liabilities of Sam's estate, and what property was precisely held by each of Sam's estate, the deceased, and Shifrock in its capacity as trustee of the Family Trust and the Super Fund as of the date of the 2012 Will.
70 Nonetheless, there are materials which identify some detail of what property was held at various dates.
71 The source of the deceased's final holding in the eight pieces of real property appears to be essentially as follows. Proximate to the time of Sam's death:
(1) the Brighton Property was in the name of Sam and the deceased jointly;[61]
(2) Sam's estate appears to have had a two-thirds interest as tenant in common in the five Hampton East units[62] (the deceased seemingly held the other one-third interest in the five Hampton East units);
(3) Bentleigh Unit 1 appears to have been in the joint names of Sam and the deceased;[63] and
(4) Bentleigh Unit 2 appears to have been in Shifrock's name.[64]
72 The dispute over Sam's estate, at least in part, addressed the ultimate entitlement to the Hampton East units. I will say more about this below.
73 There is some evidence of the assets and liabilities of Sam's estate and the Family Trust as at 30 June 2014. Sam's estate comprised: the Brighton East Property valued at $1,460,000; a two-thirds interest as tenant in common of five units (described as "flats"), being Hampton East Units 2, 3, 4, 5 and 6 valued at $931,664 in total; and an estate CBA bank account with funds of $130,879.72.[65]
74 The Family Trust, as at 30 June 2014, had assets comprising ten properties with a "Council Valuation" of $10,143,000 and cash, bonds and loans totalling $426,798. There were liabilities of $1,163,165.[66]
75 Whilst accepting that property holdings may change over time, Ms Kouloubaritsis' submissions appeared to proceed on the basis that the property of which the deceased had personally to dispose as of the date of the 2012 Will was, at least so far as real property is concerned, essentially the property listed in the AGR as held by the deceased following Sam's death in 2010.[67]
76 In the 1976 Will, the deceased appointed Sam as executor and left the entirety of her estate to him provided he survived her by 30 clear days.
77 However, in the event (which did occur) that Sam did not so survive the deceased, she appointed Peter Tsialamandris and Mr Kosij as executors and gave her whole estate on trust for sale and conversion to pay her debts, funeral and testamentary expenses and any duties, and to pay the residue of her estate to such of her children as survived her and if more than one in equal shares.[68] Thus, in the events which occurred, if the 1976 Will were the deceased's operative Will then each of Vicki and Nicky would receive the deceased's estate in equal shares.
78 The 2012 Will is a much lengthier document than the 1976 Will. It runs to 25 pages (a cover sheet, 10 pages setting out cll 1-11, an execution page and a schedule of 13 pages setting out provisions in respect of trusts created under the Will).
79 The dispositive provisions of the Will are set out in cll 3 and 4. Specifically, there are provisions dealing with:[69]
(1) the deceased's "Trust Positions" and "interest in the capital of any company acting as trustee of the Family Trust";[70]
(3) a death benefit agreement (DBA) and gifts of superannuation;[72] and
80 Additionally, the 2012 Will notes that there are two properties subject to terms contracts being a property at Bluff Road, Hampton subject to a sale to Nicky and a property at South Road, Hampton subject to a sale to Vicki.[74]
(1) Nicky's children, Argiro and Panagiota, were to each receive 50% of the deceased's interest in the Hampton East Units 2, 3, 4 and 5;
(2) Vicki's son Dinos was gifted the Brighton Property;
(3) Vicki's daughters Samanthia, Maria and Panagiota were gifted a one-third interest in each of the Bentleigh Units 1 and 2 and the Hampton Property; and
(4) the residuary estate was divided equally between Vicki and Nicky.
82 Based on the inventory of property, the AGR assert that:[77]
(1) Vicki's children under the 2012 Will receive gifts totalling $6,400,000, with Dinos receiving a property valued at $2,600,000, and Vicki's daughters receiving property totalling approximately $3,800,000 ($1,266,666 each);
(2) Nicky's children receive gifts valued at $1,110,000, or $555,000 each; and
(3) Nicky and Vicki receive the residue said to be valued at approximately $474,060 each.
83 Those calculations are based on assumptions that Hampton East Unit 6 (valued at $350,000) falls into residue and that a liability which the deceased had, being a mortgage to the Commonwealth Bank of Australia in the sum of $296,154.47, would be paid out of residue.
84 Whether discharge of the mortgage would be borne out of residue or whether it would be properly borne by the property the subject of the mortgage need not be debated. For the purposes of the summary dismissal application, and Nicky's contentions in the matter, it is evident that whilst each of Nicky and Vicki would receive an equal share of the estate, being the share of the value of residue, Vicki's children would receive property of a more significant value than Nicky's children.
85 There is no specific evidence on the summary dismissal application regarding precisely what occurred in the lead up to the deceased signing the 2012 Will on 29 November 2012. From what may be gleaned from the material, it is clear that, on that occasion, the deceased signed three documents of significance being:
(3) an enduring power of attorney (EPA).[79]
86 The 2012 Will bears the hallmarks of having been prepared by BOL.[80] The Will contains an attestation clause indicating that the Will was read to the deceased by Costas Eleftheriou (Mr Eleftheriou) in the presence of Mr O'Sullivan and Mr Kosij, who signed the Will as attesting witnesses[81] (I note that the details of any such translation are disputed by Ms Kouloubaritsis).
87 The EPA, which also bears the hallmarks of having been prepared by BOL, is a document by which the deceased appoints the plaintiffs as her attorneys jointly, however, if either of the plaintiffs are unable to act, the deceased appoints Mr Kosij as an alternative attorney.[82] The EPA is operative if the deceased becomes incapable of managing her affairs by reason of physical or mental incapacity as certified by a registered medical practitioner.[83]
88 The DBA is a three-page document which purports to be a deed between the trustee (Shifrock) and the member (the deceased) which does not bear (at least on those pages) the hallmarks of having been prepared by BOL, although one might think that it is likely the case.
89 Whilst the DBA, leaving aside the execution page, is only one and a half pages in length, it contains some matters which would have required at least some basic explanation.
(1) states that it is in addition to the Trust Deed of the Super Fund and has effect in a way that is described in that Trust Deed. (It is not clear how it is described in the Trust Deed, which was not one of the documents in evidence on the hearing, or whether that was explained to the deceased.);
(2) continues in force until amended or terminated and in this respect draws a distinction between the effect of the DBA and a binding death benefit notice set to end after three years; and
(3) gives directions regarding property in a table.
91 The table specifies that the deceased's legal personal representatives receive, only if it is an asset of the Super Fund at the time of her death, Bentleigh Unit 2 as the "[p]roportion of death benefit" and that the trustee is to distribute the remaining balance of the benefit (or the whole benefit, as applicable) as 75% to Vicki and 25% to Nicky.[84]
92 Further, the DBA contains an express provision that if Vicki or Nicky predecease the deceased, there is a direction to the trustee to pay the nominated benefit to the member's legal personal representatives (i.e. to the plaintiffs as executors of the deceased's estate).
93 Ultimately, in probate cases, the nature and strength of the evidence required to establish a fact depends on the nature of that fact and on the context in which it is sought to prove the facts.[85]
94 In considering whether a testator knew and approved the contents of his or her Will, the focus for attention is whether the testator knew the contents of the Will and appreciated the effect of what he or she was doing, so that it can be said that the Will contains the real intention and reflects the true will of the testator.[86]
95 Ultimately, this is a question of evidence. For example, the law does not presume (certainly not in any conclusive way) that a testatrix whose Will is read out loud to her and who then executes it is taken to have known and approved it.[87]
96 In the context of comments regarding testamentary capacity but additionally referable to the question of knowledge and approval, Vickery J in Nicholson v Knaggs[88] stated:
However, in comprehending the nature of what the testator was doing, and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is plainly not necessary. However, it does need to be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.
97 Matters raised as being "suspicious circumstances" are usually viewed as being relevant, if at all, to the question of knowledge and approval.[89]
99 Ms Kouloubaritsis additionally submitted as follows:[92]
(6) Courts have held that the following circumstances may give rise to a suspicion that the testator did not know and approve the contents of the will:
(a) "...[P]articular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it": Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, (Tobin) at 772.
(b) "A radical departure from testamentary dispositions, long adhered to, requires explanation ...": William, Mortimer & Sunnicks - Executors, Administrators and Probate, cited in Veall at 177.
(c) "The mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of" may be a circumstance for investigation: Tobin at 772. See also Veall at 177: "The testator's feebleness of body and mind may be relevant to knowledge and approval".
(d) "Proof that the will was read by or read to the testator before its execution may not be sufficient; nor will evidence that the will was explained to the testator": Veall at 177. It is the testator's understanding and "the court being satisfied that the testator knew and approved the contents of the will sought to be admitted to probate" that is decisive: Veall at 191.
100 The concept of undue influence in law generally depends upon context. Lindsay J, writing extrajudicially in "Probate Law and Practice: An Introduction" (Paper), NSW Bar Association Succession and Elder Law Committee, 3 March 2022, stated the following regarding undue influence in probate law at [91(c)]:
The concept of "undue influence" (upon an exercise of probate jurisdiction) is directed to whether the will (that is, the independent mind) of the testator was overborne in execution of a testamentary instrument so that he or she could not be said to have been a free agent and the instrument cannot be said to express his or her true intentions, but the intentions of another. In a probate case, "influence" is "undue" if it overbears the testator's independent judgement. In probate law, "undue influence" is often described as "coercion"; but that word, standing alone, is inadequate to describe the essence of the concept, which is the fact that (by whatever means) the will of the testator is overborne. A testamentary instrument the execution of which is procured by another person's undue influence (coercion) is not the instrument of the testator, but of the other.
101 Ms Kouloubaritsis additionally submitted as follows:[93]
(23) The law in relation to undue influence can be briefly stated:
(a) The primary element of undue influence is "conduct that overbears the will of the testator so that the will is made without intending or desiring the disposition thereby made": Moloney v Hayward [2022] SASC 79 (Moloney) at [340].
(b) Whether influence exercised over a testator is undue, is a "question of the nature and extent of that influence": Moloney at [344].
(c) There must be ... "coercion": Ligitakis v Karatjas [2018] VSC 601 (Ligitakis) at 27. Coercion has a wide meaning and "is not confined to conduct involving persuasion of an unwilling person by some kind of threat of force": Nicholas v Knaggs [2009] VSC 64 (Nicholas) at [149].
(d) The "degree and nature of pressure which has the effect of invalidating the will making process will vary according to the particular vulnerability and susceptibility of an individual testator": Nicholas at [148].
(e) Such an effect can be achieved in a variety of circumstances and relationships and can be a product of a chain of events, or a single event: Nicholas at [150].
(f) What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual: Petrovski v Nasev [2011] NSWSC 1275 at [276][94].
103 Given the significance which was placed by counsel for both the plaintiffs and Nicky on the Court of Appeal's judgment in Gardiner v Hughes (No 2), and the fact that there are various judgments of the Court of Appeal and McMillan J containing the Gardiner name, I will for clarity's sake briefly set out some detail of the facts and procedural history of that litigation.
104 The late Douglas William Gardiner died in June 2015. Probate of his Will dated 6 May 2015 was granted to Lachlan Hughes and Kerrie Sles (Hughes & Sles). Two nephews (James Gardiner and Charles Gardiner) and a niece (Sarah Borrack) (Gardiner & Ors) sought to revoke the grant of probate to Hughes & Sles.
105 The claims by Gardiner & Ors gave rise to litigation leading to five published judgments in this Court, three by McMillan J and two by the Court of Appeal. The judgments by McMillan J are distinguishable by the fact that they are cited by reference simply to the name of the nephews (Gardiner). The McMillan J judgments are cited as: Re Gardiner[95] (Re Gardiner); Re Gardiner (No 2)[96] (Re Gardiner (No 2)); and Re Gardiner (No 3)[97] (Re Gardiner (No 3)). The Court of Appeal judgments are cited by inclusion of reference to the name of the first named executor (Hughes), those judgments being Gardiner v Hughes[98] (Gardiner v Hughes) and, as noted above, Gardiner v Hughes (No 2).
106 Gardiner & Ors received no benefit under the deceased's probated Will or under his two prior Wills made in 2012 and 2008. Rather, Gardiner & Ors claimed that the probated Will and the two prior Wills were invalid on the alleged basis that the deceased lacked testamentary capacity and sought a declaration that the deceased died intestate.
107 In the event that the grant of probate was not revoked, Gardiner & Ors nonetheless sought the removal of Hughes & Sles as executors on the basis that Sles stood in a fiduciary position to the deceased, thereby (as the applicants contended) precluding her from benefitting under the deceased's Will, as well as acting as an executor of the estate.[99]
108 In February 2016, the parties agreed that the question of Gardiner & Ors' standing to seek the orders for revocation of the grant of probate and declarations regarding the deceased's Wills be tried as a separate question.[100] That question was heard and determined by McMillan J, with her Honour concluding that Gardiner & Ors did not have standing.[101]
109 Gardiner & Ors sought leave to appeal and the appeal was heard in May 2017, with the Court of Appeal delivering judgment on 29 June 2017, the judgment being reported.[102]
110 The Court of Appeal determined that leave to appeal should be granted and allowed the appeal. The leading judgment was given by McLeish JA with Tate and Kyrou JJA respectively agreeing.[103]
111 McLeish JA, in reviewing the requirements for standing, made reference to the applicable statutory provisions and rules of the Court[104] and reviewed the caselaw upon which McMillan J and the parties had relied. His Honour found it convenient to approach a review of the cases in chronological order.[105]
112 The proposed grounds of appeal challenged three related strands to her Honour's reasoning in concluding that Gardiner & Ors lacked standing, namely: (1) the requirement that an applicant for the revocation of probate demonstrate a prima facie case to challenge the grant; (2) the requirement that an applicant seeking to challenge a Will must take under that Will or the preceding dispositive regime (whether a prior Will or an intestacy); and (3) the application of the principles in the CPA.[106]
113 In reviewing the authorities, McLeish JA observed that very few of the cases were directly concerned with standing, and that the cases which referred to the "prima facie case" requirement are either contested trials, applications for summary disposition or concerned with the requirements for permitting the matter to go to trial.[107] His Honour observed that several principles emerged from the survey of the authorities and stated as follows (footnotes omitted):
114 In allowing the appeal, the Court of Appeal declared that Gardiner & Ors had standing to pursue the relief sought in their amended summons. McLeish JA noted that the case would proceed in the Trial Division, and whether Gardiner & Ors were called upon to establish a prima facie case or a real prospect of success before the matter was permitted to proceed to trial would depend upon any applications made by the parties, and any directions given by the trial judge in the proceeding.[108]
115 On 25 July 2017 (approximately four weeks after the Court of Appeal delivered its decision), Gardiner & Ors filed a summons seeking that McMillan J recuse herself from hearing any further interlocutory applications and the trial of the proceedings on the ground of apprehended bias. On 19 September 2017, her Honour heard that application and on 20 November 2017, delivered reasons for judgment dismissing the application.[109]
116 On 8 December 2017, Gardiner & Ors were ordered to file and serve their grounds of revocation, and file their particulars by 22 December 2017. Orders were also made for the filing of objections and responses to the affidavits filed by Gardiner & Ors and for a hearing of Gardiner & Ors' prima facie case for revocation.
117 The particulars were filed and then later amended on 23 February 2018 and, on 22 March 2018, McMillan J heard Gardiner & Ors' prima facie case for revocation. Her Honour delivered reasons for judgment on 31 July 2018 cited as Re Gardiner (No 3).
118 At the hearing of the prima facie case application, Gardiner & Ors eschewed any reliance on their affidavits filed in support of their summons for revocation.[110] Rather, Gardiner & Ors relied upon the amended particulars of grounds of revocation which comprised 10 pages of particulars, the first 8 pages of which set out what was described as the "Deceased's circumstances and history" and the remaining 2 pages particularising the lack of testamentary capacity case.[111] Those later particulars indicated that certain of the earlier particulars (dealing with the deceased's circumstances and history) were not relied upon.[112]
The particulars are discursive, wide ranging, contain many generalities, are often vague, ambiguous and obscure and include irrelevant facts that hinder, rather than assist, in understanding the applicants' prima facie case. The applicants' particulars do not provide a causal connection between the circumstantial facts relied upon and the ground of testamentary incapacity and do not support an inference that the deceased lacked testamentary capacity at the time he executed his last will. When the particulars of grounds of testamentary incapacity are considered in their totality, the applicants have not established a prima facie case for revocation of the deceased's last will.
120 Her Honour accordingly dismissed Gardiner & Ors' summons for revocation of the grant of probate.
121 It was that order which was the subject of the appeal in Gardiner v Hughes (No 2). The Court of Appeal was constituted by two of the three judges of appeal who had presided over the hearing of the first appeal (Kyrou and McLeish JJA).
122 Gardiner & Ors sought leave to appeal to the Court of Appeal on a number of grounds, but in particular in relation to McMillan J's finding that the amended particulars, taken as a whole, did not establish a prima facie case for revocation of the grant of probate, in the sense that there was a case for investigation, or "something to go on", and that the application for revocation was not merely frivolous or vexatious.[115]
123 There were four grounds of appeal argued, being relevantly that: (1) her Honour had reached the wrong conclusion and ought to have held that a prima facie case was shown by the particulars; (2) her Honour had erred in her approach in assessing the particulars by not merely considering and accepting that various matters were capable of suggesting a want of testamentary capacity, but (impermissibly) engaging in an assessment of the likelihood of those matters being probative; (3) her Honour had erred in finding that matters predating the final Will could not be found at trial to have been relevant to the deceased's testamentary capacity at the time of the Will, and most specifically, had failed to look at the case in its totality; and (4) her Honour dismissed the proceedings without giving Gardiner & Ors the opportunity to amend their particulars.[116]
124 The Court of Appeal granted leave to appeal on the first three grounds (refusing the fourth).[117] The Court, at the invitation of the parties, determined the "prima facie case question" for itself rather than remitting the matter for further hearing.[118] The Court, having considered the matter, determined that Gardiner & Ors had shown a prima facie case for trial, and accordingly, allowed the appeal and remitted the matter for trial.[119]
125 Counsel in this case argued the matter by reference to whether a prima facie case had been established.
126 The Court of Appeal's second decision (Gardiner v Hughes (No 2)) addressed the specific issue regarding whether McMillan J had erred in finding that Gardiner & Ors did not establish a prima facie case for revocation of the grant of probate.
127 However, whilst the Court of Appeal's first decision (Gardiner v Hughes) specifically addressed the question of whether Gardiner & Ors had standing to pursue the relief they had sought in the amended summons, the decision, as is evident from what I have outlined above, did comment on the issue of whether a party challenging a grant of probate was required to show a prima facie case.
128 Neither counsel appearing before me addressed any submissions in particular as to how the second Court of Appeal decision in Gardiner v Hughes (No 2) should be considered in light of comments in the first decision regarding whether a party before trial is required to establish a prima facie case in order to proceed with an application to revoke a grant of probate.
129 Rather, the summary dismissal application was argued before me on the basis that the principles gleaned from Gardiner v Hughes (No 2) accurately and appropriately formed the guide for determining whether the particulars on which Nicky relied, assuming them to be true, called for further investigation as to whether the deceased knew and approved of the 2012 Will and whether it was affected by (alleged) undue influence by Vicki, such that the summary dismissal application should be dismissed and the case be allowed to go to trial.
130 Each of the counsel for the parties referred to the principles in Gardiner v Hughes (No 2) at [39]-[42] to the effect that an applicant for revocation of probate is bound (seemingly in the same way as a caveatrix) to make out a prima facie case to show that there is a case for investigation and that the opposition is not merely frivolous or vexatious.[120]
131 As noted above, the appeal in Gardiner v Hughes (No 2) was from McMillan J's judgment in Re Gardiner (No 3).
132 Her Honour made reference to the phrase "prima facie", noting that a literal translation is "at first sight; on the face of it; as appears at first sight without investigation".[121] However, her Honour noted that at least in the legal context, what is required to be shown as a prima facie case takes on its character from the context in which it operates.[122]
133 McMillan J made reference to the fact that in the Court's probate jurisdiction, the requirement that an applicant seeking revocation of a grant establish a prima facie case before trial can be traced back to older authorities as illustrated by the decision of the Court in Wrigley v Buxton[123] (Wrigley v Buxton).[124]
134 It is evident that the decision in Wrigley v Buxton makes reference to statutory provisions and her Honour noted that the Full Court determined that the proper procedure for the commencement of a proceeding for revocation of a grant was by rule nisi (otherwise known as order nisi), not by action.[125] Her Honour further observed that the Victorian authorities since Wrigley v Buxton maintained the centrality of the rule nisi process to the revocation of grants of probate.[126]
135 The Court of Appeal in Gardiner v Hughes (No 2) addressed the notion of a prima facie case to challenge a grant at a number of points in the reasons for judgment. Their Honours observed that McMillan J had outlined the principles governing the revocation of probate, noting that the applicant first had to show standing to make the application, a reasonable explanation for the delay in bringing the application, and a prima facie case to challenge the grant.[127]
136 For the purposes of the summary dismissal application in this case, the parties did not dispute that those were relevant considerations.
137 In the context of explaining what is meant by a prima facie case, the Court of Appeal stated as follows in Gardiner v Hughes (No 2) (footnotes omitted):
The new process of application by summons did not alter the requirement for an applicant to establish a prima facie case at the commencement of an application for revocation. This requirement is grounded in the Court's concerns at the commencement of a revocation application to prevent 'frivolous [and] vexatious' proceedings, to 'show some ground for making the application', to ensure that there is 'a case for investigation' and to provide 'a substantial safeguard against attempts to revoke probate' before an application proceeds to trial.
11. The judge added:
[A]n applicant must provide a sufficient factual basis for his or her grounds of revocation. Mere assertion of facts are insufficient - a causal connection must be shown between the facts asserted and the grounds of revocation. The provision of a sufficient factual basis will define the questions for trial, provide an opposing side with a precise understanding of an applicant's case and avoid surprise at the trial. Particulars based on mere inference, rather than direct evidence or circumstantial facts that are sufficiently particularised, will be insufficient to support a prima facie case for revocation of a grant of probate.
138 Before addressing the grounds of appeal, the Court of Appeal further discussed the legal principles in respect of the nature of a prima facie case and how it might be established. Specifically, the Court of Appeal stated as follows in Gardiner v Hughes (No 2) (footnotes omitted):
Probate as ordinarily granted in this Court is not final, it is not equivalent to probate per testes...
In order to obtain an order nisi for revocation the caveatrix is bound, I think, to make out a prima facie case. She would have to show that she has something to go upon in her opposition to the issue of probate.
...
It may be that it would be better for all, if I now granted to the propounders an order nisi returnable on 14 December 1961, calling upon the caveatrix to show cause why probate should not issue to the propounders, and directed that such order nisi should be made absolute on such return day in the event of the caveatrix failing by that time to show, by affidavit, that she has something to go on, that her opposition is not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation. If on the return day she showed a case for investigation, she would then state the grounds upon which she relies and the case would proceed to trial in the ordinary way.
- The reference to affidavits in this passage has not been taken to be prescriptive as to the way in which a prima facie case may be demonstrated. The present case, which proceeded entirely by way of particulars, is an instance of an alternative approach. While the first and second respondents submitted before the primary judge that the absence of evidence was fatal to the applicants' case, that submission was not accepted and no party sought to agitate that question before us.
- The task for the party seeking to have a grant of probate revoked is therefore to show that there is a 'case for investigation' or 'something to go on'. Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice. Decisions in New South Wales capture a similar notion using the expression 'reasonably arguable' or, perhaps less commonly, 'substantial issue to be tried'. Consistently with the notion of 'investigation', New South Wales authorities permit regard to be had to the evidence 'reasonably thought likely to be available'.
- The parties were not in agreement as to the way in which the test is to be applied. Contrary to the submissions of the third respondent, in particular, it will not simply be a question of deciding whether an inference justifying revocation should be drawn from the facts relied upon, or which of two possible inferences is to be preferred. Those would be matters for trial. Nor is the true question even whether the inference sought to be relied on is available on the facts (although if that were so, there would be a prima facie case for investigation as to whether or not the inference should be drawn). There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.
- Next, the power to revoke a grant of probate is discretionary, involving a consideration of all the circumstances and not just the merits of the case. Those discretionary considerations are apt to be considered along with the prima facie case question, at a preliminary stage. In that context, a failure adequately to explain delay, for example, may in some circumstances be a basis for refusing relief despite the existence of a prima facie case. No such discretionary considerations are advanced in the present case. However, the fact that matters of discretion may arise does not mean that the evaluation of the prima facie case is itself an exercise of discretion. It is instead the application of a legal test to alleged facts. Although minds may differ as to the correct outcome of that process, in law there is only one correct answer. There is either a prima facie case or there is not.
139 In her helpful submissions, Ms Kouloubaritsis additionally on the hearing[128] made reference to the following paragraphs in Gardiner v Hughes (No 2):
...
The judge ascribed weight to each particular based on the fact that, of itself, it was equivocal as to the question of testamentary capacity. Having treated various particulars as being of limited or little weight because their connection with testamentary capacity was speculative, the judge did not return to the question whether the particulars as a whole constituted a narrative warranting further investigation. Refusal to speculate as to the inference that could be drawn from an isolated particular was plainly appropriate, but once it was accepted that individual particulars could, depending on other facts, point towards testamentary incapacity it was incumbent on the judge to view the case as a whole to see whether it called for further investigation.
In our opinion, the judge did not do this. The determination of the weight to be attached to individual particulars was done without regard to the overall narrative. That process infected the judge's assessment of the case as a whole because by that stage the judge was considering together a mass of particulars which had each been found to be of little weight, taken by itself. Although at points the judge did consider two or more different particulars together, and identified possible inconsistencies in that context, she did not look afresh at the case considered as a whole.
...
- It may prove at the trial of the present matter that the proper inference is that the matters relied on, even taken together, do not warrant drawing the inference that Mr Gardiner lacked testamentary capacity. However, a trial would proceed on evidence, rather than particulars, and the nature of the case for revocation may itself change as a result of pre-trial steps. All that needs to, and can, be decided at this point is that the applicants have shown a prima facie case for trial. To this extent, the applicants have also established their first proposed ground of appeal.
140 In summary (and not seeking to ignore precise nuances conveyed by the precision of their Honours' reasoning), the following may be noted in respect of the Court of Appeal's guidance in Gardiner v Hughes (No 2) regarding the establishment of a prima facie case:
(1) whilst a prima facie case may be demonstrated by evidence such as affidavit evidence, it may also be established by provision of particulars which is an instance of an alternative approach to establishing a prima facie case;[129]
(2) whilst mere speculation is insufficient, a prima facie case may be established if the facts particularised, assuming them to be true, justify the conclusion that there is a "case for investigation" or "something to go on" or call for "further investigation" as to or regarding the claim, and grounds justifying revocation;[130]
(3) determination of a prima facie case should not necessarily be limited to focus on the contents of the particulars themselves nor foreclose any role for inferences in deciding whether the particulars establish a prima facie case;[131]
(4) the Court is not required to decide whether an inference justifying revocation should be drawn from the facts relied upon or which of two possible inferences is to be preferred (which are matters for trial);[132]
(5) there may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged;[133]
(6) evaluation of a prima facie case is not of itself an exercise of discretion but rather an application of a legal test to alleged facts and although minds may differ as to the correct outcome of that process, in law there is either a prima facie case or there is not;[134]
(7) application of the prima facie case threshold does not require a determination whether or not the particulars, in isolation or taken together, justify an inference giving rise to the ground for revocation (whether it be incapacity as in Gardiner v Hughes (No 2) or otherwise);[135]
(8) the fact that a particular allegation might, depending on the context, either support an inference as to the ground for revocation or not, does not mean that the case does not warrant further investigation based on that allegation, as the very process of investigation will (ultimately) determine whether or not the inference should be drawn;[136]
(9) whilst regard may be had to the particulars individually, it is appropriate to consider whether the particulars as a whole constitute a narrative warranting further investigation;[137] and
(10) the determination of weight to be attached to individual particulars should not be done without regard to the overall narrative.[138]
141 Nonetheless, discretionary considerations (such as a failure to adequately explain delay) are apt to be considered along with the prima facie question at a preliminary stage and may in some circumstances be a basis for refusing relief despite the existence of a prima facie case.[139]
142 It has been said that identification of each and every witness in grounds of objection is not a necessary pre-condition for the Court to be satisfied that there is a case to investigate.[140]
143 On the hearing of the summary dismissal application, Ms Kouloubaritsis made reference to the practice in Victoria in regard to the adducing of evidence. At my request (and not opposed by Mr Newton), Ms Kouloubaritsis (through CBP) provided reference to the Court's "Guidelines for Standard Orders" in the Trusts, Equity and Probate List, which, relevantly, includes the following:
Proceedings concerning the testamentary capacity and knowledge and approval of the testator, or allegations of undue influence, will not ordinarily be appropriate for evidence to be given by affidavit. Instead, parties will be ordered to prepare position statements to assist with the mediation of proceedings prior to trial, and viva voce evidence will be given at trial.
144 Ms Kouloubaritsis observed that it may well be that the test in Victoria for establishing a prima facie case for revocation of a grant of probate is of a much lower threshold than that which applies in New South Wales.[141] That might be a correct observation. However, there is no need for me to determine that.
145 Ms Kouloubaritsis made particular reference on the hearing to two cases which she noted had applied Gardiner v Hughes (No 2), being Re Rudebeck and Re Robustelle (No 2)[142] (Re Robustelle (No 2)).
146 The extent of reasons necessary for a judge to identify whether there is a prima facie case with sufficient basis for further investigation need not be lengthy. In Gardiner v Hughes (No 2), the Court of Appeal's consideration of whether there was a prima facie case was outlined in approximately 7 paragraphs spanning 2 pages of the reasons for judgment.[143]
147 The grounds for objection in the AGR span 13 pages. As noted above, the grounds fall into two main categories, being:
(1) alleged lack of knowledge and approval (knowledge and approval grounds); and
(2) alleged undue influence by Vicki (undue influence grounds).
148 The knowledge and approval grounds for objection particularise matters which addressed, in summary, the following:
(1) the deceased's personal circumstances and lack of understanding regarding the family's wealth during Sam's lifetime, in particular asserting that:[144]
(a) the deceased had very basic education and literary skills only in Greek;
(b) she was unable to read English and her spoken English was extremely limited;
(c) during their marriage, significant wealth was acquired both in the names of Sam and herself but also through the Family Trust and the Super Fund;
(d) the deceased, during her marriage, had no business acumen or understanding of the family's wealth, business or finances and was requested to sign documents without either explanation, or in any event, understanding of the contents; and
(e) the deceased and Sam had "equal" love for their daughters and grandchildren and they had no favourites;
(2) the deceased made representations, prior to the making of the 2012 Will, regarding an equal division of her wealth;[145]
(3) the circumstances in which the 2012 Will was made bear scrutiny, in particular:
(a) the 2012 Will was not made with the assistance of Sam's long-standing and trusted lawyers or the involvement of his accountant;[146]
(b) the complexity of the documentation including the 2012 Will, the DBA and the EPA;[147] and
(c) the failure of the attestation clause to expressly state that the 2012 Will was translated in Greek to the deceased, and alleged lack of detail regarding the qualifications of the translator, Mr Eleftheriou;[148]
(4) the deceased allegedly lacked understanding of the properties owned by her or their values;[149]
(5) there was an inequality of distribution by the deceased under the 2012 Will;[150]
(6) the deceased, within months of making the 2012 Will, made statements indicating that the Will effected an equal distribution between her daughters, in particular:
(7) there was a failure by the deceased to mention to Nicky (or extended family members) that she had made a new Will.[153]
149 There are a number of other grounds which touched upon translation issues including:
(1) alleged doubt as to whether one of the attesting witnesses, Mr Kosij, could have formed an opinion that the deceased knew and approved the contents of the 2012 Will;[154] and
150 The undue influence grounds for objection repeat the particulars relating to knowledge and approval and particularise additional facts which may be summarised as follows, namely, matters regarding:
(1) the deceased's advanced age and health, including that the deceased allegedly suffered from:
(a) severe depression and anxiety, for which she was on anti-depressants in 2010; and
(b) early-onset dementia in 2012 and 2013;[157]
(2) Vicki's alleged conduct after Sam's death such that: (1) when Nicky moved into the deceased's family home, Vicki displayed conduct towards her and the deceased that was allegedly emotionally abusive, controlling and self-interested; (2) the deceased feared Vicki's temper; and (3) within three months of Sam's death, Vicki forced Nicky and the deceased against their will to move from the family home to one of the small Bentleigh Units;[158]
(3) details of Sam's personal estate and equal division provisions of his Will;[159]
(4) the signing of a family agreement on 2 June 2011 (Family Agreement), including:
(a) alleged duress and intimidation by Vicki causing Nicky and the deceased to sign the agreement;[160]
(b) a lack of independent legal advice before signing the agreement;[161] and
(c) alleged conduct by Vicki between 2 June 2011 and early January 2012 by which she stood over Nicky and the deceased and forced them to execute transfers to give effect to the agreement;[162]
(5) alleged failure by Vicki in mid-2011 to provide information regarding Sam's estate, the Family Trust and the deceased's affairs;[163]
(6) alleged conduct by Vicki unilaterally administering Sam's estate and the Family Trust and making misrepresentations;[164]
(7) alleged removal of Nicky by Vicki from the deceased's house on 31 January 2012 following receipt of a letter sent by Nicky's lawyers to Vicki;[165]
(8) the purported removal by the deceased of Nicky as a director of the trustee of the Family Trust;[166]
(9) alleged aggressive correspondence from Vicki's lawyers purportedly on the deceased's instructions but in fact on Vicki's instructions;[167]
(10) alleged isolation by Vicki of the deceased from her family and friends from 2012 onwards;[168]
(11) deterioration of the deceased's mental and physical health consequent upon the isolation;[169]
(12) alleged conduct by Vicki, or a person loyal to her, taking the deceased to execute the 2012 Will later in the same month as a family meeting in which the deceased had informed extended family that her wealth would be divided equally after her death, and matters related to that, including the deceased's alleged lack of understanding of the consequences of her Will;[170]
(13) alleged isolation and control of the deceased by Vicki at the time of the 2012 Will;[171] and
(14) alleged conduct after the making of the 2012 Will including:
(a) further emotional vulnerability of the deceased by Vicki acting to isolate the deceased by the end of 2012;[172]
(b) in very early 2013, six weeks after executing the 2012 Will, the deceased was unhappy with her doctor as he asked questions regarding where the deceased lived, her address and her name;[173]
(c) the commencement in February 2013 of the removal proceedings, allegedly without the deceased's knowledge;[174]
(d) conversations in the first half of 2013 in which the deceased told friends that she wished for Nicky to look after her as Vicki was screaming, upsetting her, not giving her money, that the deceased was afraid of Vicki locking her up in a psychiatric institution and that she did not wish to live like a prisoner;[175] and
(e) on 31 July 2013, the deceased attending a mediation in which she was not legally represented by an independent lawyer nor assisted by any accredited interpreter.[176]
151 In relation to the knowledge and approval grounds, Mr Newton submitted that:
(1) the two affidavits sworn by the deceased in the removal proceedings make it clear that the deceased was, after Sam's death, fully involved in and well aware of the family's financial affairs and disputes and well understood the nature of the Family Trust;[177]
(2) disputes regarding the Family Agreement were subsequently addressed by the deceased engaging her own solicitor, Mr Athanasiou (of Thomson), including at meetings at the deceased's house on 26 October 2011 and 31 May 2012;[178]
(3) the deceased's involvement in the DSR included dealings with three firms of solicitors in relation to the financial affairs of herself, Sam's estate and the Family Trust, and there is nothing to suggest that she did not have an understanding of those financial affairs;[179]
(4) there is no substance to the particular allegation that the deceased believed that she had treated her daughters equally, in circumstances where: [180]
(a) there is an affidavit of due execution of the 2012 Will, prepared by Mr O'Sullivan, sworn by the interpreter Mr Eleftheriou;
(b) the 2012 Will itself was prepared by Mr O' Sullivan, a solicitor, who also witnessed the Will; and
(c) the 2012 Will contains several clauses gifting properties in a manner inconsistent with an equal division amongst her daughters;
(5) the AGR [12], [13] and [26], referencing the alleged statements by the deceased prior to execution of the 2012 Will (that she would divide the family wealth equally between her daughters), are generalised and vague, without statement of Nicky's source of knowledge.[181] In particular, Mr Newton submitted it is highly improbable that the deceased's intentions would have been broadcast to extended family members in a meeting;[182]
(6) the reliance by Nicky upon the deceased's 8 April 2013 affidavit in the removal proceedings referred to equality in the context of equal treatment of the daughters in the manner in which the Family Trust was being administered;[183]
(7) there is no basis for suggesting that Vicki, or someone loyal to her, took the deceased to see Mr O'Sullivan, nor is there anything suggestive that he was not a suitable person to prepare a Will for the deceased in a proper fashion;[184]
(8) there is no substance in the complaint regarding the execution clause and the reference to Mr Kosij is irrelevant;[185] and
(9) in relation to the alleged complexity of the 2012 Will, there is no requirement that the deceased understood the legal effect of every clause in the Will, but, rather, that she understood the practical effect of the central clauses of the Will.[186]
152 In relation to the undue influence grounds, Mr Newton submitted:
(1) that whilst undue influence may be established by circumstantial evidence, it is not sufficient to establish merely that a person has the power to overbear the will of the testatrix; it must further be proved that the particular power was exercised, citing Re Demediuk;[187]
(2) particulars which are consistent only with opportunity to influence the testatrix are insufficient, citing Montalto v Sala;[188]
(3) the basis for at least a number of the allegations is not provided and the allegations of undue influence are sweeping and generalised, and do no more than endeavour to establish that Vicki had the opportunity to influence the deceased, which is not enough to support a case of undue influence in accordance with the authorities;[189]
(4) the claim that the knowledge and approval grounds support the fact that the deceased was not capable of managing her own affairs and was under the influence of Vicki is answered by the plaintiffs' responses to those grounds;[190]
(5) the entry by the deceased into the DSR is inconsistent with Nicky's allegations regarding undue influence and there is no explanation as to why the deceased, who was capable of executing the DSR, made no attempts to revoke the 2012 Will at any stage in the last decade of her life or would not have taken steps to do so if she had been coerced;[191] and
(6) the bitter dispute between the deceased and Vicki on the one hand and Nicky on the other over the period from 2011 to 2014, regarding benefits which Nicky should receive from her father's estate and Family Trust, provide context for the deceased having changed her Will to benefit Vicki's family.[192]
153 Ms Kouloubaritsis submitted that the plaintiffs throughout their written submissions have incorrectly applied, or misapplied, the Gardiner v Hughes (No 2) "case for investigation" test, including by submitting that the particulars are documents before the Court which do not support inferences that would lead to findings that (a) the deceased did not know and approve of the 2012 Will, or (b) that it was procured by undue influence.[193] Ms Kouloubaritsis provided a table of alleged instances of this.[194] I will not set out the detail of that table. Nonetheless, I have had regard to it.
154 In relation to the knowledge and approval grounds, Ms Kouloubaritsis made the following submissions (which I have slightly re-ordered):
(1) the deceased was an elderly migrant woman with limited English and education, and in the months leading to the purported execution of the 2012 Will she was suffering from extreme anxiety and depression, for which she was medicated, and early onset of cognitive decline;[195]
(2) the deceased had no understanding of her family's wealth and finances and, during her long marriage, her husband was solely responsible for the family's business and financial matters;[196]
(3) the way instructions for the 2012 Will were taken, or how the 2012 Will was prepared, is not known;[197]
(4) the 2012 Will represented a radical departure from the deceased's 1976 testamentary dispositions, long adhered to, so as to require explanation;[198]
(5) the complexity of the lengthy 2012 Will, including the specific bequests made, contrasts with the simplicity of the prior 1976 Will and is inconsistent with the deceased's lack of personal knowledge of her personal assets, or each property's value, necessary to give the specific instructions that appear in the 2012 Will;[199]
(6) the interaction between the 2012 Will and the DBA (including a cross-reference to a property) is beyond the comprehension and instructions of the deceased, considering her level of financial literacy;[200]
(7) Vicki and her children inherit combined assets of $6,874,060 from the deceased's estate, whilst Nicky and her children inherit combined assets valued at only $1,574,605, and under the DBA, 75% of the assets of the deceased's superannuation fund are to go to Vicki upon her death;[201]
(8) Vicki may have had the knowledge, motive, and opportunity to have taken a part in the 2012 Will's preparation and purported execution, in that Vicki:[202]
(a) from at least 22 September 2010, had a copy of the 1976 Will, and would have known that by it the deceased's estate would be divided equally between Vicki and Nicky;
(b) was present at the family meeting on 9 November 2012 where the deceased expressed that her wealth would be divided equally between her two children and that the deceased had prepared documents to that effect;
(c) was solely responsible for the deceased's financial and legal affairs and had the knowledge of the deceased's personal estate to give instructions with the specificity apparent from the 2012 Will (which resulted in Vicki and her children receiving more than 80% of the estate);
(d) Vicki may have been at the offices of BOL on the day that the deceased purportedly executed the 2012 Will; and
(e) the deceased had in the past signed legal documents that she had no knowledge of, when asked to do so by a family member;
(9) it is unclear in which language (Greek or English) or the way in which Mr Eleftheriou (whose address, occupation, qualifications, or experience is unknown) read the 2012 Will;[203]
(10) the basis for Mr Eleftheriou's conclusion that "the testator appeared to perfectly understand the will and approve its contents thereof" is unknown, nor is there any explanation for the inconsistency between the attestation clause in the 2012 Will and Mr Eleftheriou's affidavit, nor why he swore the affidavit 3 months after the purported execution of the 2012 Will;[204] and
(11) the fact that: (a) the deceased did not mention to her family that she had updated her Will post November 2012, and (b) in December 2012, and January and February 2013, the deceased continued to say to Nicky and members of her extended family that "everything is half/half" between her two daughters, raises suspicion that the deceased did not know or understand the contents of the 2012 Will, or indeed whether she had in fact executed a new Will.[205]
155 Ms Kouloubaritsis submitted that based on the particulars, both considered on their own and as part of the overall narrative contained in the AGR, there is enough "to go on" to call a trial to investigate whether the deceased knew and approved the contents of the 2012 Will.[206]
156 In relation to the undue influence grounds, Ms Kouloubaritsis submitted (in addition to grounds already noted[207] that, following Sam's death in 2010, the deceased was subject to acts of aggression, controlling and manipulative behaviour, and emotional abuse by Vicki proximate to the date of the 2012 Will, which had the effect of (a) physically isolating the deceased from her family and friends (unless Vicki was present); and (b) giving Vicki sole control over the deceased's legal and financial affairs,[208] including by:
(1) between June 2011 and January 2012, pressuring the deceased to force Nicky to execute transfers to give effect to the alleged Family Agreement;
(2) giving instructions to: (i) Mr Spittal, that the deceased had stated that she wished to remove Nicky as a director of Shifrock; (ii) Quinn & Quinn, about the transfer of properties set out in the alleged Family Agreement; (iii) Thomson: (1) throughout 2012, to send aggressive correspondence to Nicky, purportedly on the deceased's instructions, which the deceased did not know about; and (2) in February 2012, to commence proceedings against Nicky to remove her as an administrator of Sam's estate, which the deceased at the time knew nothing about;
(3) the deceased (and Vicki) not having separate legal representation at the 31 July 2013 mediation:
(4) Vicki emotionally and financially abusing the deceased**,** including by: (i) between 2 June 2011 to early January 2012, physically standing over Nicky and the deceased and yelling at them to force Nicky to execute transfers to give effect to the alleged Family Agreement;[209] and (ii) in 2013, screaming at the deceased, not giving her any money, and threatening the deceased (who was suffering from severe anxiety and depression) that she would lock her up in a psychiatric institution with another relative at Kingston Centre;
(5) Vicki exerting control over the deceased's access to her family, including: (i) Vicki "kicking" Nicky out of the deceased's house (who at that time lived with her mother) on 31 January 2012 when Vicki received a letter from Nicky's lawyers; and (ii) from 2012 onwards, Vicki isolating the deceased from her family and friends and allowing only those loyal to Vicki to visit the deceased in her home; and
(6) Vicki forcing the deceased to act against her will, including by forcing the deceased and Nicky to move out of the family home in Brighton to a small unit in Bentleigh, 3 months after Sam's death.
157 Ms Kouloubaritsis referred to Moore J in Re Rudebeck at [11], [210] in particular to the last sentence as follows (footnote omitted):
However, as the Court of Appeal stated in Gardiner v Hughes (No 2), 'even if all the facts needed to justify the inference in question are not yet known or alleged', there may still be 'enough to "go on" to call for a trial.'
158 The footnoted reference is to the comments of the Court of Appeal in Gardiner v Hughes (No 2) at [42].
159 Ms Kouloubaritsis submitted that the fact (as is alleged here) that not all of the facts ultimately necessary to establish that a testator's will was overborn are able to be identified did not preclude a finding that there is a case to be "further investigated", citing also Re Robustelle (No 2) at [59] per Moore J.[211]
160 Ms Kouloubaritsis submitted by reference to Re Rudebeck[212] that since, "[g]enerally speaking, the grounds of objection should be properly particularised to demonstrate this connection, and where the particulars are ambiguous, obscure or inadequate, they may be struck out," one might think the proper course would have been for the plaintiffs to apply to have the application struck out.[213] However, I need not address that, as no such application has been made.
161 Also regarding undue influence, Ms Kouloubaritsis cited Re Robustelle (No 2)[214] as follows (omitting footnotes):
162 Ms Kouloubaritsis characterised Vicki's (alleged) conduct as a type of elder abuse, in particular in the way she asserted pressure on the deceased for (Vicki's) own financial benefit.[215] She submitted that Vicki's alleged behaviour was directed to (or with the intention of) her obtaining financial advantage over that of her sister in the sense of seeking to obtain a greater share of her family's wealth.[216]
163 On the hearing of the application, I asked counsel whether there is any dispute regarding standing. Mr Newton (properly) accepted that Nicky has standing to bring the revocation application.
164 Having regard to the provisions of the 1976 Will, clearly, Nicky has standing.
165 However, it is appropriate to note that it is evident that the correspondence between the solicitors for the parties has touched upon the issue of what testamentary instruments the deceased made. At this point in time, the only testamentary instruments disclosed are the 1976 Will and the 2012 Will.
166 Ms Kouloubaritsis kept her position open as to what the precise position was regarding what Wills the deceased made. She noted that at this stage Nicky and her legal representatives do not strictly know the status of the 1976 Will, as they have not been able to find the original of it.[217] Nevertheless, the hearing proceeded on the basis that, in the event that the 2012 Will is set aside, Nicky has sufficient standing to bring the revocation application whether it be by propounding a copy of the 1976 Will or by force of her entitlement under the provisions of intestacy.[218]
167 I asked counsel whether there is any dispute regarding delay. Mr Newton essentially accepted that there was no dispute regarding delay such that if there was a prima facie case, delay would not be put forward as being a discretionary ground to otherwise support the summary dismissal application.
168 I consider that that acknowledgement was properly made. In any event, there was evidence in Mr Nurse's first affidavit which addressed steps that Nicky and CBP took in the period after the deceased's death leading up to Nicky's application to revoke the grant of probate of the 2012 Will.
169 In particular, Mr Nurse addressed what had occurred during the period from the time the executors published an advertisement (on 28 November 2022) up until the grant of probate (on 30 January 2023), and referred to correspondence as between CBP and Sladen Legal thereafter, up to the filing of the revocation application.
170 Applications for probate may be progressed quickly. I am not satisfied that, in the particular circumstances of this case, the failure of Nicky to file a probate caveat prior to the Court making the grant of representation constituted any form of delay or lack of adequate explanation such as should be a significant factor warranting dismissal of her revocation application. Mr Nurse explains, and I do not doubt, that he and/or CBP sought to act carefully and prudently before the filing of any revocation application. The work carried out by Mr Nurse seeking to advise Nicky in the period between 30 January and 30 June 2023 is explained by him. Independently of Mr Newton's position regarding delay, I do not consider that there is any delay of significance in Nicky bringing the revocation application.
"Overall narrative" and approach to assessing the grounds
171 The summary dismissal application in its terms sought separate orders for summary dismissal of each of the two grounds relied upon for revocation.[219]
172 Thus, conceptually, it might be open to the Court to give summary dismissal in relation to one of the grounds (e.g. knowledge and approval) and dismiss the application for summary dismissal in relation to the other ground (e.g. undue influence).
173 Whilst I consider that, properly applying the principles in Gardiner v Hughes (No 2), such a course would be open to me, I do not think that it would be appropriate in considering the summary dismissal application to attempt to completely segregate material said to bear upon one ground from that bearing upon the other.
174 There are at least two reasons why that is the case.
175 First, it is evident from the AGR that the particulars on which the knowledge and approval grounds are based are repeated and relied upon by Nicky in respect of the undue influence grounds.[220] I consider it appropriate, in assessing the claim for dismissal of the undue influence grounds, to consider the grounds stated therein[221] in light of the knowledge and approval grounds[222] though nonetheless being mindful that, as noted above, as a matter of law the grounds are each distinct grounds for invalidation of a Will.
176 Secondly, I am mindful that, ordinarily, whilst "knowledge and approval" and "undue influence" are distinct concepts in practice, particularly if the matter proceeded to a hearing, evidence bearing upon one of those grounds challenging the invalidity of a Will may also be relevant to consideration of the other.[223]
177 In any event, the "overall narrative" of the grounds for revocation, as articulated by Ms Kouloubaritsis, put the case for revocation in a way in which there was at least some interaction as between the particulars on the knowledge and approval grounds and the undue influence grounds.
178 The "overall narrative" of the grounds for revocation as articulated by Ms Kouloubaritsis, in summary (accepting that I will not entirely capture every skerrick of narrative relied upon or nuance emphasised), is that:
(1) the deceased was at the time she made the 2012 Will an elderly woman, illiterate in English, with some health issues and a history of having no real involvement in or understanding of the administration of property holding within the family whether personally or through the Family Trust, who had previously signed documents when unaware of their nature and contents;
(2) the deceased was, in the period leading up to the 2012 Will, progressively isolated by Vicki and the subject of pressure effectively amounting to some form of elder abuse and, at the time of the making of the 2012 Will, was dealing with solicitors who were unknown to her, with the subject matter and contents of the 2012 Will and DBA being complex; and
(3) the deceased had expressed intentions regarding the disposition of her estate property shortly before and after the making of the 2012 Will, which were inconsistent with the dispositions in the 2012 Will, namely in that she proposed to distribute family wealth equally not merely through the two daughters but rather through their families, essentially per stirpes.
179 Mr Newton submitted that, although the Court was not entitled, and it was not appropriate for the Court, to embark upon an investigation or determination of factual issues, nonetheless the material on which the revocation application relies "must have some level of basic credibility at this stage" and that the evidence (or, I take it, material) on which it is relied must have "sufficient credibility to establish that in fact they have a prima facie case" as that term (prima facie case) is understood by reference to the decision in Gardiner v Hughes (No 2).[224]
180 Further, in relation to the claim that the deceased "had no knowledge of her own financial position, or her own financial circumstances and she did not have sufficient knowledge to understand what was in her Will", Mr Newton submitted that "the evidence and the material that's put forward in support of it, in fact indicates that that assertion has no credibility whatsoever".[225]
181 Mr Newton made a similar submission in relation to what he said was the allegation or assertion that the deceased did not have testamentary capacity because "she was an ignorant, illiterate in English, migrant, elderly woman whose affairs were controlled by other people".[226] He submitted that that had no foundation and no credibility whatsoever.[227]
182 Further, Mr Newton submitted that the grounds for revocation which referred to the deceased making statements at a family gathering on 9 November 2012 were "very generalised and vague"[228] and that I needed to be satisfied that the statements made by the deceased on the occasions particularised were "credible allegations".[229] In addition, Mr Newton in this connection observed that there was an affidavit of due execution and the claim that the person who interpreted the 2012 Will must have read it out to her in English, and that therefore she would not have understood it, "has no credibility".[230]
183 The noun "credibility" by its ordinary dictionary meaning reflects the quality or state of being credible, that is whether something or someone is capable of being believed.[231]
184 Credibility as used in law varies with context. It may have a narrow meaning which has a specific focus on a witness's veracity or truthfulness, in which case it is normally distinguished from "reliability" which deals with accuracy of the witness's testimony.
185 Mr Newton's "sufficient credibility" submissions, as I understood them, principally transcended a complaint of mere inaccuracy but suggested that there was no discernible proper evidentiary base for certain of the AGR particulars.
186 So understood, there are two difficulties with the "sufficient credibility" submissions.
187 First, the Court of Appeal's decision in Gardiner v Hughes (No 2) does not, at least expressly, give encouragement to a judge at first instance to embark upon an assessment as to the credibility of the grounds for revocation. Indeed, one of the grounds of appeal, which was upheld by the Court of Appeal in Gardiner v Hughes (No 2), was criticism that the primary judge had not merely considered whether the matters raised were capable of suggesting a want of testamentary capacity but had (impermissibly) engaged in an assessment of the likelihood of those matters being probative.[232]
188 Secondly, Mr Newton did not explain how it is that I could be satisfied that the matters had "no credibility".
189 Seizing upon individual or particular aspects of the AGR in isolation and attempting to assess whether any such individual matter "lacks credibility" might, if one were to undertake that exercise, possibly lead to a conclusion that each individual item is not "credible". However, generally, evidence is not assessed in that manner. A number of individual particulars in the AGR might, in isolation, appear to "lack credibility" as Mr Newton put it. However, the guide of the Court of Appeal is essentially that the AGR should be viewed in an overall narrative. Mr Newton acknowledged this aspect in his reply submissions.
190 The Court of Appeal indicated that the matters raised should not be frivolous or vexatious and that mere speculation will not suffice.[233]
191 In context, the point being made by the Court of Appeal is that it is insufficient to advance a particular or set of particulars which allege facts which self-evidently are, for example, impossible to have occurred or based on guesses or suspicions without any semblance of some factual basis such that it or they might be described as frivolous, vexatious or speculative.
192 I do not read the Court of Appeal's decision as requiring a particular threshold standard of credibility.
193 Rather, the framing of the test by the Court of Appeal is, leaving aside patently frivolous assertions, whether the allegations, assuming them to be true, called for further investigation (as to the validity of the Will in light of the alleged invalidating ground).[234]
194 If a particular or set of particulars is, in context, capable of being believed in the sense of having some appearance of forensic weight or purports to have some semblance of factual basis, the primary judge is not required to seek "chapter and verse" of the source details. In any event, the particulars are not to be assessed only in isolation. The guide of the Court of Appeal is essentially that the AGR should be viewed in an overall narrative.
195 Certainly, in the manner that Ms Kouloubaritsis argued the matter, significant reliance was placed upon the overall effect of the AGR.
196 In outlining Nicky's case regarding the overall narrative in support of the ground that the deceased did not know and approve the contents of the 2012 Will, Ms Kouloubaritsis marshalled the particulars into submissions under five aspects as follows:
(1) the mental acuity and sophistication of the deceased, in context, invites caution regarding her knowledge and approval (mental aspect);
(2) a radical departure from the deceased's prior testamentary dispositions, long adhered to, required explanation (radical departure aspect);
(3) the complexity of the 2012 Will and the estate being disposed of was (at least prima facie) beyond the deceased's capabilities (complexity aspect);
(4) Vicki may have been involved in the preparation of the 2012 Will and as her children take a substantial benefit under it, that circumstance calls for examination (participation aspect); and
(5) there is doubt as to the manner and extent to which the 2012 Will was read and/or explained to the deceased before execution so as to question her awareness of its effect and terms (execution aspect).
197 The categorisation of the aspects of the particulars in that way reflects matters generally acknowledged in caselaw as being capable of bearing upon knowledge and approval. I address these briefly below.
198 The particulars which Ms Kouloubaritsis identifies as going to the mental acuity and sophistication of the deceased include her age, her limited English and education, her mental health (extreme anxiety and depression for which she was medicated) and early onset of cognitive decline.[235]
199 The particulars regarding the deceased's age and education, and the extent of her literacy, do not appear to be speculative or vexatious. Indeed, even though Ms Kouloubaritsis submitted that the question of whether there was a prima facie case should be assessed by reference to particulars, it may be noted that there is evidence from Vicki in February 2013 (in the removal proceedings) acknowledging that the deceased was an elderly woman who did not read or speak English and understood a very limited amount of that spoken language.[236]
200 The extent of the physical and mental impairment of a testatrix is but one of various indicia which may bear upon whether a testatrix knew the contents of her Will, and appreciated the effect of what she was doing.[237]
201 A further aspect of the deceased's circumstances relied upon by Nicky is that the deceased "had no understanding of her family's wealth and finances" and that "[d]uring her long marriage, her husband was solely responsible for the family's business and financial matters".[238]
203 If it be the case that a testatrix has had limited or no involvement in dealing with assets of any substantial value within a family setting and is only called upon to do so in the later stages of her life, in a context where she has previously signed a number of documents without understanding their purport, the signing of a Will by which the testatrix disposes of assets of substantial value is something that would call for some scrutiny and vigilance as to whether the testatrix knew and appreciated the effect of what she was doing.
204 The particulars provide some support for suggesting that such a factual scenario applied to the deceased and in that sense are not frivolous, but arguably lay a platform for further probing or investigation.
205 In relation to the so-called radical departure from long held testamentary dispositions, Ms Kouloubaritsis contrasted the provisions of the 1976 Will with those of the 2012 Will.[241]
206 It should not be thought that the provisions of the 2012 Will eschew all semblance of equality.
207 The provisions of cl 3.2 of the 2012 Will, whilst it in its terms gives the deceased's interest in the shares in the capital of any company acting as trustee of the Family Trust to the plaintiffs, is qualified by a wish expressed in cl 3.3. That wish is that the trustees manage the Family Trust in a way which reflects the distribution of the residue of the deceased's estate, which is, prima facie, the distribution of equality as between Vicki and Nicky, or at least to their trusts.
208 Nonetheless, the specific gifts, in particular of real property, do not reflect an equal distribution when regard is also had to the residue of the estate. Although the residue is divided equally, it is of much less value than the real property and it is evident that Vicki and her children, at least collectively, inherit significantly more than Nicky and her children.
209 It may be that there is a plausible and rational explanation as to why the deceased might wish to change a testamentary disposition evinced in 1976, being over 36 years prior to making the 2012 Will. People's circumstances change from year to year and, even more so, are susceptible to change over the course of three and a half decades.
210 Nonetheless, the AGR and Ms Kouloubaritsis' submissions point to representations, said to have occurred both shortly before and shortly after the purported execution of the 2012 Will, that the deceased's wealth would be divided equally between her two daughters.[242]
211 The radical departure aspect particulars do not purport to be speculative but, in the sense I have just mentioned, reference what profess to be actual events that have occurred. The strength of the suggestion that the 2012 Will is a radical departure by the deceased from a settled intention of an equal distribution of assets between her children (or her children's families) is not sheeted in the isolated fact of the 1976 Will but also tethered to the alleged equality representations closely proximate to the date of the 2012 Will. Those are matters which have some gravity and shepherd towards deeper investigation of her knowledge and approval of the 2012 Will.
212 Ms Kouloubaritsis made particular submissions regarding the complexity of the 2012 Will and the extent of the deceased's estate being disposed of.
213 I accept that there is some force in the submission that the 2012 Will, which overall is approximately 24 pages in length, presents as a detailed document when contrasted with the simplicity of the 1976 Will.
214 The submission that the interaction between the 2012 Will and the DBA, including a cross-reference to a property, is beyond the comprehension and instructions of the deceased, considering her level of financial literacy,[243] bears some reflection. It is not entirely self-evident that those documents would be necessarily beyond the comprehension and instructions of the deceased.
215 Nonetheless, these particulars are not frivolous or speculative. The context of a person in the position of the deceased, with her age, limited level of education and literacy, considering the relatively detailed 2012 Will document and DBA may plausibly give rise to reason to scrutinise whether the deceased understood the effect of not merely the 2012 Will but also the DBA.
216 The submissions of Ms Kouloubaritsis, as noted above, give some emphasis to the contention that there is a case for investigation as to whether Vicki played any part in the preparation of the 2012 Will.[244]
217 Although it is not expressly asserted in the AGR, the submissions of Ms Kouloubaritsis raise the possibility that Vicki may have been at the offices of BOL on the day the 2012 Will was executed.[245]
218 However, on the hearing itself it became evident, and was essentially acknowledged by Mr Newton, that Vicki was present at the offices of BOL on the day that she executed the DBA in her capacity as director of Shifrock. Mr Newton accepted, for the purposes of the hearing, that the DBA was both prepared in Mr O'Sullivan's office and was one of three documents executed at effectively the same time.[246]
219 In light of the above, it cannot be said that Vicki's alleged presence at the time of the deceased making the 2012 Will is irrelevant or speculative.
220 The physical presence of a beneficiary or person who otherwise benefits from the terms of a Will (in this case Vicki) is a matter which may rationally bear upon whether a testatrix knows and approves of the terms of the Will. In light of the overall narrative, it also shows some cause for vigilance in scrutinising the circumstances of the making of the 2012 Will.
222 In the materials adduced on the summary dismissal application, there is an affidavit of due execution by Mr Eleftheriou in which he states that the 2012 Will was translated into Greek by him to the deceased, specifically:[249]
2. I am fluent in both Greek and English and am able to read in English.
- The will was translated into Greek by me to the testator who was unable to read or fully understand the English language she being Greek and Greek being the customary language understood by her.
- The testator appeared to perfectly understand the will and approved the contents thereof.
223 The execution clause in the 2012 Will is relevantly as follows:
The Willmaker being unable to read the English language but being able to understand spoken English the will was read to her by [Mr Eleftheriou] in the presence of ...
224 An execution clause in that form bears the hallmarks of the form of recommended attestation clause in circumstances in which a testatrix cannot read English but can speak it and can sign her name.[250]
225 Birtles, Neal and Sims distinguish that situation from circumstances in which a testator is unable to speak English or read it, but can sign so that the interpreter has to translate the Will to the testatrix and then inform the attesting witnesses of the testatrix's approval.[251] In that case, the recommended form of attestation clause contains (relevantly) the following wording:
The testator not being able to read English or speak it, [name and address of translator - reader] translated this will into the [language] language for [her (or) him] in our presence. [name of translator - reader] explained the will to the testator, in [language], translating from the explanation given by [name of person explaining the will - normally the solicitor, who will be one of the witnesses]. ...
226 This is not the occasion for the matter to be probed in any depth. Nonetheless, the following observations can be made.
227 First, both the execution clause and the subsequent affidavit of Mr Eleftheriou (the timing of which affidavit Ms Kouloubaritsis says in and of itself is curious if not suspicious) contain conclusive statements that the deceased respectively "stated that she knew and approved its contents" and that the "testator appeared to perfectly understand the will and approve the contents thereof".[252] Whilst such statements serve a limited purpose, they self-evidently do not expose any detail of what actually occurred in discussion or appearance.
228 Secondly, on the face of it, despite Mr Newton's submissions otherwise,[253] the attestation clause in the 2012 Will is not only capable of bearing the construction that the Will was read out to the deceased in English but actually accords with a recommended form of attestation clause so as to distinguish it from a situation in which the Will was translated to the deceased in another language, in this case Greek.
229 Thirdly, even when regard is had to the affidavit of Mr Eleftheriou, the attestation clause does not suggest in its terms (when compared with the recommended attestation clause) that what Mr Eleftheriou translated was an explanation by Mr O'Sullivan as distinct from what Mr Eleftheriou discerned on his own account to be the effect of the terms of the 2012 Will. Rather, the attestation clause makes no reference to any explanation by Mr O'Sullivan.
230 Fourthly, there was no attempt on the plaintiffs' side to provide any particular details or evidence regarding:
(2) whether the deceased had dealt with either Mr O'Sullivan, as a solicitor, or Mr Eleftheriou, as the translator for the 2012 Will, prior to the attendance to make the Will; and
(3) what Mr Eleftheriou said to the deceased on 29 November 2012, either actually or as a matter of substance, beyond the conclusive statements I have noted above.
231 I do not suggest that the plaintiffs should necessarily have led such evidence. However, having regard to various aspects of the knowledge and approval case and the overall narrative, I do not regard the particulars on this aspect as being vexatious. Instead, I consider there is some warrant for further investigation.
232 There are undertones of dispute, at least on Nicky's side, regarding the extent to which the deceased knowingly and willingly participated in aspects of the disputes over Sam's estate. Without making findings about those disputes or of the deceased's knowledge and/or informed involvement in the matter, the following may be observed from the materials before the Court regarding the Hampton East units:
(1) on 2 June 2011, a purported agreement was recorded in a handwritten document whereby the Brighton East property was to be transferred to Vicki, Hampton East Unit 4 was to be transferred to Nicky and the remaining four Hampton East units (Units 2, 3, 5 and 6) would be transferred to the deceased;[254]
(2) on 7 November 2011, there was an email sent from Vicki to Mr Quinn (purportedly with the deceased's concurrence) whereby Hampton East Unit 4, an accessory car park unit and another property at Hampton (Bluff Road) were to be transferred to Nicky;[255]
(3) by the 2012 Will, the deceased purportedly gifted her interest in four of the Hampton East units (Units 2, 3, 4 and 5) to Nicky's daughters Argiro and Panagiota;[256]
(4) in the DSR dated 26 August 2014, purportedly finalising disputes regarding Sam's estate and the Family Trust, there is further reference to the deceased, Vicki and Nicky in their capacities as executors of Sam's estate agreeing to transfer to Nicky Hampton East Unit 4 and an accessory car park unit, and transferring to the deceased the remaining four Hampton East units (Units 2, 3, 5 and 6).[257]
233 The deceased in the 2012 Will gifted to Nicky's children Hampton East Unit 4,[258] which had both:
(1) before the 2012 Will, been proposed for transfer to Nicky (in the 2 June 2011 handwritten agreement and 7 November 2011 email); and
(2) after the 2012 Will, been destined by the 26 August 2014 DSR to be transferred to Nicky.
Yet, the deceased did not revisit the Will or seemingly make any codicil to address that gift.
234 The contrast regarding the before and after proposals for dealing with Hampton East Unit 4 with the terms of the 2012 Will may be entirely explicable and anodyne. However, in light of the overall narrative, including the execution aspect, that is a matter which tends to favour further inquiry.
235 Mr Newton in his submissions, as I have noted, focused on referring to and reciting the history of the removal proceedings and referenced in particular the DSR dated 26 August 2014 that had been signed by the deceased.
236 In due course, it may be that some of that material, if ultimately relied upon, might show that the deceased had a good understanding of her financial circumstances. However, I consider that that is ultimately a matter for trial.
237 The above matters together, in light of the overall narrative, provide a sufficient basis for concluding that there are matters calling for investigation as to whether the deceased knew and approved of the 2012 Will.
238 The advancing of the case in relation to undue influence was framed by Ms Kouloubaritsis in her submissions by reference to two particular aspects, being:
(1) the deceased's advanced age and emotional well-being[259] (vulnerability aspect); and
(2) allegations that the deceased was subject to acts of aggression, controlling and manipulative behaviour and emotional abuse by Vicki proximate to the date of the 2012 Will, so as to amount to coercion[260] (abuse aspect).
239 As explained above, the undue influence case builds upon the knowledge and approval grounds.[261]
240 Certain of the knowledge and approval grounds are indicia which have a tendency to suggest vulnerability, such as the deceased's age, limited education, basic literacy and lack of business acumen.[262] Some of the undue influence grounds regarding the deceased's personal circumstances also have that tendency, namely, the deceased's severe depression and anxiety in 2010 and early onset dementia in 2012 and 2013.[263]
241 These particulars of themselves might be benign as to a case of undue influence.
242 However, it is necessary to consider them in light of the abuse aspect and the overall narrative.
244 Arguably, the closest focus on the deceased's vulnerability in connection to the 2012 Will is in AGR [67], which asserts that:
By the end of 2012, the deceased was emotionally vulnerable, isolated, subject to Vicki's control, fearful of Vicki's actions and wanting the conflict that had arisen in her family after the death of her husband to go away. Very little coercion was required by Vicki for her mother to purportedly execute the 2012 Will, whose contents she did not understand, know, or approve of.
245 Mr Newton submitted that the AGR particulars do no more than endeavour to establish that Vicki had the opportunity to influence the deceased.
246 However, analysis of the particulars reveals that the abuse aspect of the AGR has a number of characteristics.
247 First, to the extent that they cite occasions of alleged abuse, the cited instances are somewhat remote from the timing of the 2012 Will.
248 Secondly, the abuse aspect is put by Ms Kouloubaritsis as being a form of coercive control engaged in over a lengthy period of time, essentially spanning from the time following Sam's death to after the date of the 2012 Will. One of the particulars asserts that, in the first half of 2013, the deceased was afraid that Vicki would lock her up in a psychiatric institution with another relative at the Kingston Centre.[266]
249 Thirdly, whilst some alleged particulars are void of detail,[267] certain of the alleged abuse particulars are presented as being actual instances of conduct said to be directed at the deceased (as well as at Nicky herself). These included allegations that Vicki made Nicky and the deceased sign the Family Agreement on 2 June 2011 and that, between 2 June 2011 and early January 2012, Vicki would physically stand over Nicky and the deceased and force Nicky to execute transfers to give effect to the alleged Family Agreement.[268]
250 Not all of the particulars constituting the abuse aspect are instances of matters directed to the deceased. Rather, some appear to be put as alleged conduct directed by Vicki against Nicky herself[269] or instances of Vicki allegedly controlling the deceased "behind the scenes" or vicariously through lawyers.[270]
251 Fourthly, there are particulars which suggest that the deceased allegedly said certain things to friends in telephone conversations suggestive that: she was afraid; Vicki had been screaming at her and upsetting her; and the deceased perceived she was living like a prisoner.[271] Those particulars are framed not as speculation but rather present as or purport to be, even if not with ideal detail, actual occurrences of coercive or controlling conduct. Assuming them to be true,[272] they give support for a call for further investigation.
252 Further, the tenor of the overall narrative is that the deceased acted as she did in making the 2012 Will because of prolonged abusive control which affected the deceased's will in an undue way, even if actual abuse was not manifest on the day the 2012 Will was executed.
253 Whether the particulars suggest the possibility that the deceased did not know and approve of the 2012 Will or was not free to act in a natural, regular and ordinary manner, so as to call for further investigation, is a different question to the assessment that would be made on the final hearing of a probate claim.
254 In the context of the overall narrative which ties in particulars regarding alleged lack of knowledge and approval, on balance, I am persuaded that there is sufficient basis in the particulars, though not necessarily all of them, to warrant further investigation in relation to the undue influence grounds.
255 Overall, I am satisfied, having regard to the particulars individually and when considered in light of the overall narrative, that the AGR call for further investigation regarding whether the deceased knew and approved of the terms of the 2012 Will and/or was the subject of undue influence.
256 It may be that, at the trial of the revocation application, the proper inference of the matters relied upon, even if taken together, do not warrant findings of lack of knowledge and approval or undue influence. However, as the Court of Appeal noted in Gardiner v Hughes (No 2), a trial will proceed on evidence rather than particulars and the nature of the case for revocation may itself change as a result of pre-trial steps.[273]
257 Ultimately, on any such final hearing, what is sufficient to dispel any doubt or suspicion will vary with the circumstances of the case.[274]
258 In the above circumstances, I dismiss the plaintiffs' summons for summary dismissal.
259 Neither counsel made any particular submissions in relation to the question of costs.
260 In the above circumstances, I provisionally indicate that I am minded to order that the cost of the summary dismissal application be costs in the cause.
261 That is the order that I will make unless either the plaintiffs or Nicky wish to have an opportunity to contend otherwise.
[56] Gardiner v Hughes (No 2), [12], [41], [80].
[85] Lim v Lim [2023] NSWCA 84, [22] (Kirk JA, Bell CJ and Griffiths AJA agreeing), referring to Isaacs J in Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570; [1924] HCA 21, that the "quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances".
[86] Estate Rofe [2021] NSWSC 257 (Estate Rofe), [148] (Lindsay J).
[87] Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168, [180] (Leeming JA, Meagher and Payne JJA agreeing).
[88] [2009] VSC 64, [97]. See also Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275, [248] (Hallen AsJ); Haberfield v Larsson [2023] VSC 161, [17] (Cavanough J).
[89] e.g. Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203, [11] (Windeyer J), citing Isaacs J in Nock v Austin (1918) 25 CLR 519, 528; [1918] HCA 73.
[90] [2015] VSCA 60; (2015) 46 VR 123, 174; [2015] VSCA 60 (Santamaria JA).
[94] See also Ligitakis v Karatjas at [39] where McMillan J said in relation to a weak, vulnerable, or susceptible person that "the conduct may simply exhaust that person, and the person may be induced to do anything for peace and quiet".
[103] Gardiner v Hughes, [1], [2].
[104] Gardiner v Hughes, [35]-[37].
[115] Gardiner v Hughes (No 2), [37].
[116] Gardiner v Hughes (No 2), [51], [68], [85] and [88].
[117] Gardiner v Hughes (No 2), [99].
[118] Gardiner v Hughes (No 2), [91].
[119] Gardiner v Hughes (No 2), [98]-[99].
[127] Gardiner v Hughes (No 2), [9].
[129] Gardiner v Hughes (No 2), [40].
[130] Gardiner v Hughes (No 2), [12], [41], [80].
[131] Gardiner v Hughes (No 2), [12].
[132] Gardiner v Hughes (No 2), [42].
[133] Gardiner v Hughes (No 2), [42].
[134] Gardiner v Hughes (No 2), [43].
[135] Gardiner v Hughes (No 2), [79].
[136] Gardiner v Hughes (No 2), [80].
[137] Gardiner v Hughes (No 2), [82], [83], [87].
[138] Gardiner v Hughes (No 2), [83].
[139] Gardiner v Hughes (No 2), [43].
[140] Re Rudebeck [2019] VSC 804 (Re Rudebeck), [26] (Moore J).
[143] Gardiner v Hughes (No 2), [92]-[98].
[148] AGR [23], [25], [29]-[31].
[187] [2016] VSC 587, [115]-[120] (McMillan J); POS [35]; T 13.
[188] [2016] VSCA 240; (2016) 15 ASTLR 393, [32] (Warren CJ, Whelan and Santamaria JJA); POS [36].
[189] POS [41], [43]-[44]; T 14.
[193] NOS [29]-[30]; T 14-15, 23, 27.
[209] See AGR [48], [49] and [50].
[212] Also at [11] (Moore J), referencing Re Gardiner (No 3), [19], in turn citing In re Smith (dec'd) [1950] VicLawRp 73; [1951] VLR 368, 377.
[214] At [58]-[60] (Moore J); T 22-24; NOS [27]-[28].
[223] Estate Rofe, [147] (Lindsay J), in the context of grounds of "testamentary capacity" and "knowledge and approval", citing Mekhail v Hana [2019] NSWCA 197 (Mekhail), [128] (Leeming JA, Basten JA and Emmett AJA agreeing); Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218, [75] (Macfarlan JA, Bell ACJ (as his Honour then was) and McCallum JA agreeing).
[231] Macquarie Dictionary, online ed.
[232] Gardiner v Hughes (No 2), [68].
[233] Gardiner v Hughes (No 2) at [41].
[234] Gardiner v Hughes (No 2) at [80].
[237] e.g. Romascu v Manolache [2011] NSWSC 1362, [205] (Hallen AsJ); Estate Rofe, [150]-[152] (Lindsay J).
[250] See Craig Birtles, Richard Neal and Caroline Sims, Hutley's Australian Wills Precedents (10th ed, 2021, LexisNexis) (Hutley's), 516 [31.37], 524 [Form 31.05 "Attestation where the testator cannot read English but can speak it and can sign her or his name"].
[251] Hutley's, 516 [31.38], 524-525 [Form 31.06 "Attestation where the testator is unable to read English or speak it but can sign her or his name"].
[262] e.g. AGR [1], [2], [6], [7].
[272] Gardiner v Hughes (No 2), [80].
[273] Gardiner v Hughes (No 2), [98].
[274] Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, [47] (Meagher JA, Basten and Campbell JJA agreeing); Mekhail, [139]-[145] (Leeming JA, Basten JA and Emmett AJA agreeing).
Plaintiffs
NICKY TSALAMANDRIS
(1924) 34 CLR 558
(2019) 100 NSWLR 505
(2017) 54 VR 394
(2021) 105 NSWLR 487
(1918) 25 CLR 519
(2012) 83 NSWLR 757
(2015) 46 VR 123