Plaintiffs v Defendant

3 There were five children of the marriage, 12 grandchildren and one great-grandchild.

― David John Smallwood, who was born in 1946, and who predeceased Mrs Smallwood on 25 February 2003. David, who was married to Joy Smallwood, had two adult children, Rebecca Woodall and James Keith Smallwood. Rebecca has a child, Ethan, who is therefore a great-grandchild of the deceased.

― John Arthur Smallwood, the defendant, who was born in 1951. He has three adult children, Meg, Patrick and Veronica and two minor children, Bessie and Joe. John is married to Elizabeth Mary Gaynor.

― Mary-Lyn Laurie Smallwood, the firstnamed plaintiff, who was born in 1954. She has a minor son, Jack.

― Paul Smallwood, who was born in 1957, and who predeceased Mrs Smallwood on 23 December 2004. Paul was survived by two adult children, Mark and Nickola, and by his partner of four years, Maki Okazaki.

― Kealy Smith, the secondnamed plaintiff, who was born in 1959. Kealy has two adult children, Lewis and Emily.

I shall, without intending any disrespect, refer to these family members by their given names.

4 On 13 January 2005 Mrs Smallwood executed a will which had been drawn up by her long-time solicitor, Clive William White of Oakleys White Lawyers at Foster. In this will she appointed her two daughters to be her executors and trustees. She bequeathed her personal chattels to her trustees to divide them as they thought fit between her children and grandchildren. After forgiving and releasing her children from repayment of any loan made in her lifetime, she left a legacy of $10,000 to each of her 12 grandchildren as attained the age of 18 years and $5,000 to her great-grandchild, also at 18 years. The residue she gave to her two daughters, Mary-Lyn and Kealy, in equal shares.

5 The estate of Mrs Smallwood was valued for probate at a little over $1 million so that after payment of the $125,000 legacies and costs the share of each of the two daughters may be of the order of $400,000. No provision was made for her surviving son, John. By way of explanation, there was inserted in the will the following statement:

I wish it to be known that whilst I have not gifted my assets evenly between my children and their respective families, I still care deeply for all of my family and I love and admire them all. I have made the gifts that I have made in this my Will in the manner made, as I feel that I have assisted all of my children to the best of my capacity during my life time and would like now simply to leave my estate in a manner in which I feel most comfortable given the whole of my life time circumstances.

6 In 2006 John lodged a caveat against the grant of probate of the will asserting a want of testamentary capacity. By an amended statement of grounds dated 25 May 2007, John asserts two further grounds: that the testatrix made her will under the undue influence of her daughters, or one or other of them; and that the will was prepared in circumstances such that it would be unconscionable for the daughters to obtain a grant. At the commencement of the trial I was told the only ground now relied upon is undue influence.

7 The particulars given of this ground are the following:

(a) the testatrix had started to become frail from the early 2000s and her physical condition and mental state deteriorated, particularly from approximately February 2003, when her son, David, died suddenly, and from 23 December 2004 when her son Paul died. The deaths of David and Paul distressed the testatrix significantly;

(b) the testatrix was aged 85 at the time of the making of the will and died on 29 January 2006 at the age of 86 years. At the time of making the will the testatrix was a resident at Veronica Gardens in Northcote;

(c) the will was prepared at the behest of the plaintiffs and named the plaintiffs as sole beneficiaries of the residuary estate, which represented the whole of the deceased's estate, save for legacies of $10,000 to each of her grandchildren and $5,000 to each of her great-grandchildren, which legacies represent in total approximately 10% of the testatrix's estate;

(d) the will was inconsistent with the testatrix's long held testamentary intentions as evidenced not only by statements made by her to family members but also by her wills dated 10 December 1986, 20 April 1989, 6 May 1991, 24 November 1999 and 11 June 2003, which wills all divided her estate equally amongst all of her five children, or in the case of the will dated 11 June 2003 which was made after the death of her son, David, amongst her surviving children and the children of David, who took what had previously been David's share;

(e) at the time of the making of the will the deceased had, in September 2004, been removed or convinced to move, by the plaintiffs, from Foster where she had lived principally since 1933 and continuously since 1956, and where she had many long term friends and acquaintance and where she had strong community links and without many of the testatrix's friends or family members being informed;

(f) from at least September 2004 the testatrix was dependent upon and under the control of the plaintiffs who admitted her to Veronica Gardens;

(g) as a result of the aforesaid, the testatrix was in a highly vulnerable emotional state. The plaintiffs took advantage of this fact to induce her to change her long-standing testamentary intentions by improperly creating in her mind, without any justification, a belief that the defendant and the families of David and Paul were not deserving of equal testamentary benefit and that for this reason she should leave the great majority of her estate to the plaintiffs, a step she would not have taken had she not been so influenced.

8 The legal principles applicable to a case such as the present were not in dispute. The plaintiffs, as propounders of the will, bear the onus of establishing that the will was executed by the testatrix when she had sufficient capacity to do so and that she intended to perform a testamentary act. The law accepts that it is not improper for a would-be beneficiary to press their claim upon a testatrix but, when this pressure is undue, in the sense that the true testamentary desire of the testatrix is overborne, the will will not be accepted to probate.

9 It is for a party making the allegation of undue influence to demonstrate on the balance of probabilities that there has been such undue pressure imposed and that the will is the product of this. To adopt the words of Viscount Haldane in Craig v. Lamoureux:

[I]t is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express the testator's mind, but which really does not express his mind, but something else which he did not really mean.[1]

10 Before the court were affidavits of 10 family or former family members, affidavits of three persons who knew Mrs Smallwood, an affidavit of her general practitioner in Foster and one of her general practitioner in Northcote and an affidavit of Mr White who took instructions for the will, prepared it and witnessed her execution of it. Finally, there was an affidavit of the law clerk who witnessed the execution of the will. Much of this material was directed to issues such as the mental capacity of Mrs Smallwood which is no longer directly relevant. Much of it too, I regret to say, appeared to be directed to describing the unhappy history of this divided family and was of no great assistance in determining the matters in issue.

11 The deponents whose affidavits were put forward on behalf of the caveator defendant were not cross-examined. Of the deponents whose affidavits were offered on behalf of the plaintiff propounders, Mr White, Mary-Lyn and Kealy only were cross-examined.

12 There was no direct evidence that either of the daughters applied any persuasion or gave any direction or encouragement to their mother as to the disposition of her estate. The case of undue influence depends upon inferences to be drawn from the terms of the will and from the circumstances in which it was brought into existence. The daughters maintain that they did not seek to influence or coerce their mother as to the terms of the will.

13 A convenient starting point is to place the will in its testamentary context. Five earlier copy wills were in evidence, made between 1986 and 11 June 2003. Under each of these wills the residue was divided into five parts and each of the five children shared equally. After the death of David and Paul their children were to take their father's share. The 2005 will therefore represented a departure from this dispositive scheme.

14 From Mrs Smallwood's point of view this change can be understood, at least as far as her son John was concerned. It seems that there was a degree of estrangement, if not hostility, existing between John and his mother and between him and other members of the family from at least 2001. Mrs Smallwood made complaint about a conversation she had with him at his brother Paul's funeral in December 2004. I make no finding as to the rights and wrongs of her criticisms of John. She was also aware that as a County Court judge who was married to a County Court judge he was comfortably established in life. It is sufficient for my purposes that she had in mind a rational basis for excluding him as a beneficiary.

15 There is really no explanation from Mrs Smallwood for not giving to the children of Paul or David the share which their father might otherwise have received and which they might have expected to receive under the earlier wills. She did, however, give some explanation to Mr White regarding certain of these grandchildren.

16 I remind myself that my task is not to form any view about the correctness or sufficiency of Mrs Smallwood's reasons. It is that if she had such a reason to change her will then the inference offered on behalf of the caveator is less compelling. This was, of course, the inference that the will was procured by the improper coercion of the daughters.

17 Mr White, who took careful notes of the instructions which he obtained from his client and who performed his task as solicitor with a scrupulousness and sensitivity which does him credit, was aware that the 2005 will might provoke dissatisfaction, if not litigation. It is apparent from his evidence that his client was firmly resolved to make the will which she did and was not dissuaded by her solicitor's warnings of the likely consequences.

18 Mrs Smallwood was at the time she made her will elderly and physically frail. It was not, however, said by any witness that her age and condition rendered her less able to make up her own mind about the disposition of her estate or to resist any pressure which might be imposed upon her about this. In late 2004 she was able and did give instructions for the sale of her properties in Foster and for the purchase of her accommodation at Veronica Gardens.

19 She moved to Veronica Gardens, Northcote, in September 2004. It was suggested that this was a consequence of pressure from the daughters so that she would be brought within range of their influence. Mary-Lyn lived in North Carlton and Kealy in Brunswick. John lives in Thornbury, less than a kilometre from his mother's new home. The suggestion of pressure to make the move was rejected by the daughters.

20 It is clear that Mrs Smallwood had been thinking of moving out of the family home at Foster for some time and that her decision to move away from her friends and the community where she was known and respected was not lightly made. After the death of David who lived in or near Leongatha, she felt she had no family ties in the Gippsland area and she decided that she would live in Melbourne where she was close to her surviving children, more particularly her daughters.

21 There was evidence that this was not an easy decision for her and that after she settled in Veronica Gardens she had misgivings about it. But, it was her decision. It cannot be said that her move was the product of pressure from the daughters. I reject the suggestion that they, or either of them, engineered the move so as to ingratiate themselves with her or distance her from other family members.

22 It was suggested too that there was ill feeling between the daughters and John and the children of the three brothers. This appears to have been the case. I make no finding as to the cause of this or as to who is to blame. The relationship is a fact which illuminates much of the evidence of the interaction between the daughters, on the one hand, and their brothers and their brothers' families, on the other. It explains the confrontation, for example, between Mary-Lyn and her niece, Nickola, regarding her late father's credit cards following his death on 23 December 2004. I exempt from this Paul's partner, Maki, who appeared to be on good terms with Mrs Smallwood and her daughters.

23 It is alleged in the particulars that the will and its terms were the products of urgings from the daughters. There is no evidence to support this allegation. Indeed, the evidence is all against it. I accept the evidence of Mary-Lyn and Kealy that they did not know and did not ask what was their mother's testamentary intention before the event or what were the terms of her will after she made it. They were aware, however, that she wished to make a will and that she was likely to exclude John.

24 I reject too the contention that Mrs Smallwood was in or in the months prior to January 2005 dependent upon or under the control of her daughters. The evidence shows her to have been an independent spirit at this time, although she was, naturally enough, close to her daughters and they spent much time together.

25 I do not accept that Mrs Smallwood was, at the time she made her will, in a highly vulnerable and an emotional state. It is true that she was upset by the death of her sons, David, and more recently, Paul. I reject also the suggestion that the daughters improperly or otherwise created in her mind a belief that John and the families of David and Paul were not deserving of equal testamentary benefit as her daughters. The fact is that all of her grandchildren received the same legacy. It seems that Mrs Smallwood was concerned that the bulk of her estate should pass to her surviving children, or to such of them as she thought deserving.

26 It follows from this that the allegation of undue influence has not been made out in this case. I am satisfied that when she gave instructions and executed the will, both on 13 January 2005, Mrs Smallwood well understood what testamentary dispositions of her property she was making and that she intended to make them. This intention reflected her own desires. It was not the result of any inducement or pressure from the daughters, or either of them. A fortiori it was not the result of any undue influence.

27 Subject to any formal matters, the will of Ethel Mary Smallwood dated 13 January 2005 will be admitted to probate.

[1] [1920] AC 349 at 357.