Plaintiffs v Defendant

2 The question is whether his will dated 10 December 2011 should be admitted to probate. The plaintiffs, who are Keith Veall's son and daughter-in-law, are the executors of the will and they seek its admission to probate. They contend it was executed on 10 December 2010 and that the date of execution recorded in the will was incorrect.

3 The deceased's daughter, Ms Kim Veall, objects to probate being granted of the will. The grounds contained in her caveat, which were pursued at trial, were that:

1. The Deceased lacked testamentary capacity during the period shortly before and at the time of the execution of the will.
2. The Deceased did not know and approve the contents of the will.[1]

4 For the reasons given below, I dismiss the first ground of objection, but uphold the second ground of objection.

5 By the will dated 10 December 2011, Keith Veall appointed his son Mr Rowland Veall and daughterinlaw Ms Jane Veall as his joint executors. He gave his fine art oil painting by Anton Fischer and his two Perazzi shotguns to Rowland. He gave his Golden Stambecco shooting trophy to Denise Lodder, his eldest daughter. He bequeathed to his trustees his collections of silver and gold shooting trophies, pocket watches and silver and gold shooting medals to distribute fairly and equally between his children, Denise and Rowland.

6 He gave his residuary estate, including his "Auspine shares" upon trust for his children, Denise and Rowland, as tenants in common in equal shares.

7 The will provided for Rowland and Jane to each be paid five per cent of his gross estate as executor's commission.

9 Keith Veall married Beryl Kathleen Veall in 1962. She died six months after him on 15 May 2012. They had both been previously married.

10 Keith Veall was the father of three children, the first and second are children of his first marriage. The eldest was Denise Suzette Lodder born in 1948. The second child is the first plaintiff, Arthur Rowland Veall ("Rowland Veall"), born in 1951. The third child is Kim Louise Veall ("Kim Veall"), born in 1968, who is the defendant and who is Keith Veall's daughter by his second wife, Beryl Veall.

11 Ms Lodder was not represented at the trial and not called to give evidence. She was present in Court during the trial and expressed concern that findings might be made concerning her actions without her having the opportunity of giving her account of events. I explained to her that the Court must make findings on all of the evidence, regardless of whether a particular person mentioned in it has been represented or has given evidence. However, it is appropriate that I record the concern that Ms Lodder expressed.

12 Rowland Veall is married to the second plaintiff, Alexis Jane Roache Veall ("Jane Veall"), who was also appointed as executor of the will dated 10 December 2011.

13 Beryl Veall was the mother of two daughters: Lorraine Pennefather, the daughter of her first marriage, and Kim Veall, the defendant.

15 In the course of this judgment, I will, on occasion, refer to members of the Veall family by their first names in order to avoid unnecessary repetition.

16 Keith and Beryl lived their last years in an apartment in Wallace Avenue, Toorak. They moved to Toorak in 1962, soon after they married, and lived at properties in Edzell Avenue and later in Maple Grove.

17 Keith Veall's father, Arthur James Veall, was a wealthy man. When he died in 1983 he left Keith shares valued at approximately $10 million.

18 Keith Veall lost much of this money in overseas business ventures, particularly in the United States, in the mid1980s. However, shares that he acquired in Auspine Pty Ltd ("Auspine") became very valuable assets. As appears below, the question of the beneficial ownership of those shares became an issue.

19 There was much evidence that Keith Veall wished to leave his wealth equally to his three children.

20 Rowland Veall, upon leaving school worked in his father's business, Sales Boards Pty Ltd, between 1967 and 1980.[2] That business made punchboards. The Sales Boards business became his business and was extremely profitable.[3] At least some of the expenses of the Veall family were paid from its income. His father sold it while he and Rowland were overseas and took the proceeds off-shore[4] as part of tax minimisation activities.[5]

21 Rowland also worked at Veall Galleries, which was the largest picture framing business in Australia. He performed this work effectively with no direct payment. Veall Galleries was sold in about 1980 or 1981. Rowland was promised one third of the sale price obtained but he did not receive it and the sale price was directed into investment activities overseas.

22 Rowland had been a majority shareholder in Modern Maintenance Pty Ltd which was the owner of the Edzell Avenue property.[6] When that property was sold, Keith took the sale proceeds off-shore.[7]

23 While Keith and Rowland were living in the United States, Keith established The Rowland Veall Trust for his benefit. Shares which were the property of the Trust were sold for a substantial windfall, but Rowland did not receive any of the sale proceeds.[8]

24 Rowland and his wife Jane separated for about five months in 2005-2006. Keith was reluctant to give Rowland property absolutely in case he and Jane divorced and the property went to Jane.

25 Rowland described his relationship with his father as extremely close. While on occasions it could be volatile, he phoned his father every weekday and they met for lunch most weeks.

26 Rowland described his relationship with Beryl Veall as originally loving but said that later it became toxic.[9]

27 Kim Veall gave evidence that she had an extremely close relationship with her parents and visited them almost daily and went out to dinner with them on average twice a week. She was with her father when he died.

28 She said that her two children were extremely close to their grandparents, Keith and Beryl.

29 Commencing in 1987 and over the next twenty years, Ms Veall worked in advertising and marketing, reaching senior positions. She left work for a time in 2001 after her mother's car accident and helped care for her father while she was in hospital. She later became a director of Bethal Nominees Pty Ltd, as is described below.

30 The evidence in the proceeding concerned three issues: first, did Keith Veall have testamentary capacity on 10 December 2010 to make the will of which probate is sought, assuming that to be the date of the will. Secondly, did he know of and approve the contents of that will.

31 The third issue was whether Keith Veall had a rational reason for making a will in the terms of the will dated 10 December 2011, which departed from the terms of his September 2010 will. This issue was said to be relevant to whether Keith Veall had testamentary capacity to make the will dated 10 December 2011. Much of the evidence was directed to this third issue.

Legal principles relating to the first issue of testamentary capacity

32 Testamentary capacity is present if, as Dixon J stated in Timbury v Coffee[10], referring to Hood J's judgment in In the Will of Wilson:[11]

... at the time of making [the will] the testator had sufficient mental capacity to comprehend the nature of what he was doing and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him.

33 In Kantor v Vosahlo,[12] Ormiston JA referred to the judgment of Williams, Fullagar and Kitto JJ in Boreham v Prince Henry Hospital[13] "who first repeated the general proposition that a will made in 'advanced age' is always carefully scrutinised by the court" and stated:

The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.[14]

34 It is sufficient that the testator had capacity at the time of giving instructions for the making of the will.[15]

35 The plaintiffs relied on the proposition that, although it needed to be shown that the testator understood that he was executing a will and the practical effect of the central clauses in it, it was not necessary that he understood the legal effect of every clause.[16]

36 The plaintiffs' case was that Keith Veall possessed testamentary capacity when he made his will dated 10 December 2011 and he knew and approved its contents. The will was actually executed on 10 December 2010. He excluded Kim Veall from that will because she had already received a substantial share of his assets, which he was now unable to distribute equally between his three children. In particular, she had received a substantial portion of the proceeds of sale of the Auspine shares. He was also concerned that his wife, Beryl, had obtained control of assets which should have belonged to him, including a share of the Wallace Avenue apartment.

37 Keith Veall had established a new trust, the Keith and Beryl Veall Trust, in 2008 to ensure that his assets were fairly distributed between his children. However, unbeknown to him, under its terms, Rowland and Denise were excluded as capital beneficiaries. When, in 2010, Keith discovered this, he realised that his wish to correct the imbalance in the distribution of his wealth between his three children had been ignored and that the new trust made matters worse. He had always intended that the Auspine shares should be distributed equally between his three children.

38 The plaintiffs contend that Beryl and Kim took steps to ensure that the capital in The Kim Veall Trust, which was substantially the proceeds of the Auspine shares, was put beyond the reach of Rowland and Denise. They created the Keith and Beryl Veall Trust with Kim as the appointor after her father's death.

39 Kim Veall's case is that, if the will was made on 10 December 2010, her father lacked testamentary capacity and did not know and approve its contents. Her counsel submitted that Keith Veall was not able to weigh matters up, had lost control and insight, and was very fragile mentally. He was incapable of undertaking the task of making a will in December 2010.

40 Each of the three children had received a share of their father's wealth. The Auspine shares had been gifted to Kim Veall's trust in the 1980s.

41 Kim Veall contends that her father's estate has been understated in the inventory of assets for probate and was in fact valued at about $2.8 million.

42 Keith Veall had made six previous wills, the first in 1976. Each of those wills, other than the first, left at least part of his residuary estate to each of his three children. The 1976 will excluded Denise Lodder and stated that Keith Veall was satisfied that he had adequately provided for her during his lifetime.

43 Keith Veall's penultimate will of 9 September 2010 is significant because it was made three months before the date when the plaintiffs contend his last will was made. Under the terms of the September will, Keith Veall appointed Denise and Rowland to be his executors and trustees, left his shotguns to Kim's sons and his residuary estate equally between Rowland, Denise and Kim.

44 The September 2010 will differed in a few matters from the previous will made on 28 October 2009, which appointed Denise and Rowland as executors, left the Kilsyth South property and a painting to Rowland, left the shotguns to Kim Veall's sons and divided the residuary estate between his three children.

45 The September 2010 will had a backsheet bearing Mr Darroll Nelson's name and address. He was a solicitor, whose involvement with the September and December wills is discussed below.

46 Keith Veall swore an affidavit dated 8 September 2010, the day before his penultimate will was executed, in connection with contemplated court proceedings. He ultimately commenced proceedings against his wife, Beryl, in the Family Court in December 2010. He sought an adjustment of their interests in the Wallace Avenue apartment. He stated that he was concerned to ensure that each of his three natural children received a fair and proper share of his wealth. Neither Denise nor Rowland had received anything near a third share each. He was unable to understand why the Keith and Beryl Veall Trust excluded them from receiving any benefit.

47 It was contrary to his understanding, belief and intention that the family homes that he and Beryl had shared had been placed in her name. It was appropriate that he should hold fifty per cent of the Wallace Avenue family home as tenant in common so that his share would pass to Denise and Rowland. He considered that Beryl would provide for Kim in her will. He stated that he had previously established a trust for Kim and had allotted a large parcel of shares that he owned in Auspine to it. He wanted Rowland and Jane to care for him and they had always stood by him and assisted him financially. To enable them to care for him, he required his share of the proceeds of sale of the Wallace Avenue home. He regretted that legal proceedings would be required to obtain the necessary property adjustments to achieve his wishes.

48 The defendant pointed to errors in Keith Veall's affidavit, eg Keith's statements that he had established a trust for Kim and allotted the Auspine shares to it before going offshore. However, I do not consider that these matters are critical in determining whether Keith had testamentary capacity as at 10 December 2010.

49 Rowland Veall gave evidence that he located a solicitor to provide legal assistance, Rino Di Donato of Hymans solicitors, from the phone book. His office was close to Rowland Veall's home. In about July 2010, he took his father to see Mr Di Donato, and the next month, his father gave instructions to Mr Di Donato to draw an Enduring Power of Attorney appointing Rowland as his Attorney.

50 Rowland said that his father had got himself "into one hell of a lot of trouble by signing anything that was put underneath his nose by the people whom he trusted", including Kim Veall.[17]

51 Mr Di Donato referred Mr Veall to Mr Ian Hone, who was a consultant to Hymans, to take steps to try to discover what had happened to his wealth and to institute Family Court proceedings to recover his share of it.

52 Mr Hone, who is a legal practitioner, practises as a consultant to several legal practices, including Hymans Solicitors and Mr Darroll Nelson's. He assists small firms by supplying his legal services when they have too much work in progress or when it is of a nature with which they are unfamiliar.

53 Mr Hone first met Keith Veall around August or September 2010 in Orita's restaurant in Toorak. Keith often ate at, and held meetings in, Orita's. Keith wished to ensure that the Kilsyth property, which he had purchased and in which Rowland and Jane lived was transferred into Rowland's name and that his wealth was equally distributed amongst his family.

54 Mr Hone said that he met Keith Veall at least six times and that Keith, and no one else, gave him his instructions. By way of emphasising that point, Mr Hone described how on a number of occasions he told Rowland to shut up while he was speaking.

55 Mr Darroll Nelson was admitted to practice in 1958 and has prepared hundreds of wills. He said that he first met Keith Veall in September 2010 at Mr Hone's request. He had undertaken work for Mr Hone previously. Mr Hone described their relationship as reciprocal, in that they did work for each other.

56 Mr Nelson said that the only role that he played in connection with the September 2010 will was to witness Keith Veall's signature after Mr Hone had requested that he attend its execution. This occurred at a table outside Orita's restaurant in an open mezzanine area at the Tok H Centre in Toorak. Mr Nelson asked a woman who was present in the building to act as the second witness.[18] The process took 20 minutes. Mr Hone, and probably Rowland Veall, were present. Mr Nelson explained the presence of his name and address on the backsheet of the will as being due to him agreeing to be a party to the execution of the will.[19] He presumably meant by this statement that he had played a role in its execution.

57 Mr Nelson's evidence about the September 2010 will differed from Mr Hone's. Mr Hone said that he intended Mr Nelson to draw a will for Keith Veall and he did not give Mr Nelson instructions about its contents. He said that he introduced Keith Veall and Darroll Nelson at the Tok H Centre and then left.[20]

58 Rowland Veall's evidence about the September 2010 will also differed from Mr Nelson's. He denied that he took his father to sign the will and said that he had no involvement with it. He was quite sure that he never met Mr Nelson in September 2010. He said:

... I think there was some mention of a will being made. But I was out of the loop. My father wanted to do his own thing at the advice of Mr Nelson, as I vaguely recall the situation.[21]

59 By October 2010, Keith Veall had informed Mr Hone that he had always intended to share his fortune equally amongst his children and that his daughter Kim was not co-operating to enable him to do that. He thought he would have owned half of the Wallace Avenue property and did not realize that he had lost control of the distribution of his wealth. He said that in 2007 or 2008 he had mistakenly placed trust in Kim, believing that she would "do the right thing" upon his death and ensure that his children shared equally in his wealth. He said that the Auspine shares were transferred to Bethal Nominees Pty Ltd, the trustee of The Kim Veall Trust, following verbal assurances given by its directors[22] that it would hold them upon a de facto trust for his three children in equal shares.

60 Mr Hone gave evidence that in conferences he held with Keith Veall in October and November 2010, he was adamant that his marriage to Beryl was over and that she had managed to take control of his assets and pass control of them to Kim. Mr Hone described Keith as clear and lucid at all times and confirmed his instructions to institute proceedings in the Family Court to seek orders that Beryl's assets, including the Wallace Avenue apartment, be redistributed equally between them. He said that Keith Veall would tire towards the end of a conference, but "he was well aware that he wanted to get his legal proceedings going in order to correct the imbalance he was now aware of."[23]

61 Mr Hone described Keith as distraught and quietly furious when he discovered that Rowland and Denise stood to be excluded from the new Keith and Beryl Veall Trust and also that it was effectively up to Kim to determine whatever income they might receive.

62 Mr Hone served the Family Court papers on Beryl Veall on 19 January 2011. The Family Court proceeding sought an adjustment of the property rights in the Wallace Avenue property.

63 Mr Hone gave evidence that Mr Di Donato told him that Keith Veall wanted to make a new will. He knew that Keith Veall wanted to redress the lack of family assets that Rowland and Denise were likely to receive on his death.

64 Mr Hone and Mr Di Donato agreed that Hymans and Mr Hone should not prepare the will, because they were also acting for Rowland in his pursuit of a greater share of his father's property. They were also preparing to issue Keith Veall's Family Court proceedings. They did not want it thought that Rowland had influenced the contents of the new will.

65 They approached Hardy Erhardt, solicitors, to make the will, as their Toorak office was close to Keith Veall's home. That firm was unable to attend to the making of the new will promptly, but made their office available for conferences that Hymans might arrange with Keith Veall.

66 Mr Hone therefore arranged for Mr Nelson to prepare the will.

Mr Nelson's instructions for the will dated 10 December 2011

67 On 22 July 2013, the first day of the trial, the plaintiffs sought leave to file affidavits by Mr Nelson and Mr Denis Sholl about the execution of the will and, in the case of Mr Nelson, about obtaining instructions for the will. Mr Nelson's affidavit had already been prepared, but not Mr Sholl's. Mr Sholl was a witness to Keith Veall signing the will. Mr Nelson and Mr Sholl had been approached to make affidavits a few days previously, that was some two years and seven months after the will was signed. They had previously sworn affidavits of due execution of the will, which stated that the will was incorrectly dated 10 December 2011, but was in fact executed on 10 December 2010.

68 Over the objection of the defendant, I gave leave for the affidavits to be filed and relied on.

69 Mr Nelson said that his affidavit was absolutely true. He stated that Mr Hone asked him to draw up and attend to the execution of a new will for Keith Veall. In early December 2010, he attended Keith Veall to take instructions for a new will. They met at the Tok H Centre. Mr Nelson said that Rowland was also present.[24] He was pretty sure that Mr Sholl was also present,[25] but Mr Sholl did not give evidence that he was. He said that he spent approximately 20 minutes speaking with and receiving instructions for the new will from Keith Veall.

70 Mr Nelson stated that Keith Veall wished to leave two shotguns and an oil painting to Rowland, his Golden Stambecco shooting trophy to Denise, and his other shooting trophies and medals and his collection of pocket watches to be divided equally between Rowland and Denise. He wished to take his daughter Kim out of his will. She was thwarting his wishes for an equal division of his assets between his children. He had generated considerable wealth, but did not know how much Beryl and Kim had taken from him. Rowland had looked after him well and he and Denise were in greater need of his financial assistance than Kim. He wanted to change his will so that the small number of assets still under his control would go to them.

71 Mr Nelson said that he warned Keith Veall that cutting Kim from his will could lead to it being contested. Keith replied that he did not care about that and that Mr Nelson was to do as he had told him.

72 Mr Nelson said that he was well aware of his obligation to satisfy himself that Keith Veall was competent to give instructions. He observed him closely throughout that meeting and their other meetings. They discussed matters of mutual interest, such as the football and mutual acquaintances as well as matters directly related to the drafting of the will. Mr Nelson had initially mistaken Keith Veall for his brother, for whom he had acted many years previously and so they discussed the relative successes of the two brothers. All Keith Veall's observations and remarks were clear, coherent, rational and well-expressed. Mr Nelson was left in no doubt that he was a very strong minded person who expected that his wishes would be carried out without demur. He clearly understood the nature of the will and insisted that Mr Nelson follow his instructions precisely in drawing it.[26] During the 20 minutes in which he obtained instructions, he formed the view that Keith Veall "totally had his marbles"[27] and he had no doubt about his capacity to provide proper instructions.

73 Mr Nelson did not open a file, but gave evidence that he presumed that he had made a note of Keith Veall's instructions. He threw the note into the rubbish bin after the will was made. This was at a time, when on his own evidence, he knew that the will might be contested. Mr Nelson said that Keith Veall was not his client in a true sense and that he was not being paid for the preparation of the will.[28] He did not explain why he acted in the matter, if he was not acting as a solicitor or being paid.

74 After obtaining instructions, Darroll Nelson approached Ms Katherine MoorhousePerks, the present solicitor for the plaintiffs, to type the will. He did so because he could not use a word processor and she had assisted him in other matters. He apparently did not have any staff to assist him.

75 Ms Moorhouse-Perks gave evidence that over a number of years she had assisted Mr Nelson, sometimes just with typing. He often came to her office in Black Rock twice a week and would give her verbal instructions about documents that he needed typed, while sitting across the desk from her. She did not open a file in such circumstances. She thought that she had typed the will in the pre-Christmas period when she was "ridiculously busy".[29] But she had nothing to do with the will from the time Mr Nelson left her office.

76 Ms Moorhouse-Perks commenced to act for Rowland Veall after he approached her in February 2012 to apply for probate of the will. She said that she only realised for certain that she had typed the will for which probate was sought when Mr Nelson swore his affidavit on 22 July 2013. She thought that if Mr Nelson believed that it was "my will and it does look like my will then it must be the will that I typed up."[30]

77 She said that the provision in clause 6 for payment of five per cent executors' commission to each executor from the gross estate was taken from her will precedent that she gave to clients as an optional clause to insert into their wills. She would have received instructions from Mr Nelson to leave it in Keith Veall's will.[31]

78 Mr Nelson gave evidence that he collected the will a few days after his initial contact with Ms Moorhouse-Perks. He then arranged to meet Keith Veall so that he could sign it. Rowland's evidence suggests that he arranged that meeting with Mr Nelson.[32]

79 Rowland Veall said that on 10 December 2010, his father informed him that he was going to the Tok H Centre to make a will, although he did not tell him what it was going to contain. He told his father that he left it, presumably meaning his decision to make a new will, up to him. At his father's request, he drove him to the Tok H Centre, where Rowland met Mr Nelson for the first time.[33]

80 Rowland said that his father was fully aware of why he was being picked up, where he was going and what he was doing. He described his father as very determined to right the wrongs that had taken place over decades and to make sure that at least something could be left to Denise and him.

81 In addition to Keith Veall, those present, at least initially, included Rowland, Darroll Nelson, Denis Sholl, who was a friend of Mr Nelson's and had driven him to the Centre, Ian Hone and Ian Hone's daughter.

82 Keith Veall signed the will on a table outside Orita's restaurant in the Tok H Centre. At Mr Hone's suggestion, he and Rowland moved a distance away from that location for a period of 10 to 15 minutes to avoid any suggestion that he had influenced his father to sign it.[34]

83 Rowland said that he then returned to the table where the will had been signed. He gave evidence that he then signed a Deed of Agreement and Declaration, which is discussed later in this judgment.

84 Mr Nelson's evidence was that on 10 December 2010, his friend, Denis Sholl, drove him to the Tok H Centre. They met Keith Veall at a table outside a restaurant. He gave the will to him to read. Mr Nelson went through specific provisions of the will with him and, in particular, the provision that the residue of his estate be divided equally between Denise and Rowland. He explained the parts of the will to Keith Veall in fairly plain English. He said that he did not think that he raised again the fact that he had excluded Kim from the residue of the estate.[35] In oral evidence he said that he "read it from start to finish".[36] He confirmed with Keith Veall that the will as drawn reflected his wishes and asked him to confirm that the will contained what he wanted done and that it correctly named the gun trophy that was to be bequeathed. Keith Veall also confirmed that the will correctly named the piece of art that he wished to leave. Keith Veall read the will and signed it.[37]

85 Mr Nelson then remarked on the clarity of Keith Veall's handwriting describing it as much clearer than his own. Keith replied that he had been well taught and that he had written up his own books throughout his working lifetime. Mr Nelson said that he spent approximately 15 minutes with Keith. He had no doubt that he clearly understood that he was signing a will, was disposing of his assets and the terms of the dispositions that he was making. He appeared excellent and very lucid and he was not left in any doubt as to his capacity to give instructions or to execute a will.[38]

86 Denis Sholl gave evidence that he drove Mr Nelson to the Tok H Centre on 10 December 2010. He said that he had not expected to be a witness to the will and was "an innocent bystander".[39] He said that Keith Veall was brought to the meeting by a man, who left the location where Keith Veall met Mr Nelson. This presumably was Rowland Veall. He said that Mr Nelson gave the will to Keith Veall and he read it. Mr Nelson discussed specific provisions of the will with him, including that the residue of his estate was to be divided equally between two of his children. Keith Veall said that the will as drawn reflected his wishes and then signed it in front of Mr Nelson and him. They then signed it as witnesses. Mr Nelson then said that his handwriting was very clear and compared it favourably with his own handwriting.

87 Mr Sholl described Keith Veall as obviously physically frail, but mentally alert. His speech and expression were clear and at times forceful. He was articulate, rational and lucid in his observations. He appeared to have no difficulty in understanding the terms of the will and said that it accurately reflected his wishes. The process of explanation and signing of the will took approximately 15 minutes. They then spoke with Keith Veall about general social matters and were in his company for 25 to 30 minutes in total.

88 Rowland Veall said that after the will was signed, he and his father had a light lunch. The signing of the will and the lunch took about an hour. He then took his father home.

89 Kim Veall said that she did not see her father on Friday 10 December 2010, but did see him on the following Saturday and Sunday and he was in a "poor" way.[40] She did not learn about the December will until long after her father died and Rowland did not tell her about it, when they met a few weeks after their father's death.[41]

90 Keith Veall also signed a Deed of Agreement and Declaration dated 10 January 2011.[42] The document recited that he desired to provide for his future care and had determined to realise his investment in the Wallace Avenue property and to settle his interest in its sale proceeds upon Rowland, to hold on trust for the discharge of his future health and assisted accommodation costs. The Deed then contained a declaration by Rowland that he would hold the property on trust for his father, invest it, exercise fiduciary care in the management of the investment and income and apply the income for the advancement and care of his father. The Deed then provided that in consideration of the services referred to:

The trust fund shall vest in ARTHUR ROWLAND VEALL upon the decease of ARTHUR KEITH VEALL.

91 Rowland signed the Deed next to the inscription "DECLARED A TRUST BY ROWLAND VEALL". That latter inscription initially bore the year 2010 in printed form, but was altered in handwriting to "2011".

92 The source of the instructions for this Deed was not fully explained in the evidence.

93 Rowland said that his father signed the Deed on the same day that he signed the will. No other witness gave evidence that this had occurred.

94 Mr Nelson said that he thought that Ms MoorhousePerks had advised that the document was necessary to implement Keith Veall's wishes fully.[43] He said that he first took instructions for the document over the Christmas period when he met with Keith Veall again at the Tok H Centre. He was "pretty sure" that Denis Sholl was present,[44] although Mr Sholl gave no evidence about the issue. He was unsure who arranged that meeting. He thought that he had told Rowland Veall that he needed to see his father again with a further document and asked him to set up the meeting.[45] He informed him that Ms MoorhousePerks had advised of the need for a further document to be used in conjunction with the will.[46] Ms MoorhousePerks was not then acting as solicitor for Rowland or Keith Veall. He had not given her any instructions to prepare the Deed and she had done so unsolicited.

95 Mr Nelson said that neither Keith nor Rowland Veall had given him any instructions for the preparation of the Deed. But he did say that Keith Veall was most anxious that all his affairs be handled by Rowland and that he was adequately provided for.[47] He could not identify the handwriting on the document. He said that he met with Keith and Rowland Veall and explained the document to them and that Keith Veall knew its tenor. At that time, Keith's condition was undiminished: he was "cogent, coherent, firm and understanding".[48]

96 Mr Nelson's evidence concerning the creation of the Deed was unclear and inconsistent. He appeared uncertain as to how the document came into existence, whether he met Keith Veall to gain instructions about it and when it was executed.

97 Ms Moorhouse-Perks said that she did not have a specific recollection of the document, although it did appear to be prepared on paper that she was using in December 2010 and January 2011. She said that it was probably typed in the same conference in which Mr Nelson asked her to type a will. She had used a precedent Deed of Trust, which contained references to a property at Frankston. She gave the Deed to Mr Nelson and that was the last she saw of it.

98 An issue of potential importance arose about the date that the will was in fact executed. The plaintiffs' case is that Keith Veall executed it on 10 December 2010, but it is incorrectly dated 10 December 2011. The backsheet of the will bore the date January 2011. The attestation clause has the year 2011 and December typed in. The defendant submitted that these features suggested that the will had been prepared to be, and was in fact, signed in January 2011. It was likely that Ms Moorhouse-Perks had prepared the Deed after her meeting with Mr Nelson and he had then collected both documents and had them executed in January 2011.

99 A number of the plaintiffs' witnesses, including Rowland Veall, Mr Nelson and Mr Sholl swore that it was signed on 10 December 2010. Mr Nelson said that it was all over the Christmas period and then said that it was in early or mid-December.[49] Ms Moorhouse-Perks said that the meeting with Mr Nelson at which she typed the will and Deed was "in the busy period of Christmas".[50]

100 The defendant contended that another event of significance occurred on 10 December 2010, and that therefore the will could not have been signed on that day. That other event was that Rowland and Jane Veall attended the Wallace Avenue apartment and, after some angry words with Beryl, removed personal items from a display cabinet.

101 Rowland gave evidence that Keith told him to go and take some "trinkets" from the display cabinet. But he said that this did not occur on the same day as the will was signed and, although he was not sure, he thought it had occurred on a day prior to that event.[51] Rowland and Jane prepared and signed a list of the items that they intended to take from the display cabinet. The document is headed "The list of my possessions I want Rowland to collect".[52] It bears Keith Veall's signature and the date 10/12/2010. It contains eight categories of items each with Keith's initials placed in a column, which is headed "Approved by Keith Veall."

102 Beryl Veall's diary contains an entry for Friday 10 December 2010 at 1pm stating:

Rowland, Jane, Steph & Isabelle

11am to 1pm.

R.V. - Removed gold medals 6 to 8

Denise 2 Statute (sic), Large & small Stambeca**.[53]**

103 Jane Veall disputed that items were collected on Friday 10 December 2010. She said that both her children were present when the items were collected and they would have been at school on 10 December 2010. In addition, Stephen Hallett, who cared for Keith on Tuesdays and Thursdays was present.[54] Ms Robyn Hannon, who was a carer for the Vealls on Fridays, was not present.

104 Kim Veall gave evidence that her mother told her on 10 December 2010 about this incident. When she rang her mother, she could not talk because Rowland and his family were there. Later in the day, her mother told her that it was a "shocking event".[55]

105 I find that the will was executed on 10 December 2010, but erroneously recorded the year as 2011. Everyone who attended the Tok H Centre in connection with the signing of the will, who gave evidence said that the date was 10 December 2010, although in oral evidence, some of them were more certain about the date than others.

106 Kim Veall said that her mother told her that Rowland and Jane's removal of items from the display cabinet occurred on 10 December 2010 and Beryl's diary entry is to that effect. However, there are three reasons to accept that the will was executed on 10 December 2010. First, as stated above, there is the evidence of a number of witnesses that the will was executed that day. Secondly, the carer Robyn Hannon said that the event probably occurred on one of her rostered days on at Wallace Avenue, which were Tuesday, Thursday and Sunday.[56] Thirdly, Rowland and Jane's daughters were present and, in the ordinary course, they would have been at school on a Friday.

107 In any event, as counsel conceded, the issue of the date of the will, whether it be 10 December 2010, or perhaps the date of the Deed, which was 10 January 2011, did not have a direct bearing on the issue of Keith Veall's testamentary capacity.[57] There was no suggestion that it varied in that period. The issue went more to whether the Court should accept the evidence of witnesses, who said that the will was executed on 10 December 2010.

108 The plaintiffs' explanation for Keith Veall making a new will in December 2010 was that he considered that Kim had received a disproportionate share of his wealth and that Rowland and Denise had not received an equal share of them. Much of the evidence at the trial concerned this issue and the related issue of the steps that the plaintiffs contend that Keith Veall took to attempt to regain control of his assets. The consideration of this detailed evidence occupies a substantial part of this judgment.

109 The first aspect of this evidence is the share of Keith's wealth that Kim, Rowland and Denise received. This requires consideration of two trusts.

110 In November 1980, Keith Veall created the Kim Veall Trust, with Bethal Nominees Pty Ltd ("Bethal Nominees") as its trustee and Kim Veall as its primary beneficiary. Keith and Beryl were discretionary beneficiaries, but Denise and Rowland were not beneficiaries.[58]

111 Mr Gary Martin and Mr John Woods, who were directors of Bethal Nominees, gave evidence as part of the defendant's case. Other directors included Keith Veall and Lorraine Pennefather. Beryl was a director until 1985.

112 Mr Martin was appointed a director of Bethal Nominees in 2008. He first met Keith Veall in the early 1980s and became his accountant. He was a partner in the accounting firm UHY Haines Norton in Melbourne.

113 Mr Woods was appointed a director of Bethal Nominees in 1999. He had worked in stockbroking and banking. Mr Woods considered himself to be Keith Veall's longterm trusted advisor and friend and, at one point, held his financial power of attorney.

114 Mr Woods and Mr Martin were executors of Keith Veall's will made on 4 July 2007.

115 The Kim Veall Trust owned real estate, including the Henley Farm in the Yarra Valley of about 29 hectares and property in Werribee. It also owned shares, including a significant shareholding in SEAS Sapfor, later renamed Auspine Pty Ltd. Auspine was an ASX listed forestry and timber company with large pine plantations and sawmill processing facilities in several states. Keith Veall became a director of Auspine in 1980 and was its second largest shareholder. He was introduced to Auspine by Mr Adrianus De Bruin, who was its largest shareholder.

116 The plaintiffs contend that Keith Veall transferred the Auspine shares to Bethal Nominees because he had creditors chasing him following his financial predicaments in the 1980s. The shares were only "parked" in Bethal Nominees, ie transferred to it for a limited time. He intended that the shares would remain his property and would benefit all his family.

117 In the mid-1980s, Keith and Rowland moved to the United States to pursue investment opportunities and because Keith feared that the Australian Government would introduce a wealth tax. Keith moved many of his assets off-shore. They lived in the United States, particularly in Texas, between 1985 and 1988. Beryl and Kim Veall visited them.

118 During this period, Keith lost most of his fortune and incurred considerable debt. He and Rowland returned to Australia in the late 1980s. Assets of the Kim Veall Trust, including the Henley farm, were sold to help pay the debt, and dividends paid by Auspine were used to pay bills.

119 Beryl obtained a loan to purchase an apartment in Maple Grove, Toorak, in which she and Keith lived.

120 In 2001, Beryl was seriously injured in a motor vehicle accident and was in hospital for months.

121 In 2002, Kim Veall and her husband sold their home in East Hawthorn and together with Beryl, purchased a home in Kooyongkoot Road, Hawthorn. Beryl purchased a half share of the property using funds from the sale of the Maple Grove apartment and money that she received from a Transport Accident Commission claim arising from her motor vehicle accident. Beryl and Keith moved into a bungalow on that property. That arrangement was intended to be temporary, while Kim and her family provided Beryl with care and support.

122 In this period, Keith also stayed a few nights a week at a rented property at Devon Meadows, where he was able to pursue his passion for pigeon racing.

123 In 2008, Beryl suffered a heart attack and underwent life-threatening surgery. On 23 July 2008, she transferred her half-share in the Kooyongkoot property to Kim. Kim said that this was because her mother thought she was going to die and that Keith was aware of the transfer.

124 In 2007, Gunns Limited made a takeover offer for Auspine. Bethal Nominees accepted the offer and received approximately $36 to $37 million for its Auspine shares. That sum was paid to The Kim Veall Trust and invested in four National Australia Bank term deposits.

125 Kim Veall had been employed in the advertising industry. On 21 June 2007, she was appointed a director of Bethal Nominees and ceased that employment. She received about $8,800 per year in director's fees.

126 The plaintiffs' case was that the Auspine shares were settled on Bethal Nominees as trustee for The Kim Veall Trust on the understanding that the shares were to be for the benefit of the Veall family.

127 However, Kim Veall's evidence was that the Auspine shares were always intended to be an asset of The Kim Veall Trust. She said there was no suggestion that they were to be "parked" in the Trust. She first learned of that suggestion when she read of it in her father's Family Court affidavit.

128 Occasionally, both Keith and Beryl Veall obtained distributions from The Kim Veall Trust to pay for bills.

129 In June 2007, the directors of Bethal Nominees agreed to make a capital distribution to Keith of $2 million from The Kim Veall Trust. He used about $1.4 million of that sum to purchase a property at Kilsyth South to provide a home for Rowland and his family. The transfer of that property to Rowland was signed in August 2010, but it was not registered until 2011 after $81,000 in stamp duty was paid.

130 Keith Veall used the balance of the $2 million to pay the deposit on an apartment in East Melbourne, which Denise Lodder had contracted to purchase for $4 million.[59] Bethal Nominees ultimately became the purchaser of that apartment and it is an asset of the Keith and Beryl Veall Trust. Kim Veall's company, Acorn Pty Ltd, is a mortgagee of the apartment.

131 In December 2007, Keith received a capital distribution of $200,000 from The Kim Veall Trust and he gave $75,000 each to Denise and Rowland and kept $50,000 for his personal use.

132 In mid2008, Bethal Nominees made a capital distribution to Keith of $3 million from The Kim Veall Trust. Keith used part of that distribution to purchase a property for Denise in Balwyn for approximately $1.5 million.[60]

133 In May 2008, the directors of Bethal Nominees approved a capital distribution of $3.5 million to Beryl Veall from The Kim Veall Trust. She used that sum to purchase the Wallace Avenue apartment, in which she and Keith spent most of the rest of their lives.

134 Keith sometimes gave his children cheques for $20,000, $50,000 and $75,000. In one year he gave them each $120,000.[61]

135 On 5 February 2008, the Keith and Beryl Veall Trust was created, with Bethal Nominees the trustee. Patrick Sweeney of Donaldson Trumble solicitors was the settlor. The Trust Deed was drawn by Harwood Andrews solicitors on Mr Sweeney's instructions.[62]

136 The primary beneficiaries of the Trust were Keith and Beryl Veall and it was intended, at least initially, to provide for their care. The General Beneficiaries were the Primary Beneficiaries and other classes including:

The parents, grandparents, brothers, sisters, spouses, widows, widowers, children and grandchildren of the Primary Beneficiaries and the spouses, widows, widowers, children and grandchildren of such parents, grandparents, brothers, sisters, spouses, children and grandchildren.

137 Upon Keith's death, Kim Veall would become the appointor under the terms of the Trust.

138 Keith and Beryl Veall received living expenses of $15,000 each month from the Keith and Beryl Veall Trust. Their expenses were high, as they dined out most days and regularly travelled on holidays.

139 The Trust contained a class of Excluded Beneficiaries, who were defined as follows:

Excluded General Beneficiaries (Capital)

Excluded General Beneficiaries (Capital) who are General Beneficiaries except that Excluded General Beneficiaries (Capital) are excluded from and are not eligible for distributions of capital of the Trust Fund under clause 6.

140 Rowland and Denise were excluded as general beneficiaries of the capital of the Trust, but they were income beneficiaries. There was debate at the trial as to why they were excluded as capital beneficiaries. The plaintiffs submitted that the directors of Bethal Nominees took steps to ensure that the trust was drawn so that the capital in The Kim Veall Trust was preserved and put beyond the reach of Rowland and Denise. Kim Veall denied this was the case and said that the exclusion was made on her father's instructions. She said that her father believed that Rowland and Denise did not manage money well.[63]

141 Kim Veall's evidence was that her father and Mr Martin went to see Mr Sweeney at Donaldson Trumble Lawyers about the new trust. She said that she did not attend the meeting, but did say that she appeared to have attended a meeting on 17 September 2007.[64] Mr Martin said that she did not attend the relevant meeting. Mr Sweeney was not called to give evidence.

142 Mr Martin agreed that the Board discussed the exclusion of Rowland and Denise as general beneficiaries so that they would have no claim on the Trust capital.

143 On 27 September 2007, Mr Sweeney wrote to Kim Veall and Gary Martin, but not to the other Bethal Nominees' directors, setting out the proposed terms of the Keith and Beryl Veall Trust and enclosing a draft deed of trust, which excluded Rowland and Denise as capital beneficiaries. His letter stated in part:

Please peruse the deed and in particular the class of general beneficiaries so that we can discuss any requirements you might have to limit this class. However, in my opinion if the control of the trust through the trustee and appointor is restricted, then it would be very difficult, if not impossible, for a person who is merely eligible as a member of the class general beneficiary to make a claim on the capital or income of the trust.[65]

144 On 17 July 2008, ie some five months after the creation of the Kim and Beryl Veall Trust, the directors of Bethal Nominees resolved to wind up The Kim Veall Trust. They resolved that Bethal Nominees as trustee would vest the trust fund of The Kim Veall Trust and that it would be divided into three parts or shares and paid or applied as to onethird part or share of the capital and income to Keith Veall and as to twothird parts or shares to Kim Veall.[66]

145 The Trust vested and Kim Veall received at least $10-12 million with the remaining onethird of approximately $5 million being paid to Keith and Beryl. That sum of $5 million provided the funding for the Keith and Beryl Veall Trust.

146 There was some evidence that Kim Veall had previously received $5.0 million from the sale of the Auspine shares.[67] Her evidence suggested that she paid that sum into her investment company, Akorn Nominees Pty Ltd,[68] which in turn provided part of the funds to purchase the East Melbourne apartment previously referred to.

147 Kim Veall's evidence[69] when read with estimates of Mr Woods, made in 2008,[70] suggest that the Auspine funds were distributed as follows:

(a) Over $6.6 million was paid in tax by Bethal Nominees;

(b) $2 million was used to pay tax owing by Keith and Beryl. In addition they each received the sum of $2.5 million ie a total of $5 million;

(c) Another $800,000 to $900,000 was used to pay expenditure incurred by Keith. For example, he spent $250,000 in only 20 days during a holiday in Thailand, including to purchase two cars, one to use in the north of the country and another in the south;

(d) Kim received approximately $10 million on 17 July 2008[71] and a further sum of approximately $2.9 million[72] (there was cross-examination suggesting that she received more).

(e) Lorraine Pennefather received $500,000;

(f) Mr Woods was paid a success fee of $500,000 as a professional adviser for his role in securing the sale of the Auspine shares.

148 There were also the capital distributions from The Kim Veall Trust and property transactions referred to previously. These included the $1.5 million used to purchase the Kilsyth South property for Rowland. Beryl Veall had transferred her half-share in Kooyongkoot Road, worth approximately $2 million, to Kim. The Wallace Avenue property, which was worth approximately $3.3 million, was purchased solely in Beryl Veall's name with funds that she received from a capital distribution from The Kim Veall Trust.

149 Keith Veall paid some school fees for both Kim's and Rowland's children, but probably greater sums for Kim's children.

150 The evidence that I have discussed supports a finding that Kim Veall received considerably more of her father's wealth than Rowland and Denise did. It is unnecessary to attempt to be exact, but it appears that she received at least $10 million more than Rowland and Denise.

151 However, no child was overlooked by Keith. He told his friend, Mr Adrian De Bruin, after the sale of the Auspine shares, that "each of his kids now had a new home of their own and that the balance of the proceeds would be divided equally between them".[73]

Keith Veall's attempts to obtain information concerning his assets

152 The plaintiffs relied on Keith's attempts between 2007 and 2010 to obtain information concerning the location of his assets and to regain property held by Beryl and Kim, to explain why he made the new will in December 2010.

153 They contended that from mid-2007, Keith Veall came to understand that much of his property was beyond his reach, including the proceeds of the sale of the Auspine shares, the Wallace Avenue apartment and the half share in Kooyongkoot Road. The Keith and Beryl Veall Trust excluded Denise and Rowland from distributions of capital. He intended his will made on 10 December 2010 to correct the imbalance in the distribution of his wealth.

154 Rowland Veall gave evidence of a meeting in 2008 where his father told Mr Martin and Mr Woods that the Auspine shares had been "parked" in The Kim Veall Trust. This statement may have been made at the meeting held on 28 February 2008 in the boardroom of UHY Norton accountants. Denise and Rowland's accountant also attended that meeting. According to Rowland, Mr Martin and Mr Woods told Keith that he was not "getting anything out of the Auspine proceedings." His father said: "I want the money out. I want it opened up." In as many words, he said: "It's my money. Hand it over."[74]

155 In the second half of 2008, Rowland and Keith contacted Mr Ronald Frederick, who then worked as a solicitor with Holt & McDonald. Mr Frederick, who is an accredited estate specialist and has many years' experience of preparing wills, gave evidence that he was asked by Rowland to assist his father. Whilst Keith Veall indicated some concern to discover what had happened to his wealth, his primary concern at that point was to ensure that the Kilsyth property, in which Rowland and Jane lived, would be Rowland's after his death and that any other assets would be shared equally by his three children. Mr Frederick considered that it was commercially beneficial to wait to transfer the Kilsyth property to Rowland until after Keith Veall's death because stamp duty was not payable on a transfer from an estate to a beneficiary.

156 On 16 September 2008, Keith Veall together with Mr Woods and Mr Martin, wrote a letter to Denise and Rowland under the heading of The Kim Veall Trust, stating:

Your father, Keith Veall, has pointed out that you both continue to make demands on him for financial support, seemingly on the basis that the money will be forthcoming from The Kim Veall Trust.

In this regard, you are reminded of the conference of 28 February 2008 at Gary Martin's office where it was clearly pointed out that neither of you are beneficiaries of The Kim Veall Trust and cannot benefit under the terms of the deed of that trust. Legal opinion confirm that this is so.

Consequently, distributions from The Kim Veall Trust cannot be made to either of you even if Keith Veall was to request that the trustee make such distributions to you.

Please therefore take note that distributions will not and cannot be made to you from The Kim Veall Trust.[75]

157 Rowland said that when he showed this letter to his father he was appalled.[76]

158 On 12 June 2008, John Woods informed Kim Veall that:

Keith had spoken to both Gary and I before the Board meeting of his determination to leave 1/3rd each of the Trust to each of Kim, Denise and Rowland.[77]

159 On 7 October 2008, John Woods and Gary Martin wrote to Rowland Veall requesting that he return personal papers that he had taken from the Wallace Avenue apartment while Beryl Veall was in hospital. Rowland Veall replied that he had acted at his father's request, but he agreed to, and did, return the papers.[78]

160 On 13 October 2008, Mr Frederick provided Rowland with a copy of the Keith and Beryl Veall Trust Deed and he then learned that he and Denise were excluded as capital beneficiaries. He said that his father was riled when he told him of this provision.

161 Mr Frederick prepared and witnessed Keith Veall's will dated 20 October 2008. It appointed Denise and Rowland as executors. It left the Kilsyth South property to Rowland, the shotguns to Kim's sons and the residue of his estate to be divided equally between his three children.

162 He asked Keith Veall why there was no provision for Beryl in that will and Keith said that the primary purpose of it was to ensure that his son received the Kilsyth property.

163 Mr Frederick said that his practice, when taking instructions from a new client, was to first obtain an understanding of the family tree and to see if there were any special circumstances pertaining to any of those family members. He would send out draft copies of the will within two weeks of instruction and he would keep notes of his instructions.[79]

164 Mr Frederick said that his practice at the execution of the will was to read the will through to the client paraphrasing the major dispositions, but not reading the administration clauses unless the client had a query. His note said that he read through the will fairly slowly and carefully to Keith. This may have been because he regarded him as an elderly gentleman and he wanted to make certain that he understood the will fully.[80]

165 Thereafter, Mr Frederick's engagement extended to discovering what had happened to Keith Veall's wealth, particularly to the proceeds of the sale of the Auspine shares, and why the new trust effectively made Kim Veall the sole beneficiary of the capital assets. His instructions primarily came from Rowland, who had Keith's authority for that purpose.

166 On 3 April 2009, Keith executed a codicil to his will of 28 October 2008, providing for a bequest of a painting to Rowland and otherwise confirming that will. At their meeting that day, Keith informed Mr Frederick that he believed that "Beryl is putting her daughters ahead of Rowland and Denise".[81]

167 On 26 October 2009, Mr Frederick made a file note that:

Rowland rang on the morning of 26 October 2009 saying his father is confused and people are putting pieces of paper under his nose and they want him to re-sign his will.

168 Mr Frederick could not say who "they" were, but he assumed it was other members of the family.[82]

169 Mr Frederick met with Keith Veall on 28 October 2009 and his file note records that he told Keith that Rowland was concerned that people may have slipped a new will in front of Keith for signing and that he may have made a will that he did not understand or approve.

170 So Mr Frederick prepared what he said was a "boots and braces" confirmatory will dated 28 October 2009 which repeated the terms of the 2008 will and codicil.[83]

171 In 2010, the Board of Bethal Nominees discussed the concerns that Rowland and his lawyers had expressed about the distribution of Keith's property.

172 The Bethal Nominees Board met on 18 February 2010. The minutes record under the heading "General Business", Keith Veall's statement that Rowland and Denise had concerns regarding their entitlements under the Trust Deed and wanted money "now". They were questioning him over why they weren't receiving any substantial funds from the Trust (in addition to the personal gifts he had been giving them). He reported to the Board that Rowland was quite "savage" over not having access to the Trust Funds and that in his mind, he "was being cheated". Keith expressed concern that Rowland was seeing a solicitor and calling him every day over the matter. The minutes record:

Most alarmingly, [Keith Veall] alerted the Board to the fact that he did not know the lengths Rowland might go to (to get money) and that his anger was targeted towards the Directors. In particular, [Keith Veall] confirmed the various discussions he had with [Kim], whereby he alerted her to the fact that both her life and that of her 'boys' ... were under threat (due to Rowland's misconceptions). This caused great concern and alarm amongst the Directors and it was agreed that Rowland and Denise needed to be made clearly aware of the Trust's obligations and the purpose once again.

The other Directors reminded [Keith Veall] of previous discussions the Board had on the matter at past meetings, whereby it was confirmed on numerous occasions that both Rowland and Denise were discretionary beneficiaries of the trust, as per [Keith Veall's] instructions to Donaldson Trumble Lawyers.

It was further explained that the Trust currently generated an income of $250k, even though there was a need for more than $400k to meet the needs of [Keith Veall] & [Beryl Veall's] lifestyle expenses and tax payments. Therefore, making any further income distributions to other beneficiaries at this time, [was] difficult.

It was agreed, in line with previous meetings, that the first obligation of the Trust was to meet the personal requirements of both Keith and Beryl, ahead of anyone else.

[Gary Martin] & [John Woods] offered to speak to Rowland and Denise to assist [Keith Veall] in explaining the situation and to hopefully clarify it once again. [Keith Veall] advised the meeting that he would speak to Rowland and Denise regarding the Trust and the need for both he and [Beryl Veall] to come first, but declined the offer of support from [Gary Martin] & [John Woods] to be in attendance.[84]

173 On 16 April 2010, Mr Frederick wrote to Mr Martin and Mr Woods enclosing Keith Veall's authority to obtain a copy of his current Trust Deed and a brief summary of the current financial position of the Trust.

174 On 26 May 2010, Mr Martin replied on behalf of Bethal Nominees indicating that a copy of the Trust Deed would be provided, agreeing to a meeting and stating that the new Trust had had very little activity in the period to 30 June 2008.

175 On 10 June 2010, Mr Martin and Mr Woods met with Keith Veall and Mr Frederick and discussed how the assets from The Kim Veall Trust were distributed and why the Keith and Beryl Veall Trust was established. Mr Frederick explained that Rowland Veall was aggrieved that he had no capital entitlement under the terms of the new Trust.

176 Mr Frederick's note of that meeting stated that Keith Veall wished to meet the two Trustees and Rowland, so that Rowland could be told the present situation.[85] Keith was not happy about the information flow from Bethal Nominees.

177 The Bethal Nominees Board met again on 17 June 2010 and discussed a letter received from Holt & McDonald. The minutes record that, when asked whether he wanted to talk to the letter, Keith Veall appeared uncertain and unclear as to its contents and did not wish to comment on it.[86]

178 In August 2010, Keith Veall appointed Rowland as his attorney pursuant to an Enduring Power of Attorney. He obtained the Power of Attorney because he considered that his father would sign anything that people put in front of him.[87]

179 At about this time, Hymans solicitors commenced to act for Keith and Rowland Veall in place of Holt and McDonald. Mr Frederick said that he ceased to act because he did not have the time to investigate the Trust.[88]

180 On 18 August 2010, Hymans solicitors wrote to Kim Veall and the directors of Bethal Nominees, stating that Keith desired, and intended, to effect a distribution of the family fortune between his three children. They wrote, in essence, that unless the assets formerly in The Kim Veall Trust were made available for distribution between the three children, Keith's intentions could not be achieved. They sought a favourable reply to avoid the need for litigation.

181 On 1 September 2010, Rowland Veall emailed Hymans stating, inter alia:

Dad again said today that Jane and I are going down the wrong path and keeps saying that everything will be all right but in saying this he cannot produce any documentation or other proof that this is the case.[89]

182 On 6 September 2010, Beryl received a letter from Hymans, who were acting for Keith, stating that the Wallace Avenue property was to be sold and a caveat was to be placed on the property on Keith's behalf.[90]

183 On 7 September 2010, Mr David Sharp of counsel met Keith, Rowland and Ian Hone for lunch at Orita's restaurant to obtain instructions, with a view to acting for Rowland.[91]

184 On 8 September 2010, Beryl executed a new will.[92]

185 On 9 September 2010, Hymans wrote to Mr Sweeney of Donaldson Trumble, requesting copies of Financial Statements, Books of Accounts and all other financial records of the Keith and Beryl Veall Trust.

186 On 9 September 2010, Keith executed a new will, his penultimate will, the terms of which have been described previously.

187 Between 10 September and 1 October 2010, Keith and Beryl holidayed in Noosa.

188 On 15 September 2010, Hymans lodged a caveat on the title of Wallace Avenue on Keith's behalf. Beryl learned of the caveat upon her return from Noosa.

189 On 7 October 2010, Hymans solicitors repeated its request contained in its letter of 9 September 2010 and stated that they had been instructed to issue legal proceedings to enable inspection of the documents requested.

190 Donaldson Trumble replied on 29 October 2010, stating that the assets of The Kim Veall Trust were intended for Kim Veall as principal beneficiary and disputed that Keith had been denied access to the requested financial documents.

191 In the meantime, Keith Veall signed a letter dated 15 October 2010 addressed to Gary Martin and John Woods, which stated:

As Trustees of the Keith and Beryl Veall Trust I am writing to you to request the amount of $100,000 to be paid into my National Bank cheque account by Friday 22nd October to cover legal and accounting expenses.

Please direct any correspondence to my Attorney, Rowland Veall...[93]

192 On 20 October 2010, Gary Martin and John Woods met Keith Veall for lunch at the RACV Club. They read him the letter of 15 October 2010, but he said that he had neither signed nor sent it. Mr Martin was concerned about Keith's inability to understand matters and so, that afternoon, he wrote to him about the letter of 15 October 2010 stating:

You advised me that you had not sent John and me a letter and that we should not do anything at this stage. Further, we agreed that we would arrange a meeting of directors of Bethal Nominees as soon as possible, and tentatively noted 4 November 2010, subject to the availability of Kim and Lorrie.

I indicated to you that the Trust was not generating income at a level to provide $100,000 to you at this time as quarterly tax commitments are due on 28 October 2010 for you and Beryl. I will arrange for these tax payments to be made on your behalf by the due date.

Although your letter indicated that we should communicate with Rowland, I thought it was appropriate to address this letter to you as you had no recollection of signing the letter to John and me of 15 October 2010.[94]

193 Mr Hone stated in his affidavit that he and Mr Di Donato attended at least part of this meeting, but it is likely that he was mistaken and that he had in mind another meeting at the Tok H Centre that occurred on 23 November 2010.[95]

194 Mr Hone gave evidence that Keith was surprised that he could not direct the operations of the Keith and Beryl Veall Trust. He was distraught to discover that the Trust had been drawn so that Rowland and Denise stood to be excluded from any distribution and that it was effectively up to Kim to determine whether they received any distribution of income from the Trust.

195 On 5 November 2010, Keith Veall met with Mr Richard Weil of counsel in connection with Family Court proceedings.

196 The Bethal Nominees Board met again on 11 November 2010. Correspondence from Hymans Solicitors of 8 September and 29 October 2010, and replies from Donaldson Trumble, were tabled.[96] Hymans' letter stated that it was acting for Keith and Rowland and had instructions to sue Bethal Nominees to obtain orders for the matters that they demanded. The Board members sought to involve Keith in discussions, but he did not contribute to the decisionmaking process and went along with resolutions adopted by the remainder of the Board.

197 Mr Woods and Mr Martin raised the fact that Keith had signed a letter seeking payment of $100,000 to Rowland. Keith repeated that he did not recall the letter and said that "Rowland brings me things to sign".[97]

198 On 23 November 2010, Keith, Rowland, Mr Hone, Mr Sweeney and Mr Garry Martin met at the Tok H Corporate Centre and discussed aspects of the Keith and Beryl Veall Trust and Veall family financial matters.[98]

199 After the meeting, Hymans wrote to Donaldson Trumble, and confirmed their client's instructions to request:

That Arthur Rowland Veall and Denise Suzzette Lodder to be included as Capital Beneficiaries and Joint Appointors together with Kim Veall under the Arthur Keith Veall and Beryl Kathleen Veall Trust.[99]

The letter also sought financial documents and information.

200 The Bethal Nominees Board met again on 1 December 2010. The minutes record that:

Patrick Sweeney attended the meeting to give advice to the Board in relation to a letter received from Hyman's dated 23rd November, 2010, following a meeting with AKV, Rowland Veall and Hyman's Solicitors.

The Hyman's letter of 23 November, 2010 was tabled.

Patrick recommended that AKV should not be part of the Board meeting, due to his conflict of interest, as AKV was supposedly the instigator of legal action as well as being a Director.

The Board decided to continue with AKV present.

It was agreed that Donaldson Trumble would respond on behalf of the Bethal Board to Hyman's Solicitors.

AKV expressed his desire to "get rid of Rowland and Denise", so he could go to the undertaker with peace of mind.

AKV stated that he would prefer BKV to have her own account and trust.[100]

201 The Board considered the draft accounts for the 2008/2009 year and resolved that Keith Veall and Gary Martin sign the Directors' Report and Trustees' Declaration. Mr Martin said that Keith's contribution to the discussion was limited to agreeing once the other board members decided to accept the statements and approve the documents. There was evidence that the directors involved Keith in that resolution as a matter of courtesy so that he would feel included.

202 On 3 December 2010, Keith swore his affidavit in connection with the anticipated Family Court proceedings.

203 On 10 December 2010, Donaldson Trumble responded to Hymans' letter of 23 November 2010 by stating that the inclusion of Rowland and Denise as capital beneficiaries and joint appointors was not in the sole discretion of the Trustee. It would require prior consultation with, and consent of, the other general beneficiaries and would give rise to a resettlement of the Trust attracting an unacceptable stamp duty burden. The letter also responded to the request for financial information and documents.[101]

204 On 13 December 2010, ie three days after the his final will was executed, Keith commenced proceedings in the Family Court against Beryl. He sought orders that the Wallace Avenue property be sold and the proceeds divided equally between them. The application was served on Beryl on 19 January 2011.

205 Keith and Beryl both swore affidavits that were filed in the proceeding. Those affidavits are at least probative of their state of mind at the time they were sworn, so I will next set out the principal matters contained in them.

206 Mr Weil of counsel settled the affidavit and it was filed by Hymans.

207 Keith Veall stated that upon his return from the United States in 1988, he was under pressure from creditors and decided to divest himself of all property. He transferred the Auspine shares into The Kim Veall Trust on the express understanding, with Kim, that they were to be held for the benefit of the family generally - ie, Beryl, Denise, Rowland, Kim and himself. He understood that the Maple Grove property was registered in the name of Bethal Nominees. He did not know that Beryl had transferred her share in Kooyongkoot Road to Kim. Nor did he know that Beryl was the sole registered proprietor of Wallace Avenue, as he had asked that it be put in both their names.

208 He purchased the Kilsyth South home for Rowland in July 2007 in appreciation and partial payment for his 13 years of hard work on a reduced salary in the family businesses of Veall Galleries and Sales Boards. The household expenses of Edzell Avenue, where he and Beryl had previously lived, were largely paid out of income derived from Rowland's businesses. Those amounts were never repaid to Rowland.

209 He was unaware that the shareholding of Bethal Nominees was altered on 4 July 2007 with Kim and Gary Martin each receiving one share, or that The Kim Veall Trust was wound up and the Keith and Beryl Veall Trust established.

210 He did not know what assets had been placed in the Keith and Beryl Veall Trust and he was not given notice of directors' meetings or provided with financial documents.

211 At all times, he had desired that Rowland, Denise and Kim share equally in the Veall family wealth. He wanted Wallace Avenue and all other assets to be sold and the proceeds divided equally. He wished to move into assisted accommodation near Rowland's home.

212 On 4 March 2011, Beryl Veall swore an affidavit in response to Keith's affidavit. She opposed his property application. Her affidavit included the following matters.

213 In around 1976, Keith purchased a house for Denise at Lower Templestowe for approximately $60,000. In 1984, Keith purchased a property for Rowland at Vermont South in the name of one of his companies, Modern Maintenance Pty Ltd. Beryl understood that Rowland arranged for Keith to transfer ownership of Modern Maintenance to him in December 2007.

214 Upon Keith and Rowland's return from the United States, The Kim Veall Trust took over their debts and its assets were used as security for a bank loan to help pay the debts. The Henley farm was sold in 1993 and the Werribee land had been previously sold.

215 The Maple Grove property was put in Beryl's name because of Keith's previous disastrous business decisions. Maple Grove was sold to purchase a half interest in the Kooyongkoot Road property, where she and Keith lived in a bungalow.

216 In 2007, Keith purchased a house in Kilsyth South for Rowland for $1.5 million, but kept it in his own name, because he was concerned that if they separated, Jane might claim it.

217 Gary Martin told her that Keith instigated the vesting of The Kim Veall Trust and had expressed his preference for the creation of a simple structure to minimise the work of the directors.

218 Shortly prior to the vesting of The Kim Veall Trust, she received a capital distribution of $3.5 million, which she used to purchase the Wallace Avenue apartment.

219 On Tuesday 5 October 2010, Keith told her that Rowland had taken him to look at homes in which to live. These homes were located closer to Rowland's home.

220 On 17 October 2010, Keith told her that "he wanted to talk to Kim", that "Rowland was suing the Trust" and that "it is all a mess".

221 On Friday, 10 December 2010, Rowland and Jane arrived unannounced with their daughter and step-daughter and Rowland blamed her for all his financial woes and stated that he had no money. Jane said that they could not even pay their daughter's school fees. Rowland said "that this is all going to court" and that Beryl "will regret everything". Beryl asked Keith to pay the school fees. Rowland and Jane asked Keith to sign a one-page document that they had prepared which listed personal items, which were contained in the display cabinet. She retrieved a few of the items that they were proposing to take and told them that they should be shared with other members of the family and were not all Rowland's to take. However, Rowland and Jane took the majority of the items on the list.

222 After Beryl was served with the Family Court documents on 19 January 2011, she asked Keith to look at them. He said he did not know what the documents meant, nor could he recall signing them. He advised her to "just ignore it".

223 On Wednesday 26 January 2011, Rowland again arrived at the apartment unannounced and asked her how she had been able to purchase it. He blamed her for everything and said that Kim had all the money and he had nothing. He ranted and raved at her, yelling that his father had promised him money. After a short while, Beryl had had enough and walked out just at a time when Keith arrived back with his carer.

224 She considered that Keith was suffering from dementia or Alzheimer's disease. He needed constant care at home, suffered from incontinence, had Parkinson'slike symptoms, often fell and had to be assisted by carers, by Kim and her husband, or Lorraine Pennefather. Keith's inability to recall receiving documents regarding the trusts confirmed that his mental state was rapidly declining.

225 Beryl denied that the Auspine shares had been "parked" in The Kim Veall Trust. They had always been owned by the Trust and held for the beneficiaries.

226 The assets and property owned by The Kim Veall Trust were intended for Kim's sole benefit. Rowland and Denise were not beneficiaries under The Kim Veall Trust but under other trusts. Rowland and Denise had received distribution from their grandfather's trusts.

Medical evidence concerning the testamentary capacity of Keith Veall

227 Dr Kevin Rose was Keith Veall's general practitioner during the last four years of his life. Keith consulted him regularly, usually accompanied by Beryl or Kim or a male carer. Dr Rose considered that in 2010, Keith Veall was suffering from declining cognitive function. On 1 February 2010, he noted that Keith Veall was "concerned that others doubt his memory".[102] His note of 5 January 2011 recorded "episode of confusion yesterday morning."[103]

228 On 15 October 2010, he referred Keith Veall to Dr Michael Rose of the Memory and Geriatric Clinic. The two doctors are not related. He wrote that he had seen Keith Veall on 6 and 11 October 2010 and was aware that major financial decisions concerning him had recently taken place. He was not aware of the specifics of those decisions, however Keith Veall's ability to look after himself had reached the stage where he could be easily led and he would have signed any document if led to do so.[104] He based that conclusion on his vagueness about lots of things: he had got lost overseas and he had been worrying that his medication might be causing his memory loss. On occasion, Dr Rose would have to ring the chemist to sort out a mix-up of the tablets. He wrote that Keith Veall had been slowing down for the past year and that his muscular and joint pains had been mostly controlled by medication. He was easily fatigued. He wrote to Dr Michael Rose "we seek your opinion regarding his ability to make meaningful input to these decisions".[105]

229 Dr Kevin Rose wrote the referral because he thought that Keith Veall's level of cognitive function in October 2010 might be later questioned and a specialist assessment would help determine the care that he needed. Dr Rose could not recall who asked him to refer Keith Veall to Dr Michael Rose, but thought that it was most likely Beryl and Kim.

230 I state at this point that I do not accept, as the plaintiffs appeared to submit, that Kim Veall set out to obtain evidence that her father, Keith Veall, lacked testamentary capacity. I see no basis for the drawing of that conclusion.

231 Dr Kevin Rose also commented on Keith's condition in an email to Rowland Veall, who had requested information to support an application for a speedy hearing of the proposed Family Court proceeding. He wrote:

Thank you for your telephone call this morning requesting a report concerning your father, Mr Arthur Keith Veall. I note the attached Power of Attorney.

As you are aware I have treated your father for the last three years. Over that time I have noticed his decline, both physically and mentally. All systems in his body are now not functioning as previously and he is now only capable of limited periods out of bed. Much of this time is now spent resting in a chair.

His prognosis is for a further decline in his bodily function. At any time it would be not unexpected for him to suffer a sudden death from a cardiac or cerebral event.[106]

232 Dr Kevin Rose gave evidence that Rowland telephoned him on 22 November 2010 and enquired whether Keith was less capable to sign legal documents than he had been in 2008. Dr Rose told him that Keith no longer had the same level of capacity as he had in 2008.

233 In May 2011, Dr Kevin Rose received an assessment from the Caulfield Aged Care Assessment Centre that concluded that Keith Veall had progressive dementia with behavioural disturbance. He was assessed as requiring high level care respite.

234 Dr Kevin Rose agreed that he had not diagnosed Keith Veall as suffering from dementia, but he considered that his memory was "certainly going".[107] Dementia involved shortterm memory loss, but people with dementia could still make decisions. He had not asked Keith Veall to read any document. His assessment of his memory was assisted by the opinion of others and he accepted that if they were inaccurate, his opinion might be affected as a result.

235 Dr Michael Rose, who is a consultant physician specialising in geriatric medicine, gave evidence. Keith Veall, accompanied by Beryl and Kim, consulted him on 18 February 2011. His focus was on geriatric care for Keith Veall, rather than on his testamentary capacity.

236 Dr Michael Rose gave evidence that Keith Veall was unable to answer some of his questions and referred them to, or oriented to, his wife. This suggested that he did not have a proper grasp of legal and financial matters. Keith and Beryl had obvious affection for each other and he relied on her when questions required cognitive processing.

237 At one point, he spoke with Keith alone and he was unaware that any Family Court papers had been served on Beryl.

238 Beryl and Kim Veall were sketchy on the exact length of the deterioration in Keith's cognition, but felt that it had slipped over the previous 12 months with a more rapid decline over the previous 6 to 8 months and a considerable decay in "the last number of weeks".[108]

239 During the consultation, Dr Michael Rose telephoned Rowland to discuss Keith's condition. Rowland told him that Keith had a significant physical decline recently, but felt his cognition had fluctuated only slightly over the past few months.[109]

240 Dr Michael Rose formed the view that as at 18 February 2011, Keith Veall did not have testamentary capacity and that he was suffering from progressive dementia, which was not progressing rapidly. He said that:

To me he was a very confused man. He wasn't able to understand what was going on. This came across with multiple different questions that I was asking him about different events.[110]

241 At the time of the consultation, Dr Michael Rose was unaware of the significance attaching to the date 10 December 2010. However, he considered it likely that Keith Veall's preexisting dementia had not significantly worsened between 10 December 2010 and the consultation on 18 February 2011. He considered that it was unlikely that Keith had testamentary capacity on 10 December 2010, but agreed that he was not in a position to express an opinion as to his testamentary capacity on that date.[111]

242 Dr Michael Rose's report of 18 February 2011 stated in part:

Today Mr Veall was well-groomed. His speech was tangential. He had paranoid ideation. He made inappropriate comments. A Mini Mental Score of 13 was obtained today. He scored 1/5 for orientation to time and 4/5 to orientation for place. Registration was 3/3, world was 1/5, memory scored 0/3, object naming scored 2/2. Three-stage command scored 2/3. He could not repeat a phrase. He could read "close your eyes", but did not do this. When asked to copy pentagons he became quite paranoid, saying he had been asked not to sign anything.

When asked to comment on his own affairs he made the following observation: He thought that trustees made decisions for him; he was not aware that his son was his Enduring Power of Attorney. He then decided that no-one was able to make decisions for him and he didn't feel that anyone did make any decisions for him. He was not aware of any papers that had been given to his wife regarding divorce proceedings.

...

Impression:

The impression today is of a man with a progressive dementia. The features that he has displayed, reflect poor concentration and inattention. This tends to favour a slightly vascular aetiology, although an Alzheimer's component cannot be excluded. It is clear that there are behavioural symptoms associated with [his] dementia. His care needs seem to be high today, given the amount of monitoring and prompting provided by his family. Both his daughter and his wife are keen that he returns home.[112]

243 Dr Michael Rose saw Keith Veall again on 21 April 2011 and reported that his impression was of "a subtle improvement" in his condition, which:

... largely revolves around the lessening of paranoia and improvement in sleep, perhaps making Mr Veall slightly more manageable. Although there is possibly a trigger for organic pain, his reporting is influenced by his dementia.[113]

244 In a report to the Victorian Civil and Administrative Tribunal of 9 June 2011, Dr Michael Rose stated that Mr Veall suffered from a disability of "dementia (unspecified currently - maybe Alzheimer's or vascular)". In response to the question contained on the form that he completed "for how long has the disability been evident?", he stated, "this is in dispute by the family I suspect months".

245 In response to the question "do you have comments about the person's prognosis?" he answered:

Poor, there are behavioural symptoms (paranoia, ongoing need for monitoring and prompting). Has settled a little since introduction of antipsychotic medicine (Risperidone).

246 He ticked the box on the VCAT form that indicated that Keith Veall "is unable to make reasonable decisions" and wrote:

He is not able to retain information or process information to make a reasonably informed decision.

247 He ticked the box that indicated that Keith Veall did not then have capacity and did not recommend further assessments or reports that might assist VCAT. He observed:

Given the level of dementia Mr Veall will need a stable environment. He needs to have established his carers for lifestyle management. Ongoing disruption is not going to be of any benefit.

248 In a letter of 20 July 2012 to Kim Veall's solicitor, Dr Michael Rose stated:

As indicated in my letter of 18 February 2011, I found that Mr Veall had a considerable dementia. There was a behavioural component. I considered at that stage there was a vascular aetiology and an Alzheimer's component could not be excluded.

When I saw him I thought he did not have the capacity to make decisions. This was evident as he could not reason or understand information that was presented to him. I will not reiterate what was in that original letter.

You have asked me to comment on what Mr Veall's state would have been like on 10 December 2010.

I did not assess Mr Veall on 10 December 2010 and cannot make an opinion on what his cognition or capacity was at that time. The difficulty when faced with patients who have cognitive impairment is that one needs to turn to a corroborative history to track the origins. Unfortunately in this case, there is considerable debate as to the rate of decline in Mr Veall.

In general terms it would be unlikely that he had a rapidly dementing state. Clarification from his GP would be advised, for a more accurate opinion at that time.[114]

249 Professor Michael Woodward, who is a consultant geriatrician, gave evidence as part of the plaintiffs' case. He was the director of Aged Care Services at Austin Health for 17 years and is now the director of the Memory Clinic at Austin Health. He was engaged after Keith Veall's death and formed his opinion on the basis of the materials provided to him.

250 Professor Woodward initially spent three hours reading the papers provided to him, in order to give a preliminary view before he travelled overseas. His preliminary view was that Keith Veall lacked testamentary capacity in November and December 2010.[115]

251 Professor Woodward's opinion expressed in his affidavit and in his oral evidence contained a different emphasis to his preliminary view. He said that:

It is certainly possible that the deceased had good and bad days which could have been affected by medication, infection, illness including metabolic disturbances such as high calcium. These good and bad days could certainly have occurred between October 2010 and February 2011.

There is also a significant possibility that medications he received including B12 favourably affected his cognition between these dates of October 2010 and February 2011 but it is very unlikely that they would have reversed a dementia if indeed that was the diagnosis.

...

In summary it is my conclusion that whilst I still believe a dementia is a possible and indeed likely explanation of Mr Veall's cognitive disorder I cannot conclude from the evidence provided that the diagnosis of dementia was adequately established or indeed present between October 2010 and February 2011. It is likely that he did have a neurogenerative disorder by the time Dr Michael Rose saw him in February 2011 but conclusive investigations and other assessment appear to be lacking and more acute factors may well have been contributing to at least some of the cognitive impairment that was present at that stage and earlier.

252 He considered that a person's competency could only be assessed on a particular day and in a particular domain. Factors such as depression, infections, inflammation, medications and demonstrated high calcium may well have caused fluctuations in Keith Veall's cognition. It was difficult to diagnose dementia rather than cognitive impairment without additional investigation such as neuroimaging and neuropsychological assessment.

253 Professor Woodward in his oral evidence stated:

I think, look, I will be frank, I think it was very likely that Mr Veall had significant cognitive impairment from late 2010 through to his death in 2011, but whether that was enough to affect competency and whether that was fluctuating and whether he had good days and bad days was the subject of my subsequent more detailed report.[116]

254 Professor Woodward said that while Keith Veall showed some periods of confusion, his clinical history revealed little evidence of clear vascular dementia. He did not agree with Dr Michael Rose that Keith Veall's behaviour between October 2010 and July 2011 could only be explained as attributable to vascular dementia or paranoid ideation. The opinion that Keith Veall suffered from vascular dementia provided a reasonable explanation for his behaviour, but could not be fully confirmed on the data available.

255 Professor Woodward said that he had certified some people with early dementia as still having testamentary capacity.

256 At the conclusion of their separate evidence, the three doctors gave evidence about Keith Veall's capacity concurrently.[117]

257 Dr Kevin Rose stated that although he had never said that Keith Veall had dementia, he could see he was going down, the graph of his condition was "on a straight line going down".[118] He was getting more confused about lots of things.

258 Dr Michael Rose considered that Keith Veall had a cognitive impairment in multiple domains and appeared functionally impaired when they met. Further tests were not performed because he was a frail, 90yearold man with a great deal of confusion and was not physically up to them. A brain CT on 13 February 2011 showed significant changes and deep white ischemia was clearly evident, indicating vascular changes. It was unclear if those changes were associated with cognitive impairment.

259 Professor Woodward said that the brain changes to which Dr Michael Rose referred could contribute to cognitive impairment, but by themselves were insufficient to diagnose vascular dementia. They were often present with Alzheimer's pathology. A person with vascular pathology was likely to fluctuate and have good and bad days, but less commonly if they did not have that pathology.

260 The medical evidence suggests that Keith Veall suffered significant cognitive impairment as at 10 December 2010 and that his condition was deteriorating.

261 There was much other evidence concerning his competence from non-medical witnesses, which I next consider.

Evidence of Keith Veall's mental condition from non-medical witnesses

262 Rowland Veall denied that his father's capacity was declining in 2010 and said that he was still able to read. About twice a week, he would take his father to lunch at Orita's Restaurant and they would spend three to three-and-a-half hours together. When he returned his father to Wallace Avenue, the apartment would usually be empty and Beryl would be out.

263 He described his father as not disoriented or forgetful, although he sometimes became tired late in the afternoon. He was declining in his physical, rather than his mental, state. He was a good conversationalist with an "incredibly good memory". He could read and comprehend things well. However, he was profoundly deaf and his eyesight left much to be desired. Until 2010-2011, he signed letters and cheques and other documents put in front of him.

264 As previously stated, in August 2010, Keith Veall gave Rowland a power of attorney. Rowland used it to open a bank account in Keith's name. He wrote cheques on 16 September 2010 for $5,000 and on 18 October 2010 for $10,000, apparently to pay solicitor's fees.

Rowland Veall's opinion of his father's capacity - emails to Hymans solicitors

265 During the trial I ruled that Rowland Veall could not claim or had waived legal privilege in a number of communications with Hymans Solicitors. In some of those documents Rowland makes statements about his father that are relevant to an assessment of his condition. I will set out their relevant parts.

266 On 19 July 2010, Rowland Veall emailed Hymans Solicitors informing them that his father was in Queensland and requesting an appointment for him on his return. The email stated:

I will have an extensive list of all points that need to be discussed of which my father will be agreeable as we have discussed these matters at length in the past over many years and he has stipulated to me that we must sort the mess out. But he is getting older by the day and needs our assistance to get the ball rolling and instigate proceedings to achieve what he wants before his death.[119]

267 In an email of 16 August 2010, Rowland Veall confirmed a luncheon appointment at Orita's Restaurant the next day and informed Mr Di Donato:

Rino, my father has constantly quizzed me ever since I engaged your services as to how I was going to pay for your professional services. In stating this I would like to say that by the age of 70+, all people would have their worldly affairs soundly in order. But Dad has always been a person who loves to have the upper hand and control everyone around him, and has used false promises to keep Denise and myself under his control. The only people he has not been able to control are Kim, Beryl and Lorraine because they have been in control of the cheque book and all other monies and therefore had the freedom and power to move the money where ever they wish.

Nothing has been done and my father is 90.

My father continually says to me that "everything is going to be alright" and also keeps stating that I am going to have dinner with Kim tonight and I think I can [straighten] everything out. This has happened twice in the last three weeks (approx) and nothing happened.

Rino the more I look back on this whole situation Beryl, Kim, Lorraine and the two Trustees have taken complete advantage of Keith's mental and physical state when he signed the K & BV Trust the way he did. Dad gave specific instructions that he wanted the assets of the Keith and Beryl Veall Trust to be equally divided and as you can see, Denise and I have not been treated equally. I am sure he sat down and just signed the documents which were presented to him without reading through them because of his mental and physical state or alternatively having them checked by an independent person. Surely the Trustees are responsible for this situation, Dad's Trustees.

Can Keith's inadequate medical state at the time of signing be used to void the Trust?

When I found out about the Keith and Beryl Veall Trust I asked Dad who are the Trustees and he said John Wood and Gary Martin. I asked him "Dad I thought you didn't trust or like John Wood and Gary Martin" and when I quizzed him further about using those two people he said he would have not used them if he had known. Rino this only goes to reinforce Dad's confused mental state.

Rino, approximately three years ago, I recall a particular day that I arrived to pick up dad at Wallace Avenue to go out to an appointment. I asked Dad if he was ready to go and he said "yes" and in the meantime I started talking to Beryl and Lorraine for a short time. After a few minutes I noticed Dad wandering around in circles in the courtyard. This courtyard was in the opposite location to the front door where we were leaving from. Unfortunately this event did not sound my alarm bells as to Dad's condition. This only reinforces my thoughts with Dad's signing of the Keith and Beryl Veal Trust and that he was not in a fit mental state to agree to the contents of the Trust.

Rino, is it possible to get Dad's medical records to compare what medication he was on at the time of the signing of the Trust compared to what he is on today?[120] (emphasis in the original)

268 Mr Rowland Veall was asked in cross-examination whether in view of this email, he agreed that there were doubts about his father's mental ability to understand documents when he signed them. He replied:

I disregard that because my father was profoundly deaf, his eyesight left a lot to be desired and anything that people on the other side of the family put underneath his nose, Your Honour, he would sign because he trusted them. As opposed to myself, Mr Phillips, there was a bond that was unbreakable and he came to me in desperation in the end to say, "Son, help me, find me a solicitor. The two homes, I don't have a 50 per cent share on", and so on and so forth. Keith and Beryl Veall Trust, oh, sole beneficiary, Kim Veall; excluded capital beneficiaries, Denise Lodder, Rowland Veall; all the Auspine money, oh, Kim gets that...."[121]

Unfortunately, my father was a very, very trusting person of literally anyone that came within coo-ee of him.[122]

270 On 17 August 2010, Rowland emailed Hymans Solicitors stating:

Meant to ask both of you today when Dad's Deposition will be finalised and available for signing. I feel this is as a matter of urgency as Dad is declining by the day.[123]

271 He said that his comment related to his father's physical capacity. His father was taking so much medication, that he was "rattling".[124]

272 On 23 August 2010, Rowland Veall emailed Hymans Solicitors enquiring about the validity of the Keith and Beryl Veall Trust, asking a number of questions about the creation of, and drafting of, the Trust Deed and stating:

Rino and Ian, my father received and read his copy of the Letter of Demand on Friday so therefore everyone else would have received and read their letter. I was told this morning by my father that Kim left either Saturday or Sunday for an overseas destination (unknown) and would not be back for 20 days. I have my doubts weather [sic] she has left the country and this is just a lie to her father to delay proceedings yet again. We intend to track her down to find out exactly where she is. Just another 20 more days closer to Dad's passing!!!

He stressed the urgency of his father signing the "Deposition".

273 On 1 September 2010, Rowland Veall sent an email to Hymans Solicitors which included the following:

On closing Dad again said today that Jane and I are going down the wrong path and keeps saying that everything will be alright but in saying this he cannot produce any documentation or other proof that this is the case. I think Dad just wants not to be bothered with having his days disturbed by my total dissatisfaction with the current status of the family wealth and imbalance of those assets amongst the family members.

Dad is still refusing to contribute towards your fees. He receives $15,000 every month for his living expenses. My suggestion is that he contributes $5,000 of that $15,000 towards these fees that he should be paying completely by himself as he has let the situation go on for so long without organising his affairs earlier. Since when do other people have to pay their father's legal fees to gain their inheritance.

Rino, could you be very firm with my father tomorrow otherwise he will just sit back and expect Jane and me to pay for everything! I am sure if he had to come up with some serious money for the continuation of his lifestyle, eg: 5 weeks away at Noosa Heads as he recently enjoyed, he would find the money.[126]

274 In a document that appears to have been prepared for a meeting to be held with his father, Rowland stated:

Dad is becoming more irrational by the day in very recent times and is very difficult to deal with.[127]

275 It was not clear when this document was prepared. It may have been in 2011.

276 Jane Veall said that she got on well with Keith Veall and saw him regularly. She gave evidence that in 2009 Keith was not happy at home and wanted to live closer to Rowland. Rowland showed him properties near his home. Over lunch on at least six occasions between 2010 and 2011, Keith said that he felt his hands were tied. In 2010 he was concerned and frustrated with the situation. He thought that Rowland and Denise were going to be cheated out of their inheritance and wanted his assets to be distributed equally between his three children.

277 Jane Veall understood that Keith Veall always intended to leave the shotguns to Kim's sons.[128]

278 She described Keith as elderly and frail and striving to remain independent. He suffered pain from a rheumatic condition. Late in 2010, he could read well, including newspapers and his books about pigeons. His memory was fine. In 2010, he never discussed making a new will, or her becoming an executor. By the end of February 2011, his condition had deteriorated and he walked more slowly and unsteadily.

Kim Veall's and Lorraine Pennefather's evidence about Keith Veall's condition

279 Kim Veall gave evidence that after her mother suffered a heart attack in July 2008, she and Lorraine arranged for carers to attend on most days at Wallace Avenue to ensure that Keith ate meals, had food in the house, that his bed was made and his laundry done. She would often drive Keith to visit Beryl in Cabrini Hospital, after which he was much happier. He panicked when she was away from the home.

280 Kim Veall considered that her father suffered from paranoia. From 2008, he slept with an iron bar beside his bed because he believed there were threats to his life. At Christmas 2009, while they were holidaying in Honolulu, he told her that he had averted a threat to the lives of her sons. In 2010, he told her that her life and those of her children were at risk.

281 Kim Veall gave evidence that her father told her that Rowland and Denise were relentless in their demands for money and wanted their inheritance then. They would phone him almost daily.[129]

282 She gave evidence that towards the middle of 2010 her father's confusion increased and became more frequent. She had arguments with him for the first time. He became extremely resistant to care and aggressive towards his carers.

283 He selfmedicated and became hysterical if anyone touched his medication or personal items. He slept excessively during the day, only waking for meals. In his last years, he regularly entered Beryl's bedroom in the early hours of the morning and woke her, claiming that people were trying to break into the apartment and that people were knocking on his window asking what time it was. In January 2011, Beryl told her that Keith had woken and said that she had "better wake up because Rowland [had] arranged for the police to evict her from the apartment at 9.30 am".[130]

284 Keith suffered from falls and his walking deteriorated to a weak shuffle. On 13 February 2011, whilst Beryl was away from the apartment, Keith decided to look for her and walked to a restaurant in the Toorak Village. When he could not find her, he walked towards home, but fell while crossing the road. He split his head and was taken to Cabrini Hospital, where he received stitches. Three days later, whilst touching his head, he asked Kim, "Did the man in the street hit me with an open hand, or a closed fist?".[131]

285 He continued to have a few bad falls, often during the early hours of the morning. He bumped his head, but he did not break any bones.

286 Between March and October 2009, Lorraine lived at Wallace Avenue while her property was being renovated. She would often have lunch with Keith and Beryl in the Toorak Village and sometimes join them for dinner.

287 Lorraine went on holiday with them to Honolulu in December 2009 and overheard the conversation between Keith and Kim about the threat to Kim's children.

288 Between June and August 2010, Lorraine accompanied Keith and Beryl on their holiday at Noosa. Carers were arranged for them during the holiday because Keith found showering and dressing difficult.

289 Keith stopped driving and refused to wear a seatbelt because of his medical condition. He would not use walking aids and would lean on Beryl when they were out.

290 On 9 September 2010, while Keith and Beryl were at a friend's birthday lunch at the Alexandra Club, Keith disappeared. Beryl later found him at home in bed. However, other evidence establishes that on that day Keith made another will, his penultimate will, which has been referred to previously.

291 In September 2010, Keith, Beryl and Lorraine again went to Noosa for a holiday.

292 On 17 October 2010, Keith walked into the TV room at Wallace Avenue and stated, "I want to talk to Kim" and, when asked why he replied, "Because Rowland is suing the trust" and then said, "It is all a mess". Beryl replied, "Well you created it. You need to talk to Rowland and tell him the truth".[132]

293 On 18 November 2010, Keith rang Lorraine confused about the date of Beryl's birthday.

294 Lorraine gave evidence that she spoke to her mother about the distressing events of 10 December 2010, when it was said that Rowland and Jane removed items from the display cabinet at Wallace Avenue.

295 On 4 January 2011, Beryl rang Lorraine to tell her that Keith had woken her at about 8.00 am to say that Rowland had organised the police to arrive at 9.30 am to evict her from Wallace Avenue. Keith could not recall this episode, when she spoke to him later.

296 On 26 January 2011, her mother told her that Rowland had visited the apartment and blamed her for everything.

297 On 27 January 2011, Keith had a fall and hit his head.

Evidence of lawyers who had contact with Keith Veall

298 Mr Hone gave evidence that at all times in the period in which he was preparing the Family Court proceedings he was satisfied that he was receiving clear and lucid instructions from Keith Veall. Keith would get tired towards the end of a conference, but he was well aware that he wanted to get his legal proceedings going in order to correct the imbalance in the distribution of assets that he was now aware of.[133]

299 On 6 December 2010, Mr Hone, in an affidavit in support of a request for Keith Veall to be allowed to file his family law application notwithstanding that he had not complied with pretrial or mediation procedures, stated that Mr Veall was a 90yearold man in declining health. Mr Hone expressed his genuine concern that he might pass away before being able to complete the usual preissue mediation procedures. He attached Dr Kevin Rose's email to Rowland Veall of 1 November 2010, the terms of which are set out above.

300 Mr Hone stated that he met with Keith Veall over a number of hours and days in late 2010 and on each occasion he gave lucid, coherent and chronologically ordered instructions. He satisfied himself through these logical and ordered discussions and conversations that Keith Veall was competent to instruct lawyers as to his wishes and knew his responsibilities and that, after the investigations that he and Mr Di Donato had conducted, had a correct view of his assets available for distribution upon his death.

301 Mr Frederick gave evidence that after interviewing Keith Veall, presumably in about July 2008, he had no concerns about his testamentary capacity. He "ticked the boxes" of knowing whom he had a moral responsibility to provide for, generally what his assets were, and that the last will and testament that he was to draw on his instructions was a will making provision for his affairs after his demise.

302 Two barristers, who conferred with Keith Veall in 2010 gave evidence about his condition. Mr David Sharp, who is a barrister of 30 years' experience, was briefed in August 2010 by Mr Hone to act on behalf of Rowland Veall to seek some form of legal redress for his situation; in particular, to obtain a share of his family's assets. He had several conferences with Rowland and Keith Veall and Mr Hone. These conferences were long and conducted over two extended lunches at Orita's Restaurant in August and September 2010. A third meeting, probably on 8 September 2010, took place at Hymans office in order to prepare the affidavit.

303 Mr Sharp described Keith Veall as physically quite fragile, but mentally very impressive, being clear, dominating and in control of the conversation. He could maintain concentration, he provided most of the information and he expected everyone to defer to him. Mr Sharp had no doubt that Keith was competent and capable of giving instructions and of making a due and proper affidavit.

304 Mr Sharp said that Keith Veall considered that the assets were his property to be controlled and disbursed as he felt he was entitled to. He did not want to go to court immediately, but to wait for an appropriate occasion to resolve the matter. He understood that Rowland and Jane were going to be looking after Keith and that was one of the reasons why Keith thought it appropriate that he should formally separate and divorce Beryl. He regarded his marriage as over. However, he was still proposing to holiday in Noosa with Beryl and would discuss the fact that the marriage was over during that time.

305 Mr Sharp drew an affidavit for Keith Veall, dated 8 September 2010. They went through the affidavit in detail as they were seated side by side and he thought that Keith had read it.

306 Mr Richard Weil, who has practised as a barrister for almost 40 years, was instructed in late November 2010 by Mr Hone to draw documents and an affidavit of Keith Veall for filing in the Family Court of Australia in support of an application for redistribution of the assets of the marriage.

307 Mr Weil met Mr Keith Veall on 5 November 2010 at a Toorak restaurant, presumably Orita's, for between 40 minutes and an hour. Mr Hone, Mr Di Donato and Rowland Veall were also present. Mr Weil knew that he had to consider Keith's competency to give instructions and the coherency, rationality and quality of those instructions. He described Keith as speaking reasonably and logically and recalling facts chronologically and consistently. He was comfortably satisfied that he was lucid and giving rational instructions. He did appear very frail but not drowsy.

308 Mr Weil said that he ensured that only Keith Veall, and no one else present at the meeting, conveyed the information that he wished to communicate. He sat next to Keith and looked him in the face when he spoke. He said he was sharp of mind and had no doubt that he was a rational person.

309 Keith Veall emphatically expressed his wish that Rowland share in his wealth. He instructed Mr Weil that his marriage was over, although he and Beryl were still undertaking social activities together. He was concerned about Beryl's likely reaction when he told her the news about their marriage and he did not want to tell her until the papers were served. It would thereafter be difficult for him to remain in the home. He believed that he and Rowland had been cheated and he wanted fair treatment for Rowland for his years of hard work.

310 Mark Parker, who is a legal practitioner and head of the Family Law Group at Lander & Rogers, made an affidavit, which was filed by the plaintiffs.

311 On 14 June 2011, Mr Parker was appointed by the Family Court as case guardian for Keith Veall. Before he had time to consider the Family Court proceedings, he was informed of an application made to VCAT by the Caulfield Aged Care Assessment Team for the appointment of a Guardian and Administrator to administer Keith Veall's affairs and for the revocation or suspension of the enduring power of attorney held by Rowland.

312 Mr Parker attended a VCAT hearing on 22 June 2011, and met Keith Veall for the first time. He was in a wheelchair and accompanied by Rowland, Jane and their daughter, by a carer and his friend, Bill Hailes. Beryl Veall attended accompanied by two female attendants and her lawyers. Mr Parker stated that the applicant (the Caulfield Aged Care Assessment Team) was insistent that a guardian should be appointed for Keith Veall. The presiding Senior Member of VCAT stated that she was not convinced that he required a guardian. She ordered everyone to leave the hearing room except Mr Parker and Keith Veall, and sat at the bar table and spoke to, and listened to, them. Mr Parker described Keith Veall as appearing lucid and understanding of his situation. He wanted to know what had happened to his money. He said that his wife had taken 50 years to become a manager. In the morning, she would make him breakfast and then leave the apartment for the rest of the day, leaving him alone. He wanted his three children to be treated equally, with each receiving one third of his estate and was alarmed that that might not occur. He said that Rowland had been good to him, but that Rowland and his wife had not seen "quite eye to eye" in recent years. In response to a question from the Tribunal member, he said that he was keen to have someone assist him with his financial affairs.

313 Mr Parker stated that at the conclusion of these discussions, he had no concern about Keith Veall's lucidity or capacity. He was understanding of his predicament and able to provide informed instructions.

314 The Senior Member dismissed the application for the appointment of a Guardian, but suspended the operation of the Power of Attorney given to Rowland for 12 months. She appointed an administrator, FTL Judge & Papaleo Pty Ltd, who are solicitors, over the financial affairs of Keith Veall.

315 Mr Parker met Keith Veall on one other occasion, on 5 July 2011, at Orita's Restaurant. Mr Parker was accompanied by an assisting solicitor, who took notes. He spoke separately to Keith Veall and again formed the view that he was lucid and able to provide informed instructions. Keith again emphasised his desire that his three children share equally in his estate.

316 Between July 2011 and the death of Keith Veall in October, Mr Parker requested information from Bethal Nominees and obtained some, but not all, of the documents that he wanted. His appointment as case guardian was terminated upon Keith Veall's death in October 2011.

317 Three persons, who provided care for Keith and Beryl Veall, gave evidence.

318 Mr Stephen Hallett provided care for Keith Veall between April 2010 and August 2011, when he was admitted to Darnlee Aged Care Facility. He enjoyed his time with Keith and was very surprised when he heard later that Beryl Veall felt that he was suffering from dementia. He would arrive at Wallace Avenue at 11.30am and assist Keith to dress if that was required. He regularly took him for a haircut, shave and lunch. He would then drop him back to the apartment around 2pm. Beryl never joined the lunches. He said that Beryl often left Keith at home on his own.

319 He would not have left Keith alone in the apartment had he known that he was suffering from dementia. He saw no change in Keith's behaviour between April 2010 and August 2011, save that he became more unsteady on his feet. He suffered from polymyalgia rheumatica, which was a very debilitating painful condition and was in constant agony. He had good days and bad days, with some very bad days because of pain. He was not surprised when Keith said that he wanted to kill himself.

320 He disputed that Keith Veall suffered from short term memory problems. He did not regard him as mentally incompetent, but as quite normal and he said that he could hold a very good conversation and explain himself well.

321 He recalled an occasion when Keith told him that he had executed a power of attorney because he "didn't trust the girls", by which he meant, Beryl, Lorraine and Kim.

322 Commencing in about February 2011, Keith suffered falls in the early hours of the morning.

323 Mr Adrian Hughes was Keith Veall's other carer in 2010 and 2011 and attended on Mondays, Wednesdays and Fridays. He carried out the same duties as Mr Hallett. He described Keith and Beryl as appearing to have a loving relationship and they dined out together most evenings. But he did occasionally speak disparagingly of her and appeared to have a lovehate relationship with her. Almost every day when he and Keith returned at 2.00 pm after lunch, the apartment would be empty, or Beryl would be leaving.

324 He was not worried at leaving Keith by himself and he was never instructed that he was suffering from dementia or confusion or had been incontinent. He would often discuss with Keith the morning news from the newspaper or a magazine article. Over lunch, they would discuss Keith's new business ideas, or racing pigeons. Keith's condition did not change prior to his move to Darnlee Nursing Home in August 2011. Once or twice, Keith appeared a little confused, but those occasions were some time apart and he attributed them to the pain that Keith suffered. On some occasions, he said that he ought to kill himself as the pain was severe and unending, and there was no good reason to go on.

325 Mr Hughes would often drop Keith at the Toorak Village or in Hawthorn while he found a parking spot, and Keith never failed to be where he said he would be. Keith could remember the locations of restaurants and liked to visit bookshops to seek architecture books to give to one of his grandsons. Keith was able to let himself into the Wallace Avenue apartment when they returned from lunch. He would usually pay cash for restaurant meals or sometimes his credit card.

326 Mr Hughes accompanied Keith Veall to the VCAT hearing in June 2011. That morning, unusually, Keith Veall dressed in slightly ragged old clothes and Mr Hughes persuaded him to change into a suit.

327 Mr Hughes gave evidence that Keith Veall told him at a luncheon in 2011 that he had previously considered that Kim would "do the right thing" by her half siblings, but that he no longer held that belief and now believed that Rowland and Denise would be cheated. This thought exhausted him. More often, he spoke of his earlier life, about his sporting achievements, shooting and fishing and about his diverse experiences of life, including engineering and his farming near Kerang.

328 On two occasions, Mr Hughes took Keith away for a weekend in the country and never witnessed him suffering nighttime hallucinations. He enjoyed Keith's company and described him as a lucid, competent man, who could engage in a rationally, ordered, responsive conversation for hours at a time. Mr Hughes strongly disputed the suggestion that Keith was suffering from dementia in late 2010 or up to June 2011.

329 Mr Hughes described Rowland as being a "hot head" at times.[134] On one occasion, he learned that Rowland had taken Keith to either a motel, or an aged care home, to stop Beryl from taking him to Noosa.

330 Ms Robyn Hannon was employed as a carer for Beryl Veall, commencing in 2008 for three nights a week, Tuesday, Thursday and Sunday after Beryl came home from hospital following her heart attack. She also provided some care for Keith. She stayed at the Wallace Avenue apartment overnight from 6.00 pm to 10.00 am. She prepared dinner, watched television with Keith and Beryl and talked about the day. She was on-call during the night if they needed help. In the morning, she made breakfast, made up beds, carried out general tidying, kept the bathrooms clean, did washing and shopping and sometimes accompanied Keith or Beryl to medical appointments. On occasion, she took Beryl to the local village for a coffee.

331 Beryl and Keith would usually eat breakfast together and Keith would then go back to bed. Beryl became increasingly stressed by Keith's physical condition and his mental state and would often talk to her about her worries.

332 By late 2010, Beryl was concerned about how long she could manage to have Keith at home. She selected his clothes and helped him dress. He had limited mobility because of an arthritis condition and needed help doing up buttons and zips. She was concerned about his dependence on her and her difficulties in helping him, dressing him and assisting his toileting. Her own health was declining.

333 Ms Hannon said that, occasionally, Keith Veall said that he wanted to kill himself, but she attributed that to the pain that he was suffering.

334 Ms Hannon suggested that male carers be introduced for Keith between 11.00 am and 2.00 pm each day. By 2011, other carers stayed overnight on the nights that Ms Hannon did not do so.

335 Keith often criticised the food that Ms Hannon prepared and would sometimes fly into a rage, if she had not made his bed as he wanted.

336 In the latter part of 2010 and early 2011, Keith would often go looking for Beryl in the house, usually between 4.00 am and 6.00 am. He took sleeping tablets, but was haphazard in taking his medication. Sometimes, he would become disoriented and she would hear him calling for Beryl. On occasions, he would be verbally abusive to her. About once a month, Keith would come into her room in the morning, looking for Beryl. He was deaf and needed a hearing aid, however he chose not to wear it. He accused her of coming into his room during the night when he was asleep. On occasions, Keith urinated on the carpet during the night because he could not find the toilet. On one evening, in February 2011, he approached Beryl and Ms Hannon, as they were sitting with a glass of wine and talking, and wanted to know why they were drinking wine in the morning. When they told him it was evening he became abusive and demanded to know why they were lying to him. Keith then telephoned Rowland and told him that they were lying to him about the time of the day.

337 In early 2010, Ms Hannon accompanied Keith Veall on a walk at a time when a friend of his was dying. Keith, "out of nowhere", said that he was going to get one of his guns and go and shoot the friend. His comments were irrational and ranting and Ms Hannon was concerned because Keith had his guns around the apartment.

338 One morning, late in 2010, at breakfast, Keith told Ms Hannon that he had to organise for the cattle to be slaughtered to pay off a debt of Rowland's. Ms Hannon suggested that Keith had possibly had a dream and was confused. Keith flew at her, was very abusive and aggressive, and accused her of questioning him. He said that he had always done this to keep Rowland out of trouble and nobody could understand that that was part of his culture. Beryl told her not to continue with the conversation because it was making Keith angry.

339 Ms Hannon agreed that towards the end of 2010, Keith would shout and rant at Beryl and that there was tension between them.

340 Rowland often rang Keith in the morning and afterwards, Ms Hannon would hear him discussing Rowland's need for money with Beryl.

341 Once in 2010, Ms Hannon had to go looking for Keith and found him halfway to Toorak Village, 400 metres from the apartment. He said that he was looking for Beryl, when in fact she was at home.

342 Keith would attempt to cross Toorak Road by simply walking out on the road expecting the traffic to stop for him.

343 Ms Hannon gave evidence that, once in late December 2010, she arrived at Wallace Avenue to find Beryl in a terribly upset state. She told her that Rowland and Jane had arrived unannounced and removed valuables from the home.

344 On the evening of 20 January 2011, Ms Hannon arrived at the apartment to find Beryl in a distressed state, because the Family Court papers had been served on her. She was worried that the apartment would be sold and she would be put out on the street. She was angry at Rowland, but not at Keith, who was in the apartment.

345 Despite the service of the Family Court papers, Beryl kept looking after Keith and showering him and attended to his daytoday needs. Keith never raised the matter of the Family Court proceedings and if Beryl did, he would say "Just ignore it. Don't worry about it".

346 In 2010, Ms Hannon discussed with Beryl the need for Keith to have a specialist geriatric assessment due to his sometimes bizarre behaviour. She had nursed other clients in similar situations and had seen how medications helped to keep people calm. Beryl and Keith saw Keith's GP and an appointment was made for him to see a specialist.

347 In August 2011, Keith entered the Darnlee Nursing Home for respite care. He had had a fall and it was decided that he needed to stay there. He died at Darnlee.

348 Beryl lived on at Wallace Avenue and received care from Ms Hannon until she died in March 2012.

349 William Hailes, who is a firearms dealer, first met Keith Veall when he was 12 years old and knew him for 50 years. He did not believe that Keith was slipping into dementia in late 2010 and said that he still signed cheques and used his credit card and gave instructions to solicitors.

350 In late 2009, Keith asked him to help him find out where some of his money placed with Bethal Nominees had gone. He complained that the directors of Bethal Nominees were not providing him with any information about the management of its assets.

351 Mr Hailes attended several meetings in late 2010 with a solicitor at Hymans Lawyers, where discussions occurred with Keith Veall about the Family Court proceedings, about how to get Kim Veall to the table to discuss decisions made by Bethal Nominees and Keith Veall's testamentary intentions.

352 He said that Keith Veall hoped that his grandsons would follow his passion for shooting and he always intended to leave them the two Perazzi shotguns. He said that Keith had given the guns to the two boys in 2007 or 2008 and that it was common knowledge that they were to go to the boys.[135] Mr Hailes was given custody of them in February 2010 because Keith's shooters' licence had lapsed. The shotguns were quite special to him and were worth about $100,000 each. He described them as "probably the best guns that were ever made in Italy at that time."[136]

353 Mr Adrianus De Bruin gave evidence as part of the plaintiffs' case. He was the major shareholder in Auspine. He met Keith in 1984 and became his friend. They shared similar business interests. They travelled overseas together and their wives were friendly. He disagreed that Keith was suffering from dementia in 2010 and 2011. In those years, he lunched with Keith about every six weeks and said that although he was becoming frail, he did not appear demented. When he last saw him in mid-2011, Keith still had his memory and conversational ability.

354 Mr De Bruin said that Beryl was devoted to Keith, although when away from home, Keith would constantly complain about her and her treatment of his other children. Over the last 10 years, Keith became increasingly suspicious and complaining of Beryl. He held the view that she was favouring her children financially to the detriment of Rowland and Denise. He said that Keith was totally bewildered about her asset purchases.

355 He also witnessed Beryl and the "so called directors of Bethal Nominees very much 'taking over the purse strings'".[137]

356 Joy Bullmore swore an affidavit stating that she and her husband had known Keith Veall for 28 years. They accompanied him on his trips to Thailand, which were usually for about two months during the Melbourne winter. They often visited Keith and Beryl, until Keith was admitted to Darnlee Nursing Home in August 2011. She believed that Keith loved Beryl immensely, but he did say that he felt that Beryl had just married him for his money. In his last years, Keith was often distraught at the fights that were occurring in his family. He was very distraught that he had apparently lost all his wealth and he was unaware how that had occurred. During 2010, when they were having dinner, Keith would frequently start "having a go at Beryl" about the will and his money, but would then control his temper and discuss other things. Ms Bullmore said that Keith was sad, depressed and angry, but at no time did he appear to "lose his wits". Until their last dinner in mid to late 2011, Keith was an excellent conversationalist and had an excellent memory.

Did Keith Veall have testamentary capacity on 10 December 2010?

357 The medical evidence was that an elderly person whose cognitive capacity is diminishing may give contradictory indications of mental competency at different times and in different situations. Elderly people may have good days and bad days of mental cognition, as well as days of varying capacity. People of a great age may have testamentary capacity even if they have dementia in its early stages.

358 There was evidence that Rowland Veall was urging his father to provide him with a greater share of his wealth. However, the defendant did not allege that Rowland, or anyone else, exercised, or attempted to exercise, undue influence on Keith Veall to make the will.

359 After considering all of the evidence, I am satisfied that Keith Veall had testamentary capacity on 10 December 2010 and in the period shortly beforehand. I have reached that conclusion primarily on the basis of the evidence of professional and other independent witnesses.

360 The evidence of the barristers, Mr Sharp and Mr Weil, provides strong support for the conclusion that in the weeks before 10 December 2010, Keith Veall gave coherent and lucid instructions of his wishes to recover his interest in the Wallace Avenue apartment and to give his children equal shares in his wealth.

361 He commenced Family Court proceedings to achieve these objectives at the same time as he made the will. The defendant did not directly attack his capacity to commence those proceedings. The Family Court did appoint Mr Parker as Keith Veall's case guardian in the proceedings, but it did not base that order on any finding about a lack of cognitive capacity.

362 There was also the evidence of the carers. Mr Hughes and Mr Hallett spent considerable time with Keith Veall and their evidence strongly supports the conclusion that he did have testamentary capacity in December 2010. Ms Hannon's evidence gave a different perspective and provided instances of his more erratic behaviour.

363 Friends and business acquaintances of Mr Veall, including Mr Hailes, Mr De Bruin and Ms Bullmore gave evidence of his mental competency. I found their evidence particularly persuasive.

364 Mr Parker's evidence strongly supports the conclusion that Keith Veall was able to give instructions lucidly as late as June 2011.

365 Mr Nelson's and Mr Sholl's evidence also supports the conclusion that Keith Veall had testamentary capacity, although Mr Nelson only consulted with him for a limited time.

366 I find that Keith Veall had a rational reason for altering his will in December 2010. He wanted his three children to share his wealth equally. The lengthy evidence that I have considered concerning the amounts that each child received shows that Kim received considerably more than Denise and Rowland. The evidence suggests that Keith wished to leave his assets to Denise and Rowland, because he considered that Kim had received more of his wealth than they had. His Family Court proceedings sought to increase the property that he would have available to leave to them.

367 The evidence does not establish that Keith and Beryl's marriage had ended and that that might have provided a reason for the making of the new will. They shared the same home and dined and holidayed together, even in 2010. Their marriage had lasted for 49 years. Human relationships are complex and are often not capable of convenient or simple description.

368 I have taken into account that there was also significant evidence that Keith Veall did not have testamentary capacity.

369 The medical evidence suggests that Keith may not have had testamentary capacity on 10 December 2010, although no medical assessment of his condition on that day was made.

370 Dr Kevin Rose said that he would have signed any document if led to do so. Dr Michael Rose described him as having cognitive impairment in multiple domains and considered that he would not have had testamentary capacity in February 2011.

371 Professor Woodward considered that Keith Veall had significant cognitive impairment from late 2010, but he was not sure whether he lacked testamentary capacity on 10 December 2010.

372 On the basis of the medical evidence, I find that Keith Veall did have significant cognitive impairment in 2010. However, that, by itself, does not establish that he lacked testamentary capacity on 10 December 2010. The evidence of most of the independent lay witnesses suggests that he did have testamentary capacity.

373 I have also taken into account the evidence of the family members. Rowland and Jane Veall considered that Keith did have testamentary capacity at relevant times, while Kim Veall and Lorraine Pennefather were of the view that he did not. Each party attacked the credibility of the other party. Family members accepted that towards the end of 2010, at least Keith Veall's physical capacity was declining.

374 Rowland Veall's evidence about his father's condition is weakened by the contents of his emails to Hymans solicitors about his father's condition. They show that he was very concerned about his father's mental condition.

375 Keith Veall behaved erratically in his last years. Examples of this behaviour are the Honolulu conversations, sleeping with an iron bar near his bed, the occasions when he went missing, his statements that he and Beryl were to be evicted from their apartment, and his denials that he had signed documents that he had, in fact, signed.

376 Mr Veall tended to sign whatever was put in front of him. Rowland Veall obtained Power of Attorney in August 2010 for that reason. Both sides were concerned that Keith Veall might sign anything that was put in front of him. However, that factor by itself does not establish a lack of testamentary capacity. It is more relevant to the second objection to the grant of probate that I have to consider.

377 Both parties put that the other had not called relevant witnesses and that inferences should be drawn that the evidence of the particular witnesses would not have assisted the party's case.[138] The plaintiffs had not called Mr Di Donato and the defendant had not called Mr Sweeney. In view of the findings that I have reached on the other evidence available, I do not consider that the evidence that either Mr Di Donato or Mr Sweeney was likely to have given, would have been critical to the determination of this case.

378 A factor that affects the weight to be given to the evidence of the plaintiffs' witnesses is that the defendant did not require some of them, including Mr Parker and Ms Bullmore, to attend to be cross-examined. Other plaintiffs' witnesses, including Mr Sharp, Mr Weil, Mr Nelson and Mr Sholl, were not cross-examined on their evidence of Keith Veall's mental competency.

379 Counsel for the defendant submitted that the evidence of Mr Hone and Mr Nelson should be treated very carefully, because "the staggering absence of file notes and their selective recollection must temper the substance of the evidence that they have given."

380 The defendant, in essence, submitted that Mr Nelson's evidence could not be given much weight because, in a number of areas, it was contradicted by the evidence of other witnesses. He was unable to explain how he came to play a role in the making of the will of September 2010 and Mr Hone disputed his evidence that he asked him to do so. He was not acting as Keith Veall's solicitor and he had not kept any notes. He said that Ms Moorhouse-Perks gave him advice about the need for the Declaration of Trust, but she denied that she had. He was not asked to prepare an affidavit until the weekend before the trial.

381 The defendant further submitted that Mr Hone, Mr Nelson and Ms Moorhouse-Perks did not want to put anything on the record indicating their involvement in the making of the will or the Trust Declaration. Mr Nelson and Ms Moorhouse-Perks did not put before the Court evidence about the circumstances in which the Will was made.

382 However, during cross-examination, it was not put to Mr Nelson, that, when Keith Veall executed the will on 10 December 2010, he lacked the mental capacity to understand what he was doing or, that he did not understand the significance of making a will, the persons who may have a claim on his estate or that he lacked testamentary capacity.

383 Mr Hone's evidence did not directly concern the execution of the will dated 10 December 2011, but in any event, I saw no evidence that he was engaging in selective recollection, nor was such a proposition put to him. Mr Moorhouse-Perks' evidence also did not concern the making of the will. She never met Keith Veall.

384 The plaintiffs submitted that because of these matters the Court should decline to reach a conclusion based on any inference which contradicted the direct evidence of witnesses who were not cross-examined on relevant matters.

385 Witnesses gave their principal evidence-in-chief by affidavit, supplemented in some instances by oral evidence. In most instances, the affidavits had been served many months before the trial. Exceptions to this position were Mr Nelson's second affidavit, which he only swore on the first day of the trial and Mr Sholl's second affidavit, which was sworn on 23 July 2013 ie, the day after the commencement of the trial. Some witnesses supplemented their affidavits by additional oral evidence-in-chief. The fact that the parties were generally on notice of each other's case can be relevant to determining whether the rule in Browne v Dunn[139] has been observed.[140]

386 On this question, the plaintiffs relied on the Victorian Court of Appeal decision in Curwen v Vanbreck Pty Ltd,[141] where after referring to the judgment in Rees v Bailey Aluminium Products Pty Ltd,[142] the Court, in considering the effect of notice being given of a challenge to the other side's evidence, stated:

If the appellants' submission is accepted without qualification, the fact that the party calling the witness is on notice that it is intended to challenge the witness's evidence or impugn the witness or party's conduct in a particular way means that compliance with the rule in that circumstance is no longer obligatory. But whatever the effect of "notice", the burden of persuasion as to that fact does not shift. It remains upon the party who seeks to establish the allegation. The cross-examiner who because of "notice" refrains from "putting" the allegations to the witness embarks upon a potentially dangerous forensic course. The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue. That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross-examined.

387 Witnesses, who gave evidence of their own experiences of Keith Veall's competency, were often giving subjective assessments or opinions. The defendant would not necessarily have been able to dispute the experiences and assessments of those witnesses. Also of relevance, is the reality previously mentioned, that an elderly person's mental cognition can vary considerably and create different impressions in the people who meet them and deal with them.

388 However, counsel for the defendant took a different approach by submitting that the instructions given to Messrs Nelson, Hone, Sharp and Weil were wrong and that there was little point cross-examining them about factually wrong instructions.[143] He submitted that the affidavits that the barristers prepared contained factual errors, because Keith Veall, due to his cognitive impairment, had given them incorrect instructions.

389 I do not accept this submission, as the evidence of the relevant witnesses went to the key issue of Keith Veall's testamentary capacity.

390 The rule in Browne v Dunn[144] has at least two aspects: first, it is a rule of procedural fairness and, secondly, a rule relating to the weight or cogency of evidence not challenged by cross-examination.[145] I consider that the failure to cross-examine Mr Parker and Ms Bullmore, at all, and to cross-examine other witnesses, including Messrs Nelson, Hone, Sharp and Weil about their assessment of Keith Veall's competency adds to the weight that the Court should give to those witnesses' evidence on that issue.

Conclusion on the first ground: lack of testamentary capacity

391 I have considered all this varied evidence and, in particular, I have given careful consideration to the medical evidence. However, despite that evidence, I consider the most compelling evidence to be that of the independent witnesses, to which I have referred, including the evidence of Messrs Parker, Hallett, Hughes, Sharp, Weil Hailes, Bullmore and De Bruin.

392 Applying the principles stated in Timbury v Coffee,[146] I conclude that the plaintiffs have established, on the balance of probabilities, that Keith Veall possessed testamentary capacity shortly before and on 10 December 2010.

393 I add that the parties made limited separate submissions concerning Keith Veall's capacity to realise the extent and character of his property and to weigh the claims which ought naturally to have weighed on him. The reasons that I have given above in considering his testamentary capacity support the finding that he understood the nature of the assets, that he considered were his and was well aware of the claims that he should consider. The concern that motivated him to pursue the return of his property demonstrates that he had a good idea of the assets that he possessed or considered that he was entitled to possess. His desire to divide his wealth equally between his children indicates that he had considered the claims that ought naturally to have weighed upon him.

394 My finding that the first ground of objection has not been established does not resolve the second ground of objection. The fact that Keith Veall had testamentary capacity does not establish that he knew of, and approved, the contents of the will dated 10 December 2011.

396 The second ground of objection to the grant of probate is that Keith Veall did not have knowledge of, and approve, the contents of the will dated 10 December 2011. The parties gave this ground of objection much less direct attention than the first ground of objection. The evidence that is relevant to the second ground was discussed by the parties, mostly in making submissions about the first ground of objection. But the defendant made it clear during the trial that it relied on the second ground.[147]

397 The legal principles applicable to the lack of knowledge and approval ground were described by Isaacs J in Nock v Austin[148] in the following terms:

The relevant law is not doubtful. It may be thus stated: - (1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v Butlin Moo PCC at p 484; Fulton v Andrew LR 7 HL 448). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v Batt [1838] EngR 643; 2 Moo PCC 317 at p 321; Tyrrell v Painton (1894) P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind. App., 10 at p 16). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v Batt 2 Moo PCC at p 320; Fulton v Andrew LR 7 HL 448). (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v Butlin 2 Moo PCCC 480 and Fulton v Andrew LR 7 HL 448); per Lord Shaw in Low v Guthrie (1909) AC 278 at p 284). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v. Guthrie (1909) AC at pp 282-283). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v Butlin 2 Moo PCCC at p 484). (7) The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn L.C. in Low v Guthrie (1909) AC at pp 281-282).

398 The due execution of a will creates a presumption that the testator knew and approved its contents. But the existence of suspicious circumstances suggesting that the testator may not have known of and approved its contents will rebut that presumption and cast the onus on the propounder of the will to remove the suspicion.[149]

399 The authorities suggest that the suspicion must be concerned with the will's contents rather than with circumstances surrounding the process by which the intention expressed in the will was formed.[150]

400 The best evidence of the testator's knowledge and approval of a will are circumstances that show that he or she provided instructions, that those instructions were recorded in written form, and that the will subsequently drafted was read to, or by, the testator.[151] However, there is no rule that such evidence must be available in every case to establish the testator's knowledge and approval.

401 Tadgell JA stated in Robertson v Smith:[152]

The essential feature of the principle, where it applies, is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testator executed it in the presence of witnesses after it had been read to or by him.[153]

402 In Nicholson v Knaggs,[154] Vickery J upheld a want of knowledge and approval objection in the case of an elderly testatrix. His Honour stated:

It is one thing to read out clauses in a will, and even explain their meaning to an elderly client. It is quite another thing to ensure that the elderly client has understood both the clauses and their explanations, and therefore fully comprehends the effect of what is being done.[155]

403 The testator does not need to comprehend fully the legal effect of the words used in the will.[156]

404 In my opinion, there are grounds for suspicion that Keith Veall did not know of and approve the contents of the will dated 10 December 2011. The suspicion arises from the terms of the will and the changes that it contained from Keith Veall's long established testamentary intentions, including those most recently stated in his will dated 9 September 2010.

405 A significant change was the departure from the previous provisions for Keith Veall's residuary estate to be divided between his three children, to a provision that it be divided between Rowland and Denise. As I have previously found, there was a rational explanation for this alteration, as Keith Veall considered that Rowland and Denise had received a smaller share of his wealth than Kim had. But, it is noteworthy that he had not made such a change in his September 2010 will. In any event, the question remains whether, accepting there was a rational reason for Keith Veall to alter his will, he knew of and approved of the particular contents of the December will, that he signed.

406 There were other provisions of the will dated 10 December 2011, which give rise to a relevant suspicion. There was the change in the bequest of Keith Veall's two prized shotguns. These were no ordinary shotguns, but were valuable and unique. The evidence, and, particularly, that of William Hailes and Jane Veall, establishes that Keith Veall had long intended to leave the guns to Kim's sons. He hoped that they would follow in his footsteps and become accomplished shooters.

407 A further change giving rise to suspicion was the high rate of commission of five per cent of his gross estate that both his executors would receive under the 10 December 2011 will. That rate is considerably higher than the usual range of commission awarded.[157] There was no such rate of commission provided for in the previous wills. Jane Veall had not been appointed an executor in Keith Veall's previous wills and there was some evidence, which she disputed, that he did not get on with her.

408 The next matter is that Keith Veall included his Auspine shares in the bequest of his residuary estate, although those shares had been sold three years previously. The parties did not make submissions about the significance of this bequest. It may be that Keith Veall had forgotten that the shares had been sold, or that the bequest reflected his opinion that they had been his property.

409 The will also suggested that the Golden Stambecco Shooting Trophy might be in Kim's possession at the time of Keith's death, when there was no evidence of how that might occur, or that Keith had a basis for considering that it might.

410 The defendant also referred to other features of the will that suggested that Keith Veall may not have known and approved its contents. I consider these other matters to be of less importance than those to which I have previously referred. They are in the main, drafting matters, as the plaintiffs contended. They included the ultimate proviso in the residuary bequest clause (Clause 6), which left open the possibility, that in some circumstances, Keith Veall's residuary estate might still go to Kim Veall or her children. I give less weight to this factor as it turns on one possible operation of a complex clause, and it would be no surprise if Keith Veall had not appreciated its effect in all the different circumstance that might arise.

411 Other matters, to which the defendant referred, but to which I give less weight, included that the will dated 10 December 2011 contained a reference to "substituted executor" when there was no provision for one, the bequest of the Golden Stambecco Shooting Trophy to Denise in clause 4, when clause 5 provided for Keith's collection of gold shooting trophies to be distributed fairly and equally between Denise and Rowland and the reference to step-children in clause 6, when there were no step-children in the context of Keith's estate.

412 I consider that the features of the December will, particularly those to which I have referred in paragraphs 406 to 409, give rise to a suspicion that Keith Veall did not know and approve its contents. Therefore, the plaintiffs, as propounders of the will, must remove that suspicion by proving affirmatively, by clear and satisfactory proof on the balance of probabilities, that Keith Veall knew and approved of the contents of that will.[158]

413 Although the parties made few submissions directly related to the second ground of objection, some of their submissions made in respect of the first ground appear relevant to the second ground. Those submissions include the following.

414 The plaintiffs rely on the evidence of Mr Nelson about Keith Veall giving him instructions for the will and of Mr Nelson and Mr Sholl as to the circumstances of the signing of the will. Mr Nelson carried out those instructions and arranged for a will containing them to be prepared. The plaintiffs contend that the evidence of neither witness was challenged in cross-examination and that the Court could not make findings contrary to their evidence.

415 The defendant raised a number of matters, which although principally directed to the first ground of objection, also have relevance to the second ground of objection.

416 The defendant submitted that the circumstances surrounding the making of the September 2010 will were "mysterious". The making of the September 2010 will was a significant event and raised questions that were not answered by the evidence. Mr Nelson witnessed that will and it contained his backsheet, but he denied that he prepared it. It provided for Keith Veall's three children to share his residuary estate and for the shotguns to be left to Kim's children. Keith Veall was aware in September 2010 that his substantial wealth was now controlled by Kim and Beryl, yet in the will that he made that month, he still left a third of his residuary estate to Kim and the shotguns to her sons. The plaintiffs' case did not explain why the September will was executed or why Keith Veall decided to alter it after only three months had passed.

417 The defendant made submissions concerning the actions of those involved in the process by which the December will was made. That process was in essence as follows. Hymans were instructed to prepare a new will. They engaged Mr Hone, who was a consultant to the firm, who in turn engaged Mr Nelson to prepare the will. Mr Nelson, in turn, engaged Ms Moorhouse-Perks to type the will, and, on Mr Nelson's evidence, to provide advice. Ms Moorhouse-Perks denied that she played any role in the execution of the will other than typing it. This was a convoluted and unusual way of preparing a will. The conferences held with Keith Veall were brief. Mr Nelson did not take the usual step of keeping detailed notes of Keith Veall's instructions. He did not regard himself as acting as Keith Veall's solicitor and he did not open a file.

418 I have previously summarised the defendant's attack on the evidence of Mr Hone, Mr Nelson and Ms Moorhouse-Perks in dealing with the first ground of objection.

Conclusion on the second ground: the testator did not know and approve the contents of the will

419 I take into account that Mr Nelson, Mr Sholl and Mr Hone were not cross-examined on their evidence, that is relevant to determining whether Keith Veall knew of and approved the contents of the will dated 10 December 2011.

420 I do not consider that to be a conclusive consideration because the Court, in the exercise of its probate jurisdiction, where a relevant suspicion exists, has to be able to find that the propounders of the will have proved that it does contain the real intention of the testator, in order to grant probate of it.

421 As previously stated, one aspect of the rule in Browne v Dunn[159] is of procedural fairness, that notice be given of an attack on a witnesses' evidence, when that attack would otherwise not be apparent to the witness, or the party calling the witness. The plaintiffs' counsel submitted that Mr Nelson's evidence on the central issues was not challenged in cross-examination and that it would be unfair to entertain any such challenge in submissions.

422 I do not consider that the defendant's counsel breached requirements of fairness in any significant sense in his submissions that are relevant to the second ground of objection. I state again that the parties did not develop any detailed separate submission in respect of that second ground. But as I understood it, in essence, the defendant's case was that the evidence of Mr Nelson and Mr Sholl about Keith Veall's instructions for, and execution of, the will were not capable of satisfying the Court that he knew and approved of its contents. This approach involved no direct attack on Mr Nelson's or Mr Sholl's evidence. Rather, as I understood it, the defendant took the plaintiffs' evidence, including the inconsistencies between Mr Nelson's evidence and that of other witnesses called by the plaintiffs, and submitted that, in its totality, it did not establish that Keith Veall knew of and approved the contents of the will.

423 In the exercise of its probate jurisdiction, the Court, where relevant suspicions exist, has to decide on the evidence, be it challenged or unchallenged, whether the propounders of the will have established on the balance of probabilities that it does contain the real intention of the testator. As part of that determination, the Court has to decide whether it is persuaded by the evidence that the testator knew of and approved its contents.[160]

424 I am not so persuaded because of the combination of the following matters.

425 Keith Veall, who was aged 90 years, was suffering from significant cognitive impairment and had impaired eyesight and hearing. He was likely to sign any document that was put in front of him. Mr Nelson was unaware of these matters and considered that Keith Veall was in good mental condition. Mr Nelson's evidence was that, in the course of a 20 minute meeting, Keith gave instructions, referring to specific bequests such as the names of trophies, and was advised about the risk of challenge to a will drawn in accordance with his instructions. Mr Nelson did not keep any notes of the meeting in which Keith Veall gave him those instructions and did not give evidence of the date when that meeting took place.

426 I take into account that Mr Nelson had prepared wills for many years and that his evidence was that Keith Veall provided him with instructions for the will. However, Mr Nelson and Mr Sholl were not requested to give a written account of their involvement in the making of the will dated 10 December 2011 until two-and-a-half years had passed. As is common experience, "human memory of what was said in a conversation is fallible for a variety of reasons".[161] In addition, as I have set out above, a number of aspects of Mr Nelson's evidence, particularly in respect of his involvement in the making of the September 2010 will and the making of the Deed of Declaration and Agreement were contradicted by other witnesses called by the plaintiffs. That consideration leaves an uncertainty as to whether he had an accurate recollection of relevant events. It was not suggested that Mr Nelson's evidence and, in the case of 10 December 2010, Mr Sholl's evidence, were a verbatim account of what was said in the meetings with Keith Veall.

427 The evidence of the execution of the will on 10 December 2010, which occurred at least a few days after the instructions were given, was that again, Mr Nelson's conference with Keith Veall was very short, lasting about 15 minutes, and again Mr Nelson kept no notes, although he knew that Kim Veall might challenge the will. Mr Nelson's evidence was that he read through the will, checked that it correctly named the gun trophy and a piece of art and confirmed that it contained Keith Veall's instructions and what he wanted done. He gave no further explanation of its contents. Keith Veall asked no questions.

428 Mr Nelson's evidence was that the will, as drawn, gave effect to Keith Veall's instructions. In many instances, evidence of that character might be sufficient to establish that the testator knew of and approved the contents of the will. But, I do not consider that to be so in this case, where there was an elderly testator with impaired cognition, who was likely to sign anything put in front of him. I refer again to the statement of Vickery J in Nicholson v Knaggs,[162] which I have set out above. Some further explanation was required to ensure that Keith Veall understood the clauses of the new will. Such explanation was particularly required, because, accepting Mr Nelson's recollection of events, it was not the case that all the provisions of the December will were based on Keith Veall's instructions. The provision for the very high rate of executors' commission derived from Ms Moorhouse-Perks' precedent. There is no evidence that the significance of that provision was specifically explained to Keith Veall. Mr Nelson's evidence, that he read through the will, explained its parts to Keith, and asked if it contained his instructions, does not suggest that he explained to him the significance of the commission rate. Again, it is relevant to note, that Jane Veall was being named as an executor for the first time and, as an executor, was entitled to a high rate of commission.

429 Mr Sholl's evidence concerned the meeting at which the will was signed. He could recall that the bequests to Denise and Rowland were mentioned. However, he did not expect to be a witness and it appears that he did not have a copy of the will in front of him, when Mr Nelson read it to Keith Veall.

430 I am not satisfied that the procedures that Mr Nelson adopted to obtain Keith Veall's instructions and to explain the contents of the will before he signed it establish that he knew of and approved its contents. I do not suggest that Mr Nelson was deliberately giving false evidence. However, Keith Veall had cognitive impairment and impaired eyesight and hearing. Mr Nelson needed to ensure that he fully comprehended the effect of the December will.

431 As I have stated, Mr Nelson had no doubt about Keith Veall's mental capacity. He therefore had no reason to take additional steps to ensure that Keith Veall understood and approved the contents of the will.

432 I am not persuaded that, even accepting all of Mr Nelson's evidence, that the plaintiffs have established that Keith Veall knew of, and approved of, the contents of the will dated 10 December 2011.

433 I consider that the plaintiffs have not proved that Keith Veall knew of and approved the contents of the will dated 10 December 2011.

434 I therefore uphold that ground of objection to the grant of probate of the will dated 10 December 2011.

435 I will hear the parties about the orders that I should make as a result of my conclusion.

[1] These grounds, numbered one and two, were numbered two and three in the caveat, but in this judgment I shall refer to them as the first and second ground of objection.

[10] [1941] HCA 22; (1941) 66 CLR 277, 283.

[11] [1898] VicLawRp 39; (1897) 23 VLR 197, 199.

[12] [2004] VSCA 235, [12] (Emphasis in the judgment of Ormiston JA).

[13] (1955) 29 ALJ 179.

[15] See the tests set out in Parker v Felgate (1883) LR 8 PD 171,173-174 and cf Vukotic v Vukotic [2013] VSC 718.

[16] See the authorities discussed in Nicholson v Knaggs [2009] VSC 64, [97].

[22] Plaintiffs' Court Book ('CB') 206.

[52] Defendant's Court Book ('DCB') 112.

[67] CB 1164. Counsel for the defendant disputed that any additional $5 million was paid to Kim Veall T 1211.

[72] $800,000 -$900,000 of this amount was the repayment of a loan: T 935-936, 978 -979.

[83] T 330; CB 1408.

[133] T 141- 2, CB 209.

[138] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[140] Bird v Bird (No 4) [2012] NSWSC 648.

[141] [2009] VSCA 284; (2009) 26 VR 335, 349 [27].

[142] [2008] VSCA 244; (2008) 21 VR 478.

[145] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 587.

[146] [1941] HCA 22; (1941) 66 CLR 277,283.

[148] [1918] HCA 73; (1918) 25 CLR 519, 528.

[149] Nicholson v Knaggs [2009] VSC 64, [155].

[150] Tobin v Ezekiel [2012] NSWCA 285.

[151] Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480; 12 ER 1089; Re Fenwick [1972] VicRp 75; [1972] VR 646.

[152] [1998] 4 VR 165.

[154] [2009] VSC 64, [675]-[690].

[156] Rhodes v Rhodes (1882) LR 7 App Cas 192, 199-200.

[157] Cf s 65 (1) of the Administration and Probate Act 1958 and cf the discussion of the percentage of commission awarded by the Court in Richard Boaden (ed), LexisNexis Butterworths, Wills Probate and Administration Service Victoria (at Service 55) [50,150].

[158] Cf McKinnon v Voigt [1998] 3 VR 543, 551.

[160] Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528 (Isaacs J).

[161] Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq).

[162] [2009] VSC 64 [684].