Mr Brown also gave evidence that he explained the substitutionary provision in the residuary clause.
45 At the time, Mr Brown was unaware of the full extent of the interested witness rule, contained in section 13(1) of the Wills, Probate and Administration Act. He raised no problem about Mr Tonkiss acting as one of the witnesses to the Will.
46 In September 1989, Mr and Mrs Tonkiss had another child, Ian. At some stage in 1991 or 1992, Mr Tonkiss said to the Testatrix that Ian was not included in her Will with Stephen and Samantha. She replied, "He should be, you fix it up. They should all be the same." Thereupon, he contacted Mr Brown and asked him to draft a Codicil to that effect. It is difficult to place precisely when this occurred, because Mr Brown's file relating to the preparation of the Codicil contains a draft of such a Codicil which leaves a blank for the actual date of execution but says that it is a date in 1991, and a covering letter dated 28 June 1991 to Mr Tonkiss, enclosing that draft Codicil and saying:
"We do not know the address for Marjorie Thompson and we should be pleased if you would telephone and advise. We would seek then to make necessary arrangements to attend with you on Marjorie Thompson with a view to signing the Codicil."
47 Nothing seems to have been done about the Codicil until another letter from Mr Brown to Mr Tonkiss, dated 20 May 1992, saying:
"We refer to earlier discussions and enclose herewith redrafted form of Codicil. If you are in agreement with the Codicil please make the necessary arrangements for us to attend on Mrs Thompson."
48 The form of Codicil ultimately executed was sent to Mr Tonkiss under cover of a letter dated 24 November 1992, saying:
"We refer to recent discussions and enclose herewith original Codicil document. This document should be signed by Mrs Thompson in the two places indicated, being on the front page and second page. Her signature should be witnessed by two persons who are not beneficiaries named in her will. There is no reason why you cannot be one of the witnesses.
We confirm our advice to you that should you wish the writer to attend with you on Mrs Thompson I am quite happy to do so, however if it is more convenient for you to have Mrs Thompson sign the document on one of your visits to see her then please do so."
49 That Codicil was ultimately signed by Mrs Thompson on 20 December 1992. Mr Tonkiss, and another resident of the nursing home, were the witnesses.
Credit of Mr Brown
50 It was submitted for the next-of-kin that I could not be satisfied about Mr Brown's evidence. By the time he was first asked to give evidence, the only file which he retained was the file relating to preparation of the Codicil - other files had been destroyed in the course of routine destruction of old files. The events of 1988 were, by the time of his first affidavit in 2000, already 12 years old and, without contemporaneous documents to act as a memory jogger, recollection of events that long ago is often hard. As well, it was submitted, his actions in relation to Mrs Thompson displayed an extraordinary degree of lack of care, in several ways. First, he was unaware of the interested witness rule, at least in so far as it related to the spouse of a beneficiary. Second, for him to prepare the Codicil, with no attempt at any time to check with Mrs Thompson that it accorded with her wishes, was seriously irregular. Third, Mr Brown knew that the Codicil was one designed to deal with the situation of Mr and Mrs Tonkiss having had a third child - yet the Codicil was one which included the third child in the specific legacy of the Quinton Road property, but did not include the third child in the residuary gift. Finally, Mr Brown had acted on the instructions of Mr Tonkiss (who in turn was acting under the Power of Attorney from the Testatrix) in selling the property at 11 Quinton Road Manly in July 1993. Mr Tonkiss effected that sale oblivious of the fact that doing so would mean that the specific gift of that property by Clause 4 of the Will (as amended by the Codicil in December 1992) could not occur - Mr Brown never brought this to his attention.
51 As well, it was submitted that Mr Brown's evidence had changed in some respects, and had become more detailed from the time of his initial affidavit, through a supplementary affidavit sworn in the week before the trial, and finally in his oral evidence at the trial. He accepted, in cross-examination, that some of the evidence he had given was incorrect. In his initial affidavit he said that he recalled the Testatrix writing a note to him in relation to the Will. Further thought, and an examination of some documents annexed to an affidavit of Mr Tonkiss, caused him to revise that view. In the affidavit sworn in the week before the trial, he gave an account of preparation of the Will which did not have, as an element in it, his receipt from the deceased of a note relating to the Will. Rather, that account included his receiving from Mr Tonkiss, Mr Tonkiss' note concerning the deceased's instructions, set out at paragraph 35 above.
52 I accept all these criticisms of Mr Brown's conduct, and evidence. Notwithstanding them, I accept the evidence of Mr Brown which I have set out or summarised above, about the circumstances in which he received instructions for the Will, drew it, and supervised its execution. Mr Brown frankly acknowledged his shortcomings, and seemed to me, when giving his evidence, to be doing his honest best.
Mr Tonkiss' Credit
53 The active defendants also submitted I could not rely on Mr Tonkiss' evidence. In the course of administering the Testatrix's assets under Power of Attorney, he had, in October 1994, used money of the Testatrix to purchase (in the Testatrix's name) a property at 2 Nursery Place, Belrose. Mr Tonkiss and his family lived in it for four or five years. They paid no rent, and the Testatrix's money was used for the payment of rates and insurance on the property. Soon after the purchase, $12,000 or $15,000 of the Testatrix's money was used to carry out refurbishment at the property. While Mr Tonkiss told the Testatrix that he and his family had moved into a new house at Belrose, he did not tell her that that house had been purchased with her money, that the family was living there rent free, that her money had been used for refurbishing it, or that her money was being used to pay outgoings on it. At the time of purchase of that property, about $300,000 had been borrowed (in the Testatrix's name) on a bank bill. Those borrowings were either reduced to a small fraction of their original size, or completely repaid (the evidence does not make clear) within a few months of purchase of the house, as a consequence of the sale of another of the Testatrix's properties. In the meantime, the Testatrix's money met the payments which were in substance interest.
54 Given that the Testatrix died in July 1997, it would have been for somewhat less than three years that the Tonkiss family were living in the Testatrix's property at Nursery Place under these conditions without telling the Testatrix. Mr Tonkiss said, concerning this conduct, "I believe that she would have been more than happy, if she had known the full situation, for it to occur". As well, he said that he believed that, following the sale of the Quinton Road property, he was obliged to re-invest the sale proceeds in real estate - he thought that this obligation arose from Clause 4 of the Testatrix's Will, even though at the time of the sale of the Quinton Road property she had not died. He had not informed the Testatrix about the sale of the Quinton Road property, because the Matron of the nursing home advised him not to tell her, as telling her that her home was being sold would distress her.
55 None of these matters excuse Mr Tonkiss from this very serious breach of his fiduciary duty.
56 Other criticisms were made of Mr Tonkiss, and his evidence, but I do not regard them as of substance.
57 Notwithstanding the serious breach of fiduciary duty which occurred concerning the Tonkiss' occupation of 2 Nursery Place Belrose, starting at a time nearly six years after the 1988 Will was executed, the evidence which Mr Tonkiss gave about the circumstances of the deceased giving instructions for the Will in 1988, and her executing it, is evidence which I accept.
Mrs Tonkiss' Evidence
58 No criticism has been made of either Mrs Tonkiss personally, or of her evidence. She gives evidence confirming that, on the day of execution of the 1988 Will, Mr Brown and the Testatrix discussed it separately, and that it was Mr Brown who required the other people present to leave so that he could talk to the Testatrix alone.
The Medical Evidence
59 Dr Hailey Bennett is a consultant clinical neuro-psychologist, who has examined the medical records of the Testatrix from the Manly Nursing Home. She comes to the conclusion that in 1988 the Testatrix was most likely suffering from dementia with Lewy bodies, but that, notwithstanding that, "she retained the capacity to make a new will, given that the only cognitive domain that is well documented as being consistently compromised was that of memory." Dr Bennett's report was addressed to the testamentary capacity of the Testatrix, not to the different, but closely related, topic of whether the gift in the residuary clause of the 1988 Will met the tests laid down by section 13(2)(c) of the Wills, Probate and Administration Act. (As its name suggests, testamentary "capacity" is concerned with whether a testator or testatrix is capable of performing the intellectual tasks involved in will making. The tests laid down by section 13(2)(c) look at whether certain mental tasks were actually performed - knowing of, and approving of, the gift - and whether the making of the gift has some attributes - being made freely and voluntarily - which can include consideration of the mental state of a testator or testatrix.) Dr Bennett's cross-examination focused more specifically upon whether the gift to Mrs Tonkiss in the residuary clause of the 1988 Will, met the test laid down by section 13(2)(c). It included the following:
"Q. … Dr Bennett, you were fortunate enough for us to be in Court when I was asking Mr Brown about what actually transpired before the will was executed. I will try and summarise it fairly. He said first of all having had a general discussion with her about matters unrelated to the will he summarised the provisions. He then paraphrased the position. At one stage the deceased made a comment about the cost of land or the cost of housing in relation to the gift to the children. That at the conclusion Mr Brown said to her "is that what you want" or words to that effect. She said "yes". My question is, in those circumstances is that, with the difficulties and problems that Mrs Thompson had, sufficient to indicate that she did not know and approve of the gifts in the will?
A. Firstly regarding the question you asked. She didn't have a lot of difficulties and a lot of problems at that level in terms of what you have said that he put to her. I don't have any problem that she would have understood on the basis of medical evidence. I think more probably than not she would have understood it. Now, in an ideal world if I was him I would have checked things and got her to - - when I discuss this with people contemporaneously I document the fact that they can tell me back what I have just said to them. I do that. But obviously he didn't. Now, in an ideal world it would have been nice if he'd done that. I have no problem with the fact that she was capable of understanding what he said he put to her. " (emphasis added)
60 In the months before she had executed the 1985 Will, the Testatrix had made many notes of what she wanted in the Will. Some of those notes were in a very unsteady cursive writing, some were in block capitals. The notes were very similar in content one to the other. Dr Bennett was asked about the significance of these repetitive and untidy notes. She answered:
"A. It didn't surprise me at all. Often as a neuro-psychologist I have little old ladies who come to see them and have written out similar sorts of things. Things that prompt themselves to remind them to talk to me about when they get to me. Look just like this. In terms of the changes, again that doesn't surprise me. She would have been - - in '85, at that time she was in what we would call a pre-clinical dementia phase, which means that she had pathology developing in her brain, but it's not clearly impacting yet. So, you couldn't really diagnose it yet. But what happens is these people have very vulnerable brains. So, when they get sick they become a bit confused. When they for instance don't have a good night's sleep they might get a bit confused. Then they get the flu or something like that they are vulnerable in terms of things that can make their brain not as good. That impacts amazingly on how writing is drawn. So, for example I get to see people sequentially, like every few weeks, because I work on drug studies or Alzheimer studies to see if the drug is affecting them. They would come in on a weekly basis. Maybe not having a good night's sleep the night before or having had the flu their writing would be entirely different. So, looking at that didn't arouse my curiosity and the fact that it might have been written within months again it just look likes a little ole frail 85 year old lady's handwriting that is changed. Block letters, sometimes not keeping to the line - - it's not a lined page - - interesting spelling here and there, it didn't surprise me.
Q. Well, is it fair to summarise that what you have to say is talking about her good and bad days when she wrote things?
A. Not even polarising it like that. Other days she was better than others. That's not to say they don't have to be really good or really bad, just fluctuations in how she was.
Q. Now, if it could be shown that these notes appear to have been written either on the same day or within days of one another and they read almost exactly the same, are you able to offer any comment about that from your expertise?
A. Well, I thought she was thinking about her will and her assets a lot and was writing it down and just trying to get it right. She was ruminating about it and making notes about it.
Q. Is it an indication that if the same thing is written, for example, day after day that on the second and subsequent days she hasn't remembered that she did it on the earlier days?
A. No, not at all. I think in the days of words processing, you know, you go back up to the word processor and type, just do some modifications. But if people - - she might have been thinking it is something she would like to give a solicitor or she would like to give to a person who has her power of attorney. When people are trying to write things they are trying to make it neat as possible. She will say "well, I will try and get it right. I will get it right from start to finish" and she'll go back and start a new page.
Q. But does the fact that there is such a concern that it be perfect for the person she is giving it to indicate that she was having, there was some mental problems manifesting themselves?
A. No. I get little old ladies who are writing out their pills, the things they can't remember, the things their relatives have said to them, about nervousness about me coming to see them and they want to be able to hand me something and give as good an impression of their capacity as possible. Now, sometimes their hands are a bit shaky. Sometimes they can't monitor things as well as they could. Sometimes their eyesight isn't as good as it used to be. So, it doesn't look good and they are embarrassed about it. So, they go back and try and get it right. She is trying to write a legal document, one of the biggest decisions. One of the biggest decisions she is going to have to make in her life and she would think a lot about it."
61 Dr Bennett traced the general picture which the nursing notes presented, from the time of the Testatrix's admission to the nursing home in October 1986:
"Her evolution started with having something like confusional states at night and that happened every few months. The nurses would say "Bobs is back to her old self again". Now, what her old self was during the day was quite good and they are some amazing examples in there about her capacity to initiate things, to track things, to monitor things and good memory function. I am happy to read them out to you if you like. I can easily find them.
So, in terms of her baseline during 1987 and 1988 she's pretty much - - in 1988 her memory function wasn't too bad. There's lots and lots of notes there from the nurses of good memory function, good critical function, good initiative and good monitoring. The dementia, as it was of that sort, came through at night and started in 1987, 1988, 1989. But by 1990 those confusional episodes were starting to happen during the day as well. Then they just wouldn't last for one day they would last for a week. Less and less did she ever get back to old self. By 1991 she was never back to her old self. In 1991 the nurses were writing she has lost her sparkle. She is not the same person. She had no initiative. She had no critical thinking. She had a poor memory and was mostly confused. So her baseline - - this was the thing about 1988. I had to look at her at her worst. It was those few episodes at night at which she was confused. If she was giving instructions for the will then I would have said no way. She didn't have capacity at two o'clock when she was wandering around. But she got back to her old self during the day. She had quite good memory function, good initiative and good monitoring and good critical thinking."
62 Dr Bennett was asked whether the provisions of the 1970 Will assisted her in expressing a view as to whether it is more probable than not that the Testatrix knew and approved of the gift made to Lorraine Tonkiss in the 1988 Will. She replied:
"In terms of forming a view as to whether it was more probable than not just based on the medical evidence she would have understood what was being put to her and what the provisions of the will were. I looked at the medical evidence. I looked at her diagnosis. I also looked to see whether there was evidence of her using initiative, her using critical thinking and her been able to comprehend similar levels of complexities. I looked at the time that she made the will and the lead up to it."
63 She went on to explain that the concept of a substitutionary gift, contained in the 1970 Will, was something which provided a "template for doing this in her brain. It's a way of doing things. She's thought it through beforehand and its not new information that she needs to acquire or grapple with."
64 Dr Bennett gave some examples of conduct of the Testatrix, recorded in the nursing notes, on which she placed reliance. Dr Bennett had said that, in 1992, the Testatrix would have been more influenced by the present than by anything that had gone on in the past. This topic was returned to in the cross-examination.
"Q. I started out in this area by asking you about whether a person in her condition was more influenced by the present. Are you suggesting that with this particular condition, as opposed to Alzheimer, that's not right or that it wasn't right in 1988 for example?
A. It wasn't right in 1988. There is a lovely example where she went to see a doctor, an eye doctor. She would come back - - it was in 1987 or 1988. It was before she made the '88 will. She came home and she was so excited because she was finally able to read again because she got her glasses back. She was telling all the nurses about it. She was so excited about it she said she wanted to go and make a phone call and call back the secretary to the doctor for having treated her so well and how excited she was to get her glasses. That she could read again. So, the doctor was out of sight and it was something that happened. It demonstrated good memory and it also demonstrated initiative that she could get up to use the phone, follow something appropriately and logically.
Q. But that would be a memory though of the relatively short-term past events, would it not?
A. Yes.
Q. But what about the medium term, two years, three years is the memory still all right for that?
A. Yes. The first thing they would lose is short-term memory. That's the first thing she would lose."
65 In some supplementary evidence in chief, the following exchange occurred:
"Q. Dr Bennett, you mentioned the examples of intuition tracking and monitoring. I think you gave one example of the eye doctor. Are there any others that you would care to identify?
A. In terms of her medical condition in general she was actually given a bit of credit in terms of initiating things. There was a mole that she had somewhere on her head or on her ear and she had noticed it had changed. She went to the nurses to say the next time the doctor comes could the doctor have a look at it. It had changed in form and shape. She wanted that followed up. That is unusual for somebody in a nursing home. But I think because of her confusional states and nature of dementia she needed to be there. Also she was given the instance where she would often get constipation. Again once in a nursing home most of the time the nurses and the doctors run a whole system in terms of what medication she needs to get her regular again. But she was just given the responsibilities of tracking and monitoring her own medical condition. So that the nurses relied on her to come to them saying I need medication now. There was a case with certain other of her medications where we she would question was it the appropriate medication and ask the doctor to make a visit to her.
Q. Is there anything else?
A. I am sure there is. I mean there is in terms of just getting the nurses to do things for her things, that she wanted things, the places she wanted to go, outings she wanted to go on.
Q. Can you put a time frame on these events by reference to the 1988 will?
A. I think the initiative there was - - from 1990 she went downhill quite rapidly, '89, '88. '87 and '88 there were lots of those examples. '89 was kind of like on borderline and I think there was evidence where she was starting to go downhill and lack initiative. By 1990 and certainly well after that there were really no instance of initiative. She was totally controlled by the nurses."
Construction of Section 13(2)(c) of the Wills Probate and Administration Act 1898
66 Some consideration should be given to what is involved in the requirement, in section 13(2)(c) that the testator "knew and approved of the gift", and that the gift was "given or made freely and voluntarily by the testator". I will start with the latter phrase.
67 The Macquarie Dictionary defines "freely" as, "in a free manner". The adjective "free" cannot have its meaning dealt with so shortly - the Macquarie Dictionary records 31 different shades of meaning. Those shades of meaning which could bear upon section 13(2)(c) are:
"5. Exempt from external authority, interference, restriction, etc, as a person, the will, thought, choice, action etc; independent, unfettered.
6. At liberty, permitted, or able at will (to do something): free to choose …
12. Exempt or released from something specified that controls, restrains, burdens, etc (fol. by from or of ): free from matrimonial ties, free of taxes.
13. Having immunity or being safe (usu. fol. by from ): free from criticism . …
25. Given without consideration of a return, as a gift".
68 The Macquarie Dictionary lists seven shades of meaning of "voluntary" when used as an adjective. Those which could bear upon section 13(2)(c) are:
"1. Done, made, brought about, undertaking, etc of one's own accord or by free choice: a voluntary contribution .
2. Acting of one's own will or choice: a voluntary substitute.
3. Pertaining to or depending on voluntary action or contribution.
4. Law (a) acting or done without compulsion or obligation. (b) done by intention or not by accident: voluntary manslaughter. (c) made or done without valuable consideration: a voluntary conveyance or settlement ."
69 The notion of acting "freely and voluntarily" occurs in many areas of the law outside probate. Concerning the admissibility of a confession in a criminal trial, the High Court in R v Lee (1950) 82 CLR 133 at 144 said:
"(1) That such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and
(2) That such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.
These two "rules" … seem to be not really two independent and coordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character."
70 Also concerning confessions in criminal cases, Brennan J said, in Cleland v R (1982) 151 CLR 1, at 18:
"The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of the case upon the will of the particular accused."
71 A plea of guilty, in a criminal case, is one which is required to be made freely and voluntarily. In Meissner v R (1994) 184 CLR 132 at 143, Brennan, Toohey and McHugh JJ said:
"A plea made as a result of intimidation has not been made freely and voluntarily, and the court that acts on the plea has been misled and its proceedings have been rendered abortive, whether or not it ever becomes aware of the impropriety. For similar reasons, improper conduct of any kind that has the tendency to interfere with the accused person's right to make a free and voluntary decision to plead not guilty to a charge must be regarded as having a tendency to pervert the course of justice. …
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution. Thus, to offer to pay an accused person's legal expenses if he or she pleads guilty is not improper conduct for this purpose if the advantages in pleading guilty can reasonably be regarded as outweighing the consequences to the accused that might flow from a conviction after a plea of not guilty and the offer is made only for that reason. On the other had, to pay the accused's legal expenses in consideration of the accused changing his or her plea to a plea of guilty when the payment is made for the purpose of protecting the interests of the payer or some other person is an interference with the course of justice. Such an offer has the tendency to interfere with the accused's freedom of choice and seeks to serve an interest other than those interests of the accused that are threatened by the prosecution."
72 It has been recognised, in some other legal contexts, that lack of information, or misinformation, can result in a decision not being made "freely and voluntarily". In Soterious v Police [2000] SASC 256 (unreported, 4 September 2000) Duggan J said, at paragraph [33]:
"In my view, the plea which was entered in these circumstances could not be regarded as being made freely and voluntarily with sufficient knowledge by the appellant to make an informed decision. The appellant is a young woman who had not been in trouble with the law before this incident. She did not commit the offence with which she was charged and it is clear that when she consulted the solicitor her instructions were to that effect. For reasons which appealed to the solicitor and which he did not wish to communicate to the appellant, he did not accept her version as being truthful. I am confident in finding that the solicitor did not intend to pressure the appellant in an improper manner into changing her instructions and that he considered that he was acting in her best interests. However, I have no doubt that she considered herself to be under pressure. I bear in mind that in Meissner's case it was held that pressure emanating from a legal adviser does not necessarily vitiate the plea. However the appellant was not only under pressure, but there were significant gaps in the advice which she was given. It was in these circumstances that she admitted to an offence which she did not commit."
73 In Karam v ANZ Banking Group Limited [2001] NSWSC 709 Santow J said, in a case concerning the avoidance of a guarantee (at paragraph [387]):
"The same Solicitor's Certificate adds as a further question, "Are you signing the acknowledgment freely and voluntarily?" with again each of the signatories needing to answer that question in the affirmative. On the view of matters the Bank contends for, each of the signatories were signing the acknowledgment freely and voluntarily, though under the pressure, not illegitimate, of needing the further accommodation that the Bank would only provide if they did sign it. On the other hand, they could not be said to have signed the acknowledgment freely and voluntarily if they did not understand and could not be properly advised of its true effect. They were moreover, as Mr Marsden's letter attests, faced with the threat of terminating all bank accommodation of which the earlier cheque dishonour was a clear signal, with its inevitable consequence of the business collapsing and enforcement, whether by the Bank or the Karams at the Bank's behest. The overall effect was to take away any rights they might otherwise have had to prevent the Bank from using the mortgage over their personal homes to secure personal guarantees; and for the guarantees in turn to be treated as covering all of the Company's indebtedness. They lost any capacity to negotiate. To sign an acknowledgment "freely and voluntarily" presupposes amongst other things that one is not precluded from an understanding of the rights that one is giving away . Denial of the security documents to the independent adviser beyond any doubt meant that his advice could not provide such an understanding. This is quite apart from the pressure to which they were subjected and the Bank's lack of candour." (emphasis added)
74 In R v Garry Raymond Clark (NSWCCA, 17 April 1998, unreported,) Simpson J considered New South Wales legislation creating an offence of sexual intercourse without consent. Her Honour was considering the applicability in New South Wales of the decision in Ibbs v R [1988] WAR 91, concerning a similar Western Australian provision. The Western Australian statute contained a definition of "consent" as:
"… means a consent freely and voluntarily given and, without in any way affecting or limiting the meaning otherwise attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means."
75 Ibbs had recommended against directing juries in terms of a formula derived from R v Holman [1970] WAR 2 at 6, that:
"A woman's consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear of fraud) it is not rape."
76 Simpson J said, at 9:
" "Consent" for the purposes of NSW law, just as for Western Australian law, means consent freely and voluntarily given. I am therefore of the view that the judgment in Ibbs , while not binding on this court, should be adopted and followed. In reaching this conclusion I observe that my researches have not disclosed a single instance in which the direction drawn from Holman , has received the authority of this or any other criminal appellate court in Australia. In my view it should not receive that authority. Firstly, it must be read in the context of the whole passage in which it appears, a passage in which the Chief Justice was seeking to explain why the references of the trial judge to "willing consent" were incorrect. Secondly, despite its acknowledgement that permission obtained by force, threats, fear or fraud does not amount to consent, it is apt to create confusion. It is capable of implying that the only circumstances that vitiate consent are proven force, threats, fear or fraud. This, in my opinion, is too limiting. It was never the case that these were the only circumstances that vitiate consent …"
77 Dixon J in Johnson v Buttress (1936) 56 CLR 113 at 134 said:
"The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter."
78 Of course, given the vastly different contexts in which the judicial statements which I have just been quoting about when an act is free and voluntary have been made, one cannot expect to transfer those statements directly into the context of section 13 of the Wills, Probate and Administration Act. They serve, though, to remind one that the notion of acting "freely and voluntary" is one which has a relationship implicit in it. One acts "freely and voluntarily" when one acts free from circumstances constraining one's actions. The sort of circumstances which the cases I have quoted recognise as being ones which can, sometimes, result in action not being free and voluntary included duress, intimidation, persistent importunity, sustained or undue insistence or pressure, harassment, force, threats, fear, fraud, being induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice. However, as the discussion and the quoted extract from Meissner shows, the mere fact that an action occurs in a context where the actor is subject to one or more of these types of constraints, an action is not always sufficient, in itself, to lead to the conclusion that the actor has not acted freely and voluntary. One legal context in which one enquires whether an action is done "freely and voluntarily" might require the absence of a different range of constraining conditions to a different legal context in which one enquires whether an action is done "freely and voluntarily". Or one such legal context might call for those factors to be weighted differently to the way they are weighted in a different legal context. Further, as the quoted extract from Cleland shows, whether an action is in fact not free and voluntary depends on the interaction of the constraining circumstances with the particular actor.
79 As well, a person could fail to act "freely and voluntarily" for reasons which were to do with their own mental capacity or condition, rather than because of some constraining external circumstances. A particular student leaving school might have free choice whether to become a labourer or a factory worker, but not have a free choice whether to become a labourer or a nuclear physicist.
80 The equitable jurisdiction to set aside catching bargains:
"… applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands." (Per Kitto J, Blomley v Ryan (1956) 99 CLR 362 at 415.)
81 It is a small step to say that part of the rationale for equity interfering in such cases is that the victim of the catching bargain is not in a position to act freely and voluntarily. Kitto J's list of factors which brings into play the jurisdiction to relieve against catching bargains, includes both external and internal constraints on freedom of action.
82 The notion of "acting freely" is well recognised in probate law. One of the preconditions for admission of a will to probate is "that the will propounded is the last will of a free and capable testator" (eg per Isaacs J, Bailey v Bailey (1924) 34 CLR 558 at 570). A testator's inability to perform the mental tasks necessary for will-making, or insane delusion , relevant to the subject matter of the will, prevents probate being granted because the testator cannot make a free choice about how to leave his property.
83 Turning now to section 13, there is a distinction between the two limbs of section 13 (2) (c) which arises as a matter of the meaning of the language used. The test that the testator "knew and approved" of the gift requires there to be two identified states of the testator's mind - that he or she knew of the gift, and that he or she approved of the gift. The test "that the gift was given or made freely and voluntarily" looks at a categorisation of the testator's action. Whether an act is one done freely and voluntarily depends to some extent, but only to some extent, on the state of the testator's mind. As well, whether an action is committed freely and voluntarily looks to whether there are constraining external circumstances on the testator which prevent his or her action from being free and voluntary.
84 It is the context in which the "acting freely and voluntarily" expression is used which conveys what sort of constraints on action, whether external or internal, are the relevant ones. We need to know what sorts of constraints on action are the relevant ones, to decide whether a testator acted "freely and voluntarily" within the meaning of section 13(2)(c).
85 The present section 13 of the Wills, Probate and Administration Act was inserted, replacing the previous section 13, by the Wills, Probate and Administration (Amendment) Act 1989. The explanatory note which accompanied the Bill for that Act into Parliament said: "The object of this Bill is to amend the Wills Probate and Administration Act 1898 to give effect to the recommendation of the New South Wales Law Reform Commission in its Report entitled "Wills - Execution and Revocation" (LRC 47)."
86 Section 34 of the Interpretation Act 1987 (NSW) enables an explanatory note relating to the Bill for the Act to be taken into account to determine the meaning of a provision, if the provision is ambiguous or obscure. The term "freely and voluntarily", in section 13(2)(c), is one which has considerable potential for ambiguity. It is therefore appropriate, given the terms of the explanatory note, to look to the terms of the Law Reform Commission Report to seek to elucidate the meaning of "freely and voluntarily" in section 13(2)(c).
87 Before the 1989 amendments, section 13 of the Wills, Probate and Administration Act 1898 had made absolutely void any gift to an attesting witness, or the spouse of an attesting witness. The Law Reform Commission Report, in paragraph 8.9, agreed with the following comments by a sub-committee of the Victorian Chief Justice's Law Reform Committee:
"… this legislation, since it strikes down in toto every gift to every attesting witness, is obviously calculated to inflict much haphazard injustice. It takes no account of whether the witness ought, in justice, to have been provided for in the will. And it draws no distinction between a witness who has used improper means to obtain testamentary benefits and one whose only fault has been ignorance, either of the existence of the legislation, or else of the inclusion in the will, of the gift in his favour."
88 In paragraph 8.12, the Commissioners considered reasons for not favouring a simple repeal of the existing section 13, and leaving any questions of attesting witnesses interfering improperly with the testator to the existing law concerning lack of capacity, absence of knowledge and approval or undue influence. One of the reasons for not favouring that course was, "It is almost impossible to prove a case of undue influence because (unlike the situation with inter vivos transactions) there are no presumptions of influence in relation to will making and it is only influence amounting to fraud or coercion that is regarded as "undue" in probate."
89 The Commission then considered various alternatives for enacting a different type of provision to the then version of section 13, one of which was the introduction of special requirements for attesting witnesses who are beneficiaries. Concerning this, the Commission said in paragraph 8.16:
"A solution which has found favour in Canada has been to retain the rule but to create an exception that would allow the gift to take effect if a judge is satisfied to an appropriate degree about the gift's propriety. The Victorian legislation adopts a similar approach in that it provides that an interested witness may apply to take the gift in the will, in lieu of his or her intestate benefit: see paragraph 8.13. These solutions clearly put the onus of establishing the propriety of conduct on the witness claiming a benefit under the will. However they express the test of propriety in ways which may be significantly different in their application.
· In Ontario the Court has to be satisfied that the witness or spouse "did not exercise any improper or undue influence upon the testator";
· In British Columbia the Law Reform Commission has recommended that the court be satisfied by the person seeking to uphold the gift that "the testator knew and approved of it";
· In Victoria the Court has to be satisfied "that the entitlement of the applicant under the will was known to and approved by the testator and was not included in the will as the result of the exercise of any undue influence by any person".
90 In paragraph 8.18 the Commissioners recommended:
"… that the law of wills should retain a provision which will tend to protect testators by requiring interested witnesses to establish the propriety of their gift unless relieved by the written consents of the persons entitled to benefit from the avoidance of the gift."
91 The Commissioners continued, in paragraph 8.21:
"What should be the appropriate test of propriety? In our view the three models discussed in para 8.16 are all deficient. We agree that the beneficiary whose gift is prima facie avoided on the ground that the beneficiary is an interested witness should have to establish that the testator knew and approved of the gift, but that is a matter which has to be proved before any part of a will is admitted to probate and it is something that is almost invariably established by reference to the strong presumption flowing from proof that the will has been read by or to the testator. Nor have we any difficulty with a provision that would require the interested beneficiary to establish the absence of undue influence. Our concern lies in the fact that, with the possible exception of the Ontario Act which refers to "improper or undue influence", a propriety test which confined itself to undue influence as that concept is understood in probate matters would give virtually no protection at all. For the reasons stated in para 8.12 undue influence is virtually a dead letter in the probate field. We therefore suggest that, in this context, the interested beneficiary who has not the requisite consents should have to establish that that testator knew and approved of the gift, and that it was the free and voluntary disposition of the testator."
92 A footnote to the last sentence of this paragraph reads:
"We are indebted to the late Mr Justice Hutley for the formulation of the last mentioned requirement. We recognise that the second limb of the test almost certainly encompasses the first, but feel it is appropriate that two stages of the road to propriety should be clearly signposted."
93 This footnote has as its corollary that the Commissioners see the area of inquiry involved in the "free and voluntary disposition" test as being greater than the area of inquiry involved in the "knew and approved" test, but that the scope of the "knew and approved" test is contained within the scope of the "free and voluntary disposition" test. One can draw from the whole of the portions I have quoted from the Report that the Commission's fundamental purpose in adopting the "knew and approved" and "free and voluntary disposition" test was to articulate a test whereby a person seeking to uphold a gift to a witness or a witnesses spouse would need to satisfy the court that the gift to the witness, or the spouse of the witnesss, did not result from any improper conduct. Undue influence is one type of impropriety which would need to be negatived, but more than lack of undue influence (as that term is understood in probate law) would be needed to establish the propriety of the gift.
94 By reference to the Law Reform Commission report one can conclude that, in enacting this test, Parliament is not to have been taken to have expected testators to be making decisions about what gifts to include in a Will in circumstances devoid of any of the impulses to action coming from affection, gratitude or a sense of moral obligation. Motives such as these underlie many wills, and there is no impropriety in them. The type of freedom and voluntariness which Parliament intended is that identified by the Law Reform Commission, namely freedom and voluntariness of a kind which results in there being no impropriety in the making of the Will.
95 I should add that in section 13(2)(c) the expression "voluntarily" is not used in its usual legal sense of "without consideration". This emerges from the consideration of the Law Reform Commission's reasoning which led to the inclusion of the "freely and voluntary" test in section 13(2)(c). It also emerges from realising that it would often be pointless to construe "voluntary" as meaning "without consideration". In the situation where a testator included a particular provision in the will because he had received consideration for doing so, if section 13(2)(c) were to make void that disposition, equity would, in many cases, then step in to impose a constructive trust, to require that the person who had given the consideration should receive from the estate the property he or she had been promised. The jurisdiction to impose a constructive trust where someone promises, for valuable consideration, to leave property by will in a particular fashion (other than as a pecuniary legacy), but does not, is well established: Synge v Synge (1894) 1 QB 466 at 470; Horton v Jones (1935) 53 CLR 475 at 484, 489; Birmingham v Renfrew (1937) 57 CLR 666 at 683; Schaefer v Schuhmann [1972] AC 572; Jacobs on Trusts, 6th ed, paragraph [266]-[272].
96 In Miller v Miller (2000) 50 NSWLR 81 Young J (as his Honour then was) considered section 13(2)(c). His Honour started out by setting out the two limbs of section 13(2)(c) and saying (at 86), "Both these conditions must be satisfied".
97 His Honour then turned for guidance, for the application of section 13(2)(c) to the Victorian provision, which allowed a gift to an interested witness to take effect if the witness proved (a) that the witness' entitlement was known to and approved by the testator (without the aid of any evidentiary presumption); and (b) that the provision was not included in the will by any undue influence. His Honour turned, next, to the decision of Jenkinson J in Re Emanuel (deceased) [1981] VR 113, which had construed that Victorian legislation. His Honour said, at 86:
"Jenkinson J (at 118) approached the case as one where the beneficiary needed to allay the suspicion that was engendered by the circumstance of witnessing the will and that the court in such circumstances needed to be vigilant and jealous in its scrutiny: see Barry v Butlin (1838) 2 Moo PC 480 at 482-486; 12 ER 1089 at 1090-1092. However (at 119) his Honour said that one must approach these cases sensibly, remembering that the degree of suspicion varies with the circumstances, and made the appropriate order for the witness to take his gift."
98 Young J later said, at 86:
"I consider that the general approach taken by the Victorian Court in Re Emanuel (deceased ) is a sound one to follow. Indeed it follows the same route as a court would follow if a will was prepared by the principal beneficiary: see Nock v Austin (1918) 25 CLR 519. One starts with suspicion. That suspicion may be deep or surface, depending on the circumstances. The onus is on the claimant to establish by proper evidence that the testator did indeed know that he or she was making a gift to the witness and that the gift was a free and voluntary one."
99 Young J went on to say that a presumption of knowledge and approval arising from due execution of the will could be used as part of the evidentiary basis for a court being satisfied of the "knew and approved" limb ("New South Wales law does not exclude from consideration the normal presumptions …"), and that that presumption was strengthened if it was shown the will was read over to or by a capable testator. His Honour said that, in the facts of the case before him, there was evidence, independently of the presumption, to satisfy him that the deceased knew and approved of the gift contained in the will.
100 His Honour then referred to the second limb of section 13(2)(c), the "freely and voluntarily" limb. He quoted the footnote from the Law Reform Commission Report (set out at paragraph 92 of this judgment), and continued, at 87:
"I consider that the second limb really emphasises the requirement that the testator freely assented to the gift rather than raise any additional barrier to the success of a claim by a witness. If there is a further barrier, that barrier is not very high.
In the instant case, one starts with suspicion. However, it is a low degree of suspicion. There is no evidence to show that there was any disagreement between the plaintiff and the deceased as to the contents of the will. There appears to have been no disharmony or conflict between the plaintiff and the deceased. The deceased asked Mr Cardiff to be a witness together with the plaintiff. The evidence of the witnesses, together with the evidence of Mr Hodges who was present when the will was signed although not an attesting witness, indicates that there was nothing suspicious about the circumstances of execution of the will. There was no pressure being put on the deceased regarding the will. The will was just the sort of will that one would expect a man with a permanent de facto wife with two young children (the third was born subsequently) might make.
I am satisfied on the evidence that the gift to the plaintiff was made freely and voluntarily."
101 To understand this portion of his Honour's judgment, one needs to bear in mind the task his Honour was setting himself. The focus of his exposition was the way in which a court, in practice, goes about deciding whether section 13(2)(c) has been satisfied.
102 The Law Reform Commission had contemplated that the presumption of knowledge and approval, arising from the will being read by or to the testator, could sometimes suffice to prove the "knew and approved" limb of their recommended text. However, that presumption does not operate when there are circumstances which make one suspicious of whether the testator really knew and approved of the will. In Nock v Austin (1918) 25 CLR 519, which Young J referred to and relied on, Isaacs J at 528, summarised the law as follows:
"(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 2 Moo. P.C.C., at p. 484; Fulton v. Andrew L.R. 7 H.L., 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 2 Moo. P.C.C., 317, at p. 321; Tyrrell v. Painton (1894) P., 151; Shama Churn Kundu v. Khettromoni Dasi L.R. 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. P.C.C., at p. 320; Fulton v. Andrew L.R. 7 H.L., 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. P.C.C., 480 and Fulton v. Andrew L.R. 7 H.L., 448; per Lord Shaw in Low v. Guthrie (1909) A.C., 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) A.C., 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. P.C.C., 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) A.C., at pp. 281-282)."
103 There is no limitation, as a matter of principle, on what types of circumstance count as ones which arouse suspicion that the testator did not know and approve the contents of the will, for the purpose of applying this law. Thus, in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705, Powell J said:
"9. Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval ( Guardhouse v Blackburn (1866) LR 1 PD 109);
10. Facts which may well cause suspicion to attach to a document include:
(a) that the person who prepared, or procured the execution of, the document receives a benefit under it ( Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089; Nock v Austin (1918) 25 CLR 519 at 528 et seq);
(b) that the testator was enfeebled, illiterate or blind when he executed the document ( Tyrrell v Painton [1894] P 151; Kenny v Wilson (1911) 11 SR (NSW) 460 at 469; 28 WN (NSW) 124);
(c) where the testator executes the document as a marksman when he is not ( Kenny v Wilson );"