By the sixth clause, there are given to the trustees the familiar powers (familiar to lawyers and people of affairs, that is) to sell, postpone, and invest such parts of the estate as may not consist of money.
12 The testatrix, having lived to the age of 99 years, was not survived by one residuary beneficiary, Francis William Read, as has already been stated. He died in 1990. She was barely survived by the other, Doris Eva Read, who died fifteen days after her, on 16 July 1999, leaving a will effectively in favour of the plaintiffs, and appointing them her executrices. They obtained a grant of probate of that will on 24 November 1999.
13 The defendant does not raise only one or two matters as suspicious circumstances, but the whole web of circumstances in which the will came into existence. These begin with the manner in which the solicitor who drew it received his instructions. He never at any time saw Miss Quigley, nor did he even speak to her on the telephone or write to her, though he regarded her as his client. He received his instructions and payment for his services from "Bill" Read, who was known to him through Richard Vernon, a client of his. He told Mr Read it was "imperative" he see Miss Quigley, but that was never arranged. It was to Mr Read, not the testatrix, that he read through and explained the will. Mr Read and his wife stood to gain from the will in excess of two million dollars. As a first cousin of the testatrix, he had kept in touch with her over the years, but there is nothing to suggest their relations were particularly close. They were certainly not comparable to Miss Quigley's relations with her other first cousin, Mrs Watson, who had been her close companion for a number of years, her housekeeper for some time, and before that a considerable support to her older sister's declining years over a substantial period.
14 The persons present when the will was signed by the testatrix, apart from Mr and Mrs Read, were their son-in-law, the witness Richard Vernon, plainly an interested person where a gift of a large residue to his wife's parents was concerned, and Mr and Mrs Shaw. Mr Read said on this occasion that Mrs Watson "should not be aware" of what was done. Mr Shaw, a retired accountant, though not a relative, was also an interested person since he was named as a beneficiary to the extent of $10,000, notwithstanding that his wife was the other witness, a circumstance the legal significance of which he did not at the time appreciate. The very senior Sydney solicitor who had previously acted for Miss Quigley on various occasions, and had drawn in 1973 a will substantially benefitting Mrs Watson, Mr Geoffrey Hughes, was not present, nor was Mrs Atkinson, who handled all accounting matters for Miss Quigley and held her power of attorney. The engagement of a solicitor who was a stranger to her, and was requested not to get into touch with her, a feature of the case that recalls Brown v Fisher (1890) 63 LT 465 at 466, effectively concealed from her two professional advisers the fact that the dispositions previously made were being altered in favour of Mr and Mrs Read and Mr Shaw. The reason given by Mr Read to Mr Kerridge, that she might be persuaded to change her will, if its existence were known, may be seen as either an acknowledgment that she was, at 85, a person vulnerable to influence, or else an acknowledgment that the advisers upon whom she normally relied, who it was not suggested were other than entirely disinterested, would be likely to advise her to think again.
15 According to Mr Richard Vernon's evidence, the will was executed while the testatrix was visiting Mr and Mrs Read for a few days at their home in the Manly area. On 29 April 1985, he drove Mr Read to Mr Kerridge's office in Manly to pick up the will for execution. Mr Kerridge gave them the document in duplicate, and arranged to attend Mr Read's house at 11 am the next day to "oversee the signing of the will". But, on 30 April, when he, Mr and Mrs Read, Mr and Mrs Shaw and the testatrix were all assembled, Mr Vernon's wife telephoned him saying Mr Kerridge had been on the telephone to her to advise that an urgent matter prevented him attending. She said she had asked whether the signing of the will should be cancelled, but he had said it could go ahead, as he did not have to be there. After this little hiccup, the will was placed on a table in front of Miss Quigley, and "Bill read the will slowly to Clarice and explained it to her paragraph by paragraph". She said she was happy with it, and then read it herself. Finally, she signed it, Mr Read having handed her a pen, and Mrs Shaw and he himself followed, signing it too. It is important to notice two things about this account: that Mr Kerridge allegedly approved of the will being executed in his absence, although he had never taken instructions from Miss Quigley; and that the will was allegedly read over and explained by Mr Read, as well as read herself by Miss Quigley.
16 But both these important features of Mr Vernon's account (which, so far as the telephone conversation is concerned, is supported by his wife) are contradicted by other evidence. Mr Kerridge directly denied saying they "should proceed to the execution of the will even though [he] could not be there". On the contrary, he claimed to have said the appointment would have to be changed to another time. According to him, Mr Vernon "rang up and said, and kept asking me, 'But is it legal if it is signed without you there, if there are two witnesses?'" Not only that, both before and after 29 April 1985, which he thought (with some confirmation from his diary) to have been the day the will was to be signed, not 30 April, he said he urged Mr Read against the latter's resistance that he must see Miss Quigley "to check her instructions". Mr Kerridge saw the situation as "bizarre", but found Mr Read "a bit of an overbearing sort of bloke" who ignored his advice and "was adamant that he would not be having her sign [the will] again". Mr Kerridge pointed out that his lack of contact with Miss Quigley could lead to suspicion and "issues about undue influence", and argued with Mr Read - on one occasion, for at least an hour. When it was made clear Mrs Watson could challenge the will, Mr Read "was most arrogant about it", saying "she couldn't afford to do that".
17 Although it may be that Mr Kerridge, looking back, now sees his own attitude as rather firmer (and more appropriate for a solicitor) than it actually was, I am satisfied that Mr Read acted deliberately in a way that denied Miss Quigley the protection she should have had from disinterested legal advice.
18 As for Mr Vernon's evidence about the reading over of the will, the other evidence on this vital matter is the evidence of Mr Shaw. He did not confirm the account of Mr Bill Read reading the will out slowly and explaining it. His version of what happened when the will was produced and signed was that it was he himself who "told Clarrie Quigley the substance of the will", and after she expressed approval, said "We can go ahead and sign it." (The "we" in the last statement seems unconsciously to reveal how small was Miss Quigley's own role in the making of her will.) Required to elaborate, Mr Shaw said he "actually went through the will and I explained to her each part of the will … . Some of the will I actually read out to her … ". Later, he reiterated: "I didn't read the will through. I pointed out to her the various parts of it, and I read some parts of it that were easier for me to read to her than to explain to her." Specifically asked, he said the will was "partially read", and he was "the person conducting that process", and "the one that explained the terms of the will". He added concerning what was read to her: "I think only the parts that I read to her."
19 Mr Shaw's evidence puts in doubt the reading and explanation by Mr Read that are asserted by Mr Vernon. But it claims there was a partial reading, and there was explanation, given by Mr Shaw. However, this is itself doubtful, and not only because of the conflicting evidence of Mr Vernon. For Mr Shaw attended a solicitor very soon after the death of Miss Quigley. Handwritten notes from the solicitor's file dated "27/7/99" which appear to record a draft of his initial statement, and were unexplained otherwise, refer to the production and signing of the will as being conducted by Mr Read, and contain the statement: "Don't think read will thro'." A typed statement, dated in ink "27/8/1999" and signed by Mr Shaw, changes this to "I think the will was read through before signing although the terms of the will had been talked about on other earlier occasions during which time I was advised I was going to be an executor and left $10,000.00 as well." It will be observed that "I think" is less than definite, and that the reader is unidentified and explanations are not said to have been made. Mr Shaw does turn his mind in this statement to his own part in the transaction, but specifies that part, not as reading or explaining, but as asking "[b]efore Clarrie signed", whether that was what she wanted and was she happy with it, to which he says he received an affirmative response.
20 An assessment of Mr Shaw's credibility involves more than taking account of his inconsistencies, and of his conflict with Mr Vernon. He was certainly an interested party, since he was to be given a legacy of $10,000. There is also the possibility of some degree of ill feeling towards Mrs Watson, with whom he had had a falling out over her refusal to reward him financially (through his wife) for the role he claimed to have played in persuading Miss Quigley to make a gift of valuable shares to her. His lack of independence, as a witness, is demonstrated by the existence of an agreement between the plaintiffs and him, pursuant to which he stands to receive the $10,000 mentioned in the will if they succeed in the proceeding, or settle it.
21 Various more or less peripheral matters were raised in the evidence, and debated by counsel. However, what is decisive, in my opinion, is the failure of the plaintiffs to dispel the suspicion necessarily aroused by the actions and omissions of those involved in the making of this will. The conflicts in the versions of the witnesses cast a shadow over the circumstances, leaving the evidence too uncertain to show clearly and definitely, as the authorities require, that the testatrix's true intention accompanied her signature.
22 Although it is not necessary to my decision, I should mention a particular matter that was raised on behalf of Mrs Watson as heightening the suspicion in this case. In May 1998, the plaintiffs, in their personal capacities, made an application to the Guardianship Tribunal, alleging Miss Quigley's property was being dissipated during her senile incapacity. In the result, the Tribunal appointed Mrs Atkinson, who had since 10 November 1983 held Miss Quigley's power of attorney, to manage her affairs. During the hearing, Mr Geoffrey Hughes produced the 1973 will, in the presence of the plaintiffs and Messrs Richard Vernon and Harold Shaw, saying: "There is no other known will. Mrs Vernon and Mrs Whitton have no possible future interest in the property of Miss Quigley because Mr Francis William Read is dead; Miss Quigley is 98 years of age, and is suffering from dementia. As a result of her condition, she now lacks testamentary capacity." No revelation of the existence of the 1985 will came in response. If confirmation were needed that those who procured the execution of the 1985 will had determined on a settled policy of secrecy, this episode might be thought to provide it abundantly. Given Miss Quigley's medical state, what reason remained for stealth, unless the practice of it had been pre-determined?
23 Several things may be said about Mr Hughes's evidence. First, if there is something clandestine about the execution of a will, observations made in the judgments in Paske v Ollat and McKinnon v Voigt may have obvious application. But, next, the incident under consideration can throw no light on the actions of Mr Read, who died in 1990, unless the inference of a settled policy is drawn, in which case the adoption of that policy might be attributed to him, having regard to the evidence of his urging that Mrs Watson should not be made aware of what was done. However, apart from any light that might be cast on previous events, is the concealment of the will in 1998 in itself a suspicious circumstance? Dicta in Paske v Ollat and McKinnon v Voigt, and also Wintle v Nye at 291-293 and Tanner v Public Trustee at 85, per Macarthur J (with whom Turner P and Richmond J agreed), would suggest an affirmative answer. Nevertheless, in Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451, McPherson JA (in dissent) remarked that generally "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will". It was not necessary for the majority, in the view they took of the case, to comment on this proposition. It is not necessary for me either, in the view I take of this case. However, I venture the observation that although, to be relevantly suspicious, a circumstance must have a connection with the bringing into existence of the will, there is no reason why such a connection must necessarily be temporal; a revealing light may sometimes be cast backwards by later events. This case may be of that kind; however, as I have made clear, I have found it unnecessary to utilize the evidence concerning the hearing at the Guardianship Tribunal in reaching my decision.
24 The plaintiffs' proceeding must be dismissed. However, it was not by their agency that the will they propounded was procured. In all the circumstances, their costs as between party and party should come out of the residue of the estate. The costs of the defendant, as between solicitor and own client, should also come out of the residue of the estate. In exercising my discretion as to costs in this way, I have had regard to the general principles stated by Kearney J in Re Herbert (1990) 101 FLR 279 at 310 et seq; Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280; and Wintle v Nye at 295. See also the article by Anthony Smith at 352.