WILLS AND ESTATES - Where caveator objected to grant of probate - Where caveator required to file amended particulars of objection - Whether amended particulars establish a prima facie case - Whether case for investigation or something to 'go on' - Gardiner v Hughes [No 2]

2 The deceased's will dated 27 August 2015 appoints the plaintiffs as the executors and trustees of his estate and bequeaths his residuary estate in proportions of 47.5 per cent to each of the plaintiffs and 5 per cent to the caveator. The will was prepared by the firm of Balbata & Associates, solicitors in Essendon. The deceased's signature was witnessed by Leo Rimantas Balbata, solicitor, and Jennifer Adele Jones, legal secretary. At the date of execution of his will, the deceased was aged 96 years and five months.

3 By originating motion filed 2 November 2018, the plaintiffs seek a grant of probate of the deceased's will. The inventory of assets and liabilities filed in support of the application records a net estate of $1,341,515.61.

4 On 20 August 2018, the caveator filed a caveat, requiring him to be notified before anything was done in relation to the estate. On 30 November 2018, the caveator filed grounds of objection to the grant, alleging that the deceased lacked testamentary capacity, that the deceased was the subject of undue influence by the first plaintiff, and that the deceased did not know and approve of the contents of the will.

5 At the first directions hearing on 1 February 2019, the caveator sought orders that included adding her as a party in the proceeding and requiring the plaintiff to produce, by way of discovery, medical and testamentary documentation. The plaintiffs submitted that the caveator's grounds of objection were vague and did not particularise or substantiate the caveator's allegations. Orders were made requiring the caveator to file and serve amended particulars of the grounds of objection to the plaintiffs' application by 15 February 2019.

6 On 18 February 2019, the caveator filed amended particulars of the grounds of objection. The amended particulars removed the ground of undue influence, but added a new ground of suspicious circumstances.

7 At the directions hearing on 22 February 2019, the plaintiffs submitted that the further amended grounds still failed to establish a prima facie case as they suffered from substantially the same issues as the original grounds of objection in that they contained irrelevant material and unsupported allegations, were generally discursive and confusing, and contained no more than mere assertions. The caveator submitted that, in all caveat cases, particulars are mere assertions and that the undated events were matters of general evidence. While the caveator stated that four grounds were relied upon, the amended grounds set out three grounds, being lack of testamentary capacity, suspicious circumstances and knowledge and approval.

8 The amended particulars of grounds comprise 32 paragraphs over 9 pages. Paragraphs 1 to 6 are introductory in that they identify the last will and the relevant family members and beneficiaries under the last will.

Caveator's first ground - lack of testamentary capacity

9 Paragraphs 7 to 9 allege that the deceased lacked testamentary capacity at the time he executed his will. It is alleged that, at that time, no report was obtained from a medical practitioner or gerontologist confirming that the deceased had testamentary capacity. The caveator also refers to a letter dated 12 September 2016 from the deceased's solicitor, Mr Balbata, to the Victorian Civil and Administrative Tribunal that stated 'although [the deceased] was 96 years of age at the time he appeared to have the capacity necessary to make the enduring powers of attorney'. The enduring powers of attorney were made on 2 July 2015, some eight weeks before the date of the deceased's will.

10 The caveator's ground that the deceased lacked testamentary capacity at the time he executed his will comprises some 51 sub-paragraphs.

11 The caveator alleges that the deceased had dementia during the period before and at the time the last will was made. It is then asserted that the deceased suffered a stroke in 2002. The caveator describes the stroke as 'debilitating' but was 'unable to further particularise the effect of the stroke until production of the deceased's medical records'.

12 The caveator refers to a report by the deceased's general medical practitioner, Dr Geoff Ng dated 8 August 2016, which stated that the deceased had a cognitive impairment of mixed dementia, such that he was unable to make reasonable decisions in relation to his financial and legal affairs, health care and general living circumstances. Dr Ng also stated he was unable to comment on whether the deceased now had capacity to make an enduring power of attorney. The caveator submitted that the dementia would have developed over a lengthy period of time.

13 The caveator alleges that, following the stroke in 2002, the deceased's wife did 'everything' for the deceased, including 'cooking all his meals, washing all his clothes, and assisting him with maintaining his cleanliness'.

14 The caveator relies on the following specific events prior to the date of the will:

(a) In approximately 2012, the deceased tried to drive to the second plaintiff's house. He became disoriented and called his wife, requiring the second plaintiff to go and collect him.

(b) In early January 2013, the deceased's wife called the deceased's granddaughter, Eugenia, and the caveator, stating that the deceased had lost his wallet again for the second time in a week. The deceased's wife stated that the deceased was going crazy and screaming that he wanted a divorce as she was stealing and hiding his money from him. She also said that the deceased was pushing her over the edge, as he was abusive, and she could not take much more due to her declining health.

(c) In mid-2014, approximately 12 months before her death, the deceased's wife was told that her cancer was terminal. The deceased did not accept this and insisted that she continue to care for him.

(d) In October 2014, the deceased accused the second plaintiff of borrowing his chainsaw and breaking it. The deceased became aggravated and threatened to hit the second plaintiff with a small foot stool.

(e) In early January 2015, when Eugenia was visiting the deceased, the deceased's wife gave her condolences on the passing of Eugenia's dog. When Eugenia started to cry, the deceased looked at her and said, 'Didn't you enjoy your holiday?'

15 The caveator also relies on events after the will. For example, on 10 February 2016, the deceased was found by an unnamed carer approximately 100 metres from his house, disoriented, and unaware that he had left a tap running inside the house.

16 The deceased suffered a second stroke on 18 April 2016, almost eight months after the will, and was admitted to the Sunshine Hospital. The caveator alleges that the Sunshine Hospital Assessment notes dated 2 May 2016 indicated that the deceased suffered 'confusion' and that the discharge summary dated 6 June 2016 indicated that the deceased suffered mixed dementia and had a Rudas Cognition score of 19 out of 30.

17 In addition to the specific events above, the caveator makes a number of remarks about the deceased's behaviour and temperament, without it being clear whether these remarks relate to the deceased as he was before or after the will, or indeed before or after his second stroke. These comments include:

(a) that the deceased was paranoid about people stealing his money, that he began carrying large sums of cash in his wallet and misplacing his wallet, and that he started 'moving cash around and hiding cash and not remembering where he had placed it';

(b) that the deceased was 'obsessed' about his bank book and checking his wallet;

(c) that the deceased would hand over the wrong amount of money to reimburse someone even after being given a receipt;

(d) that direct debits were set up for the deceased as the deceased's wife was aware that the deceased could not manage money;

(e) that the deceased was forgetting the names of his carers, how to spell the names of his children, the ages of his children, his own birthday and how old he was, and the date and which season it was;

(f) that the deceased no longer enjoyed his passions in the workshop;

(g) that the deceased tried to change the brake fluid in his wife's car and ended up putting the wrong product into the car;

(h) that the deceased had a urinary tract issue and he regularly urinated in his pants and would not know this had occurred;

(i) that, from 2014 onwards, the deceased preferred to speak in Lithuanian, and did so even to people who did not speak that language.

18 These matters are not an exhaustive list of the many allegations made by the caveator in the amended particulars, but their discursive nature and the lack of dates make it difficult to identify individual allegations and events. They nevertheless capture the most important elements of the caveator's particulars under this ground.

Caveator's second ground - suspicious circumstances

19 The caveator refers to certain events leading up to the death of the deceased's wife on 2 July 2015. He alleges that, although the deceased and his wife were estranged from the first plaintiff, the first plaintiff provided her own details to the Sunshine Hospital, meaning that she was contacted by the hospital, and attended the hospital, about four or five days before the death of the deceased's wife.

20 It is alleged that, on the same day as the death of the deceased's wife, the first plaintiff obtained her enduring powers of attorney (medical and financial) for the deceased, having made an appointment for him to attend on Mr Balbata and having driven the deceased to Mr Balbata's office.

21 The caveator alleges that Lithuanian was the deceased's first language and that his grasp of understanding and speaking English was very poor. The caveator asserts that no file notes have been produced as to what transpired when the will was made, nor is there a relevant recital by Mr Balbata that he read the will to the deceased in Lithuanian. There is also no registered Lithuanian translator who has attested that the deceased's last will was read out and explained to the deceased before he signed the will.

22 The caveator refers again to the aforementioned letter to the VCAT, in which Mr Balbata stated that he was relatively fluent in the Lithuanian language and discussed matters with the deceased in that language when receiving instructions to prepare the two enduring powers of attorney dated 2 July 2015.

23 Shortly after the last will was made, Mr Balbata sent letters to a close family friend, Regina, and the second plaintiff, stating that they could have no contact with the deceased unless it was by invitation. A letter was not sent to the caveator as she was too far away.

24 On 27 August 2015, the first plaintiff drove the deceased to Mr Balbata's office and the deceased made his will. At no time did the deceased tell the caveator or Eugenia that he had changed his will.

25 The caveator also referred to the deceased's will said to have been made on 16 February 1981, as well as an unsigned will. Neither document was before the Court. The caveator asserts that, under the 1981 will, she was entitled to an equal share of the deceased's estate together with her two siblings, one of whom is now deceased.

26 At the end of the particulars, the caveator concludes by alleging that, by virtue of the matters set out under grounds of lack of testamentary capacity and suspicious circumstances, 'there are suspicious circumstances concerning the 2015 Will'.

Caveator's third ground - knowledge and approval of the contents of the will

27 Under this ground, the caveator relies on three paragraphs set out under the ground of suspicious circumstances, being the matters referred to in paragraphs 22 to 24 above. Otherwise the remaining nine paragraphs set out matters relating to the caveator's health and current financial circumstances.

28 Where a caveator disputes the validity of the last will of a deceased, he or she must establish standing to object to the grant and file grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case or call for further investigation of the grounds of objection relied on by him or her.[1]

29 In Gardiner v Hughes [No 2], the Court phrased the applicable test as follows:

The task for the party seeking to have a grant of probate revoked is ... to show that there is a 'case for investigation' or 'something to go on'. Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice.[2]

[I]t will not simply be a question of deciding whether an inference justifying revocation should be drawn from the facts relied upon, or which of two possible inferences is to be preferred. Those would be matters for trial. Nor is the true question even whether the inference sought to be relied on is available on the facts (although if that were so, there would be a prima facie case for investigation as to whether or not the inference should be drawn). There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.[3]

31 The standing of the caveator to challenge the plaintiffs' application for a grant of probate of the deceased's will rests on her assertion that the deceased made an earlier will in 1981 under which she is a beneficiary. If that is the case, then she has standing on the basis that she has an interest in the outcome of the application. The 1981 will is not before the Court and no conclusion can be made as to the caveator's standing on the basis of that will without it being produced to the Court. The caveator did address her standing on the basis that the deceased died intestate.

32 The purpose of the particulars and the grounds of objection is to define the questions for trial, to enable the propounder of the last will to understand the case put against making a grant with precision and particularity and so as to avoid surprise at the trial. The caveator's grounds of objection and lengthy particulars are difficult to follow in terms of supporting a prima facie case of the three grounds relied upon by the caveator. Not only are they wide-ranging, covering a period from 2002 onwards and up to the deceased's death, they also incorporate the particulars from each ground into every other ground. Such a process makes it difficult to understand the case alleged by the caveator with any precision.

33 The relevant time for consideration where the testamentary capacity of a deceased is impugned is shortly before and at the time of the making of the will under challenge.[4] The deceased's last will is dated 27 August 2015.

34 The deceased's will is a valid will, having been executed by the deceased and his signature witnessed by his solicitor and a legal secretary. Accordingly, the plaintiffs have the benefit of the presumption that the deceased had testamentary capacity.[5] The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the will or raise a prima facie case.

35 The caveator's particulars to the effect that the plaintiffs have not produced reports to confirm the deceased's testamentary capacity or that the will was not noted to have been translated by a registered Lithuanian translator are not proper grounds where the evidentiary burden is with the caveator.

36 There are repeated references to the deceased being 'crazy', yet is unclear what that means in terms of the deceased's testamentary capacity in August 2015. Many of the particulars do not contain dates, making it unclear when these observations were made. The particulars include that the deceased was suffering the effects of grief and did not speak English but it is not clear how this relates back to his testamentary capacity.

37 The particulars make many references to matters occurring after the deceased signed his will. The medical records relied on by the caveator relating to his admission to the Sunshine Hospital following a stroke on 28 April 2016 is some six months after the date of the will and does not appear to be relevant. There is a note that the deceased had dementia at that time, however there has not been any diagnosis of dementia at or around the time of the making of the will.

38 The Office of the Public Advocate's report was said to have been prepared in January 2017, following a VCAT application made in August 2016. The application was made over a year after the will was made and the report prepared another six months thereafter and does not appear to be relevant. The Public Advocate's report is said to refer to the report of Dr Ng made 8 August 2016, approximately a year after the will was made, however he does not opine on the deceased's testamentary capacity at the relevant time.

39 The deceased's death certificate records the causes of death as 'cardiopulmonary arrest secondary to pneumonia and sepsis', as certified by Dr Ramanathan. The deceased's death occurred nearly three years after the will was made. No formal diagnoses of dementia is referred to in the particulars, nor is there any reference from a medical professional that the deceased suffered from dementia. The caveator's statement that the death certificate was not evidence of the deceased's cause of death, but merely an observation of the treating doctor at the time of the death, was not supported by authority.

40 The caveator's many and various wide-ranging particulars under the ground of lack of testamentary capacity do not address the test for testamentary capacity, nor do they show any causal connection with the deceased's testamentary capacity shortly before and at the time the will was made by the deceased. The manner in which the particulars are drawn is confusing, discursive and obscure, making it extremely difficult to understand the case that is sought to be advanced by the caveator.

41 On balance, the caveator has failed to provide a sufficient factual basis in her grounds of objection to raise a prima facie case that the deceased lacked testamentary capacity shortly before and at the time of the making of the deceased's will.

42 The plaintiffs seek to propound a will that is valid on its face and have the benefit of the presumption that the deceased knew and approved of the contents of the will. The caveator must establish the existence of suspicious circumstances in order to remove that presumption and cause the burden to shift to the plaintiffs to prove positively that the deceased knew and approved of the contents of the will.

43 The assertion by the caveator that the will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval - an assertion that goes beyond lack of testamentary capacity.[6] It is a testator's understanding that is decisive in determining whether the testator knew and approved the contents of their will.

44 The caveator alleges that the first plaintiff took the deceased to the solicitors and the deceased made his 2015 will. Prima facie, it is not a suspicious circumstance that a family member may take the deceased to the solicitor to make a will.

45 The caveator also alleged under the ground of lack of testamentary capacity that the deceased lacked the capacity to read and speak in English. This may suggest that the deceased did not know and approve the contents of the will. The deceased's death certificate records that the deceased married in East Melbourne in 1966. This suggests that at the date of his will, he had lived in Australia for at least 49 years and would have had at least a reasonable command of the English language. In any event, Mr Balbata told the VCAT that he was relatively fluent in the Lithuanian language and also conversed with the deceased in Lithuanian, thereby making any language barrier unlikely.

46 The caveator alleges that the will on its face is irrational and there was no rational basis for the caveator's share to be reduced. It is noted that, when Mr Balbata wrote to the deceased's children and told them not to contact the deceased unless by invitation, he did not need to write to the caveator because she lived so far away. This suggests that there was already a lack of contact between the deceased and the caveator, meaning the will would not be irrational on its face.

47 The caveator's health and current financial circumstances are matters that would generally be addressed in a family provision claim, not the grounds of lack of knowledge and approval of the contents of the will. If the deceased's will is admitted to probate, the caveator would be within her rights to bring a family provision claim.

48 Overall, the caveator's particulars of suspicious circumstances and lack of knowledge and approval do not, even when considered as a whole, provide a sufficient factual basis to raise a prima facie case.

49 The caveator has filed two documents setting out her grounds of objection and particulars. The amended grounds suffer from substantially the same issues as the original grounds of objection in that they contain irrelevant material and unconnected allegations, and were generally discursive and confusing, containing not much more than mere assertions. The incorporation of the particulars of each ground into the other grounds makes it extremely difficult for the plaintiffs to understand the case alleged by the caveator with any precision.

50 The Court is not satisfied that there is a case for investigation on any of the caveator's grounds.

(a) The caveat filed 30 November 2018 be dismissed.

(b) The proceeding be referred to the Registrar of Probates.

(c) In default of agreement, the parties provide written submissions on costs within 14 days.

[1] Moran v Place [1896] P 214, 216-7 (Kay LJ) cited in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, [242] (Lindsay J).

[2] [2019] VSCA 198, [41] (Kyrou, McLeish, T Forrest JJA). Although that case regarded an application for revocation and the present case is a caveat proceeding, the test for a prima facie case is the same.

[4] Re Montalto [2016] VSC 266, [31], [34]; Re Cockell; Cole v Paisley [2016] NSWSC 349.

[5] Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188 (Bateson J).

[6] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175-6 [173] (Santamaria JA) citing Hoff v Atherton [2005] WTLR 99.