Supreme Court New South Wales Medium Neutral Citation: Bracher v Jones [2020] NSWSC 1024 Hearing dates: 28 October 2019 to 1 November 2019, 13 December 2019, 6 May 2020 Decision date: 05 August 2020 Jurisdiction: Equity Before: Robb J Decision: 1. An order will be made for the revocation of the grant of probate of the deceased's will dated 19 June 2013. 2. An order will be made for the grant of probate of the deceased's will dated 28 June 2010 in solemn form. 3. The parties are directed to confer for the purpose of preparing short minutes of order to give effect to these reasons for judgment and for the determination of the issues considered but not decided. 4. The parties have leave to relist this matter for further consideration of the orders to be made by arrangement with the Associate to Robb J. Catchwords: SUCCESSION — Contested probate — Testamentary capacity — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — where there is no reliable testimonial evidence concerning the circumstances in which the deceased made their will — where there is an extreme doubt as to the testamentary capacity of the deceased — where the will was made in a cloud of suspicion — where there was an absolute dissonance between the effect of the will and the long-term and continuing relationship between the deceased and the plaintiff — where, in the circumstances in which the will was made, the testator was not capable of withstanding the pressure imposed by others in order to evaluate the strength of the claims — where the deceased had mild cognitive impairment, real short-term memory deficits and was subject to continual mental and emotional stresses — deceased did not have testamentary capacity SUCCESSION — Contested probate — Knowledge and approval — where the testator wrote out the draft will in her own hand — where, in those circumstances, a finding that the testator did not know and approve of the terms of the will in a relevant sense would not be justified SUCCESSION — Contested probate — Undue influence —where, in the probate jurisdiction, undue influence requires something in the nature of coercion in causing the testator to make the will — where, in the actual circumstances, the testator was in fact vulnerable to having her will overborne by incessant demands — where the evidence suggests that the testator, during conferences with solicitors, appeared to emotionally withdraw from the conference — where constant importuning of an old and weakened person, with compromised testamentary capacity, results in the testator effectively abandoning free agency to escape the demands — where no reason can be found in the evidence that explains the abandonment of the testator's long-term testamentary intention — where a conclusion of practical coercion should be reached Legislation Cited: Guardianship Act 1987 (NSW) Succession Act 2006 (NSW) Cases Cited: Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Banks v Goodfellow (1870) LR 5 QB 549 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Croft v Sanders [2019] NSWCA 303 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Re Estate of Dowling; Ridge v Rowden (Supreme Court (NSW), Santow J, 10 April 1996, unrep) Read v Carmody [1998] NSWCA 182 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Wingrove v Wingrove (1885) LR 11 PD 81 Winter v Crichton (1991) 23 NSWLR 116 Category: Principal judgment Parties: Diane Kay Bracher (plaintiff) Stephen Alan Jones (first defendant) Benjamin Stephen Jones (second defendant) Representation: Counsel: L Goodchild (plaintiff) P Bates (defendants) Solicitors: McNamara & Associates (plaintiff) City Lawyers & Consultants (defendants) File Number(s): 2016 / 139606; 2016 / 306898 Judgment Introduction 1. The plaintiff in these proceedings is Ms Diane Kay Bracher. The plaintiff was born on 1 May 1945, and is presently 75 years of age. 2. The plaintiff's brother, Stephen Alan Jones, is the defendant. He was born on 24 May 1949, and is presently 71 years of age. 3. The proceedings concern the estate of the late Leila Jean Jones, who was the parties' mother. Mrs Jones was born on 8 March 1923 and died on 7 May 2015 aged 92. 4. Mrs Jones was married to John Stanley Jones for 56 years. Mr Jones died in 2004. 5. Members of the family who have given evidence in these proceedings are the plaintiff's daughters, Sarah Bradley and Jane Hughes, and the defendant's son, Benjamin Stephen Jones. 6. For convenience, and without meaning any disrespect, I will refer in these reasons to the parties and their children by their first names. Out of respect, however, I will refer to the deceased and her husband as Mrs and Mr Jones. 7. In 1967, Mr and Mrs Jones bought a beachside property in a village on the south coast of New South Wales. It will be convenient to refer to that property by its street number as No 165. They lived in that property as their home for the duration of their lives. 8. Eighteen years later, the couple bought the house next door, which I will call No 163. 9. At the time of her death, Mrs Jones owned both No 165 and No 163. Mrs Jones was a pensioner. She was entitled to a Department of Veterans Affairs pension and a pension from CommSuper. At that time, No 165 was understood to be worth $1,205,000 and No 163 was worth $1,140,000. Mrs Jones also had cash in the amount of $6,536.46. That amount was less than her debts of $13,864.80. Consequently, Mrs Jones' estate consisted entirely of the two properties that she owned. 10. By a series of wills made by both Mrs and Mr Jones, No 165 was devised to Diane and No 163 was devised to Stephen. That was the effect of Mrs Jones' penultimate will, which was made on 28 June 2010. 11. However, Mrs Jones made a final will on 19 June 2013. By that will, Mrs Jones left both of the properties to Stephen, and effectively cut Diane out of her will. 12. While Mrs Jones' 28 June 2010 will had appointed both of her children as her executors, the 19 June 2013 will made Stephen and Benjamin the executors. 13. Benjamin has renounced probate. On 21 July 2016, this Court granted probate in common form of the 19 June 2013 will to Stephen. 14. Diane commenced these proceedings by summons filed on 6 May 2016. She sought an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Succession Act) for further provision for her maintenance and advancement in life out of the estate of Mrs Jones. 15. Diane commenced new proceedings by statement of claim filed in October 2016. She has amended the statement of claim twice. The primary relief sought by Diane by her further amended statement of claim are orders that probate of the will of Mrs Jones dated 19 June 2013 be revoked, and that probate of the will of Mrs Jones dated 28 June 2010 be granted to Diane in solemn form. As a subsidiary matter, Diane seeks an order that Stephen verify and pass all accounts related to the estate of Mrs Jones, and an order that he do all things to make available to Diane all documents necessary to enable Mrs Jones' estate to be administered. 16. Diane alleges that, at the time that Mrs Jones made her 19 June 2013 will, she did not have testamentary capacity, Mrs Jones did not know and approve the contents of the will, and Stephen exercised undue influence in causing Mrs Jones to make the 19 June 2013 will solely in his favour. 17. Stephen's defence, filed on 14 November 2016, denies the entitlement of Diane to the relief that she has claimed in these proceedings. In essence, as appeared from his final submissions, Stephen's case is that it is not demonstrated that Mrs Jones lacked testamentary capacity when she made the 19 June 2013 will, and that the Court should accept that, even if Mrs Jones was mistaken concerning the reasons for her changing her testamentary dispositions, she was not suffering from any insane delusions. Stephen also denies that Mrs Jones did not know and approve the contents of the 19 June 2013 will, and he denies that he exercised undue influence over his mother in a manner that caused her to make that will. 18. Stephen filed a cross claim on 14 November 2016, and amended that cross claim on 13 March 2017. Stephen seeks an order that probate of Mrs Jones' 19 June 2013 will be granted to him in solemn form. In the alternative, Stephen seeks an order under s 58 of the Succession Act extending the time for him to make an application for a family provision order in his favour up to and including the date of filing of the amended cross claim. That date was 31 March 2017. 19. Stephen also seeks an order under s 59 of the Succession Act for further provision in his favour out of the estate of Mrs Jones. The probate claims 1. I propose to deal with the proceedings that give rise to the probate claims separately and before I deal with the family provision claims. The latter claims are partly dependent on the outcome of the probate claims. 2. A considerable amount of the evidence in these proceedings concerns events and circumstances that occurred after Mrs Jones made her final will on 19 June 2013. Some of that evidence has a bearing on the issue of Mrs Jones' testamentary capacity at the time she made her will. Evidence tending to show that Mrs Jones had capacity at a later time is material to the question of whether she did so at the earlier time when she made her will. Consequently, some of that evidence will be material to the determination of the probate issues. However, generally, I will not refer in detail to the evidence of matters occurring after 19 June 2013 when considering the probate issues. I will refer specifically only to the evidence that I consider to be directly relevant to those issues. I will defer considering the balance of the evidence until later in these reasons when I deal with the family provision claims. It is important to separate the evidence chronologically to ensure that only the evidence properly relevant to the probate issues is considered in the determination of those issues. 3. It will be convenient to commence by considering the evidence given by each of the family witnesses in turn. That is a suitable approach for dealing with Diane's witnesses. In part, it is also appropriate for dealing with Stephen's witnesses, but the qualification to that proposition is that, when it comes to considering the evidence leading up to and including the actual making of Mrs Jones' 19 June 2013 will, it will be more convenient to interpose aspects of Stephen's evidence into the consideration of the documentary evidence relevant to the making of the will. 4. Mrs Jones also, on a number of occasions, executed documents that revoked and replaced powers of attorney and appointments of enduring guardians. I will mention those changes at the appropriate chronological points, although I do not think it is necessary to consider those transactions in detail. It may be observed that a significant proportion of the relevant documentary evidence is taken up by changes made by Mrs Jones in respect of those appointments. Evidence of Diane Bracher 1. Diane gave evidence that she had a close relationship with both her mother and father and lived geographically close to them for all of her married life. Over the years she took her family to visit Mr and Mrs Jones most weekends and holidays. The family spent three to four weeks each Christmas at No 165 for around 40 years up to Christmas in 2012. Thereafter, Diane and her family did not go to No 165 for Christmas because Stephen had changed all the locks and would not give Diane keys. 2. In 1991, both Mr and Mrs Jones executed powers of attorney in favour of Diane to deal with the future possibility that they may have had difficulties managing their affairs. 3. After Mr Jones died in September 2004, Diane assisted and emotionally supported Mrs Jones by undertaking her duties as executor of Mr Jones' will. Diane made extensive notes for Mrs Jones to assist her with what she had to do after her husband's death. 4. Diane said that she spoke to Mrs Jones on the telephone at least once most days and saw her in person at least once per week. That continued until about September 2013, when Stephen moved permanently into No 165 with Mrs Jones following hip replacement surgery. Stephen placed locks, or changed the locks, on all of the doors and the garage roller door that was, unusually, the means of entry into No 165. From that time, Diane found it very difficult to see Mrs Jones because she had to obtain Stephen's permission to do so. 5. Diane managed Mrs Jones' banking affairs until late 2014, when Stephen was apparently appointed as Mrs Jones' financial manager by the Guardianship Division of NCAT. 6. Diane opened bank accounts for Mrs Jones into which her Department of Veterans Affairs and CommSuper pensions were paid, to ensure that sufficient money was put aside to enable Mrs Jones to pay land tax and rates. 7. Diane said that Mrs Jones was always part of her family gatherings involving her children and grandchildren. Diane said that she took Mrs Jones and Mrs Jones' sister on lots of outings which Mrs Jones really enjoyed. 8. Mrs Jones did not drive in the last five years of her life, so Diane took her to most of her medical appointments and to do her shopping. 9. Mrs Jones had a cleaner attend her house once a fortnight, but Diane did Mrs Jones' washing and changed her sheets in between the cleaner's visits. 10. In the last years of her life, Diane sat down with Mrs Jones before each Christmas and wrote Mrs Jones' Christmas cards for her. 11. When Diane's family arrived at No 165 for Christmas in 2012, they discovered that Stephen had placed a lock on the big room on the bottom floor which the family called the "junk room", in which they stored all of the possessions that they needed for their Christmas holidays. 12. Diane said that she had lived in a modest three-bedroom home with her husband since 1973. 13. Both Diane and her husband are pensioners, and I infer that they were pensioners at the date of Mrs Jones' 19 June 2013 will, and that Mrs Jones knew of that fact. 14. Diane said that she has suffered from chronic migraines since she was 11 years old. Approximately 15 years ago she was diagnosed with paroxysmal atrial fibrillation. 15. In September 2012, Stephen took Mrs Jones to her long-time solicitors, Marriott Oliver, and Mrs Jones executed a power of attorney and appointment of enduring guardians in favour of Diane and Stephen. Diane first learned of the change when she received a letter from the solicitor. 16. In May 2014, Diane received a letter from a solicitor called Michael Cooke of McMurchie and Co that contained revocations of the September 2012 documents. Diane learned that Mrs Jones had appointed Stephen and Benjamin as her attorneys and guardians. Diane said that she was hurt and shocked and had a conversation with Mrs Jones to the following effect, as stated at par 39 of Diane's 26 April 2016 affidavit: Me: Why have you made these new documents? Do you understand this means I can't help you anymore? Mum: Oh no darling that's not right. Steve said I should do it because it will save money. 1. Diane said of Mrs Jones' 19 June 2013 will that she did not become aware of that will until after Mrs Jones passed away. 2. Diane said, of a provision in the will that explained why no property had been left to Diane that said: "I consider that she has been adequately provided for by her father Hilton John Jones", that Diane did not receive any bequest from her father, nor did she receive any substantial gifts or money from him during his lifetime. 3. In her 9 February 2017 affidavit, at par 41, Diane gave evidence of a conversation that she had with Stephen in the presence of Mrs Jones on 26 February 2012: Steve: I think we need to be joint executors of Mum's will. Me: We are. Don't you remember? Steve: I want to go back to the old will where you have to give me the difference in the value of the blocks. I've got it in writing that they're not worth the same. I had a real estate agent from [redacted] come and have a look about 18 months ago. Me: Well I don't know Steve. Steve: Dad ripped me off. He sold my land and my houses. He underpaid me at work and owed me a lot of money. These two houses were paid for with my money. Me: I think you should be paying for the rates, the water and telephone for number 163. Mum: No, it's my house. Me: Mum, you can't rely on Steve for anything. He can't even fix the toilet roll Steve: Yes, I know I'm hopeless at that Me: We shouldn't be discussing Mum's Will like this in front of her Steve: Yes we should. You agreed to the conditions in the old Will Me: Yes but Leonie said the valuations would be the same now Steve: I will speak to Leonie. You are doing a great job with everything you do for Mum. Maybe you should get 163 and I'll have 165 Me No! What will happen after Mum's death? Are you going to get to contest her Will? Steve: No, and wouldn't sell 163 either. I'm sorry. It needs to be fair. 1. The reference to Leonie was to Mrs Jones' long time solicitor, Ms Leonie Sinclair, a partner at Marriott Oliver at Nowra. Diane gave evidence, in her second affidavit, about an aspect of Stephen's behaviour that she perceived to have changed from about mid-2012. Stephen developed a belief that other members of the family were stealing his and Mrs Jones' property from No 165. 2. Diane gave evidence of a conversation on 8 May 2012, when Stephen asked her why she had removed some property from the downstairs wardrobe. She told Stephen that she had to make some room for Sarah and her family to store some things while they were staying at the house. She said that Stephen became quite aggravated and said that Diane should have asked before moving the property. Diane informed him that everything was in boxes and bags in the back room. 3. In August 2012, Mrs Jones spent three weeks with Diane at her home and then went back to No 165 on 3 September 2012. 4. Later, on 29 September 2012, Mrs Jones asked her where property that had been stored in cupboards in the back room had gone. She said that Stephen had said there was a train set, some tools and some furniture missing as well. Stephen heard a noise during the night. Mrs Jones asked whether Diane and her husband had come out in the truck during the night. 5. Diane said that the back room had been used as storage for items belonging to various members of the family for many years, and it was always full to overflowing and often in disarray. Mrs Jones had asked Diane to assist her in cleaning the room out. That was a task that had been ongoing for a number of years. 6. Diane said that the back room had some of Stephen's property in it, and, after he had challenged her as to where the missing items were, she carefully placed Stephen's things together on one side of the room. She said to Stephen: "You're worrying Mum with all this talk of missing items. She told me that she can't sleep at night because every sound she hears she thinks is someone breaking in." 7. Diane said that Stephen put a lock on the door between the bedroom and the back room in September 2012. 8. On 19 October 2012, Diane received a letter from Marriott Oliver saying that Stephen was to be made Mrs Jones' attorney. Diane telephoned Mrs Jones, who could not remember what she went to the solicitor for. Mrs Jones said: "I didn't like the lady. She kept talking over me." Diane replied: "Perhaps you should speak to Leonie as she knows us." 9. Diane gave evidence that, on 24 October 2012, Mrs Jones said to her: "Have you seen my Will? I need to make a Will. That's what I'm supposed to do, isn't it?" Diane replied: "Mum remember you made a Will and Leonie came to the house to witness it". Mrs Jones replied: "Oh yes I remember." 10. On 27 March 2013, according to Diane, Mrs Jones telephoned her and said: "Have you seen my Will? Poor Steve, he's never had a proper home. You've got a nice house. I'm thinking of giving Steve my house." Diane replied: "Mum, he's got the farm and an $800,000 unit in Sydney with his wife", and Mrs Jones replied: "I must make a Will!" Diane replied: "Mum, you've got a Will. You saw Leonie, remember? You've got all your affairs in order." Mrs Jones replied: "Now I remember". 11. Diane gave some evidence of Mrs Jones being forgetful in other ways in the time leading up to 19 June 2013. She said that, in March 2013, she organised an at-home high tea for Mrs Jones' 90th birthday. Mrs Jones' neighbours of many years visited No 165 a few days after the morning tea and Mrs Jones did not recognise them. According to Diane, Mrs Jones said: "Do you live around here?" 12. Diane said that, around this time, when she and Mrs Jones were out together, Mrs Jones would introduce her to people that the family had known for quite a while and she would say: "Have you met Diane?" 13. In June 2013, all the family were at No 165 visiting Mrs Jones. Mrs Jones said to one of her sons-in-law: "Do you know Steve?" The son-in-law had known Stephen for many years. 14. In her affidavit made on 5 May 2017, Diane replied to affidavits sworn by Stephen on 22 July 2016 and 18 April 2017. 15. Diane denied, in par 10, that Mr Jones had ever purchased a house for her, and explained how she and her husband had purchased properties, including her present home in 1973. 16. At par 24, Diane said that she had never removed the majority of her mother's household contents in her absence or presence. Diane had only ever taken property from Mrs Jones' house if it was Diane's, or it had been given to Diane by Mrs Jones. 17. Diane responded, in par 26, to an allegation made by Stephen in his evidence that Diane had stolen aboriginal paintings and other items of property from Mrs Jones. She said that she bought some inexpensive aboriginal paintings as a souvenir when she was working and living in Alice Springs before she was married. When she returned to New South Wales she stored the paintings in her parents' house. In response to a claim that Diane was responsible for stealing Mrs Jones' queen sized bed, Diane said that she and her daughter Sarah bought a new queen sized ensemble bed to replace the two single beds in the second bedroom at No 165, where Sarah's family stayed when they were visiting Mrs Jones. Sometime later Diane and Sarah swapped the top mattress with one at Jane's house. That was done for the benefit of Jane who had a back injury, so that it would be more comfortable for her when she stayed at No 165. Diane strongly denied evidence given by Stephen that her husband, John, had said unkind things about Mrs Jones; saying that her mother and husband had a very close relationship and she loved him as her son-in-law. 18. Then, in par 28, Diane responded to a claim by Stephen that she and her family had looted Mrs Jones and that Stephen had seen John creeping around and hiding in the driveway to No 165. Diane said that at the time John had had two knee replacements and could hardly walk. 19. Diane gave evidence at par 54 that she decided to keep a diary, apparently because Diane was upset that Stephen was talking about Mrs Jones' will in front of her, and was distressed that Stephen kept accusing her and her family of taking Mrs Jones' things. The diary was not put into evidence. 20. In relation to property being taken from the junk room, Diane said at par 56 that she would carry boxes upstairs to Mrs Jones to sort and Mrs Jones enjoyed that. They found lots of the family's childhood memories and there was a lot of church "stuff" which Mrs Jones had Diane pass on to different people. Mrs Jones had taught at Sunday school for many years and organised fetes so there were lots of papers, bibles and craft bits and pieces. There were also boxes of old sewing patterns and fabrics. 21. Diane gave evidence at par 60 that Mrs Jones never suggested to her that Diane had stolen everything she owned. She said at par 62 that there was regular conflict between her brother and her family "as he always made inflammatory accusations that we were stealing from Mum's house which was simply not happening. I found his behaviour erratic and paranoid and it was infuriating to have to defend myself and almost beg to be given easy going access to Mum's house which I had enjoyed for the previous 40 years." 22. I formed the clear view from listening to Diane's evidence in cross-examination that she was an honest witness who responded to questions to the best of her ability. It appeared, not unreasonably, that Diane was a little overawed and un-used to the experience of giving evidence. Sometimes it appeared that she may have not fully understood the question before answering it, but overall I am satisfied that she gave truthful and accurate evidence; subject to the natural qualification that human memory is often not precisely accurate. 23. I fully accept the evidence given by Diane at T 92.15 and T 100.15 that she did not receive any parental assistance in relation to her present home that she acquired in 1973, and that she did not get any financial help from her father. 24. I also accept the truth of Diane's evidence at T 101.15 that she had never stolen anything from her parents. 25. Diane was asked questions in cross-examination concerning Stephen's accusations that Diane and her family had taken property belonging to Mrs Jones. At T 71.45 to T 72.13 the following exchange took place: Q. Because there were significant changes that had occurred between 2010 and 2013 in the relationship between you and your mother, and between Stephen and your brother (as said), weren't there? A. Yes. Q. Like, one big change was in about December 2012, there was an allegation that you had been stealing property belonging to your mother from 163, wasn't there? A. There was an allegation. Q. Yes. A. Yes. Q. And your mother believed that allegation, didn't she? A. (No verbal reply) Q. You say it's wrong. I know you say it's wrong, but she did believe it, didn't she? A. Yes, she did. 1. The final response appears to be an acceptance by Diane that Mrs Jones did believe that Diane had been stealing her property. Then, at T 73.11 to 74.25, the following cross-examination took place: Q. The first time an allegation of stealing was made was December 2012. Would you agree? A. Yes. Q. I might go into more specifics tomorrow morning but you agree, in general terms, that there were various allegations made after that by Stephen? A. I do. Q. In the presence of you and your mother. A. Yes. Q. Do you agree that these allegations were made in that period between December 2012 when it was first made and that they were repeated or there were alleged further incidents-- A. Yes. Q. --which you dispute. A. Most definitely. Q. But those allegations were discussed at various conversations between December 2012 and June 2013. Do you agree with that? A. Yes. Q. Those conversations occurred between you and Stephen and your mum in that period-- A. Yes, yes. Q. --between December 2012 and June 2013. A. Yes. Q. I'm suggesting to you that - and you've also agreed, haven't you, that your mother, at least for a period you say, believed those allegations. … Q. There were conversations that occurred between you, your mother and Stephen in the period between December 2012 and June 2013 where statements made by your mother in your presence gave you the belief that she believed that you had been stealing from her? A. The conversations that took place by my mother were - every one of them was to say that my brother - my brother told Mum that I was stealing things. My mother never ever accused me of stealing things. 1. I accept Diane's evidence that Mrs Jones did not ever accuse her of stealing Mrs Jones' property. I will return to this issue below, after I have considered other evidence that is relevant to the subject. As will be seen, the evidence given by Stephen concerning the facts of the alleged stealing is incredible to the point of it being a fantasy. Save for what might be inferred from the terms of Mrs Jones' 19 June 2013 will, none of Mrs Jones' conduct was in any way consistent with her believing that Diane and her family had stolen her property. Evidence of Mrs Jones' granddaughters 1. Mrs Jones' granddaughters, Jane Hughes and Sarah Bradley, swore affidavits and were cross-examined. They were respectively about 49 and 47 years of age at the time of the hearing. 2. Jane gave evidence that she thought Stephen moved permanently into No 163 in about 2012. In cross-examination, in response to a question put by counsel, she said that Stephen moved into No 165 on a full-time basis in 2013. It was suggested to Jane in cross-examination that Stephen moved into No 165 full-time during 2012, but Jane maintained her evidence that it was at some time during 2013: T 119.22 to T 120.50, and T 122.36. That was a strange approach to cross-examination by counsel, given that Stephen admitted in cross-examination at T 289.21 that he moved into No 165 in about September 2013. 3. Jane gave evidence that she and her husband "often were set upon by Steve" who said: "Where have you taken the train set?" or "Someone has taken my power board. Was it you?" or "Have you seen the mower? It's meant to be in the back room" or "You've taken the power boards, haven't you? Where are my tools and fishing nets?" 4. Jane said that Stephen's behaviour had an effect on Mrs Jones who said: "There's people who have been breaking in and stealing things. I am worried about them coming back to take more. Stevie has heard trucks coming in the middle of the night". 5. In cross-examination at T 122.25, Jane suggested that Stephen's allegations that other members of the family were stealing things from No 165, that were made in her presence, occurred after Stephen moved permanently into No 165. That was something that happened in late 2013. 6. Jane said that she had quite a lot of things stored at Mrs Jones' house, and that Stephen installed locks on the internal doors, so that there was restricted access to rooms in the house. Other evidence in the proceedings established that the internal locks, other than the lock to the big room downstairs, were installed in late 2013. 7. At T 121.45, Jane gave evidence that she (and I infer other members of the family) helped Mrs Jones clean out her back room a few times, and "took things down to 'Vinnie's' … the 'Salvos'" and "thrift shops in [the village]". 8. Jane gave evidence concerning her observations of the decline in Mrs Jones' health and living circumstances, but she said that those matters related to the time after Stephen moved into No 165. As that occurred in late 2013, after the date of the 19 June 2013 will, the evidence is not directly relevant to the issue of Mrs Jones' testamentary capacity at the date she made her final will. 9. Jane was cross-examined for the evident purpose of establishing that the principal aspects of Mrs Jones' decline that Jane observed occurred after a Guardianship Division determination, which took place on 15 September 2014. Jane denied the suggestion at T 127.19. Jane insisted that she observed Mrs Jones' deterioration from 2013: T 127.49. 10. In her affidavit, Jane gave evidence of an event that occurred after Mrs Jones died. She said: 33. A day or so later when I [was] at the funeral directors making arrangements Uncle Steve dropped a bombshell when he said "Ben and I are the executors of the Will." My mother was completely taken by surprise and we were all in shock. 34. Uncle Steve looked sheepish and we all started to question him stridently. In the end he made some remark like "We can just go back to the way it was and get a house each." He was almost blasé about it. 1. At T 129.50, counsel put to Jane that the statements that she attributed to Stephen were not said. Jane insisted: "It was absolutely said". 2. I formed the view that Jane was generally an honest and reliable witness. Her evidence of when particular events may have occurred may not be entirely reliable. However, as she placed most of her evidence concerning Mrs Jones' deterioration after Stephen moved permanently into No 165 in late 2013, the evidence related to a period after the date of Mrs Jones' 19 June 2013 will. Jane was correct in her insistence that Stephen moved into No 165 at that time, rather than in 2012. 3. Jane was cross-examined about the process by which her affidavit was prepared, and insisted that, in accordance with instructions that she received, she wrote her version of events out so that they could be put into affidavit form by Diane's solicitor. She did not discuss her evidence with other members of her family. I accept that evidence. 4. No suggestion was put to Jane in cross-examination that she had ever had anything other than a close and loving relationship with Mrs Jones. 5. Sarah explained in her affidavit that she and her family always spent Christmas at No 165, and that they left their summertime belongings in the big room downstairs throughout the year. They had beach towels, surfboards, picnic gear and the like stored at the house, and as the years went on they "ended up having all sorts of stuff stored there". 6. Sarah also said that she thought Stephen moved into No 165 in 2013, "and it was at this time that things started to change for our family. Between the time Uncle Steve moved in and the date of Nan's death I saw her become increasingly forgetful, fragile and confused and my mother constantly worried about Nan". Sarah gave evidence in some detail of her observations concerning Mrs Jones becoming cut off from the outside world, because No 165 was always locked up. She also gave evidence concerning her observations about Mrs Jones' physical appearance, and events that occurred shortly before Mrs Jones' death. 7. Sarah was also cross-examined on the basis that Stephen moved into No 165 on a full-time basis in the latter months of 2012: T 103.45, T 108.35 and T 114.9. As noted above, Stephen conceded that he moved permanently into No 165 in September 2013. 8. Sarah gave evidence of Stephen accusing members of the family of stealing things from No 165, but, as I understand her evidence, her recollection was that these accusations were made after Stephen moved into that house. Sarah said that she noticed Mrs Jones becoming quite worried about possessions, and that she said on more than one occasion: "I hope the house is secure." 9. Counsel cross-examined Sarah directed at obtaining her agreement that most of her evidence concerning Mrs Jones' decline occurred after the Guardianship Division hearing. It appeared to me that, even though Sarah was honest and attempted to give truthful answers, she became overwhelmed and found herself unable to respond to questions other than by saying: "I can't remember". At one stage Sarah asked the Court for a short break so that she could gather herself together. I formed the impression that Sarah became anxious and unable to respond to questions that involved her recalling when particular events the subject of her evidence had occurred. It appeared that Sarah had developed the equivalent of stage fright. 10. According to Sarah, when she was present at the arrangements for Mrs Jones' funeral, the funeral director asked: "Who are the executors?" and when Diane replied: "Myself and my brother are", Stephen said: "No, it's Ben and I". Sarah said that this response provoked a lot of hostility in the room, and at the end of the discussion Stephen said: "What about we go back to the way it was – we get a house each don't we?" 11. Sarah also denied in cross-examination that she had collaborated with her sister in preparing her affidavit, and described a process for that preparation that was substantially the same as the evidence given by Jane. 12. I formed the view that Sarah was generally an honest witness, although the weight of her evidence is diminished by the appearance that she became overwhelmed by the process of giving evidence, which inhibited her ability to respond directly and confidently to the questions that were asked of her in cross-examination. Evidence of Stephen Jones 1. I have not accepted the evidence given by Stephen unless it is corroborated by objective evidence or is otherwise inherently probable. Stephen was an entirely unsatisfactory witness. Credibility of Stephen's evidence 1. It will be convenient to consider the reasons why I have not accepted Stephen as a credible witness before I deal with the evidence that Stephen gave in his affidavits. It will be convenient to defer a consideration of Stephen's evidence concerning his involvement in the preparation of Mrs Jones' 19 June 2013 will until I consider the objective evidence on that subject. 2. Stephen displayed very unusual characteristics during his cross-examination. I do not want to cause unnecessary offence, but it appeared that he laboured under physical and mental impediments as a result of some process that has not been explained. 3. Stephen consistently displayed unusual physical mannerisms that were unmistakable, but subtly out of the ordinary and difficult to describe with clarity. He was not composed and did not sit steadily. He constantly made unusual facial gestures and hand movements. 4. In listening to and responding to questions from counsel in cross-examination, Stephen appeared consistently unable to focus, or to wait until the question was finished before he commenced his answers. Counsel was obliged to continue with her questions notwithstanding the constant interruptions made by Stephen. Many of his answers were unresponsive in a manner that seemed to be quite arbitrary and difficult to follow. I will provide some examples below. 5. The evidence established that, at the age of 24, Stephen left Australia to travel overseas. He was incarcerated in Mexico for a period of more than two years. Stephen asserted at one point in his cross-examination that he had been proved innocent at the end of his time in gaol. 6. Stephen admitted that, at a time when Mr Jones was alive, he was arrested and gaoled for 13 months for the cultivation and supply of Indian hemp at his Kangaroo Valley property. 7. I have not treated the evidence of these apparent criminal offences as being determinative of Stephen's lack of credit, but they plainly suggest that, at times in his life, Stephen has been prepared to act illegally. 8. Stephen tendered a report of Dr Omar Marwat, consultant psychiatrist, to a doctor who was likely to be Stephen's general practitioner, dated 10 February 2016 (Exhibit D1). Aspects of the report are not legible in the photocopy that was in evidence. The report described Stephen as "a very likeable gentleman who presented with resolving grief and secondary depression after his mother's death in May 2015". The report stated that Stephen had a "history of excessive checking behaviours (of his house and car doors) after his house had been [broken?] into and his personal effects stolen by family members". Incidentally, this evidence appears to corroborate that Stephen believed that the break-in that I will consider below was effected by members of his family. The report stated: "His presenting symptoms occur upon a background [of?] a 5 year history of benzodiazepine dependence (Oxazepam 15 mg PO daily) which Stephen abruptly [?] days ago, and psychological vulnerabilities related to traumatic experiences in his mid-adolescence". The doctor reported that Stephen had "experienced a traumatic 18 months while at boarding school". 9. The report contained another reference to house break-ins that "had continued intermittently over ensuing years". 10. I note also that Stephen claimed in his affidavits that he suffered from post-traumatic stress disorder as a result of a personal assault that he suffered in 2009. 11. I have not attributed any particular significance to this evidence, as there was no direct medical evidence that may have linked the matters discussed by Dr Marwat to the manner and substance of the evidence given by Stephen in cross-examination. However, it is to be noted, and may at least provide some background to aspects of Stephen's evidence that I will consider below. 12. It is appropriate that I set out a number of extracts from the cross-examination of Stephen. Some of those extracts are lengthy. I have resisted abbreviating them to the greatest extent possible, as that would detract from the effect of the evidence. From my observation of the way the cross-examination proceeded, I should note that counsel did not generally interrupt Stephen, but the effect of his continual responses before counsel had finished her questions was that counsel had to persevere by directing Stephen's attention to the question that he was required to answer. 13. At T 162.33 to T 165.6, the following cross-examination took place concerning the circumstances in which properties had been allegedly acquired by Stephen and ultimately sold by Mr Jones and replaced by No 163. The evidence suggested that Mr Jones had a power of attorney for Stephen. The document was not in evidence. There was no evidence as to why Stephen granted a power of attorney to his father at a young age. The evidence was: Q. And in 1981, you borrowed that 32,000 from your father, the Kangaroo Valley money. A. Yes. Q. So by 1981, you had two properties. You had [No 191], and you also had Kangaroo Valley. A. Yes, that's right. Q. That's correct? A. Yes. Q. And your father had loaned you the money, the 32,000, for the Kangaroo Valley. A. Which I paid him a big chunk of that back, you know. Q. You didn't pay it all back, though, did you? A. I think I may have owed-- Q. But you're not sure, are you? A. No, I know pretty much. I thought I paid him most of it back. Q. All right. A. Yeah. Q. And you also, at that stage, had a property at [No 191]. A. Yes, of course…(not transcribable)…yes. Q. Now, 1985, your father purchased [No 163], didn't he? A. He did. Yes. Q. And he purchased that one, that property, for you, didn't he? A. I don't know any of that. Q. Well, you know-- A. I don't know. Q. --that throughout your father and mother's lives, after the purchase of [No 163]-- A. Mm. Q. --and [No 165], you know that it was always the case-- A. No. Q. --that there was a house for Diane and a house for Steve when we go. A. I-- Q. That's what was said, wasn't it? A. That's what Dad said. Yeah, that's right. Q. That's right. A. And on the front lawn, I said to him, "So, brilliant, you've liquidated all my - my super and everything," because the blocks were my super, you know. I was-- Q. And he-- A. --even-- Q. And he-- A. --and he just - he refused. He said, "You can have all the - the furniture-- Q. He sold-- A. --inside, and I went, "No," you know, whoever-- Q. He sold lot 40 and he sold lot 191-- A. Do you know how much-- Q. --and he purchased. A. I don't know. BATES: Your Honour, could my friend just let the witness finish his answer? HIS HONOUR: Yes. This is a bit difficult, because some of the answers are going on. 1. Counsel was trying to explore Stephen's evidence concerning the circumstances in which Mr Jones had sold two properties that he had bought in Stephen's name. When those properties were sold, No 163 was purchased. Stephen claimed not to know that it was always intended by his parents that he would ultimately receive No 163. That evidence was entirely inconsistent with the substantial amount of evidence that the parents had for decades intended that Stephen would get No 163 and Diane would get No 165, and that that was common knowledge within the family. Counsel's attempt to explore the question was deflected by Stephen's non-responsive digression into an argument that he claimed to have had with Mr Jones about the sale of the properties. 2. On the same subject, the following cross-examination occurred at T 166.41 to T 167.40. Q. Your dad sold lot 40 and sold lot 191, two properties that were purchased for you. He sold them and he purchased 163. A. I bought lot 40 myself. Q. From wages you earned while you were working for your dad. A. No, that's wrong. Q. Dad bought 191 for you. A. I bought them. I was working as a builder's labourer earning quite good money back then and I paid it off. It took me about two or three years with Q. Your father A. --General Electric Q. Your father A. --or general Q. --purchased A. --someone Q. --in 1974 A. --credit. Q. --191 and he put it in your name. A. That's right. Q. Didn't he? A. Yes, he did. Q. He then sold both of those and put - built you another property, 163. A. That's - well, he didn't tell me that. I mean Q. But you know - you know that - and it's - it was well-known in your family during your mother and father's A. By who? Q. --lifetime - wait a second - that A. Sorry. Q. --163 was going to be yours and 165 was going to be Diane's. A. No. Q. You know that your dad used to say something along the lines of, "There's a house for Diane and Steve when we go." He always said that, didn't he? A. I don't know if that's true. Q. Okay. But he - and he - he A. I thought I had my own house, you know, 191 and then first I've bought lot 40 on the lake cause, again, it was waterfront and back then I was sailing and it had a...(not transcribable)… 1. This line of cross-examination by counsel broke down because Stephen would not focus on the questions. Again, he denied, contrary to the evidence, that Diane was going to get No 165 and he was going to get No 163. 2. At T 184.1 to T 184.36, counsel was trying to question Stephen about a part of one of Diane's affidavits that concerned a discussion between the siblings, in Mrs Jones' presence, concerning the possibility of Mrs Jones' will being changed to provide recompense to Stephen for the conduct of his father in relation to selling Stephen's properties. Q. Diane says, "We shouldn't be discussing mum's will like this in front of her." You say - you following me where we're reading there? "Yes, we should. You agreed to the conditions in the old will." "Yes, but Leonie said the valuations would be the same now," and you say, "I will speak to Leonie. You're doing a great job with everything you do for mum. Maybe you should get 163 and I'll have 165." That's a conversation you had, isn't it? A. If I said that, I was exaggerating or trying to-- Q. But you said, "Maybe you should get 163 and I'll have 165." Did you say that to Diane back in February 2012? Do you remember that? A. I remember all of this. Yeah, I do. But the thing-- Q. Can you answer my question. I'll ask you two things. Firstly, did you say "I will speak to Leonie"? Do you remember saying that? "I'll speak to Leonie." A. I don't remember saying "you're doing a great job" but-- Q. No, I'm asking what you do remember saying. "I will speak to Leonie." A. Yes. Q. Do you remember saying that? A. Yep. Q. And you remember saying, "Maybe you should get 163 and I'll have 165." That's right? A. I don't really remember saying that, to be honest. Q. When you're talking about Leonie there, you're talking about Leonie Sinclair, the solicitor, is that right? A. Yeah, that's right. Yeah. Cause she been - well, she inherited the file for the - they've been married and all over. Q. And that's exactly what you did. You then went and you made appointments for your mother to see Leonie, didn't you? A. I think this was about the time when all the paintings were taken. 1. The last two answers in this extract are good examples of how Stephen's answers were frequently non-responsive in a completely unfocused way. 2. The following cross-examination took place concerning Stephen's claims that Diane regularly stole the property of Mrs Jones at T 262.26 to T 262.50: Q. Paragraph 42 involved and your paragraph 28. You-- A. As I told you, once we discovered all of the stuff Diane actually take or moving stuff into her car, Mum was very upset. There was stuff there that - from her mother, so-- Q. You know that that's absolute nonsense-- A. I've still got the stuff-- Q. that your mother and Diane and the girls, they were often cleaning out that back room, weren't they? A. No, that's untrue. Q. Well, you weren't there, sir. On your own evidence, sir, in 2012, you weren't there. You were working. You were in Kangaroo Valley. You were living in Monterey. A. I-- Q. You were not there regularly. A. Every time I'd go, I'd go and check - not every time but every few years, I'd check and you could see that - what was gone. Yeah, we were both - my mother and I were both quite…(not transcribable)...I guess, essentially, but sure, I was there. Q. You are just making this up, sir, aren't you? A. No, I'm not. 1. Stephen started by maintaining that Diane had stolen her mother's property, but then was obliged to admit that, during 2012, he was mostly living in the Kangaroo Valley or at Monterey. Ultimately, he justified his evidence by saying that he discovered what was gone "every few years". 2. Finally, counsel cross-examined Stephen about his evidence concerning Stephen's claim that, after Mrs Jones' attendance at the office of Ms Carolyn Hagedoorn of Marriott Oliver, Mrs Jones had not realised that she had not changed her will, at T 263.33 to T 264.50: Q. You say that when your mother came out from seeing Carolyn, she said something to you that she was being talked over by Carolyn. Is that right? A. She just talked over the top and we were listened to her all the time. Q. But she wasn't talked over, was she, such that she was able to do the power of attorney and enduring guardian. A. But she - remember she had very hard hearing at that stage and she didn't realise until they arrived that she hadn't changed the will, hadn't changed anything. She wanted to although Q. You mother didn't realise, is that your evidence, that she hadn't changed her will until A. Well, the-- Q. --you spoke to her. A. Well, she-- Q. Is that right? A. She said something like, well, they where - that - she said, "Well, will that be okay, do you think", and I said, "Yep", I said, "Mum, you realise that they haven't - well, still haven't, you know, changed the will in any way or haven't you know" - and she straightaway wanted to go back in at that time Q. She straightaway wanted to go back in. A. Yeah, she-- Q. That's not in your evidence, sir. A. No. Q. It's not in your affidavit. A. That's what happened. I'm sure I didn't actually say that. Q. Well, it's not in your affidavit, sir. A. Okay. Q. And you say that when your mother came out from seeing Carolyn, she didn't actually realise that she hadn't changed her will. A. Yep. Q. That's because you had a conversation with Carolyn, isn't it? A. No, Carolyn just kept-- Q. What did Carolyn say to you? A. She said, "Get your hip changed", or "Go and get your hips done", or something like that. Q. She said to you what, "You and get your hip done"? A. Yeah. Q. Did she talk to you about Dr Larissa? A. I can't even remember that, to be honest. Well, most of the time we've been and I - we were there, we were waiting, trying to get things done. Q. What do you mean "trying to get things done"? Trying to get the will changed, is that what you mean? A. What Mum wanted, yeah. Well, Dr Larissa had accidentally given Mum something which caused her to faint according to the-- Q. Dr Larissa had accidentally what? A. I heard my sister talking to the cardiologist one time and he had - he said, well, whatever she's - the doctor's giving her has caused her to faint. He said those two drugs would cause her to faint, yeah. Q. Again-- A. I mean, I just heard that. Again-- Q. None of this is-- A. No. 1. Stephen's digression, involving the evidence that the solicitor told him to get his hips done, and that the doctor had given Mrs Jones something that had caused her to faint, exemplify the extent to which Stephen's evidence was so unresponsive as to prevent counsel being able to elicit his response to the relevant subject. 2. I consider these extracts from the transcript of the cross-examination of Stephen to be relatively representative, although they were chosen to illustrate the non-responsiveness of much of what Stephen said. Stephen simply did not give his evidence in a sober and attentive way in direct response to the questions that were asked of him by counsel. He continually evaded the point. He did not give his evidence in a way that would instil confidence in the Court that it could accept and act upon his uncorroborated evidence. 3. The deficiencies in Stephen's evidence were not limited to the manner in which he responded to questions in cross-examination, but extended to the frequent contradictions in his evidence. At T 163.30, Stephen admitted that Mr Jones had said in respect of No 165 and No 163 that there was a house for Diane and a house for Stephen. Yet one page later, at T 164.31, Stephen said of the proposition that No 163 had been purchased for him: "It's simply not true, though". When the inconsistency was pointed out to him by counsel, Stephen said at T 164.39: "Yeah, but he didn't tell me that. You know, it just wasn't true". 4. Following on from that evidence, counsel said to Stephen at T 164.48: "Your father said to you, "I'll buy some property with your share and you'll get it eventually."" Stephen's answer was: "No. That's not what he said at all". As it happened, in formulating her question, counsel was reading verbatim from par 5 of Stephen's 22 July 2016 affidavit, as to what was said by Mr Jones. When this was pointed out at T 165.8, all Stephen could say was: "No, you mean way back in the beginning, when he was conning me out of all – I worked pretty hard for it". Finally, at T 166.7, Stephen conceded: "Yeah. That – that bit is true". 5. Yet, once again, at T 227.46, Stephen denied that Mr Jones purchased No 163 for him. 6. At par 41 of her 9 February 2017 affidavit, Diane gave evidence of a conversation she had with Stephen, on 26 February 2012, concerning Mrs Jones' will. According to Diane, Stephen said that he wanted to go back to an old will in which Diane had to pay Stephen an amount to even up the expected difference in value of No 165 and No 163. Diane said that Stephen said: Dad ripped me off. He sold my land and my houses. He underpaid me at work and owed me a lot of money. These two houses were paid for with my money. 1. Although Stephen had not previously suggested that No 165 or No 163 had actually been purchased with his money (as opposed to the proceeds of sale of other properties that he said had been sold by Mr Jones without his permission), at T 181.41 Stephen admitted that, during the conversation that he had with Diane in February 2012 in the presence of Mrs Jones, he claimed that No 165 was paid for with his money. Further, at T 182.26 Stephen answered: "Yeah, of course", when his attention was directed to the assertion that he had said that the two houses were purchased with his money. At T 182.30 and T 182.36, Stephen quickly retreated to assertions that he had "contributed hugely" and "contributed enormously" to the purchase of the two houses. He then, at T 182.44, denied that he had made no contribution at all. 2. Notwithstanding Ms Sinclair's evidence concerning Stephen's attempts, at a 5 June 2012 meeting at No 165, to achieve a change in Mrs Jones' will favourable to him, Stephen denied, at T 232.10, T 232.45, T 243.30 and T 244.16, that he wanted Mrs Jones to change her will in his favour. I will explain Ms Sinclair's evidence on this subject below. At T 244.16, Stephen answered a point blank "No" to the question: "So you agree with me that in June 2012, you were pushing for a change to your mother's will. Yes or no". 3. Stephen's cross-examination was littered with instances of varying significance in which he contradicted evidence that he had given in his affidavits or earlier statements that he had made in cross-examination. I have referred above only to a sample of the inconsistencies in Stephen's evidence. I conclude that Stephen was evasive in his evidence and did not respond candidly to the questions that were asked of him. Mr Jones' dealings with Stephen's property 1. Stephen gave evidence on a number of subjects that were of importance to his claim that Mrs Jones, of her own volition, decided to leave all of her property to Stephen, by means of the changes to her testamentary dispositions made by the 19 June 2013 will. 2. The most significant of the subjects is Stephen's belief that he was, to use Stephen's words, "ripped off" by Mr Jones, in relation to work done by Stephen for Mr Jones for the purposes of a second-hand furniture business over many years, and in respect of property transactions that Stephen claimed had been undertaken by Mr Jones, using a power of attorney from Stephen, without Stephen's knowledge or consent. 3. This evidence is of fundamental importance to Stephen's case, as he submitted that Mrs Jones retained testamentary capacity at the date she made her 19 June 2013 will, so that it was a matter for her to accept or reject Stephen's claim that he was entitled to preferment over Diane, because he had contributed disproportionately to the acquisition of the family's assets, as he claimed. 4. The evidence makes it quite clear that, by 2012 and 2013, Stephen was obsessed by the idea that he had been treated unfairly, and that it would be wrong for Mrs Jones to leave a will that gave No 165 to Diane and No 163 to Stephen. 5. It is difficult, if not impossible, to follow the evidence given by Stephen on this subject, and to make an objective judgment based upon proper evidence as to what the truth was. 6. Stephen's case identified a number of properties that Stephen asserted had been purchased in his name with funds provided by him, including by paying off loans taken out for the purpose of the purchases. However, there was no clear evidence that the properties were in fact purchased in Stephen's name. One subject matter that can clearly be proved, by reason of records maintained by the Registrar General, is the title to property in this state from time to time. 7. An aspect of the evidence that I found telling arose out of the cross-examination of Ms Sinclair, concerning what had happened at the meeting on 5 June 2012 at No 165 attended by Ms Sinclair, Mrs Jones and Stephen. Ms Sinclair was asked about the two properties that are the subject of Stephen's claim that he was cheated out of them by Mr Jones. At T 88.36, counsel asked: "Were you aware that at one stage those properties had been owned by Stephen and his father or by his father?" This question caused me to understand that Stephen's legal representatives did not have proof as to whether the properties were in Stephen's name or not. 8. Stephen's primary evidence in support of this aspect of his case is to be found in pars 3 to 10 of his affidavit made on 22 July 2016. All that can be said is that Stephen claimed that he worked for many years with Mr Jones in a second-hand furniture business that Stephen says was effectively a partnership between the two men, and Mr Jones did not pay him his rightful share of the profits. Stephen also said that he bought one property himself, and the property known as No 191 was purchased in his name, but both properties were ultimately sold by Mr Jones without Stephen's permission. Stephen claimed that the proceeds of sale were applied by Mr Jones in the purchase of No 163. Mr Jones was said to have been able to implement these transactions because he had a power of attorney from Stephen. 9. Unfortunately, the Court cannot know whether, or not, Mr Jones had been granted the power of attorney because of some lack of capacity on Stephen's part, and whether, or not, Mr Jones took Stephen into the business in order to take care of and provide for him. 10. The Court can do no more on the existing state of the evidence than to conclude that it is possible that Stephen was not treated fairly by Mr Jones, but it cannot make a positive finding to that effect. It does appear that Mr Jones directed his efforts towards acquiring and paying off No 165 and No 163 so as to ensure that a house property could be left to each of the children upon the deaths of Mr and Mrs Jones. 11. The following cross-examination of Stephen occurred on the subject of his claims that Diane had stolen Mrs Jones' property and that Stephen had been "ripped off" by his father: T 260.6 to T 262.18. Q. So you'd agree with me that on a number of occasions you were telling your mum, "I've never been paid. I wasn't paid. Dad stole my land. He never gave me the money. He never gave me anything." A. A few times, yeah. … Q. But there's these things here you say about the plaintiff. What could you possibly be saying about Diane? A. No, this was after everything was stolen, all cleaned out and it would've just been Mum was concerned about everything, whatever. Q. So the conversations about the plaintiff, you were saying Diane was stealing all your stuff. Is that it? A. No, that's - I don't think so. Q. Sorry? A. No. Q. Well, what were the conversations you were having with your mother about the plaintiff, about Diane? A. I don't really remember that we did in fact have conversations about Diane. Q. Do you remember those conversations? A. No. Q. You then say that your mother said, "I feel bad about your father selling the two properties that were yours". A. Yeah, she did. … Q. "You slaved your heart out in that business". A. Yeah, she said-- Q. "I think these properties should go to you". A. Yeah, she did. Q. Are you quite sure your mother said that to you? A. Yeah, she sure did. Q. You're not making that up, sir. A. No, I'm not. Q. When did she say that? A. I can't remember. I'm not - I'm not computer literate. I do know that, so Q. You know how to write. … Q. You didn't think to take a note of that conversation. A. No. Q. And you're quite sure that that's what your mother said. A. Yeah, she said that. Q. And you're quite that she said to you during - or, sorry, I withdraw that. She made that comment to you after you had been talking about Diane. Is that right? A. I'm - I don't know if it was about Diane or whether - whether she was talking about-- Q. Well, you've said here-- A. --the business. Q. --you had a number of conversations about the plaintiff and the history of the family. A. Yeah. Q. Including what happened to you and your father in the furniture business and then your mother said she's going to give everything to you. A. Yeah. Q. Is that what happened? A. Yeah, that's what happened. Q. That's what you say happened. A. Yeah, that's what she said. Q. Did you think that was a bit unusual? A. No, she was - she was upset because we'd - well, Diane and girls were taking stuff and she was really upset by that. She's a Christian woman. She felt that that was wrong, yeah. Q. And in that time Diane was taking you to hair appointments every week, wasn't she? A. Yeah, she was. … Q. Mum was seeing the grandchildren-- A. Yeah, yeah. Q. --and the great-grandchildren, wasn't she? A. Yes, she was. Q. And there was no breakdown whatsoever, was there-- A. No. Q. --in the relationship between Diane and her mother at this time, was there? A. No. 1. In Stephen's cross-examination, Stephen gave evidence on the subject of Mr Jones "ripping him off" at T 245.40 to T 246.45. The evidence related to the meeting that Ms Sinclair attended at No 165 on 5 June 2012. Q. You were discussing with Mum how you weren't paid by your father? A. Yeah. Q. How your father ripped you off. A. Yeah, well, she didn't know that, but later on-- Q. How your father sold properties and you got nothing. Is that what you were telling Mum? A. Yeah, later on, I did tell-- Q. No, I'm talking about this day. A. Well-- Q. Are these the things you were discussing with your mother in front of Leonie on this day? A. No. Q. It's not? A. No. Q. Well, what were you talking about? What are the concepts here? A. Mum was already aware that-- Q. What is being discussed that you say that your mother fully understood on this day? What were you talking about then? A. The facts that I had been disenfranchised by my father. That all the money had gone somewhere. Not - certainly not to her and not to me. Dad was, you know-- Q. Just to be clear-- A. Yeah. Q. --were you telling your mother that your father disenfranchised her as well as you? A. Well, he wasn't - no. Q. You just said a moment ago that all the money didn't go to you and it didn't go to her. Is that your evidence today, that your father also ripped off your mother? A. Well, any business money, she didn't see any of it. Q. How do you know? A. Well, I don't know that, but I was-- Q. You don't know, do you? You've got no idea. A. Yeah, I do. Q. Again, you're just making this up as you-- A. No. Q. --sit in the witness box today. A. That's not true. Q. You've got no basis for saying that your father kept money from your mother, do you? A. Well, I have someone - the money - there was a substantial amount of money. Q. You've got no idea how much money it was, do you? A. No, not really, but it was certainly millions of dollars. 1. I will merely observe at this point that, upon the objective evidence, Stephen's suggestion that Mr Jones kept millions of dollars from his wife is utterly unsupportable and totally fantastic. Diane and her family stealing from Mrs Jones 1. Stephen gave evidence that, from a time in about mid-2012, Diane and her family began large scale pilfering of his and Mrs Jones' property from No 165. 2. In par 23 of his 22 July 2016 affidavit, Stephen gave evidence that in about August or September 2012, he drove to Diane's house at Bombaderry, where Mrs Jones had been staying, and picked her up. He then drove Mrs Jones home. His evidence then was: … When we arrived at the deceased's home I noticed that there was a lot of deep tire marks made by heavy vehicles on the front yard. My mother and I then went into her home and I saw that most of the contents of the home had been removed. There was very little left. There were a number of boxes stacked near the door. My mother was visibly shocked. "Where's all the stuff gone?" I said (based on the very wide tire tracks which I recognised as those belonging to the plaintiff's sons-in-law), "It looks as though they've cleaned you out Mum." The deceased understood that I was referring to Diane and her family. She said, "Why did they do that? I said, "Maybe they thought you weren't coming back. Do you want to report this to the police?" The deceased replied, "No." 1. In par 24, Stephen claimed that, shortly after that event he had a conversation with Diane in which Diane said: "Mum said told me (sic) I could take whatever I wanted." 2. Stephen then said, in par 25: "… They took my mother's good queen sized bed and changed it for a very old worn out bed, John [Diane's husband] said "She doesn't need it anyway."" 3. Next, in par 26, Stephen said that "[s]ome months later" he noticed that Mrs Jones' good queen size bed had been replaced by an inferior old bed. Stephen claimed that, when he put this to John, he replied: "She didn't need it. She was old." 4. This was said to have been said by John while Mrs Jones was alive and living at No 165. 5. Stephen explained in par 28, as the reason why he changed the locks on No 165, that he did that so that Diane and her family would have to telephone and arrange to visit if they wished to see Mrs Jones: "There had been too much looting of the property by the plaintiff and her family." 6. Finally, in his 22 July 2016 affidavit, Stephen said in par 36: In approximately 2012, I saw my sister had packed boxes full of china, crockery, glassware, silverware and silver plates over on the far corner of my mother's garage and hide them under other items. When my mother was busy watching television, she would load them box by box in her car boot and back seat. I watched her do it and when I confronted her she said "Oh mum told me to clean it out". I said "Behind her back?" I took my mother out to show her and she was upset. Diane left. I then put the boxes at my house. 1. Stephen returned to this subject in his 18 April 2017 affidavit in par 3, in response to par 41 of Diane's 9 February 2017 affidavit. Stephen said: … I recall that I did have a discussion with my sister on or about 14 April 2012 after I had noticed that she was taking away mum's paintings and antiques from 165. In early 2012 my mother gave to me a copy of her 2010 Will and her bank books. In light of the fact that my mother and I were very upset that we had caught my sister in the act of taking away mum's belongings I brought up the 2010 Will and the conversation was as follows… 1. Stephen said in response to Diane's par 58: "… It is true that after the episodes that I witnessed of my sister pilfering my mother's belongings I became very distrustful of my sister". 2. Then in response to par 60 of Diane's affidavit Stephen said: I changed the garage door remote to secure the property. I was not being paranoid. Mum said words to the effect: Mum: I cannot believe what Diane has done to me stealing everything that I own. I am very upset about it. 1. Stephen gave the following evidence in cross-examination concerning his claim that Diane and her family had stolen his and Mrs Jones' property: T 184.46 to T 185.25. Stephen's evidence concerning the quantity of furniture that he claims Diane's family removed from No 165 was clearly exaggerated to an astounding degree. Q. On 8 May, just continuing there with Diane's affidavit, you challenged Diane or you accused her of removing stuff from downstairs, didn't you? A. Yes. About 12 tonne of furniture, really. They took lots of stuff. Q. 12 tonne of furniture? A. Tonnes and tonnes of stuff, yeah. Lots of it. Q. And you say it's from downstairs? A. Yep. Q. Can you have a look at 43. A. Yep. Q. Now, we're not talking about 12 tonne furniture there. A. No. Well, you know. Q. You're saying, "You moved stuff from the downstairs wardrobe." A. Yeah, that's right. Q. "'Who was with you when you did it? Some of the records are valuable. You should have asked.' To which I replied, 'Everything.'" A. Yep. Q. That's not 12 tonne of furniture, is it? A. No, that's not. That was in the back room, and that was a verbal agreement, as I said, when my father's father died, and it was very high quality antiques. Q. Whilst we're there-- A. Maybe there was 10 tonne. But it was a lot. 1. Then at T 200.46 to T 205.42 the following cross-examination took place concerning Stephen's claim that the Brachers "cleaned out" Mrs Jones's home. The extract has been edited for the sake of brevity. Q. You say "heavy vehicles on the front yard". A. Yeah. Q. Yes? A. Yes. Q. Then your mother and you went into 165. A. Yep. Q. And most of the contents of the home were removed. A. Yeah, they were. Q. So you went upstairs to 165-- A. Yes. Q. --and mum was cleaned out. A. Yeah. Q. That's what you said, isn't it? A. Yeah. Someone took it all. Q. You said, "Mum, it looks as though they've cleaned you out." A. Yeah. Q. What did they take? A. Many cupboards. Many - we bought things from-- Q. We're talking about - we're upstairs at 165, at mum's home. A. They took upstairs-- Q. What did they take from upstairs A. A bed - a double bed. Q. A double bed out of upstairs. A. Yeah. Q. From what bedroom? A. Mum's bedroom. Q. So they took mum's bed. A. Yeah. Q. Really? A. Yeah. Q. So she didn't have a bed to sleep in that night. A. Yeah, she did, but they changed it for a very old, dilapidated - it smelled like dogs had slept on her bed. That's true. Q. Hang on a second. People came in-- A. No, I don't Q. --with heavy vehicles and they took most of the contents of the home A. Yeah. Q. --and one thing that they took was mum's bed, yet they replaced it with another bed. A. An old bed. Yeah. … Q. So far, upstairs, the only thing that was taken-- A. Was the bed. Q. --was mum's bed. A. Yeah. Q. But another one was put in its place. That's your evidence. A. Yes. Queen size. It was a big - I bought the bed. Q. Downstairs - it seems there were three 6 x 3 cupboards. A. Probably more than that. Maybe four. Q. What else was taken from downstairs? A. Many cartons of - pretty much everything. There was-- Q. Everything was taken from downstairs. A. They were primarily what you would call antiques. Q. So all of the antiques? A. Yes. Q. Yes or no? A. Yes. Q. All of the antiques were taken. A. There was - no, there was one - they left one downstairs, but it wasn't in the-- Q. What else did they take? They took all bar one antique. What else? A. I'm just trying to think. There was quite a few boxes. There was-- Q. What was in the boxes? A. Valuable stuff from my grandfather. Q. Do you know what was in the boxes? A. Yeah, I do. Q. Can you tell his Honour what was in the boxes? It's valuable stuff from your grandfather. A. Yeah, it was all like valuable stuff. Q. What was it? A. It's what you call antiques. They were furnishings. Q. But what are they? A. Cupboards - there was a - the most valuable was a box set of - it was the Chinese or Japanese crockery. Yeah. Q. Anything else? A. No idea. There was heaps. There was lots of - a few instruments - musical instruments. Q. Like what? A. Mine, but they were-- Q. What musical instruments were taken? A. Mine. Q. I just want to know-- A. Yeah, well-- Q. You're saying that, "My mother and I went into her home and I saw that most of the contents of the home had been removed." Now, so far, the only thing from upstairs is the removal of one bed, yet it's been replaced. Now we're downstairs. A. Yeah, downstairs, there was-- Q. And it seems that this is your goods that have been taken, is it? … Q. You would agree with me, wouldn't you, that it's an exaggeration to say that most of the contents of the home had been removed? A. No, it wasn't. Q. It's an exaggeration, isn't it? A. We were both - mum and I were hoarders. But the stuff that was taken Q. To say that most of the contents-- A. No, that's not. Yeah, anyway. Q. To say that most of the contents of your mother's home had been removed, that wasn't true, was it? A. No, that is true. Q. To say to your mother, "Mum, it looks like they've cleaned you out, mum" A. Yeah. Q. --that wasn't true, was it? A. Yeah. It was. It just was. There was lots and lots more stuff. Q. And you assumed that the people that did this was the A. Brachers. Q. The Brachers, was it? A. They were the only ones that had the keys. And also Q. And the plaintiff's son in law. Did this actually happen, sir? A. Yeah, it did. Q. You're sure you're not making it up? A. No, I can tell you the exact day. Q. Are you an authority on tyre marks? A. Well, I've been a farmer for a very long time. Q. You've been what? A. A farmer for a long time. Q. But you knew the Bracher boys' tyre marks, did you? A. I certainly knew the one that divorced - Jane's husband. He had wide marks, very wide tyres. Q. So let's assume this did happen. You just assumed it was him? A. Well-- Q. Yes or no? A. You didn't - you don't get in there and move stuff unless there's-- Q. That's what you told mum, isn't it? A. Well, she thought that. She asked me what had happened. Q. She thought that all by herself? A. Yeah. Of course. 1. The following cross-examination took place at T 236.50 to T 240.21 about Ms Sinclair's evidence of what Mrs Jones said at the 5 June 2012 meeting concerning the claim that Diane had stolen paintings belonging to Mrs Jones. I have abbreviated the extract because of its length. Q. Well, I put to you she never admitted to you that she took the paintings. A. Okay-- Q. And you've been-- A. I just didn't even realise, you know, that-- Q. You've been confusing these paintings with paintings that were hers, haven't you? A. Well, Ben always told me they were his. Q. You know-- A. I didn't know until I read that. Q. --that were paintings - you know that there were paintings that were hers and that-- A. No. Q. --she disposed of them. A. No. That's not true. Q. You could be wrong, though, couldn't you? A. No. That's - well, about the paintings. They were-- Q. Yes. A. I looked after them. I mean, I was taking care of them. Q. No, I'm talking about the paintings. You could be wrong-- A. No. Q. --about these paintings that you've been going on about now for quite a few years. A. Yeah. Well, I - Dad told me they were his paintings. Q. He could have been wrong too, couldn't he? A. No. He sure safeguarded them. Looked after them. … Q. And you've been accusing Diane for many years of stealing these paintings, haven't you? A. Yeah. Q. But you've got no idea whether it's true or not, do you? A. Well, the paintings that I thought that-- Q. Listen. A. I thought they were Dad's-- Q. Answer my question. A. --paintings. Q. You have no idea-- A. I thought they were Mum's paintings, too. Q. You have no idea-- A. No, that's not true. Q. --where how these paintings were disposed of, do you? A. I do. Q. You never saw Diane take anything, did you? A. No. I - I didn't see her take them, but she-- … Q. Because you couldn't find the paintings, Diane took them. That's what you're saying, isn't it? A. No. What did - pardon? Just say that again. Q. Just go back to this file note. A. Yeah. Q. You don't accept that on the day Mum said Diane may have accidentally thrown them out. She didn't say that? A. She might have said that to Leonie, but she certainly didn't believe it. Q. So your mum was lying to Leonie. Is that what you're saying? A. She was just trying to, you know-- Q. Your mum wasn't telling the truth to Leonie? A. Well, if that's what she said. To be honest, I don't remember her saying-- Q. Thank you. A. Yeah. Q. Now-- A. The paintings were - I - Dad always told me-- Q. Your Mum-- A. --they were his. 1. Stephen admitted that he accused Diane of stealing paintings in front of Mrs Jones, but it is clear from this evidence – if anything is clear – that Stephen had no idea who owned the paintings or what had happened to them. Stephen's investigations concerning missing money 1. In par 20 of his 22 July 2016 affidavit, Stephen gave the following evidence: … The deceased and I visited Commonwealth Bank in Nowra together in 2012 to make some inquiries. It was on that occasion that the deceased found out that a Goal Saver Account had been opened on her behalf by the plaintiff. The deceased said words to the effect, "I didn't know anything about this." The bank officer said words to the effect, "The statements are sent to this address" and then turned the computer monitor around to show the address which I recognised to be the plaintiff's home address. The bank officer said words to the effect, "$350.00 per fortnight is being transferred from your Pensioner Security Account into this account." I observed from the deceased's appearance – frowning – and tone of voice that she was angry about this. I do not recall specifically what the deceased said. 1. Stephen was cross-examined on the subject at T 194.18 to T 198.22 (again abbreviated because of its length). Q. You're saying that you took mum off to see the Commonwealth Bank in 2012. A. Yes, that's right. Q. I've read that paragraph, and my reading of that paragraph is that you're trying to give the impression that mum had no idea about her GoalSaver account. A. Well, it was going to Diane's address. Q. That's all right. Regardless of where the statements were going, you know that mum had a GoalSaver account. A. We eventually found out, yeah, but that arrangement didn't-- Q. You knew that the land tax for 163 and 165 was pretty pricey every year, didn't you? A. Yes, that's right. 6,000 - five or six thousand dollars. … Q. You know that Diane set up for mum the Goal Saver account so that she could have the Comm super and her Veterans' Affair pension-- A. Yeah. Q. which was going into one account, then an amount would go from that account into the Commonwealth goal saver. You knew that, didn't you? A. Well, no. We didn't actually know until later. You know, I didn't. Mum didn't. She wasn't aware of it. Yeah. Q. You know that Diane was looking after Mum's finances with Mum, since Dad died, don't you? A. Yeah. That's true. Q. And there was no reason for you to have any worries about how-- A. Well, I-- Q. --Diane was helping Mum with her money. A. Except that things constantly kept disappearing, you know. Mostly some of Mum's, but-- Q. I'm talking about Mum's finances. … Q. In 2012, you take Mum off to the Commonwealth. A. Yeah. Q. Because it seems that you've got some worry about this goal saver account. A. Yes. … Q. Nothing - no difficulty. Did you go to Mum and say, "Look, don't worry. Diane has sorted it all out for you. This goal saver is all fine." Did you do that? A. We - yeah, we did it, actually. Yeah. Q. Yes? A. Yeah. Q. You didn't leave it with your mother frowning and the tone of voice that she was angry. That's what you've got in here, in your affidavit. A. Mm. Q. You wanted your mother to think poorly of Diane again, didn't you? A. No. That's - where is this in? … Q. You see, at the bottom there, it says, "I observed the deceased's appearance, frowning, and a tone of voice that was angry." A. Mm-hmm. Q. So you're saying that Mum was angry back then when she found out about this? Is that what you're saying? A. I would possibly - probably. Or possibly. Q. That's what you're saying, isn't it? Mum was angry. A. Yeah. Q. She thought something was going on, didn't she? That's what you're saying there. She thought something was going on with her money. A. Well, she didn't know that Diane - we never received it, or Mum had never ever received an - an account, and we didn't know. Q. When you found out-- A. She didn't know whether-- Q. When you found out that Diane had set this up and everything was fine and-- A. Yeah, then it was-- Q. --the land tax was paid, did you go to Mum and say, "Look, don't worry, Mum." A. Yeah. Q. "It's all sorted." A. Yeah, we did. Q. You did? A. Yeah. Q. But it's not in your affidavit. … Q. What did Mum say, then, when you went and said, "Don't worry. It's all fine." What did Mum say? "Oh, thank goodness, son." A. Yeah. Q. "Good old Diane." She said that? A. No, she didn't say that. Q. Well, what did she say? A. I don't even remember-- Q. Don't remember. A. --what she said. 1. This is an aspect of the evidence that tends to show that Stephen was highly suspicious of Diane and took steps to try to cast her in a bad light with Mrs Jones by implying that Diane may have been misappropriating Mrs Jones' money. Stephen's evidence concerning Mrs Jones' reasons for changing her will 1. At no point in his evidence did Stephen assert that Mrs Jones told him that the reason why she decided to make her 19 June 2013 will was that she had formed the view that Mr Jones had adequately provided for Diane during his lifetime. 2. Stephen gave the following evidence on this subject at par 27 of his 22 July 2016 affidavit: After the events described in the preceding paragraphs [being Diane and her family having stolen most of the contents of Mrs Jones' home] my mother and I had a number of conversations about the plaintiff the history (sic) of the family, including what had happened between me and my father in relation to the furniture business and the various properties. The deceased said words to the effect, "I feel bad about your father selling the two properties that were yours [referring to 191… and lot 40…]. You slaved your heart out in that business. I think that these properties [referring to 163 and 165…] should go to you." 1. In his 18 April 2017 affidavit, at par 4, Stephen said that "[u]pon reflection" he wished to provide a further response to Diane's 26 April 2016 affidavit. He gave the following evidence: After the incident in mid-2012 where my mother caught Diane taking her belongings from her house, my mother often said words to the following effect to me: Mum: I'm sick of the whole lot of them. I want to make a new Will and I want to leave everything to you. Me: I think you need to leave something to Diane as well. My mother continued to say this for a while up until early 2013 when one day she said to me words to the effect: Mum: I want you to take me to Marriott Oliver Solicitors so I can prepare a new Will. I need to make it fairer." 1. I will consider the significance of this evidence below. Evidence of Benjamin Stephen Jones 1. In his 19 December 2018 affidavit, Benjamin gave evidence of attending the office of Marriott Oliver with Mrs Jones "in about 2012/2013". He said that he asked Mrs Jones: "Do you really want to change your Will?" She replied: "Yes, I want to change it because Diane, John, and her family have already taken so much." Stephen said that he went with Mrs Jones and Stephen. Mrs Jones did not change her will. As they left the office, Mrs Jones said: "I am upset, the solicitor just talked over the top of me. I have a mind of my own, you know!" 2. In cross-examination, Benjamin said, at T 412.39, that he was "in there for a large part of the meeting". He said that he could not recall if there was an exact moment when someone said "This is not happening today", but he could remember the meeting did not end in the change of will that they had all gone in there to do. 3. Benjamin said that he thought that there was a period of time in which he and Stephen were asked to leave and Mrs Jones was left alone with the solicitor and her assistant. 4. Benjamin said at T 413.32 that he was not in the meeting at any time when the solicitor talked over Mrs Jones. 5. Benjamin also gave evidence that he was once told by Mrs Jones, around 2012-2013: "I don't want to stay with Diane, she abuses me". Benjamin said that Mrs Jones explained that she meant verbally, not physically. 6. Benjamin gave evidence of overhearing a telephone conversation between Mrs Jones and Jane in around 2013-2014 in which Mrs Jones said: "Don't come and take the bed and mattress from my house". After the phone call had ended, Mrs Jones said: "Blow Jane. I'm annoyed because she wouldn't listen to me and is going to come and take the bed and mattress next week." 7. Benjamin's evidence tends to support a conclusion that Mrs Jones decided to change her will because Diane and her family had been taking her property. 8. Benjamin gave his evidence in a reasonably satisfactory manner and there is no basis for the Court to think that he was not giving his evidence to the best of his recollection. That acknowledged, it would be natural for Benjamin to wish to support his father's case. 9. A difficulty in judging what weight to give to Benjamin's evidence is that he was only present for part of the conversation in Ms Hagedoorn's office, which I will explain below, and he was not sure whether he was present when it was decided that a new will would not be prepared for Mrs Jones. 10. It is hard to reconcile Benjamin's evidence with aspects of the detailed file note taken of the meeting by Ms Hagedoorn's assistant, which I will consider below. 11. As will be seen, the file note recorded that Mrs Jones could not remember the contents of her 28 June 2010 will. She is recorded as having conveyed that she wanted to read the will and "alter a couple of things". On reading the will, she felt no changes were needed. There is no record that Mrs Jones said that she wanted to cut Diane out. There is a suggestion that Mrs Jones may have wished to give more to Benjamin than Jane and Sarah because of some unidentified concern that Mrs Jones had about Benjamin. Evidence of Ms Leonie Sinclair 1. Ms Leonie Sinclair is a retired solicitor. She practised at Marriott Oliver in Nowra from the time of her admission in 1983 until her retirement in December 2014. 2. Marriott Oliver had acted for Mrs Jones and her husband over the years, including in relation to the preparation of wills for Mr and Mrs Jones and the various conveyancing transactions undertaken by Mr Jones. 3. Ms Sinclair gave evidence, in her 16 January 2019 affidavit, that a large part of her career as a legal practitioner was devoted to estate practice, and she attended many seminars in the area of wills, estate planning and probate to satisfy her continuing legal education requirements. Client testamentary capacity was a key learning area in the courses she attended. 4. Ms Sinclair said that she frequently attended hospitals, private homes and nursing homes to take will instructions from elderly people. In the latter part of her career, at least once per fortnight, she visited people in these environments for the purpose of discussing their testamentary intentions and settling their wills. 5. Ms Sinclair has lived in the same area as Mrs Jones for 33 years. Her house is about 400m from No 165. Ms Sinclair first met Mrs Jones in mid-1985. Ms Sinclair regularly saw Mrs Jones in the village and would often have a chat with her. 6. Ms Sinclair said that, when Mr Jones purchased No 163, he said to Ms Sinclair: "It is good for us as it means there is a house for Diane and a house for Steve when we go". The sentiment about there being a house for each of the children was expressed to Ms Sinclair conversationally by both Mrs and Mr Jones many times over the years. Ms Sinclair was aware that, when both made their wills in 1998, they left a house to each of their children. 7. Ms Sinclair recalled a conversation that she had with Mrs Jones after the death of Mr Jones. Mrs Jones enquired whether anything could be done about land tax and rates. Although Mrs Jones received a discount in respect of her own home at No 165, she had to pay full land tax and rates for No 163. Ms Sinclair enquired why Mrs Jones was keeping herself poor holding onto No 163. Mrs Jones replied: "Hilton and I bought these houses so that each of our children could have a waterfront house". 8. This evidence is significant. Other evidence establishes that a significant proportion of Mrs Jones' pension income was used to pay land tax and rates. Between the death of Mr Jones in September 2004 and her own death, Mrs Jones continued to bear the burden of the land tax and rates in respect of the two properties. That investment supports a conclusion that, for at least most of the period, Mrs Jones must have had a strong desire to ensure that she could leave one house property to each of her children. 9. Ms Sinclair took instructions from Mrs Jones to prepare her 28 June 2010 will. 10. On 5 June 2012, at the request of Stephen, Ms Sinclair attended upon Mrs Jones at No 165 for the purpose of receiving instructions about Mrs Jones' will. 11. Ms Sinclair gave the following evidence: 43. My recollection of the day is that Steve did most of the talking. He continually returned to the idea that he was owed $150,000 by his parents and that an agreement had been made between them. It was the first time I had heard of such a notion and it appeared to me that Jean was unsure of what Steve was saying. 44. We tried to workshop the issue. I made numerous suggestions to Jean that might somehow satisfy Steven (sic) and give him more in her will than Diane. 45. No matter what I said Jean just shook her head. She didn't seem to understand the concepts that were being proposed. I was absolutely certain Jean was confused and unable to give instructions to me. She couldn't even repeat back what I had said. 46. Steve kept pushing and pushing and Jean became very tired. I can recall her eyes – they were looking at me in a searching way. She sighed heavily and never left her chair. 47. There was no offer of a cup of tea or even a glass of water. In the past when I had visited her home she always suggested a cup of tea. 48. As we workshopped the ideas Steve eventually acknowledged there was a problem between him and Diane. 49. Jean did say "I want to make sure Steve is happy. I want the fighting to stop". Jean usually had a smile that lit up her face but on that day she appeared very upset. 50. She was distressed that there was a dispute between her children. She had a hanky in her hand and she kept wringing it. 51. In the past Jean had always given me will instructions on her own but on this visit Steve did the talking. 52. The longer the interview went on the less Jean participated. I decided that I should not treat the visit as one which Jean had actively been able to demonstrate she wished to change her will. 53. Having known Jean for such a long period of time and personally spoken with her and observed her, I consider I was in a very good position to be able to assess her demeanour and capacity on the day. 54. I made a file note myself when I returned to the office as I was most concerned about what had happened. It was not my usual practice to make extensive file notes about will instructions as the process is normally uncontentious. I would only make one if I was concerned about capacity or undue influence… 1. Ms Sinclair annexed her file note to her affidavit. It is a detailed file note dated 5 June 2012 of two full pages. It corroborates the evidence given in Ms Sinclair's affidavit. 2. The file note recorded that Mrs Jones said that Diane came out to her house at least twice a week, sometimes more if she was needed. Diane assisted Mrs Jones with her banking and cleaned the downstairs area of the house and did Mrs Jones' washing. 3. The file note also recorded the following, which is relevant to Stephen's claim that Diane had been stealing from Mrs Jones: Stephen was also concerned that Diane had taken some paintings from the house and really wanted to be added as a P/A… Diane said she hadn't taken the paintings and Jean was of the view that Diane may have accidentally thrown them out because they were in amongst some papers and were not framed. 1. On the subject of Mrs Jones' testamentary capacity the file note recorded: I was of the view that Jean was not capable of conceptualising a solution to Stephen's grievances. He was pushing for a change to the will in some way for example by having Diane be obliged to pay him some money if she was to take the house that she is to take. However it was my view that Jean was not understanding these concepts. Stephen acknowledged that she was not able to understand these concepts and acknowledged that the problem was really between him and Diane and not his mother. 1. Ms Sinclair strongly adhered to her evidence in cross-examination, and I have no hesitation in accepting her evidence, corroborated as it was by an extensive contemporaneous file note. 2. Ms Sinclair confirmed her affidavit evidence, saying that Mrs Jones appeared quite confused by the concept of Stephen being owed some money, and that she was sitting there wringing her hands and looking at Ms Sinclair quite dazed (T 87.4). Ms Sinclair said that Mrs Jones just could not get her head around what was going on there that day (T 87.36). Ms Sinclair formed the view that Mrs Jones was not capable of deciding how her estate should be distributed, or whether what Stephen was saying was fair or not. Ms Sinclair said that it was really quite distressing for her that day (T 88.10). Finally, Ms Sinclair said that it was her opinion that Mrs Jones did not have the capacity to understand what was going on that day (T 90.47). 3. Incidentally, in respect of Stephen's claim that he was owed money by his father, it appears that Ms Sinclair acted for Stephen in relation to family law matters involving his ex-wives. Ms Sinclair observed that Stephen never raised the issue about being owed money by his father when the family law matters were done (T 87.11). Involvement of Marriott Oliver in December 2012 and May 2013 1. Exhibit P1 is a bundle of documents produced on subpoena by Ms Carolyn Hagedoorn, a solicitor at Marriott Oliver. Exhibit P2 is the first page of a file copy of a letter dated 4 July 2013 written by Ms Hagedoorn to Dr Larissa Sadaunichaya. This page is the first page of a file copy of a letter of that date in Exhibit P1 that is missing from that exhibit. 2. The two exhibits together appear to deal with legal work undertaken by Marriott Oliver for Mrs Jones in December 2012 and May 2013, and also for Ms Bracher in respect of proceedings in the Guardianship Division of NCAT in about August 2014. The documents are not in strict chronological order. There are multiple copies of some documents. There are some groups of documents that appear to be related to the same chronological episode. 3. There is a document relating to the creation of a file for Mrs Jones entitled "Wills Single Person" that was opened on 12 December 2012. 4. On 12 December 2012, a Melissa Clarke, who is recorded as being a secretary of Marriott Oliver, sent an email to Ms Sinclair. The email stated: Hi Leonie, Just a little background information regarding the above client. This is an existing Will client who wants to update her Will. Her son, Stephen called to arrange a home visit appointment with you on behalf of the client. When arranging the appointment, he asked if you bring (sic) his Father's original Will with you as he died years ago and his Mum wants it. I told him that I would need to look into it and that it shouldn't be a problem. We acted on his Father's estate back in 2004 (the client was the executor). I have retrieved the old file out of archives and have placed it behind the new Will file in case Leila has any questions for you. I have also put a certified copy of the Probate granted back in 2004 in the Will file for you to give to her in case she wants it… 1. The exhibit contains a file copy of a letter dated 12 December 2012 from Ms Sinclair to Mrs Jones thanking Mrs Jones for her instructions. It confirmed an appointment for Mrs Sinclair to meet Mrs Jones at her home on 19 December 2012 at 4:30 PM. It gave a fee estimate for preparing a new will of $275, and indicated that, if Mrs Jones required a new power of attorney and/or appointment of enduring guardian, the costs for drawing up all three documents would be around $385. 2. It is convenient to interpose that Ms Sinclair said at par 57 of her affidavit that she said to Stephen at this time that she did not think that Mrs Jones had the "capacity to make another will". 3. There do not appear to be any further documents in the file produced in or about December 2012. There is no evidence concerning whether Ms Sinclair had a conference with Mrs Jones on 19 December 2012. The better view of the evidence is that the conference did not take place. If that is true, it is not clear why the conference did not take place after the appointment was made. The better inference is that a new will was not prepared by Ms Sinclair because Ms Sinclair did not think that Mrs Jones had the necessary testamentary capacity. 4. Part of the exhibit consists of a second set of the documents to which I have referred immediately above, starting with the file opening page. The documents are numbered 1 to 28, and end with a matter ledger as at 1 October 2014. It is unclear who was responsible for paginating the documents. 5. Numbered pages 6 and 7 consist of a hand written file note dated 22 May 2013. It looks like the file note was prepared by "Mel", which is likely to be Melissa Clarke (as Ms Sinclair replied to Ms Clarke's 12 December 2012 email to her with an email in which Ms Sinclair said: "Thanks Mel"). 6. The file note starts with a reference to "Stephen". It then sets out Mrs Jones' name, address and telephone number, and records "POA & EG & Will". There is a statement "$385 incl GST", which appears to be a quote for the costs. The initials "CEH" are written on the file note. That may be a reference to Ms Hagedoorn. The file note then states "24/5 at 11:30 am". That appears to be a reference to the date and time for an appointment. 7. The second page of the file note is partly obscured by a post-it note (the exhibit only contains photocopies, and it appears that the second page of the file note was photocopied without the post-it note being removed). The second page appears to record a need for a home visit. There is a note that appears to record that Mrs Jones wanted her husband's original will. 8. The next document in the exhibit in order (page 8) is a file copy of a letter dated 24 May 2013 addressed by Ms Hagedoorn to Dr Larissa Sadaunichaya. The letter stated: Mrs Jones attended our offices recently to make changes to her Will and Power of Attorney documents. We have some concerns in respect to her failing short-term memory and the effect that has on her capacity to alter these documents. Mrs Jones is likely to make an appointment to see you because we have requested that she obtain a Doctor's Certificate containing an assessment of her testamentary capacity. This entails your opinion as to the soundness of her mind, memory and understanding as is necessary for her to be able to alter her will. During the meeting with Mrs Jones on Friday, she repeated the same questions on numerous occasions, referred to her son for answers to questions asked of her, and did not recall a conversation, the decisions she had made and instructions she had given less than 15 minutes prior. 1. The letter then indicated the requirements for Mrs Jones to have testamentary capacity consistently with Banks v Goodfellow (1870) LR 5 QB 549. 2. There is no evidence that the letter was sent. However, it provides some evidence concerning the observations made by the author of Mrs Jones during the conference. The author was in doubt about whether Mrs Jones had testamentary capacity. Mrs Jones apparently exhibited relatively significant short-term memory loss, by repeating questions, and not recalling conversations and instructions given no more than 15 minutes earlier. It is also evidence that Stephen was present, and that Mrs Jones was dependent upon him to some extent to give her responses to questions that were asked of Mrs Jones. 3. The next document in the exhibit is numbered 9, and, on its face, it is a handwritten file note. It is likely from the matters noted that the file note was prepared by a solicitor, likely to be Ms Hagedoorn. 4. At the top right of the file note Stephen's son, Benjamin's name and address is set out. 5. Under that there is a reference to "PA", which I infer refers to a power of attorney. Beside that are the words "add Ben to P/A", followed by: "*Ben doesn't live here. He's young + have good mind". 6. Under the word "Ben" is a line to the notation "35 software". I infer that is a reference to Benjamin's age and his occupation. 7. Under that is written: Will – want to change – don't recall what is in it. 1. There is a line starting under the word "will" and going down to the middle of the page, where the following is written: Read Will – say don't think there is anything to change. Then read again sd want to put Ben in it. 1. Between the two entries in the file note referring to Mrs Jones' will, there is a line that starts with "EG", which I infer is a reference to the appointment of an enduring guardian. Against that reference is written: "= OK. Change – add Ben". 2. Under the second reference to Mrs Jones's will there is a line that gives the first names of Mrs Jones's three grandchildren, Jane, Sarah and Ben. The word that precedes those names is truncated in the photocopy, but appears to be an abbreviation of the word "grandchildren". 3. Under that the following is written: "Lots of bills to pay. Land tax comes out of pension." 4. There is an unexplained statement: "Friend of Stephen – Kathy". 5. At the bottom of the page there is a reference to Dr Larissa Sadaunichaya, who was apparently Mrs Jones' general practitioner. 6. This file note is evidence that, on 24 May 2013, Mrs Jones could not remember the terms of her 28 June 2010 will. When given the will to read, and then reread, Mrs Jones did not want to change the terms of her earlier will, other than to "put Ben in it". 7. The next document in the exhibit, at page 10, is a document described as: "notes taken by Maree Rice 24:5:2013". From the contents of the document, I infer that it is a handwritten file note, prepared by Ms Rice, of a conference between Ms Hagedoorn and Mrs Jones on 24 May 2013. 8. It will be appropriate to set out the notes in their entirety, which are as follows: *Need to speak with client alone to ascertain these are her wishes. *Swapping Ben for Diane as power of attorney – asked why the change – no reason – he's young, has a good mind *Capacity – memory problems. *Client wants to alter will – long time since made (only 3 yrs). *Enduring Guardianship – Steven (sic) + Diane, as attorneys. – she feels she can make her own decisions. Ben, 35 yo, computer software engineer. Power of Attorney originally Diane, then changed to Steven (sic) + Diane, now changing Diane out for Ben (Steven's son). – Question client as to her reasoning – suggestion that Steven is (sic) Get a doctor's certificate to confirm capacity to alter her will – due to her failing memory She doesn't think she is "that bad". Rely on others telling her what she wants done Has no recollection of what is in current will. Wanted to read the will + alter a couple of things On reading it, she felt no changes needed. Caroline asked if she was still happy with old will Explained beneficiaries' benefits (re clients' concern about Ben) Other grandchildren: Jane, Sarah + Ben D S Why give more to Ben than Jane + Sarah? ---------------- Power of Attorney S + D are joint + several attorneys Removing D + replace with B --- S + B on one side + excluding D The way the docs are at the moment, they are fair 1. This file note corroborates the briefer file note apparently prepared by Ms Hagedoorn. Mrs Jones was unable to remember the contents of her previous will. When she read it, she only wanted to alter a couple of things but essentially felt that no changes were needed. Mrs Jones may have contemplated a change to the terms of her will involving Benjamin. Otherwise, I would infer that, more likely than not, the final words "they are fair" record the views of Mrs Jones, rather than Ms Hagedoorn. 2. The two file notes record what happened at the conference attended by Mrs Jones on 24 May 2013, which Stephen described in his evidence as Ms Hagedoorn "talking over" Mrs Jones. 3. Ms Rice apparently prepared a draft letter to Dr Sadaunichaya, as there is an email in the exhibit, numbered 11, from Ms Rice to Ms Hagedoorn that discusses a draft letter from Ms Hagedoorn to Dr Sadaunichaya. The email contains an explanation of the provenance of the draft in College of Law Practice Papers, and discusses the requirements of Banks v Goodfellow. A draft letter was attached. 4. Exhibit P2 and the page numbered 13 in Exhibit P1 constitute a file copy of a letter dated 4 July 2013 from Ms Hagedoorn to Dr Sadaunichaya that refers to Ms Hagedoorn's understanding that Mrs Jones would make an appointment to see the doctor for the purpose of the doctor providing a written report to Ms Hagedoorn to support Ms Jones' testamentary capacity. 5. The final document in the exhibit relevant to the episode under consideration is at page 14, and is a file copy of a letter dated 19 November 2013 from Ms Hagedoorn to Mrs Jones that referred to Mrs Jones having attended the office in May for the purpose of considering making changes to her will, power of attorney and appointment of enduring guardian to add Benjamin. The letter concluded: "If you wish to proceed with these changes could you please make an appointment to see the writer". Making of the 19 June 2013 will 1. The conference between Ms Hagedoorn and Mrs Jones on 24 May 2013, which was in part attended by Stephen, ended without Ms Hagedoorn taking instructions for a new will to be made by Mrs Jones. As has been noted above, at that date Mrs Jones thought that no changes were needed to her earlier will and that the earlier document was fair. It appears that Mrs Jones may have been contemplating altering the gift over in favour of her grandchildren to favour of Ben over Jane and Sarah. 2. Ms Hagedoorn advised Mrs Jones, in a manner that probably became known to Stephen, that she should get a doctor's certificate to confirm her capacity to alter her previous will. Mrs Jones is recorded as having responded by saying that she did not think she was "that bad". The evidence of that response does not cause me to infer that Mrs Jones' response was belligerent or unbelieving. She is not recorded as having resisted the suggestion. 3. The fact that Ms Hagedoorn caused to be prepared the file copy of the letter dated 4 July 2013 to Dr Sadaunichaya supports the inference that Ms Hagedoorn understood that Mrs Jones did not resist the suggestion that it would be prudent for her to obtain a report from her general practitioner, and that Ms Hagedoorn expected that Mrs Jones, or Stephen, would comply with her recommendation and obtain a report from Dr Sadaunichaya. That report was required to address the principles in Banks v Goodfellow. 4. Yet the evidence demonstrates that Mrs Jones made her 19 June 2013 will without any medical report being obtained to confirm her testamentary capacity. That will was made less than one month after the conference with Ms Hagedoorn. 5. Stephen's evidence was that, on their way home from the conference with Ms Hagedoorn, he had a discussion with Mrs Jones. This evidence was not given in Stephen's first substantive affidavit made on 22 July 2016. It was given in par 4 of Stephen's 18 April 2017, and it was expressed to be "upon reflection" a further response to par 40 of Diane's 26 April 2016. Stephen said that he said to his mother: "You realise that you didn't change anything?" Mrs Jones replied: "She just spoke over the top of me. I couldn't get a word in." 6. The proposition that Mrs Jones thought that Ms Hagedoorn spoke over the top of her, and would not listen to what Mrs Jones wanted to say, is not consistent with the terms of either file note of what happened during the conference. It would be easier for the Court to accept this evidence, if Mrs Jones had attempted to give instructions to Ms Hagedoorn to make the significant changes to her previous will that were made by the 19 June 2013 will. In fact, the recorded instructions only suggested a minor change, and it is difficult to accept that Mrs Jones would have reacted strongly to what is recorded as having happened during the conference. The hand-written will 1. Stephen then gave evidence, in par 4 of his 18 April 2017 affidavit, of circumstances in which Mrs Jones, on her own initiative, and unaided, wrote out in an exercise book a draft of her new will. This was said to have occurred a couple of weeks after the conference with Ms Hagedoorn. Mrs Jones is said to have told Stephen that she was rewriting her will. When she finished, she is said to have said to Stephen that she needed "to make it legal", and asked Stephen to organise another solicitor so that she could get her things in order. She said that she did not want to go back to Marriott Oliver. 2. The hand-written document dated 13 June 2013 is in the following terms: This Will dated the 13th day of June Two Thousand and Thirteen is made by me LEILA JEAN JONES of [No 165 – "Road" interlined], in the State of New South Wales 1. I revoke all my former testamentary dispositions. 2. I appoint my son STEPHEN ALAN JONES and my grandson BENJAMIN STEPHEN JONES to be my executors and trustees. 3. I give the property known as [No 163] including the contents therein to my son STEPHEN ALAN JONES. 4. I give the property known as [No 165] including the contents therein to my son STEPHEN ALAN JONES. 5. I give to my son STEPHEN ALAN JONES any motor vehicle which I might own at the date of my death. 6. I give all moneys on deposit in my name to be divided equally amongst such of my grandchildren JANE EMILY HUGHES, SARAH ELIZABETH BRADLEY and BENJAMIN STEPHEN JONES as survive me. 7. I consider my daughter DIANE KAY BRACHER has been adequately provided for by her father HILTON JOHN JONES. 1. Stephen's evidence was that he made enquiries and was ultimately referred to Michael Cooke. Stephen said that he made an appointment for Mrs Jones to see Mr Cooke on 19 June 2013. Stephen said that he took Mrs Jones to see Mr Cooke, and waited for her in reception. After about an hour, Mr Cooke came out and said that there were a couple of documents that Stephen needed to sign. Stephen then went into the office and, at Mr Cooke's request, signed the new power of attorney and appointment of enduring guardian. Mr Cooke told Stephen that Benjamin had also been appointed as Mrs Jones's attorney and enduring guardian. 2. Stephen's evidence was that Mrs Jones said to him: "I have changed my will. Here is a copy. I think this is more fair". Stephen said that he responded: "I think you should leave something to Diane". Mrs Jones replied: "No I think she has had enough and this is what I want." Stephen and Mrs Jones then left Mr Cooke's office. 3. Documents from Mr Cooke's file were ultimately produced to the Court by Stephen's solicitors in these proceedings. Apparently, at some stage Stephen arranged for Mr Cooke's file to be uplifted from Mr Cooke's firm. 4. The file contained the draft will, dated 13 June 2013 that is set out above, written in hand writing in cursive script and apparently signed by Mrs Jones. The evidence justifies a finding that the document was written by Mrs Jones herself. The writing is sufficiently similar to other writing attributable to Mrs Jones to justify that finding. The handwriting is clear, but slightly shaky, as may be expected of a 90-year-old lady. 5. The hand-written will is substantially in the same terms as the initial part of Mrs Jones' 28 June 2010 will. That is consistent with the evidence given by Stephen in his affidavit, although at one point in his cross-examination, he said that, when he saw his mother writing out the will, he thought she was copying from Mr Jones' 1998 will: T 296.5. 6. The chapeau to both wills is in the same terms although, in the latter, Mrs Jones has written out "13th day of June 2013". Mrs Jones made an error in writing out her street address, and had to go back and interline the word "Road" in the street name. 7. In both documents clause 1 is: "I revoke all my former testamentary dispositions". 8. Clause 2 in the hand-written will says: "I appoint my son STEPHEN ALAN JONES and my grandson BENJAMIN STEPHEN JONES to be my executors and trustees". In the previous will, Diane had been named instead of Benjamin. 9. The hand-written will omits clause 3 of the previous will, which had said: "I DECLARE that in this Will the expression "my executors" includes the executors and trustees for the time being of this Will". 10. Clause 3 of the hand-written will is identical to clause 4 of the previous will except in one respect. Both clauses gave No 163 to Stephen. However, clause 4 of the previous will included the following proviso: "provided he survives me such gift to be charged with the payment of one half of my funeral and testamentary expenses". The proviso was not included in clause 3 of the hand-written will. 11. Clause 5 of the previous will is identical to clause 4, save that it gave No 165 to Diane, including with the proviso, but contained the following exclusion: "(but excluding the roll top desk)". That exclusion was apparently made in clause 5, because, as the evidence discloses, in the previous will Mrs Jones included clause 6, by which she gave any vehicle that she might own at the date of her death and her roll top desk to Stephen, as partial recompense for the fact that No 163 was then thought to be somewhat less valuable than No 165. 12. In these circumstances, clause 4 of the hand-written will is substantially the same as clause 3, but it gave No 165 including the contents to Stephen. 13. Clause 5 of the hand-written will gives any motor vehicle which Mrs Jones might own at her death to Stephen. 14. Clause 7 of the previous will gave all monies on deposit in Mrs Jones' name with the Commonwealth Bank of Australia to be divided equally amongst those of Mrs Jones' three grandchildren as survived her. 15. Clause 6 of the hand-written will is the same, save that, instead of referring to monies on deposit with the Commonwealth Bank of Australia; it simply said "all monies on deposit in my name". 16. Clause 7, which is the final provision in the hand-written will stated: 7. I consider my daughter DIANE KAY BRACHER has been adequately provided for by her father HILTON JOHN JONES. 1. The hand-written will omits clauses 8 to 10 of the previous will. Clause 8 gave the remainder of Mrs Jones' estate to her executors to pay debts funeral and testamentary expenses, and to give the remainder to Stephen provided he survived her. 2. Clause 9 provided that, if either Stephen or Diane predeceased Mrs Jones, leaving a child or children who survived her and attained the age of 21 years, then the children would take equally the parent's share. 3. Clause 10 gave certain powers to Mrs Jones' executors in relatively conventional terms. 4. Stephen gave evidence, in cross-examination, that he saw Mrs Jones writing out the hand-written will while sitting in a lounge chair, propped up by cushions, with the exercise book sitting on her lap and the will from which she was copying also sitting on her lap, either diagonally or horizontally at the top of the exercise book: T 293.5 to T 296.48. 5. Stephen denied that he prepared a draft of the hand-written will for Mrs Jones to copy: T 305.26. 6. It is to be noted that the hand-written will contains very little crossing out. There is the insertion of the word "Road" referred to above. The word "made" in the chapeau has been written over a number of times, so that it is no longer clear. There are a couple of other places where Mrs Jones appears to have written over an existing word for the purpose of making the writing more clear. 7. At the time Mrs Jones wrote out the hand-written will, she was 90 years of age. The evidence established that, for a relatively considerable time, Mrs Jones had only written out simple shopping lists. The previous Christmas, Diane had sat down with Mrs Jones and written out all Mrs Jones' Christmas cards for her. 8. A number of features of the hand-written will, in so far as it differs from the previous will, should be noted. 9. First, the gifts to Stephen of No 163 and No 165 were no longer made on the proviso that Stephen survived Mrs Jones. The gifts were absolute. That meant that, if in fact Stephen predeceased Mrs Jones, the two house properties would become part of Stephen's estate. Consequently, whoever was responsible for formulating the hand-written will was capable of appreciating that, once Diane was cut out, there was no need to have the survivor proviso. 10. Then, because the contents of both house properties were to be given to Stephen, there was no longer a need to exclude the roll top desk from the gift of No 165, so that the roll top desk could be given to Stephen by separate gift. Whoever was responsible for the terms of the hand-written will must have noticed that this structural change to the previous will was appropriate. 11. The inventory of property in the grant of probate of Mrs Jones' will for Stephen shows that the small amount of money that she had was held in Commonwealth Bank of Australia accounts. Whoever was responsible for determining the terms of the hand-written will must have made a decision that the more general reference to "all monies on deposit in my name" was more effective than referring to monies on deposit with a particular bank. 12. It is not clear why clause 8 of the previous will, which was a gift of remainder, was omitted from the hand-written will. It may have been thought to be unnecessary, because the hand-written will in fact dealt with all of the assets that Mrs Jones was likely to possess on her death. 13. From the perspective of the law of succession, clause 9 of the previous will was no longer necessary, as there was no gift to Diane in the hand-written will, and there was no longer any necessity to deal with the possibility that Stephen may also predecease Mrs Jones, because, as noted above, clauses 3 and 4 of the hand-written will had omitted the survivor proviso. 14. The apparent appreciation of the person responsible for the terms of the hand-written will that, once the survivor proviso was omitted from clauses 3 and 4, clause 9 of the previous will was no longer necessary, was a relatively sophisticated exercise in legal drafting. 15. The hand-written will also omitted clause 10 of the previous will, which had given the executors certain powers. It is a matter for speculation why clause 10 was omitted. It was technically necessary to be included in the hand-written will, but, in practical terms, only in relation to the gift in clause 6 of the monies on deposit to the grandchildren. 16. There were therefore a number of changes between the previous will and the hand-written will that required some sophistication of thought, and one would think either a level of legal training or some legal guidance. If carried out entirely by a layperson, the changes were highly sophisticated. 17. Of all of the changes, the inclusion of clause 7 is the most difficult to explain, given the circumstances alleged by Stephen in which Mrs Jones is said to have written out the hand-written will herself. 18. It is difficult in the extreme to comprehend that a 90-year-old woman in Mrs Jones position, having been a housewife all her life except in respect of the talent that she apparently showed for assisting in the operation of her church's bookshop, would have thought to include clause 7 in her hand-written will. A lawyer experienced in the field should know of the value of including a term such as clause 7, given the extremity of the result that, by the hand-written will, Mrs Jones would cut one of her two children completely out of the benefit of her estate, in circumstances where, at all times going back to the mirror wills made by Mrs Jones and her husband, the two children had been treated with substantial equality. 19. The other extraordinary feature of clause 7 is that, as a matter of fact, it was entirely untrue, and Mrs Jones could not have believed it to have been true, without her being in a state approaching one of delusion. There is no objective evidence to support a finding that, misguided or not, Mrs Jones in fact believed that Mr Jones had provided for Diane to an extent that would justify Mrs Jones cutting Diane out of her will, and giving Stephen a property as valuable as No 165. 20. Whoever was responsible for the inclusion of clause 7 in the hand-written will must have appreciated the need to create a bulwark against a family provision application by Diane, and must have learned of an approach that is sometimes effective in achieving that end. That person must also have been deluded by some process of thought that led them to believe that the assertion in clause 7 could be sustained. Unavailability of Mr Cooke to give evidence 1. Mr Cooke's wife, Jennifer Margaret Cooke, gave evidence by affidavit that, in about April 2016, Mr Cooke had the first of four cerebrovascular accidents (strokes) that led him to sell his law firm, and that Mr Cooke is now too ill and incapacitated to give evidence. Mr Cooke has suffered vision and language deterioration and memory loss. Ms Cooke said that she showed her husband his file notes in relation to the preparation of Mrs Jones' will, as well as a photograph of Mrs Jones. Mr Cooke replied: "I do not remember this lady." Evidence of Mr Cooke's secretary 1. Ms Dianne Maree Richardson worked three days a week for Mr Cooke between 2012 and approximately 2016, when she retired. 2. Ms Richardson swore an affidavit on 5 December 2016, in which she attested that Mrs Jones' 19 June 2013 will was signed by her in the presence of Mr Cooke and Ms Richardson, and that both Mr Cooke and Ms Richardson subscribed their signatures as witnesses to the will. 3. Stephen sought to rely upon an affidavit sworn by Ms Richardson on 31 October 2019, which was the day that she gave her evidence in Court. For reasons concerned with the information deposed to in this affidavit, upon objection by Diane, the affidavit was not read, but counsel for Stephen was given leave to adduce Ms Richardson's evidence orally. (I note that, in par 16 of Stephen's counsel's written closing submissions on the probate case, counsel stated that both of Ms Richardson's affidavits were read. That understanding is not consistent with my reading of the transcript, which does not record that the second affidavit was read). 4. Ms Richardson said initially that Mr Cooke would prepare five or six wills a week, but she corrected that to between two and six wills. To Ms Richardson's observation, Mr Cooke usually took instructions for a will from a client on one day, and then caused Ms Richardson to type a draft that was then sent out to the client. The client would then make an appointment for a conference some days later, either to sign the will or to amend the draft. 5. Mr Cooke would attend upon the client in his office with the door closed. He would give whatever instructions were necessary to Ms Richardson after the client had left. 6. When Mr Cooke and finished, he would invite Ms Richardson into his office and inform her that the client was going to sign the client's will. Ms Richardson said: "… I would sit there and just watch her sign it and then I would sign it and that would be it" (T 328.40). Ms Richardson said that, at the time, the persons present would be the person signing the will, the solicitor and Ms Richardson. When asked: "Did anything else happen in that room before it was actually signed?" Ms Richardson responded: "Not that I can recall, no" (T 330.47). Ms Richardson said that she observed "that they're freely signing the will" (T 331.21), but she was not involved when Mr Cooke was speaking with the client, as his door was closed (T 331.27). 7. In cross-examination, Ms Richardson accepted that, as she did not work on a Thursday, and, as 13 June 2013 was a Thursday, she would not have been present on the day when Mr Cooke apparently opened the file for Mrs Jones' will (T 333.44). 8. Ms Richardson was thus only able to give evidence about Mr Cooke's practice concerning the actual signing and witnessing of his client's wills. The evidence extended to Mr Cooke having a practice that no one other than the client, and eventually the second witness, would be present with him in his office. Ms Richardson satisfied herself that the client appeared to sign the will freely, but that only extended to the act of signing. 9. Ms Richardson did not give any evidence of Mr Cooke's practices concerning investigations or questioning to determine the testamentary capacity of an elderly client, or what Mr Cooke's practice was concerning informing the client of the terms of the draft will and the effect of those terms. Mr Cooke's file 1. Mr Cooke's file is relatively rudimentary and does not include any detailed file notes. The file was produced on subpoena by Stephen's solicitors. 2. It includes a half page file note headed "GENERAL", that apparently noted instructions to prepare a will, a power of attorney and appointment of enduring guardian. It noted that Stephen and Benjamin were to be the attorneys, and that the power of attorney was to be drawn immediately. It noted a fee of $330 including GST, and appears to record that the previous will, power of attorney and appointment of enduring guardian had been provided to Mr Cooke. The file contains a copy of Mrs Jones' 28 June 2010 will. 3. There is also a single page that probably contains Mr Cooke's handwriting. It is a pro forma for "WILL PRECEDENTS", and provides for the name, address and telephone number of the testator, the executors, three lines to state the gifts, the residue, a powers clause, and a note as to whether the testator wanted cremation or burial. 4. The document is not a clear photocopy, but appears to provide for No 163 and No 165 to be given to Stephen. It also appears to record a gift of deposits, and something else that I cannot decipher, to the grandchildren. Unlike the hand-written will, there is a reference to Mrs Jones's estate to be given equally to the grandchildren, if Stephen predeceased her. 5. The document appears to have been signed by Mrs Jones. 6. This document appears to establish that Mr Cooke did at least obtain some instructions directly from Mrs Jones. 7. There is nothing in the file that suggests that Mr Cooke appreciated that there may be an issue about Mrs Jones' testamentary capacity. There is no record of Mr Cooke asking Mrs Jones any questions to confirm her testamentary capacity. No medical advice was obtained by Mr Cooke on that subject. 8. The file contains drafts of the power of attorney and the appointment of enduring guardian. 9. The file also contains a file copy of a letter dated 18 June 2013 from Mr Cooke to Mrs Jones containing advice about the power of attorney and the appointment of enduring guardian. The letter commences: "Following our recent conference I enclose my draft of your proposed Power of Attorney and Guardianship appointment. I also enclose a draft of your new Will". 10. For present purposes, this letter is relevant because it suggests that Mr Cooke saw Mrs Jones before the date of her execution of the will on 19 June 2013. That is inconsistent with Stephen's evidence in his affidavit that he first took Mrs Jones to see Mr Cooke on 19 June 2019. 11. Importantly, the file contains a number of drafts of the 19 June 2013 will. What appears to be the first draft is the same as the final will, but for a number of matters. It called Mrs Jones 'Leila Jane Jones' rather than 'Leila Jean Jones', and the error has been corrected by hand. 12. Clause 3 of each document is a gift of "all monies held on deposit at the date of my death including deposits at the Commonwealth Bank Nowra" to Mrs Jones' grandchildren equally. 13. Clause 4 is a gift of the residue, including No 163 and No 165 and any motor vehicle owned by Mrs Jones on her death to Stephen. 14. Clause 5 of the draft is significant. It provides: 5. IF my son STEPHEN does not survive me by thirty (30) days then I GIVE my estate to my grandchildren JANE EMILY HUGHES, SARAH ELIZABETH BRADLEY and BENJAMIN STEPHEN JONES equally. 1. Clause 6 of the draft and clause 7 of the final will is the term purporting to justify cutting Diane out of the will that is found in the hand-written will. 2. Clause 7 of the draft gives certain powers to the executor. 3. There is an intermediate draft that contains handwritten amendments, 4. Unnecessarily, given that clause 4 gave the residue to Stephen, a new clause 5 was inserted by hand to give the contents of the two houses to Stephen. 5. The most significant change between the two drafts and the final 19 June 2013 will is the inclusion of the following gift over, which differs from the gift in the two drafts that gave Mrs Jones' estate equally to her three grandchildren if Stephen did not survive her. Clause 5 of the final will provides: 5. IF my son STEPHEN does not survive me for by thirty (30) days then I GIVE the residue of my estate to my grandson BENJAMIN STEPHEN JONES BUT if STEPHEN AND BENJAMIN fail to survive me by thirty (30) days I GIVE the residue of my estate to my grandson BENJAMIN's partner DELIA MICHELLE FETTER. 1. There is no explanation in the file, or in any evidence given by Stephen, of the circumstances whereby Mrs Jones' draft will was changed, so that it not only cut Diane out of the will, but also cut Mrs Jones' two granddaughters out of the will as well. 2. There is no reason in the evidence to think that Mrs Jones' relationship with Benjamin was other than a loving grandmother-grandson relationship, although he did not see her frequently because he worked in Wollongong. However, there is no evidence that Mrs Jones had a particularly close relationship to Ms Fetter. 3. There is no evidence that Mrs Jones ever had anything other than a truly loving relationship with her two granddaughters. I believe that it is reasonable for the Court to find, given ordinary experience of the relationship that grandmothers usually have with their granddaughters, that it is inexplicable, in the circumstances, how Mrs Jones could have formed an independent desire, having cut her daughter out of her will, to leave over $2,000,000 worth of assets to Benjamin's partner, if she was predeceased by both Stephen and Benjamin; with the result that her granddaughters were entirely cut out. 4. There is nothing in the evidence that provides the slightest explanation or justification of how Mrs Jones could intentionally and independently have made the change in her draft will between the drafts in Mr Cooke's file that divided the residue equally between the three grandchildren if Stephen predeceased Mrs Jones, and the creation of the possibility that the whole of the estate might go to Ms Fetter. 5. In stating that finding, I have borne in mind that there was some residual evidence, rising no higher than unsubstantiated claims by Stephen, that the granddaughters or their husbands may have had some involvement in the alleged continual pilfering of Mrs Jones' property from No 165. I do not accept that evidence supports a conclusion that Mrs Jones independently formed the intention that her testamentary dispositions should entirely prefer Benjamin in respect of the gift over, and then prefer Ms Fetter to the absolute exclusion of the granddaughters. Such a conclusion would clash entirely with the evidence of the ongoing loving and caring relationship between the granddaughters and Mrs Jones. 6. There is no positive evidence that the final draft of the 19 June 2013 will was read out to Mrs Jones before she signed it. I accept that her signature appears on the document. Findings of fact 1. I consider the facts of the present case to be quite unusual and challenging in relation to the ability of the Court to truly determine whether Mrs Jones' 19 June 2013 will was the last will of a free and capable testator. 2. Therefore, before I consider the application of the relevant legal principles to the facts of this case, I will collect the facts relevant to the issues that I have considered above, and also state my findings of fact in relation to issues not yet considered. Mr and Mrs Jones' intentions concerning No 165 and No 163 1. Number 165 was purchased as Mr and Mrs Jones' matrimonial home, and was always used as their home for the remainder of their lives. 2. Number 163 was specifically purchased so that Mr and Mrs Jones would own two adjoining beachfront homes, so that one could eventually be given to Diane and the other given to Stephen. Mr and Mrs Jones jointly, and then Mrs Jones, from the death of Mr Jones in September 2004 until 19 June 2013 and beyond, maintained their ownership of both properties, even though No 163 was not rented out, and was often unoccupied, unless one or other member of the family lived in it for short periods. For all of this time, including when they were pensioners, Mr and Mrs Jones maintained the ownership of No 163, even though they had to pay land tax and rates out of their income, which they did not recoup from any use of No 163. 3. After her husband's death, Mrs Jones maintained this arrangement, even though she sought advice from Ms Sinclair as to whether there was any way that she could lessen the burden of the land tax and rates on No 163. 4. By mid-2013, Mrs Jones had maintained this arrangement, notwithstanding its cost, for almost 30 years, or one third of her lifetime. That demonstrates an enduring commitment that would not ordinarily change without very good reason acceptable to Mrs Jones. Marriott Oliver's dealings with Mrs Jones 1. As of 5 June 2012, when Ms Sinclair visited Mrs Jones at No 165 for the purpose of taking instructions about Mrs Jones' will, Ms Sinclair was a very experienced probate lawyer who, by reason of her long acquaintance with Mrs Jones, was exceptionally well placed to make a judgment about Mrs Jones' apparent testamentary capacity. 2. Ms Sinclair made the judgment that she should not treat the conference as being one in which her client had been able to adequately demonstrate an ability to give instructions concerning changes to her will. 3. Significantly, Stephen did most of the talking, and continually returned to the idea that he was owed $150,000 by his parents. Ms Sinclair was absolutely certain that Mrs Jones was confused and unable to give instructions to her, and could not repeat back what Ms Sinclair had said. 4. Significantly, Ms Sinclair observed that Stephen "kept pushing and pushing and Jean became very tired". Ms Sinclair observed Mrs Jones to be distressed and: "She had a hanky in her hand and she kept wringing it". 5. I conclude that, at least on that day, Stephen pressed Mrs Jones with his own objective in a manner that caused her confusion and distress beyond the mere making of a request. Stephen apparently exerted significant emotional pressure on Mrs Jones. 6. I accept Ms Sinclair's evidence that she told Stephen on about 12 December 2012 that she did not think that Mrs Jones had the capacity to make another will. 7. When Ms Hagedoorn interviewed Mrs Jones on 24 May 2013, Ms Hagedoorn formed the view that Mrs Jones had a failing memory – she could not remember the terms of her then current will – and she advised Mrs Jones to get a doctor's certificate to confirm her capacity to alter her will. Ms Hagedoorn referred to Mrs Jones' failing short-term memory in the file copy of her letter of 24 May 2013 to Dr Sadaunichaya. The following extract from the letter is significant: … During the meeting with Mrs Jones on Friday, she repeated the same questions on numerous occasions, referred to her son for answers to questions asked of her, and did not recall a conversation, the decisions she had made and instructions she had given less than 15 minutes prior. 1. I infer from this evidence that Stephen was present during the discussion between Ms Hagedoorn and Mrs Jones, and heard Ms Hagedoorn advise that Mrs Jones ought to get a doctor's certificate to confirm her capacity to alter her will. 2. The evidence to this point establishes that two solicitors, Ms Sinclair and Ms Hagedoorn, had formed a professional opinion that there was sufficient doubt concerning Mrs Jones' testamentary capacity to make it professionally inappropriate for them to take instructions from Mrs Jones for a new will. Ms Hagedoorn recommended to Mrs Jones that she obtain the opinion of her general practitioner that she possessed testamentary capacity. 3. One thing that is clear from the 24 May 2013 file notes is that Mrs Jones is not recorded as having expressed any wish or intention to change her will so as to cut out Diane and to give both No 165 and No 163 to Stephen. 4. I find that Stephen knew that the two solicitors were not prepared to take instructions from Mrs Jones to make any alterations to her will, unless they had confirmation from her general practitioner that she had testamentary capacity. 5. Stephen nonetheless participated in Mrs Jones making the 19 June 2013 will, without medical confirmation of her testamentary capacity being obtained. He either caused Mrs Jones to take that course or willingly assisted her in doing so. Preparation of 13 June 2013 hand-written document 1. It is clear that the hand-written will bearing the date 13 June 2013 is in Mrs Jones' handwriting. 2. Stephen's evidence that he saw Mrs Jones sitting in her chair writing the 13 June 2013 document by hand, using the 28 June 2010 will as a precedent, is positive evidence inconsistent with Mrs Jones having previously made drafts of the document, and then having written out a single clean copy without errors or alterations. 3. I reject Stephen's evidence concerning the manner in which the 13 June 2013 hand-written document was prepared. For the reasons that I have set out above, when considering the preparation of that document, I find it incredible that a 90-year-old housewife, with no legal qualifications or experience, could have prepared the document on their own in a single draft, or otherwise, containing the changes that it did from the 28 June 2010 will. It is impossible to accept that Mrs Jones unilaterally decided to include the clause explaining that she had made no gift to Diane because Mr Jones had adequately provided for her, in order to reduce the likelihood that Diane would succeed on a family provision application after Mrs Jones' death. 4. There is no reason to believe that Stephen had the ability to make the subtle but considered changes to the 28 June 2010 will that are contained in the 13 June 2013 hand-written document, or to include the explanation as to why no gift was made to Diane. Stephen was the only known witness to the circumstances in which the hand-written document was made by Mrs Jones, and I do not accept the evidence that he gave on the subject at all. The most likely reality is that Stephen procured a draft of the will and prevailed upon Mrs Jones to copy it. It cannot be known where Stephen got the information that led to the document being prepared with the terms that it contained. 5. The evidence does not show why, in reality, the hand-written document was prepared. It does happen from time to time that testators write out their own wills, but it is at least extremely unusual for a testator, aged 90 years, to write out fully his or her will using legal language, when the testator proposes to instruct a solicitor to prepare the will in any event. It is easily understood that, in that circumstance, the testator might make notes of the intended provisions, but it is extremely probable that a 90-year-old woman in Mrs Jones' position, having formed the intention to instruct a solicitor to prepare her will, would have left it to the solicitor to draft the will, using the appropriate legal language, rather than to attempt to do it herself. It is of some significance that Mrs Jones did not prepare her own draft will before she saw Ms Hagedoorn on 24 May 2013. 6. The elusive question is: what happened between 24 May 2013 and 13 June 2013 that caused Mrs Jones to prepare the hand-written document? 7. Stephen gave evidence that Mrs Jones formed the view, after the 5 June 2012 meeting with Ms Sinclair, that she did not trust Ms Sinclair. I do not accept that evidence. There is nothing in the evidence of Ms Sinclair about what happened on that occasion, or at any other time when she had dealings with Mrs Jones, that would have tended to cause Mrs Jones to lose trust in Ms Sinclair. I consider Stephen's evidence to be a lie, made for the purpose of creating an explanation for why Mrs Jones ceased to deal with Marriott Oliver and went to see Mr Cooke. 8. There is some evidence that supports the view, as stated by Stephen, that Mrs Jones may have thought that Ms Hagedoorn "talked all over her". Diane gave evidence of a conversation with her mother to that effect. However, Diane recommended that Mrs Jones should see Ms Sinclair if she was unhappy with Ms Hagedoorn, and it is probable that that is what Mrs Jones would have done had she been left to her own devices. The detailed content of the 24 May 2013 file notes does not suggest any reason for Mrs Jones to change her solicitors. 9. One of the most inexplicable aspects of the facts of this case is that, as of 9 February 2012, when he had the discussion with Diane set out above, and as at 5 June 2012, when Ms Sinclair visited Mrs Jones at No 165, all that Stephen wanted to achieve was a return to the position in Mrs Jones' earlier will, where Diane would have to pay Stephen half of the difference in values, as Stephen perceived it, of No 165 and No 163. At the meeting attended by Ms Sinclair, Stephen valued his entitlement at $150,000, on the basis of an agreement that he claimed to have made with his parents. Given that starting position, it is mystifying how the position was reached, in the 13 June 2013 hand-written document, that Diane was entirely cut out and Stephen was given the whole of No 165, in addition to No 163 that he always expected to receive. 10. I reject Stephen's evidence that Mrs Jones, unilaterally and of her own free will, formed the view that Stephen was entitled morally to receive the whole of No 165 because Mr Jones had unfairly "ripped off" Stephen. 11. It must be remembered that, for some years before Mrs Jones wrote out the 13 June 2013 hand-written document, the only writing that she had done was simple shopping lists, as Stephen admitted in cross-examination: T 291.16. 12. As of 5 June 2012, Stephen's starting position was that he was entitled to $150,000 that he was owed by his parents under an agreement that he had made with them. I accept Ms Sinclair's evidence that Mrs Jones appeared to be "unsure" of what Stephen was saying. 13. There is nothing in the evidence that would permit a finding of fact that Mrs Jones became aware of circumstances, believed by her to be true, that caused her to abandon her long-held and expensively maintained testamentary intention, and to decide to give effectively all of her property to one of her children to the total exclusion of the other. Making of 19 June 2013 will 1. Stephen gave evidence that he found and initially retained Mr Cooke as an alternative to Marriott Oliver, for the purpose of preparing a new will for Mrs Jones. 2. I do not accept that Mrs Jones initiated the process of finding a new solicitor, but she must have accepted Stephen's suggestion that she retain Mr Cooke. 3. There is no evidence that Mr Cooke, by experience or reputation, was so much more suitable than Marriott Oliver, that would support a finding that Mrs Jones may have decided to change solicitors in order to get better legal representation. 4. It is more probable than not that Stephen decided that his interests would be advanced if Mrs Jones changed her solicitor, because that might avoid the need for Mrs Jones to obtain a medical report certifying her testamentary capacity. I accept the possibility that Mrs Jones was amenable to the suggestion that she did not need to obtain a medical certificate, as she may have thought that it was not necessary. However, against that, all that Marriott Oliver had advised was that she attend her usual general practitioner for the purpose. 5. Mr Cooke' file does not contain any substantive file notes to explain the steps that he took in preparing the will executed by Mrs Jones on 19 June 2013. 6. It cannot be known what Mr Cooke thought when he was presented with the document that was hand-written by Mrs Jones and dated 13 June 2013. 7. Stephen did not deal with the crucial event of how Mrs Jones came to make her 19 June 2013 will with the assistance of Mr Cooke in his first affidavit of 22 July 2016. He dealt with the subject in his later affidavit of 18 April 2017, in which he said, in par 4: "Upon reflection I wish to provide the following further responses" to Diane's 26 April 2016 affidavit. Stephen's evidence was that, after Mrs Jones prepared the hand-written document dated 13 June 2013, Mrs Jones asked him to find another solicitor. After enquiry, Stephen rang Mr Cooke's office and made an appointment for Mrs Jones to see him on 19 June 2013. Stephen said that he then took Mrs Jones down to see Mr Cooke. Mr Cooke came out of his office, greeted the two, and then took Mrs Jones into his office. Stephen said that he waited in reception. After about an hour Mr Cooke came out and said that there were a couple of documents that Stephen needed to sign. Stephen then went into the office and signed the power of attorney and appointment of enduring guardians. 8. However, Mr Cooke's file page states that he was instructed on 13 June 2013. 9. In cross-examination Stephen agreed that he went and saw Mr Cooke and then, later on, he took Mrs Jones to see him. Stephen repeated that concession clearly: T 249.5 to T 249.13. 10. No evidence was given by Stephen about what was said between him and Mr Cooke before Mrs Jones was taken to see Mr Cooke. 11. Later in his cross-examination, when it was put to him that he went to see Mr Cooke on the same day as Mrs Jones wrote and dated the hand-written document, Stephen answered: "No, it was a long time after. Long time": T 313.11. Stephen was cross-examined on the subject of whether he gave the hand-written document to Mr Cooke before he took Mrs Jones to sign the will on 19 June 2013: T 313.16 to T 315.16. Stephen maintained that Mrs Jones took the document to give it to Mr Cooke. Stephen's evidence on the subject was unclear. It must be noted that the file does contain a note, as described above, apparently in Mr Cooke's handwriting and signed by Mrs Jones, that contains an outline of instructions for a will, together with the hand-written document. 12. Although Stephen said, in his "upon reflection" affidavit, that he stayed in Mr Cooke's waiting room on 19 June 2013, he said in cross-examination at T 316.5 that he was in a coffee lounge. This evidence was given in the context that, at T 316.41, Stephen gave evidence of Mrs Jones' conversation with Mr Cooke, saying: "she went through everything with him. I was amazed – you know, all the stuff she wanted to go through, and again I urged her to leave something for Diane, but she––". This evidence provoked the response from counsel: "I beg your pardon?" Stephen responded: "I urged her to leave something in the will for Diane". When that led counsel to say: "So you heard her talking to Michael, she went through everything?" Stephen apparently realised that he had given evidence that he was present when Mrs Jones gave instructions about her will to Mr Cooke. That led him to say that he was outside in a coffee lounge. 13. This evidence justifies a finding that Stephen was present for at least part of the meeting between Mrs Jones and Mr Cooke. That is so notwithstanding the evidence of Ms Richardson that it was Mr Cooke's practice to interview will clients alone. 14. There is no evidence in Mr Cooke's file that he considered whether Mrs Jones had testamentary capacity, or investigated that issue, or explored the reasons for the extreme change in the testamentary dispositions between the will that he prepared and Mrs Jones' 28 June 2010 will, which is also on the file. 15. It may be inferred that Mr Cooke thought that Mrs Jones had testamentary capacity, but there is no evidence at all that he undertook any investigations. In particular, there is no evidence that Mr Cooke considered there was anything unusual in being instructed by a 90-year-old lady to prepare a new will by being given a document in the terms of the 13 June 2013 hand-written document. Mr Cooke did not make any record of exploring that question. 16. It is necessary for the Court to consider the evidence that might suggest reasons for Mrs Jones to cut both her daughter and her granddaughters out of her will. Relationship between Mrs Jones and her daughter and granddaughters 1. That exercise must be carried out against the background that the evidence establishes that both Diane and her granddaughters maintained an exceptionally loving relationship with Mrs Jones until her death. The relationship was mutual. 2. It is clear that Diane was the principal carer for Mrs Jones until well after the date of the 19 June 2013 will. The physical relationship between Diane and Mrs Jones only changed after September 2013, when Stephen moved in to live permanently in No 165 and changed the locks, so that he effectively barred Diane's access to Mrs Jones except by prior arrangement and with his approval. 3. I accept Diane's evidence that, prior to this time she telephoned her mother nearly every day, saw her weekly if not more often, and in the last five years of her life drove Mrs Jones to appointments and to do shopping. Diane cleaned and washed for her mother. 4. There is no evidence that Mrs Jones ever expressed to Diane serious dissatisfaction with their relationship. 5. Stephen agreed in cross-examination that, during 2012 and 2013, Diane was doing most of the caring for Mrs Jones, taking her to doctor's appointments and to the hairdressers, and taking her out: T 289.32. 6. During that time, Stephen was working in Sydney, on and off, and living in Monterey or in the Kangaroo Valley for some of the time: T 290.2. When he was not living there, he lived at No 163. 7. At T 261.48 to T 262.18, Stephen admitted that, throughout the relevant period, Mrs Jones was seeing her grandchildren and great grandchildren and that there was no breakdown whatsoever in the relationship between Diane and her mother. 8. There was no challenge in the cross-examination of Diane to her evidence as to the strength of her relationship with Mrs Jones during the latter's lifetime. Mr Jones' provision for Ms Bracher 1. The first possible reason for Mrs Jones cutting Diane out of her will that should be considered is the one set out in clause 7 of the 19 June 2013 will, being that Mrs Jones considered that Diane had been adequately provided for by Mr Jones. 2. If that were Mrs Jones' actual reason, I would be satisfied by the evidence that the reason was totally false. Diane's evidence, at par 10 of her 5 May 2017 affidavit, was that Mr Jones had never purchased any house for her. Diane gave evidence to similar effect in cross-examination at T 92.15 and T 100.15. 3. The only evidence in the case that Mr Jones made any gift to Diane, other than what might be normal in bringing up a child, was the evidence in par 13 of Stephen's 22 July 2016 affidavit, where Stephen said that his father told him, soon after 1979, that he had given Diane $11,000, and that one or two years before the date of his affidavit, he asked Diane about the gift and she admitted that it was made. 4. It is to be noted that, although in par 13 of his affidavit Stephen said that his father said that he had given Diane $11,000 from the sale of their grandfather's house, Stephen's evidence was that Diane said to him: "That's true. Pop gave me $11,000". Diane accepted in par 16 of her 5 May 2017 affidavit that she agreed "that my grandfather Pop Jones gave me $11,000". This was not a gift given by Mr Jones to Diane. 5. In any event, it would hardly qualify as supporting an understanding that Diane had adequately been provided for by her father. 6. There is no evidence that Mrs Jones ever asserted in any conversation with Diane that she had been adequately provided for by her father. There is no suggestion in Stephen's evidence that Mrs Jones gave this reason to Stephen for her cutting Diane out of her will. 7. The inclusion of clause 7 in the 19 June 2013 will, as a justification for cutting Diane out of Mrs Jones' estate is, so to speak, a complete factual orphan. The evidence contains no support for a finding that the clause actually reflected Mrs Jones' belief. 8. Even if this was a reason that in fact was a justification in Mrs Jones' mind for cutting Diane out of her will, it was not a reason that justified Mrs Jones cutting her granddaughters out of the gift over, in the event she was predeceased by Stephen and Benjamin. 9. The possibilities are that, by some unknown mechanism, Mrs Jones was persuaded of the truth of this reason shortly before 13 June 2013; or alternatively, it was a complete artifice invented by the person who produced the terms of the 13 June 2013 hand-written document for Mrs Jones to copy out, and she was persuaded to copy it out, notwithstanding that she had no belief as to the truth of the reason. 10. A consideration of the evidence and the probabilities leads me to find that Mrs Jones did not have the belief described in clause 7, and it was in fact an artifice created in the process that led Mrs Jones to write out the hand-written document. Bracher family theft from Mrs Jones 1. The second reason proffered for Mrs Jones to have decided to cut both her daughter and her granddaughters out of her will is that Mrs Jones became very irate because she became aware that Diane, her granddaughters, and other members of their families had stolen a substantial quantity of her property from No 165, from a time beginning in about June 2012. 2. I find as a fact that neither Diane nor the other members of her family stole any property of Mrs Jones and Stephen from No 165. I prefer the evidence of Diane and her daughters on this issue to the evidence given by Stephen. 3. Not only is Stephen's evidence on the subject not credible – see, in particular, his claim that on a single occasion the Bracher boys stole between 10 and 12 tonnes of furniture – I consider it to be entirely fanciful. 4. I accept Diane's evidence that there was a lot of surplus, accumulated property at No 165 and that members of the family from time to time retrieved their own property, and by arrangement with Mrs Jones, the property was occasionally sorted out and delivered with her consent to other people that had good use for it. 5. It is also likely that Stephen's unilateral conduct in locking the family's possessions in what was apparently called the "junk room" caused dissension, and members of the family may have taken steps to retrieve their property over Stephen's objections when they had the opportunity to do so. 6. It is likely that Stephen developed a misguided obsession that his, and perhaps his mother's, property was being stolen by his family, and he may have subjected Mrs Jones to incessant – but false – claims that property was being stolen. 7. I find that there was no time where Mrs Jones ever had a serious belief that her family were stealing from her, or that such a belief caused her independently to decide to cut her daughter and her granddaughters out of her will. I note the evidence given by Diane in her cross-examination set out at [67] above, but do not accept that the concession made by Diane that Mrs Jones believed her property was being stolen by her family, viewed in the context of the whole of the evidence, establishes that Mrs Jones had that belief. 8. When the issue of whether Diane had stolen aboriginal paintings was raised with Ms Sinclair on 5 June 2012, Mrs Jones rejected the possibility that the paintings had been stolen by Diane. 9. More significantly, the evidence establishes that Mrs Jones did not make any complaint to Ms Hagedoorn on 24 May 2013 that her family had been stealing from her. That date was well after Stephen claimed that the stealing had begun to occur. Ms Rice's comprehensive file note recorded that Mrs Jones did not think her will needed any substantial change, and that it was fair. 10. If there was any real cause for Mrs Jones to want to change her will, it happened after 24 May 2013. 11. Diane gave evidence in her 5 May 2017 affidavit, at par 21, that in 2011 she and Mrs Jones opened an account at a bank in Nowra to ensure that there would be money available each February or March when the land tax on No 163 was due. Diane said: "The last time I paid the land tax for Mum from this account was in 2014 and she never complained to me about it." That evidence was not challenged. I understand the effect of the evidence to be that, notwithstanding the changes in who was appointed as Mrs Jones' agent under power of attorney, Mrs Jones had left in place an arrangement whereby Diane controlled one of Mrs Jones' bank accounts and paid the land tax for her. 12. It is very improbable that Mrs Jones would have allowed that state of affairs to continue if she had genuinely thought that Diane was stealing from her. People do not ordinarily permit other people to control their finances when they believe those other people are stealing from them. 13. If the pilfering alleged by Stephen took place, or even if it did not but Mrs Jones believed that it did, that would have been a credible reason for Mrs Jones to express in her will for cutting out Diane and her granddaughters. Nothing emerges from the evidence as to why Mrs Jones would have inserted a bad reason for changing her will rather than a good reason, if she had one. 14. The effect of these findings is that I reject the claim made by Stephen that one of the reasons that motivated Mrs Jones to make her 19 June 2013 will was that she thought Diane and her granddaughters, and other members of their families, had stolen from her. Consequently, Mrs Jones did not make the 19 June 2013 will under a delusion, whether insane or otherwise, concerning her family having stolen from her. Stephen being 'ripped off' by Mr Jones 1. For the reasons I have given above when dealing with Stephen's evidence on the subject, there is no adequate basis for the Court to make any findings of fact concerning the reality of Stephen's claims that he was 'ripped off' by his father. 2. There may be some element of truth in Stephen's claims but they simply were not established in fact. 3. It is clear, however, that by the time of the events for which objective evidence was given in these proceedings, Stephen had developed an obsession that manifested itself in a belief that he had been underpaid by his father, that his father had not shared the profits of the furniture business fairly with him, that Stephen had purchased a couple of properties with his own money, that his father sold the properties without his consent, and that, in so far as Mr Jones had money to buy No 163, for the intended ultimate benefit of Stephen, the property was in fact purchased with Stephen's own money. 4. Whatever may be the truth of the matter, the evidence given by Ms Sinclair concerning the conference on 5 June 2012 satisfies me that Mrs Jones had no inkling as to the truth of Stephen's claims, and was completely confused by the assertions that he made. 5. There is truth in the proposition that, under an earlier will, provision was made for Diane to make a payment to Stephen of half of the difference between the value of No 165 and No 163, when the former was thought to be significantly more valuable than the latter. Mrs Jones' 28 June 2010 will abandoned that equalisation arrangement. I accept that was a source of irritation to Stephen. 6. There is no reliable evidence that Mrs Jones ever formed a belief that her husband had defrauded Stephen or that the conduct of her husband justified her in changing her will to give both No 165 and No 163 to Stephen, to the total exclusion of Diane. 7. Even if there was some objective evidence that may have caused Mrs Jones to accept that Mr Jones had treated Stephen unfairly, or that there was some disparity in value between the two properties, that belief did not remotely justify a change in Mrs Jones' testamentary intentions to give the whole of No 165 to Stephen alone. No reason was suggested in Stephen's case as to why Mrs Jones, with any element of rationality, would have decided to change her will for this reason. 8. Again, even if Mrs Jones did form the belief alleged by Stephen, it was not a rational reason for Mrs Jones to cut out her granddaughters. 9. As was the case in respect of Stephen's claim that Mrs Jones changed her will because she believed Diane and her family were stealing from her, the evidence shows that Mrs Jones did not make any statement to Ms Sinclair or Ms Hagedoorn to the effect that she had decided that she should give the whole of her estate to Stephen because he had been treated wrongfully by her husband. 10. Accordingly, I find that the evidence does not establish that Mrs Jones made her 19 June 2013 will on the basis of a belief, whether a delusion or otherwise, that Stephen was entitled to the whole of her estate to make recompense for the conduct of Mr Jones towards Stephen. Evidence concerning Mrs Jones' capacity 1. I accept the evidence given by Diane, discussed at [51] to [55] above, that constituted examples of relatively significant apparent memory loss on Mrs Jones' part, particularly on the subject of whether Mrs Jones had made a will, and concerning Mrs Jones' apparent failure to recognise the existence of long-term relationships between members of her family and others. 2. The Court has the evidence of Ms Sinclair, supported by her detailed file note, that on 5 June 2012 Ms Sinclair was not satisfied that Mrs Jones had been able to demonstrate that she wished to change her will. Mrs Jones did not seem to understand the concepts that were being proposed and she was distressed. 3. The concepts being discussed were ways of drafting a will so that Diane would have to compensate Stephen for the purpose that, if No 165 proved to be more valuable than No 163, each child would share equally under Mrs Jones' will. 4. In late 2012, Ms Sinclair, who was the solicitor best placed to form a reliable view on the subject for reasons adverted to above, advised Stephen that she did not think Mrs Jones was competent to make a will. 5. On 24 May 2013, Ms Hagedoorn discussed with Mrs Jones her "memory problems" and recommended that she get a doctor's certificate to confirm her capacity to alter her will. 6. Ms Hagedoorn's file copy letter dated 24 May 2013 to Dr Larissa Sadaunichaya said that Ms Jones "repeated the same questions on numerous occasions, referred to her son for answers to questions asked of her, and did not recall a conversation, the decision she had made and instructions she had given less than 15 minutes prior". 7. Mrs Jones made her 19 June 2013 will less than one month later, without obtaining medical confirmation of her testamentary capacity. 8. Diane said, in par 59 of her 5 May 2017 affidavit, that, after going to a course about supporting people with dementia, she began to keep a diary of the instances when Mrs Jones was forgetful. That diary is not in evidence. In par 99 of the affidavit, Diane said: "Mum asked me on numerous occasions about making a Will and I wrote the date down on each occasion being 24 October 2012, 14 March 2013, 27 March 2013, 15 April 2014 and 26 February 2016. The reference to 2016 must be a transcription error, as Mrs Jones died on 7 May 2015. Diane said: "I always assured Mum that she had done a Will with Leonie, the solicitor that she and Dad had seen for years." This evidence was not specifically challenged, and I accept it. 9. I therefore find that Mrs Jones, in addition to having forgotten the terms of her 28 June 2010 will as of 24 May 2013, on a number of occasions both shortly before and somewhat after the date of her 19 June 2013 will, had forgotten that she had made a will. 10. There is no evidence that Mr Cooke had been told of Marriott Oliver's advice that Mrs Jones should get medical confirmation of her testamentary capacity, or that he personally tested that capacity. He must have accepted that Mrs Jones did have testamentary capacity. If that is so, it cannot be known whether he was influenced by the appearance that Mrs Jones had written out the terms of her intended will in the hand-written document dated 13 June 2013. There is no evidence in Mr Cooke's file that he explored with Mrs Jones why she had made so great a change as to cut Diane and her granddaughters out of her will. 11. The Court has the benefit of some tangential medical evidence concerning Mrs Jones' mental condition at later times. That evidence was concerned with Mrs Jones' general capacity to manage her affairs and not with her testamentary capacity. It did not directly deal with the matters relevant to testamentary capacity. Given that Mrs Jones' financial affairs and her well-being were looked after by one or both of her children, she only needed independent capacity to deal with relatively simple matters. 12. By report to Dr Sadaunichaya dated 18 July 2013 (part of Exhibit D7), Dr Christley, who described himself as a geriatrician and rehabilitation physician, said that Mrs Jones was unaware of any memory problems other than forgetting people's names. Her mini mental state examination (MMSE) was 28/30. He said that Mrs Jones "has a mild cognitive impairment that is vascular related". He said: "unless she's having a bad day, she'd be able to make decisions on her own". 13. In a later report to Dr Sadaunichaya dated 22 November 2013, Dr Christley noted that Mrs Jones' MMSE was 27/30 "which is probably stable". He said that Mrs Jones "meets the diagnostic criteria for mild cognitive impairment". 14. On 30 April 2014, Dr Christley reported to Dr Sadaunichaya that Mrs Jones' MMSE was a stable 29, but, noting that Mrs Jones scored 17 in Dr Sadaunichaya's rooms, suggested that the score may be related to some stress. He again expressed the opinion that Mrs Jones remained stable with mild cognitive impairment. 15. The most comprehensive discussion of the evidence concerning Mrs Jones' capacity is to be found in the reasons for decision of the Guardianship Division of NCAT dated 27 September 2014, in respect of a hearing conducted on 15 September 2014. The length of time that had elapsed after the date of the 19 June 2013 will requires the reasons to be dealt with cautiously. 16. The reasons recorded, on page 3, that Mrs Jones insisted that she had never signed any power of attorney, even after her attention had been drawn to the fact that she had. Mrs Jones said that she lived in "Dulwich Hill in Marrickville", and that she had always lived in Marrickville, after she had stated her correct address. 17. At pages 4 and 5, the reasons summarised the evidence before the Guardianship Division concerning whether Mrs Jones was a person with a disability within the meaning of the Guardianship Act 1987 (NSW) in the following terms: Dr Jeremy Christley, Geriatrician, advised in a report on 11 July 2014 that Mrs Jones has a vascular or mixed vascular/Alzheimer's related cognitive impairment. Dr Christley reported that Mrs Jones' cognition has tended to fluctuate, as has her capacity. Her mini mental state examination scores have varied between 18 and 28/30. Dr Larissa Sadaunichaya, Mrs Jones' general practitioner, prepared a report on 8 July 2014 in which she stated that Mrs Jones has mild dementia, but that her condition is progressing rapidly. However, in a report prepared on 2 September 2014, Dr Sanjay Bhargava, a general practitioner from the same medical practice as Dr Sadaunichaya, stated that Mrs Jones showed no evidence of dementia. Dr Bhargava expressed the view that Mrs Jones most likely has mild cognitive impairment. Mr Barry Dann, a Paramedic with the Ambulance Service, stated in a report prepared on 12 July 2014 that Mrs Jones has severe dementia, and has experienced confusion. Mr Anthony Chater, another Paramedic with the Ambulance Service, expressed a similar view in a report prepared on 11 July 2014 Mrs Jones' Aged Care Client Record, prepared on 12 August 2014, noted that she has mild cognitive impairment, and experiences disorientation. Mrs Jones also has a range of physical medical conditions. In a letter to the Tribunal dated 28 August 2014, but handed to the Tribunal during the hearing on 15 September 2014, Mr Stephen Jones said that he did not agree with the suggestion that Mrs Jones has dementia. Mr Steve Swan, Clinical Nurse Consultant with the Shoalhaven District Memorial Hospital, gave evidence during the hearing that Mrs Jones has a mild cognitive impairment. In Mr Swan's view, Mrs Jones has the capacity to make simple decisions, but not complex decisions. Mr Swan specifically confirmed that Mrs Jones has a diagnosis of a dementing illness that is causing a mild cognitive impairment. Mr Stephen Jones then agreed that his mother has mild cognitive impairment. The Tribunal did not make a formal finding as to whether or not Mrs Jones is a person with a disability within the meaning of the Guardianship Act. The decision at the hearing turned on whether or not there was a present need for a guardianship order. 1. In his report to the Guardianship Division, Dr Christley said: Mrs Jones has been a patient of mine since July 2013. She is currently an inpatient under my care at Shoalhaven Hospital. Mrs Jones has a background history of atrial fibrillation, hypertension and osteoarthritis. Mrs Jones was originally referred in regards to cognitive change. Her MMSE at her LMOs was 24/30. At her initial assessment Mrs Jones' MMSE was 28/30 and she had some executive issues. I considered she had a vascular or mixed vascular/Alzheimer's related cognitive impairment. Since her initial assessment Mrs Jones' cognition has tended to fluctuate as has her capacity. Her MMSE has varied between 18 and 28. … Due to Mrs Jones' vulnerable cognitive and physical state I would support the involvement of the Guardianship and Administration Tribunal and the appointment of a guardian. 1. Dr Christley reported to Dr Sadaunichaya on 12 November 2014 that Mrs Jones' MMSE was 28/30. He said: "It is better than the lowest score she scored when she was unwell in hospital". 2. The only medical witness who provided evidence in this case was Dr Sanjay Bhargava, a general practitioner, who swore an affidavit on 20 December 2018. Dr Bhargava said that he was Mrs Jones' general practitioner until her death. Dr Bhargava was not called for cross-examination. 3. Dr Bhargava annexed a copy of a brief medical report dated 2 September 2014, which he had supplied to the Guardianship Division. The report said: Mrs Leila Jones has no evidence of Dementia. She has most likely mild cognitive impairment as suggested by Geriatrician, Dr Christley. She is well oriented in time and place today. She scores low in depression and is able to make meaningful conversation. She wants to make her own decisions about her life and I would like to have a meeting with family to organise advanced directives before she becomes unwell. 1. For completeness, I note that Stephen called evidence from two lay witnesses concerning their observations of Mrs Jones' apparent mental capacity. 2. Mr James Treacy swore an affidavit on 13 December 2018, and Mr Antony Catalini swore an affidavit on 19 December 2018. Mr Treacy gave evidence of being in Mrs Jones' company on several occasions in 2014 at her home. He said that he observed no signs of any memory loss and that Mrs Jones was not withdrawn, but was in fact very open and spoke clearly and to the subject of the conversation. 3. Mr Catalini was Mrs Jones' neighbour for approximately 34 years, in that he had a home near Mrs Jones which he and his family had used frequently on weekends and holidays. Mr Catalini said that Mrs Jones was hard of hearing and fragile, but she was very bright, and in their conversations, she understood "profoundly" what was going on, asked and answered questions quickly, and had a good memory about family members and local news. Consideration 1. In Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21, Isaacs J, with whom Gavan Duffy and Rich JJ agreed, set out the following principles concerning the approach that should be adopted by the Court in assessing the validity of a will. I have included only the propositions that are of particular relevance to the present case (footnotes omitted): It is all-important to understand the proper method of approaching this question. Cases of the highest authority have shown the way. It will perhaps be of more general use if I collect in the form of working propositions the effect of those authorities so far as they affect cases like the present:— (1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v. Batt; Bremer v. Freeman; Durnell v. Corfield). (2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence (Symes v. Green; Baker v. Batt). (3) The proponent's duty is, in the first place, discharged by establishing a prima facie case (Bremer v. Freeman). (4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Durnell v. Corfield; Baker v. Batt; Barry v. Butlin; Fulton v. Andrew, and cases there cited). (5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments (Swinburne on Wills, Part II., sec 5, quoted with approval by Kent C. in Van Alst v. Hunter). (6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances (Barry v. Butlin; Jones v. Godrich; Wrench v. Murray). (7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries (Wrench v. Murray; Brogden v. Brown; Durnell v. Corfield; Symes v. Green; Bama Soondari Debi v. Tara Soondari Debi; Sajid Ali v. Idab Ali; Jagrani Kunwar v. Durga Prasad; Banks v. Goodfellow; Harwood v. Baker; Van Alst v. Hunter); (b) the exclusion of persons naturally having a claim upon the testator (Wrench v. Murray; Brogden v. Brown; Harwood v. Baker; Banks v. Goodfellow); (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit (Wheeler v. Alderson; Baker v. Batt; Barry v. Butlin; Bur Singh v. Uttam Singh). (8) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof (Bremer v. Freeman; Waring v. Waring; Sutton v. Sadler; Bama Soondari Debi v. Tara Soondari Debi; Bates v. Graves; Bur Singh v. Uttam Singh). (9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property (Bur Singh v. Uttam Singh; Wingrove v. Wingrove). … 1. As stated by Isaacs J in proposition (4), the essential question is whether the Court is satisfied that "the will propounded is the last will of a free and capable testator". Often, the expression used in proposition (8), that the testator is "of sound mind, memory and understanding with reference to the particular will" is taken to have an equivalent meaning. It is for Stephen, in the first instance, to establish a prima facie case, and if he does that, the burden shifts to Diane to show that the will ought not be admitted to proof. 2. The observation in proposition (2) that the issue "must be determined upon the balance of the whole of the evidence" is important in this case; as are the observations in proposition (6) that "the degree of vigilance to be exercised by the Court varies with the circumstances", and in proposition (8) that "capacity may be either absolute or relative". 3. In Croft v Sanders [2019] NSWCA 303, White JA, with whom Bathurst CJ and Gleeson JA agreed, said at [126], by reference to Bailey v Bailey and other authorities: "… While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will" and "…the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument". Here "inofficiousness" is a term used to describe the degree to which the gifts made in the will diverge from what would ordinarily be expected of the testator given the testator's relationship with the persons who had a call on the testator's bounty – sometimes expressed in terms of the testator's moral duty – particularly where a beneficiary who has received an improbable gift was instrumental in the preparation of the will. 4. The issues that need to be determined before pronouncing the validity of a will are inherently susceptible to doubt. That is inevitable as testamentary capacity depends upon the mental competence and state of mind of the deceased testator, as does the testator's knowledge and approval of the will. Undue influence depends upon the effect of conduct on the capacity of the testator to maintain independence of purpose, and whether the testator succeeded in resisting pressure applied to achieve the ends of another party. Not only does the ubiquity of doubt often impair the process of determining the facts, but it may blur the clear conceptual distinctions between the notions of testamentary capacity, knowledge and approval and undue influence. 5. There may, as in this case, be scope for reasonable difference of opinion as to whether the testator lacked testamentary capacity, but the existence of only marginal testamentary capacity may make the testator especially susceptible to undue influence. The Court may be confident that "upon the balance of the whole of the evidence" the will that is propounded is not "the last will of a free and capable testator", while there remains scope for argument and error as to the separate issues of capacity, knowledge and approval and undue influence. In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA, with whom Basten and Campbell JJA agreed, set out a detailed summation of the principles to be applied by the Court, particularly the relationship between the issues of testamentary capacity, knowledge and approval, and undue influence. 1. Meagher JA began by restating what I have described above as the essential question: [44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657–658; Atter v Atkinson (1869) LR 1 P & D 665 at 668 and 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. 1. It will be convenient to extract the relevant statement of principle made by Meagher JA at the beginning of the discussion of each of the separate issues that must be addressed by the Court. Testamentary capacity 1. In Tobin v Ezekiel, Meagher JA said of the requirement that the testator had testamentary capacity: [45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97–98; 140 ER 671 at 675–676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. 1. The evidence establishes that: Mrs Jones signed the 19 June 2013 will; the will was regular on its face and apparently rational; and the will was duly witnessed. There is therefore an initial presumption that Mrs Jones was mentally competent for testamentary purposes. 2. That presumption will be displaced by circumstances that raise a doubt as to the existence of testamentary capacity, in which event the evidential burden would shift to Stephen, as the party propounding the will, to show that Mrs Jones was of "sound disposing mind". Unless that doubt is resolved on a consideration of the evidence as a whole, that may be sufficient to preclude the Court from being affirmatively satisfied as to testamentary capacity. 3. There are many significant reasons in the present case that raise a doubt as to the existence of testamentary capacity on Mrs Jones' part. The doubt raised is, in my view, an extreme one. 4. On 5 June 2012 and 24 May 2013, solicitors at Marriott Oliver, the firm that had acted for Mrs Jones for many years, formed sufficient doubt as to her testamentary capacity that they declined to take instructions for a new will. In the former case, the source of the doubt was Ms Sinclair's observation that Mrs Jones appeared to be unable to process rationally Stephen's reasons why Mrs Jones should revise her will to leave Stephen more of her estate than Diane. In the latter case, the solicitor instructed by Mrs Jones determined that she should not make a will for Mrs Jones without a medical report confirming testamentary capacity. The latter opinion was formed no more than one month before Mrs Jones made her 19 June 2013 will. 5. The 19 June 2013 will was made shortly after Mrs Jones informed Ms Hagedoorn, after reading her 28 June 2010 – the terms of which she had forgotten – that no changes were needed to her will. 6. Mrs Jones was taken by Stephen to a new solicitor who did not require medical evidence of her testamentary capacity, and whose file does not contain any evidence that Mr Cooke tested Mrs Jones' capacity. 7. The evidence does not permit a positive finding – there is no direct evidence on the issue – but it is at least probable that Stephen was aware that Marriott Oliver had advised that Mrs Jones should obtain a medical report to confirm her testamentary capacity. Stephen was present for at least part of Mrs Jones' conference with Ms Hagedoorn. It is likely that Mrs Jones would have told Stephen about the advice anyway. It is improbable that a polite 90-year-old lady like Mrs Jones would independently have been so headstrong as to ignore the advice and go to a strange and unknown solicitor. That is so even if there is some truth in the allegation that Mrs Jones thought that Ms Hagedoorn had "talked over her". 8. Mr Cooke based his draft of Mrs Jones' new will on the document dated 13 June 2013 that was hand-written and signed by Mrs Jones. The terms of that document, when compared to the 28 June 2010 will, preclude a finding that the document was prepared freely and independently by Mrs Jones in the manner deposed to by Stephen. Mrs Jones was a 90-year-old lady, who for some time had only written out simple shopping lists herself, and her Christmas cards were written by Diane at Mrs Jones' direction. The proposition that a 90-year-old lady with Mrs Jones' experience would have had the desire, or the competence, to write out the document unaided is not credible. A good proportion of experienced probate lawyers might struggle to write the document first time without any crossing out or re-drafting. On the evidence, the inclusion of clause 7 is inexplicable. 9. In giving both No 165 and No 163 to Stephen to the exclusion of Diane, Mrs Jones bequeathed her estate in a manner that was so unequal as to be utterly inconsistent with the apparent equality of love that she displayed towards each of her children before and after the date of the will. The terms of the will were completely and inexplicably inconsistent with testamentary intentions maintained by Mrs Jones and her late husband over about 30 years, at significant cost to themselves. In that respect, the 19 June 2013 will was highly inofficious as the expression is used in this context. 10. The one reason given in the will for excluding Diane from any benefit, being that she had been adequately provided for by Mr Jones was false, could not have been believed by Mrs Jones, was not believed by Mrs Jones, and must have been the invention of some unknown person, who was the true author of the hand-written document dated 13 June 2013, and who must have inserted the term with some expertise, in the understanding that it might prevent a family provision application by Diane succeeding. The true author is the person who prepared the document from which Mrs Jones copied out the hand-written document. 11. The circumstances in which, over a course of days, the intention expressed in the hand-written document dated 13 June 2013 led, in the first typed draft will, to a gift over to Mrs Jones' grandchildren equally, and then to Mrs Jones' granddaughters being excluded entirely in favour of her grandson's partner, was not explained, and is completely inexplicable. 12. There is an absolute dissonance between the effect of the 19 June 2013 will and the long-term and continuing loving and trusting relationship between Mrs Jones, her daughter and her granddaughters. 13. Although it cannot be determined how, the document from which Mrs Jones copied out the hand-written document dated 13 June 2013 must have been created through the agency of Stephen, who was the absolute beneficiary of the testamentary change effected by the 19 June 2013 will. 14. Stephen has been the source of the claims that Mrs Jones freely, and on her own initiative, decided to give all of her property to him alone, but his assertions that Mrs Jones was motivated by a belief that Diane and her family had stolen from her, and that Mr Jones had defrauded Stephen, were incredible and not substantiated by the evidence. They were not reasons ever expressed by Mrs Jones to third parties even though Mrs Jones had occasion to do so. 15. If Mrs Jones had been the true author of the 13 June 2013 hand-written document, she would almost certainly have expressed the reasons asserted by Stephen, if they had been her true reasons. She did not do so. 16. The fact that Stephen has given false evidence concerning the alleged reasons stated by Mrs Jones for her change in testamentary intention by itself envelops the circumstances in which the 19 June 2013 will was made in a cloud of suspicion. 17. For these reasons, the burden shifted to Stephen to prove, on the balance of probabilities, but having regard to the seriousness of the issue, that Mrs Jones was of "sound and disposing mind". 18. The evidence does not support a finding that, on 19 June 2013, Mrs Jones suffered from any dementia or any other physiological disorder of the mind that, in a general way, seriously interfered with her functional capacity to make decisions. The evidence that I have discussed above is inconsistent with a finding that Mrs Jones suffered from any general form of mental incapacity. At most, Mrs Jones suffered from a mild cognitive impairment, although her mental performance might be deficient if she was having "a bad day". The evidence concerning Mrs Jones' mental capacity arose some time after the making of the 19 June 2013 will, in circumstances divorced from the issue of testamentary capacity in the context of Mrs Jones being required to decide the validity of Stephen's claims. 19. As the advice of Ms Hagedoorn that Mrs Jones obtain a medical report from her general practitioner to confirm her testamentary capacity was ignored, and avoided by Stephen, there must be an element of speculation in judging what the content of the medical report would have been, if it had been sought. 20. I think the evidence requires a finding that, if the medical report had been given on the assumption that Mrs Jones had the opportunity to give instructions to an experienced solicitor known to her, in circumstances that excluded the possibility that she would be influenced or overborne by Stephen or any other relative, where the solicitor could carefully enquire into her reasons for making such a drastic change to her testamentary intentions, the opinion would have been expressed that Mrs Jones had testamentary capacity. Put another way, it is probable that, if the doctor giving the opinion as to Mrs Jones' testamentary capacity had been asked to assume that she would make her will with the benefit of proper legal advice, in circumstances that protected her independence, Mrs Jones' testamentary capacity would have been confirmed. 21. Even if this finding should be made, it does not establish in a positive way that Mrs Jones had testamentary capacity, in fact, in the circumstances in which she made the 19 June 2013 will. 22. Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will: see the reference to Croft v Sanders above. 23. It cannot be said that the terms of the 19 June 2013 will, either viewed in isolation, or by reference to the changes from the 28 June 2010 will, were complex. If one has two properties and two children, it is not a complex exercise to decide to give one property to each child or both properties to one child. 24. However, the issue is not only whether the testamentary dispositions effected by the will are simple, measured against the apparent level of testamentary competence of the testator, but whether the testator is "able to comprehend and appreciate the claims to which [the testator] ought to give effect": Banks v Goodfellow at 565. 25. Comprehension of the claims to which she ought to give effect, in the present case, required Mrs Jones to be able to make an adequate judgment about whether any conduct by Mr Jones during his lifetime in relation to Stephen, or Diane in relation to the property of Mrs Jones and Stephen, was a satisfactory reason for Mrs Jones to depart from her long-term testamentary intention of giving one property to each of her children. 26. That would involve Mrs Jones in being able to mentally process claims made by Stephen concerning historical facts, in the light of Mrs Jones' own recollection of what had happened, and to be able – to her own satisfaction – to decide whether the events justified her in denying Diane what had been her intended inheritance for decades. 27. In the present case, the evidence establishes that Stephen was obsessed by his belief that he had been defrauded by his father, and that he had the benefit of an agreement by his parents to ensure that his inheritance was equal to that of Diane. He was also obsessed with the belief that members of his family had engaged in a campaign of theft of his and his mother's property from No 165. 28. The evidence of Ms Sinclair establishes that, on 5 June 2012, Stephen "continually returned to the idea that he was owed $150,000 by his parents and that an agreement had been made between them". She said: "Steve kept pushing and pushing and Jean became very tired". Mrs Jones "was confused and unable to give instructions". Mrs Jones was "distressed" and "upset". Ms Sinclair made her file note because she was "concerned about capacity or undue influence". 29. On 24 May 2013, less than one month before Mrs Jones made her last will, Ms Hagedoorn had the experience of conferring with Mrs Jones about the possibility of her making a further will in the presence of Stephen. She witnessed the apparent dependence of Mrs Jones on Stephen, and her inability to remember events that had occurred a short time earlier. Ms Hagedoorn formed the opinion that there was sufficient uncertainty as to Mrs Jones' testamentary capacity as to require medical confirmation. 30. The evidence of Ms Sinclair and the file notes of the conference between Ms Hagedoorn and Mrs Jones justify a finding by the Court that, even if the 90-year-old Mrs Jones was mentally competent for ordinary day-to-day purposes, faced with the strain of dealing with Stephen's insistence that she change her testamentary arrangements, the two experienced observers formed the opinion is that Mrs Jones' testamentary capacity was so doubtful that they would not, at the time, take instructions from her for the making of a new will. That evidence gives rise to a positive doubt as to Mrs Jones' testamentary capacity, in fact, in the actual circumstances in which she finally made her will on 19 June 2013. 31. It is a small piece of evidence, not developed in any way at the hearing, but this conclusion is consistent with the opinion expressed by Dr Christley, in his 30 April 2014 report, that Mrs Jones' MMSE score of 17 out of 30 "may be related to some stress". There is a real basis for finding in this evidence that Mrs Jones' ordinary mental capacity wilted in the face of certain stresses, although allowance must be made for the possibility that this disability emerged after the date of the 19 June 2013 will. 32. Unfortunately, the Court does not have any reliable evidence as to what occurred in the day to day relationship between Stephen and Mrs Jones between 5 June 2012 and 19 June 2013. The evidence justifies a finding on the probabilities that Stephen continued "pushing and pushing" Mrs Jones until she made a new will. 33. Mrs Jones' testamentary capacity on 19 June 2013 must be assessed on the basis that she had mild cognitive impairment, and had real short-term memory deficits, and – being 90 years old – she had been subjected to the incessant importuning of Stephen, directed at achieving the testamentary outcome that he desired, and that she was accordingly subjected to continual mental and emotional stresses. 34. The present is not a case where it may be found that the testator lacked testamentary capacity because the testator's ability to recognise and evaluate moral claims on her estate was negated by the presence of delusions about potential beneficiaries. Although Stephen attempted to demonstrate that Mrs Jones had testamentary capacity because it could not be said that Mrs Jones was more than mistaken about Mr Jones' treatment of Stephen and Diane and her family having stolen from her, I have not accepted that, in reality, Mrs Jones freely decided to cut her daughter and granddaughters out of her will because she accepted Stephen's claims on those subjects. 35. Testamentary incapacity may be established by a mental disorder which does not involve delusions: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [15], [128] and [133]. The present case is more akin to that decided by White J (as his Honour then was) in Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159] and [160]. As his Honour observed in the former paragraph, referring to a statement of Powell JA in Read v Carmody [1998] NSWCA 182, "it does not matter what is the nature or form of the 'mental disorder' that detrimentally affects a will-maker's cognition and judgment". As his Honour observed at [160], referring to the testator's extreme age, her physical weaknesses and her emotional lability, the testator was not "capable of standing up to pressure imposed by others. When subject to such pressure I do not think she was capable of evaluating the strength of the claims" of the potential beneficiaries of her estate. I consider the same to be true in relation to Mrs Jones' capacity to withstand what I have found was the probable incessant pressure of Stephen. 36. This is an unusual case because it was not the testator who suffered from delusions, but it was the beneficiary who ultimately prevailed upon the testator to bequeath the whole of her estate to that beneficiary. 37. Stephen has not established that Mrs Jones had the testamentary capacity to make her 19 June 2013 will, and on that ground, probate of that will should be revoked. Knowledge and approval 1. In Tobin v Ezekiel, Meagher JA gave the following encapsulation of the principles upon which knowledge and approval by the testator of the terms of his or her will are to be determined: [46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562–563; Robertson v Smith [1998] 4 VR 165 at 173–174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484–485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. [47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523–524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. [48] In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. 1. In the present case, for the reasons considered above, there would be, but for one circumstance, ample reason to entertain doubt or suspicion about whether Mrs Jones truly knew and approved of the terms of the 19 June 2013 will. However, in the present case it is clear that Mrs Jones wrote out the draft will dated 13 June 2013 in her own hand. If evidence that the testator gave instructions for the will or that it was read over by or to the testator is the most satisfactory evidence of actual knowledge of the contents of the will, in principle, proof that the testator had actually written out the will should be better proof of actual knowledge. 2. Although there is no positive evidence of the fact, it is also probable that Mr Cooke was sufficiently conscientious to have read out the final draft will before Mrs Jones executed it on 19 June 2013, or alternatively that he allowed her time to read it herself. 3. In these circumstances, a finding by the Court that Mrs Jones did not know and approve of the terms of the 19 June 2013 will, in the relevant sense, would not be justified. It is not necessary for the Court to base its decision upon this aspect of the principles governing the validity of a will. I record, however, that I have qualms about whether, in fact, Mrs Jones truly knew and approved of all of the terms of the final draft of her will. That is in part because of the revision to the penultimate draft, whereby Mrs Jones' granddaughters were wholly excluded from the gift over in favour of Benjamin's partner, and the possible consequences of Mrs Jones' short-term memory deficits. Unfortunately, it is extremely difficult for the Court to make reliable findings on the real effect of significant short-term memory deficits on whether a particular testator, at the instant of executing his or her will, had a real and sufficient recall of the words set out in the document. Undue Influence 1. The principles governing the circumstances in which the validity of a will is vitiated by undue influence were set out by Meagher JA in Tobin v Ezekiel in the following terms: [49] It is then necessary to consider the relationship between the requirement that the will be that of a "free" as well as "capable" testator and the principles relating to the proof of undue influence. In this context undue influence means that the testator has been coerced into doing what he or she did not desire to do. What must be established is that execution was obtained by the exercise of "the power unduly to overbear the will of the testator": Wingrove v Wingrove (1885) LR 11 PD 81 at 82–83; Baudains v Richardson [1906] AC 169 at 184–185; Craig v Lamoureux [1920] AC 349 at 357; Bailey v Bailey at 571–572; Bridgewater v Leahy [1998] HCA 66 ; 194 CLR 457 at [62] fn 55; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 ; 14 BPR 26,867 at [60]–[64]. Where the will has been executed by a person of competent understanding and, judged by the circumstances of execution, "apparently a free agent", the burden of proving that the will was executed under undue influence is on the party who alleges it: Boyse v Rossborough (1857) 6 HL Cas 2 at 49 ; 10 ER 1192 at 1211; Parfitt v Lawless (1872) LR 2 P & D 462 at 469; Craig v Lamoureux at 356–357; Bailey v Bailey at 571–572; Trustee for the Salvation Army (NSW) Property Trust v Becker at [76]. … [51] Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the court (at 157, 159) that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551, 557, 561–562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281–282; Nock v Austin at 528; Vout v Hay at [29]–[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294. … [53] That analysis will not apply to all instances involving the exercise of undue influence or fraud. For example, coercion may result in the testator signing an instrument whose contents are to some extent unknown. Or the testator may be mistaken as to the contents of the will as a result of fraud. In such cases the circumstances may also give rise to a suspicion or doubt as to knowledge and approval and the satisfaction of the requirement of affirmative proof would likely disprove the suspected undue influence or fraud. In the remaining cases, notwithstanding that the court may be satisfied that the testator appreciated what he or she was doing, there will still be a live issue as to whether what was done was as a result of coercion or fraud. [54] In the several provinces of Canada, other than Quebec, the law in regard to testamentary capacity, undue influence, fraud, coercion and the formalities attendant on the execution of wills is governed by English statutes re-enacted with slight changes and by English usage and decisions: Rodney Hull et al, Macdonell, Sheard and Hull on Probate Practice, 3rd ed (1981) Carswell at 14. In a passage cited with approval by Sopinka J in Vout v Hay at [29], Crocket J, writing for the court in Riach v Ferris [1934] SCR 725 at 736 [16] described the inter-relation between suspicious circumstances, knowledge and approval and undue influence as follows: Assuming that in the case in behalf of a plaintiff seeking to establish the validity of a will, there may be such circumstances of apparent coercion or fraud disclosed as, coupled with the testator's physical and mental debility, raise a well-grounded suspicion in the mind of the court that the testator did not really comprehend what he was doing when he executed the will, and that in such a case it is for the plaintiff to remove that suspicion by affirmatively proving that the testator did in truth appreciate the effect of what he was doing, there is no question that, once this latter fact is proved, the onus entirely lies upon those impugning the will to affirmatively prove that its execution was procured by the practice of some undue influence or fraud upon the testator. This, it seems to me, is the real effect of the three cases upon which the learned trial judge relied, and is precisely the principle stated by Lord Chancellor Cranworth in Boyse v Rossborough and distinctly approved by the Judicial Committee of the Privy Council in Craig v Lamoureux … in which Barry v Butlin, Fulton v Andrew and Tyrrell v Painton were all considered … 1. In the probate jurisdiction, undue influence is different in conception to the equitable principle, whereby a transaction may be vitiated by an unconscionable exercise of a relationship of influence, and requires something in the nature of coercion in causing the testator to make the will. Coercion may be shown to exist without proof of violence or the threat of violence, or some physical overpowering of the testator's hand. The question is whether the will of the testator was in fact overborne so "that [the] testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument": Bridgewater v Leahy (1998) 194 CLR 457 at [62]; [1998] HCA 66 per Gaudron, Gummow and Kirby JJ. 2. As Powell J (as his Honour then was) said in Winter v Crichton (1991) 23 NSWLR 116 at 121, "the influence which must be shown to avoid a will must amount to force or coercion destroying free agency". In repeating the charge given by Sir James Hannen P to the jury in Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83, Powell J at 122 referred to that part of the charge where his Lordship said: … The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence… 1. In the remainder of the extract from the charge to the jury, his Lordship stated that it is not undue influence if it "is shown to be the result of the wish and will of the testator at the time". 2. In Re Estate of Dowling; Ridge v Rowden (Supreme Court (NSW), Santow J, 10 April 1996, unrep) said: 12. The essence of undue influence is that it goes beyond the permissible or legitimate, having regard to the degree of pressure brought to bear and the evident susceptibility of the person concerned to such pressure from factors such as mental frailty. In Hall v Hall [1868] 1 P and D 481, Sir James Wilde said at 482: To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion appeals to the affections or ties of kindred to a sentiment of gratitude for past services or pity for future destitution or the like, - these are all legitimate and may be fairly pressed on a testator. On the other hand pressure of whatever character whether acting on the fears or the hopes if so exerted as to overpower the volition without convincing the judgment is a species of restraint under which no valid will can be made. Importunity or threats such as the testator has not the courage to resist moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort these if carried to a degree in which the free play of the testator's judgment discretion or wishes is overborne will constitute undue influence though no force is either used of threatened. In a word a testator may be led but not driven; and his will must be the offspring of his own volition and not the record of someone else's. 13. Undue influence in probate is distinct from the equitable doctrine of undue influence. Influence generally in the form of persuasion or moral pressure to favour a person by will, whatever its degree, is not invalidating in probate unless it produces a gift or will contrary to the will of the testator. In this regard, while it is true to say that undue influence may be established by reasonable inference from the circumstances surrounding the will's execution, suspicion alone will not establish undue influence: In Will of Boyd (1872) 3 VR (EM) 46. What is required to be proved is actual "coercion" of the mind so as to produce an act contrary to the will of the testator: see generally Boyse v Rossborough (1856) 6 HLC 2 at 49 (10 ER 1192 at 1211) and the discussion in Mason and Handler, Wills Probate and Administration Service (NSW) Butterworths, at 1064. It is not sufficient to establish merely that one party has the potential power unduly to overbear the will of the testator: Wingrove v Wingrove (1885) 11 LRPD 81 at 83. This emphasises a further difference between the equitable principle of undue influence and the principle in probate, namely that there are no presumptions of undue influence in probate: actual and effective coercion must be proved. Thus it was said in Boyce v Rossborough (supra) at 51; 1212: But in order to set aside the will of a person of sound mind it is not sufficient to show that the circumstances attesting its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. 14. The onus of establishing undue influence rests upon the party alleging it at all times: Boyse v Rossborough (supra). 1. In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Hallen AsJ (as his Honour then was) said at [276]: [276] In looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual. 1. If I am correct in my conclusion that Mrs Jones lacked testamentary capacity, then the 19 June 2013 will cannot be upheld. Even if I am wrong in that regard, I remain strongly of the view that Mrs Jones' capacity could only be considered to have been marginal in the actual circumstances in which the will was made. I consider that her circumstances made her in fact vulnerable to her will being overborne by incessant demands in circumstances where she would have had great difficulty in independently processing and assessing the validity of the reasons given by Stephen in support of the demands. 2. I have concluded that as a real, practical matter, the only way of explaining the making and the terms of the 19 June 2013 will is that, in Mrs Jones' weakened state, she was not able to resist Stephen's demands. 3. I do not consider that this finding is based on entirely circumstantial grounds. I have accepted Ms Sinclair's evidence, supported by her file note, that, at the 5 June 2012 conference, Stephen did most of the talking and continually returned to the idea that he was owed money by his parents, and that Mrs Jones did not seem to understand the concepts that were being proposed. Mrs Jones was confused and unable to give instructions to Ms Sinclair. Stephen kept pushing and pushing and Mrs Jones became very tired. 4. The effect of Ms Sinclair's evidence was not limited to Mrs Jones being unable to understand and process the claims made by Stephen. She said that Mrs Jones became very tired, that her eyes were looking at Ms Sinclair in a searching way, and she sighed heavily and never left her chair. Mrs Jones had a hanky in her hand and she kept wringing it. Ms Sinclair said that she was actually concerned about the possibility of undue influence being exercised on Mrs Jones. Ms Sinclair's evidence painted the picture starkly of a spiritually diminished 90-year-old woman who, on the occasion, withdrew emotionally from the conference. 5. I have also accepted the evidence from the file notes prepared by Ms Hagedoorn and Ms Rice of the conference that took place on 24 May 2013 that Mrs Jones could not remember the terms of her earlier will, but when given the opportunity, after reading the will, Mrs Jones said that the terms of that will were fair. The file notes are not as expressive as Ms Sinclair's evidence, but I would infer that to some degree Mrs Jones presented similarly to the way she did with Ms Sinclair, and that influenced Ms Hagedoorn's decision that Ms Jones was not able to make a will. 6. Yet less than one month later, Stephen had procured the services of Mr Cooke, and a will was made that fundamentally altered Mrs Jones' fixed testamentary intentions that had endured for decades, and did so without any explicable reason that could be attributed to genuine free choice on Mrs Jones' part. In my view, the only rational explanation for these events is that Stephen reacted to his disappointment, in not achieving his goal at the conference with Ms Hagedoorn on 24 May 2013, by redoubling his efforts, which ultimately succeeded in the making of the 19 June 2013 will. I do not consider that there is any other explanation for what Mrs Jones is recorded as believing was fair on 24 May 2013 being turned on its head by 19 June 2013. Stephen did not provide any evidence of any new event or circumstance, other than his continuing importuning of his mother, which could explain the change. If there was any such event or circumstance, Stephen was the only person capable of giving that evidence. 7. I am influenced in making this finding by my observations of the manner in which Stephen gave his evidence in the witness box. A consideration of the extracts from the cross-examination of Stephen set out above will give some sense of the level of Stephen's obsession with the idea that he had been wronged by his father and that Diane's family had stolen from him and his mother. I am satisfied that Stephen would have harried Mrs Jones, following his failure to secure the will in the terms that he wanted at the conference with Ms Hagedoorn. 8. In my view, constant importuning of an old and weakened person, with compromised testamentary capacity, is capable of overbearing the will of that testator, as much as more blatant forms of coercion. Here, I do not refer to the mere taking advantage of some relationship of influence under which the other party is susceptible. I refer to the situation where the testator effectively gives up and abandons free agency in order to stop being subject to incessant demands. A finding of undue influence for probate purposes may not be available where there is a basis for concluding that the testator has ultimately been persuaded to accept the demands of the particular beneficiary, even though the reasons given in support of the demands are wrong and unsupportable. The question is whether, in reality, the testator has made a "free" decision. However, where no reason can be found in the evidence that can explain the abandonment by a weakened and susceptible testator of the testator's long-term cardinal testamentary intention, in the face of demands that are both incessant and obsessive, a conclusion of practical coercion may be available. That is the finding that I make in this case. Remaining Issues 1. It follows from the conclusion stated above in respect of Diane's probate claim that an order as sought in prayer 1 of the further amended statement of claim, that probate of the will of Mrs Jones dated 19 June 2013 in common form be revoked, will be made. 2. I have chosen the heading "Remaining Issues" to this part of the reasons for judgment because I do not consider that the parties' submissions, and the evidence that is now before the Court, permit the Court simply to decide all remaining issues in a way that will give a reasonably fair and just result. There are too many significant uncertainties in the factual position to warrant the Court simply deciding all outstanding issues. The parties have not yet provided submissions concerning the determination of some questions that must be determined before logically subsequent issues can be dealt with. 3. The Court would hope that the parties could take a sensible view about the remaining issues and resolve them consensually if possible with the aid of their respective legal advisors. This is a case where the interests of the parties call for the legal advisors to adopt a practical and realistic approach to the resolution of the remaining issues. Appropriate identity of administrator 1. Prayer 2 in the further amended statement of claim seeks an order that probate of Mrs Jones' 28 June 2010 will be granted in solemn form to Diane. While it follows from the above reasoning that an appropriate grant of administration must be made by the Court for the administration of the 28 June 2010 will, the parties have not yet made submissions concerning the appropriate identity of the administrator. 2. Clause 2 of the 28 June 2010 will appointed Diane and Stephen as Mrs Jones' executors and trustees. It seems obvious from the dispute between Diane and Stephen that has been required to be resolved by these proceedings that dissension would likely arise if probate were granted to both siblings. On the other hand, further dissension may also arise if the grant were made solely to Diane. 3. With great respect to Diane, she is now getting older and I assume has not had experience of commercial matters that may be involved in the administration of Mrs Jones' estate. More significantly, there is a question as to whether No 165 and No 163 must be sold in order to administer Mrs Jones' estate. That is a subject that I will address below. If it is necessary to sell the two properties, then it is possible that the opportunity for further disputation will be reduced if Mrs Jones' estate is administered by an appropriately qualified independent administrator. 4. It will be necessary for the parties to provide submissions to the Court on the issue of whether an order should be made in the terms of prayer 2. It will be important for the parties and their legal advisors to balance carefully the attractiveness of one of the parties being granted probate, which in theory should reduce costs, against the potential costs that may arise if there is further dispute about the administration of Mrs Jones' estate that arises out of the need to sell the properties. Provision of accounts by Stephen 1. Prayer 3 of the further amended statement of claim seeks an order that Stephen verify and pass all accounts related to Mrs Jones' estate. The parties have not provided the Court with specific submissions addressed to whether or not this order should be made. 2. The Court does not know in any specific way what Stephen will be required to do if the order is made, and whether compliance with the order will be expensive or likely to generate further dispute between the parties. 3. On the one hand, as I will discuss below, Stephen does not appear to have been paying council rates, water rates, electricity charges and land tax for the two properties, and his evidence shows that, in aggregate, a substantial debt is owed in respect of those charges. As I understand the evidence, Stephen has not leased No 163, while he has been living in No 165, in order to generate income to meet these expenses. 4. On the other hand, the Court has granted to Stephen probate of Mrs Jones' 19 June 2013 will, and, on 2 September 2016, the title to both properties was transferred to Stephen. Although, by filing her statement of claim on 14 October 2016, Diane notified Stephen that she was seeking an order that probate of Mrs Jones' 28 June 2010 be granted to herself in solemn form, Stephen has remained the owner of the two properties, subject to the contingency that the grant of probate of Mrs Jones' 19 June 2013 will would be revoked, so that Stephen would hold the two properties on trust for Mrs Jones' estate. 5. These issues have not yet been addressed by the parties in their submissions. There may be considerable scope for the parties to incur further legal costs, if a dispute arises as to the proper way to account for the administration of Mrs Jones' estate. It may advantage the parties if some adequate but relatively informal arrangement can be reached concerning the preparation of the estate's accounts. 6. This may be a relatively minor issue, but it illustrates the difficulties that can arise where a probate dispute such as the present is determined at the same time as family provision applications by the beneficiaries of the estate. Sometimes, the family provision applications cannot properly be dealt with until all of the consequences of the determination of the probate case are known in specific monetary terms. Put shortly, if the preparation of appropriate accounts for the estate gives rise to unexpected costs that must be borne by Stephen, remembering that he has proceeded on the basis that he was the owner of both properties, then it may be proper for the Court to take into account those presently unknown costs in determining whether a family provision order should be made in favour of Stephen, and then in fashioning the appropriate order. Provision of documents by Stephen 1. Prayer 4 seeks an order that Stephen do all things to make available to Diane all documents necessary to enable Mrs Jones' estate to be administered. This prayer assumes that an order has been made granting probate to Diane as sought by prayer 2. I will assume that, depending on how the issues raised by prayer 2 are resolved, it will not be difficult for the parties to agree appropriate orders to facilitate the administration of the estate. The parties' costs of the proceedings 1. Prayer 5 seeks an order that Stephen pay Diane's costs of the proceedings. The issue of costs raises legal and practical difficulties for the final determination of these proceedings and the administration of Mrs Jones' estate. 2. According to Diane's solicitor's 22 October 2019 affidavit, Diane's legal costs estimated to the end of a five-day hearing were then expected to be $147,349.64, of which $75,000 was allowed for counsel's fees. 3. While it is not the function of the Court on this application to determine the reasonableness of a party's legal costs, it should be observed that, given the complexity of the proceedings, Diane's expected legal costs do not appear to be unreasonable. 4. The position is more uncertain in relation to the legal costs that Stephen expects to incur. According to his solicitor's 13 October 2019 affidavit, Stephen owes legal costs both to his present solicitor and counsel and also to lawyers who formerly acted for him. 5. The amounts said to be owing to Stephen's former lawyers are Hunter Lawyers ($103,145.97 – disputed); NG Solicitors ($6,630.32 – not disputed); Metro Lawyers ($2,245.57 – not disputed) and Leigh Finch of counsel ($990 – not disputed). The total is $113,011.86. 6. The Court was told that Hunter Lawyers had exercised a lien over Stephen's file, which had created practical difficulties for his present solicitors in that they had to reconstruct the file as best they could from available sources. 7. Although the Court was told that Stephen disputes that he owes Hunter Lawyers the full $103,145.97, those solicitors' claim has apparently not been subject to any assessment process or negotiation. The result is that the Court cannot know what amount Stephen will ultimately be required to pay to Hunter Lawyers. 8. Stephen's solicitor gave the following estimates of the additional legal costs for which Stephen would become liable for her and her counsel in the proceedings to the end of a five-day hearing. On the ordinary basis, the total of the estimate was $170,000, with counsel's fees being $55,000. On the indemnity basis, the amount estimated was $227,000, with counsel's fees being $77,000. 9. Taking Stephen's obligation to his present lawyers on the indemnity basis and the total of his earlier costs, the amount is $340,011.86. 10. Taking the parties' legal costs at face value, the total amount that has been incurred by both parties is $487,351.50. 11. It is premature for the Court to make any observations concerning the reasonableness of Stephen's legal costs, but it is obvious that $340,011.86 is a surprisingly large sum. It is almost $200,000 more than Diane's legal costs. 12. The Court has not yet received submissions from the parties concerning the costs orders that should be made. At present, there is no basis for dividing the costs between the probate and family provision claims. That exercise may not be reasonably possible, as much of the evidence may have related to both claims. 13. There is a question as to whether the parties' legal costs, or any part of those costs, should be paid out of Mrs Jones' estate. That issue raises complicated questions. Even though Stephen's defence of the probate case has failed, he was a nominated executor defending Mrs Jones' last will. Notwithstanding the grounds upon which the Court has decided to revoke the grant of probate in respect of that will, it is a fact that Mrs Jones did sign the will. Special rules may apply to the determination of costs questions in probate cases. 14. The absolute amount of the total legal costs incurred by the parties is such that the outcome of the family provision claims may be influenced by the effect of the costs orders that are made on the probate claim. 15. Stephen, through his counsel's submissions, has made an explicit plea to be entitled to No 165, where he has been living since 2013. The natural result of Diane seeking a grant of probate in respect of the 28 June 2010 will would be that she would become entitled to No 165. At a point in her evidence, Diane said that she was looking forward to being able to live at No 165, which had been her expectation for a number of decades. 16. The difficulty is that the amount of both parties' legal costs may have the effect that it will be necessary for both properties to be sold. That outcome will be more likely if a substantial amount of the costs are required to be paid out of Mrs Jones' estate. 17. The parties will need to address the consequences of a grant of administration being given of the 28 June 2010 will, in various eventualities as to the amount of legal costs that may have to be paid out of Mrs Jones' estate, and how the burden of those costs would be borne as between the two properties. It is an unfortunate fact that, in this case, the estate does not contain assets in addition to the two properties that would enable the properties to be retained and transmitted to the beneficiaries with all additional costs being paid out of the other assets. 18. The issue of how the parties' legal costs are to be dealt with also has a bearing on how the family provision applications should be determined, if it turns out that the financial position of one or both of the parties is significantly reduced by the need personally to pay a substantial amount of legal costs. Significance of values of the two properties 1. This brings me to the consequences of the state of the evidence concerning the present value of the two properties in the estate, as well as the other properties owned by the parties. 2. As is permitted by clause 21(a) of Practice Note No SC Eq 7, the evidence of the value of No 165 and No 163 was given by kerbside appraisals made by real estate agents. That is often an adequate and inexpensive approach suitable for family provision applications, but in some circumstances it will not permit the Court to make a satisfactory finding concerning the real value of property in the estate. 3. In the present case, Stephen provided appraisals as at 6 August 2019 by Century 21 in the area that assigned a value to No 165 of between $1,200,000 and 1,320,000, and value to No 163 of between $895,000 and $995,000. 4. The First National real estate agency in the area provided Diane with appraisals as at 15 October 2019 giving a range for No 165 of $1,550,000 to $1,700,000, and a range for No 163 of between $1,500,000 and $1,650,000. 5. Taking the midpoints of the ranges, Stephen's real estate agent appraised the two properties as having a total value of $2,205,000, and Diane's real estate agent gave a figure of $3,200,000. The difference of $995,000 is of a magnitude that plainly may have a real bearing on how the family provision applications should be dealt with. 6. I have looked at each of the appraisals, which in the ordinary way merely state a range of values, and refer to a number of comparable sales, without stating the valuation rationale. The two sets of appraisals appear equally professional, and there is no way on the evidence that the Court could distinguish between them concerning their reliability. The magnitude of the differences between the real estate agents is so great that it would plainly not be rational or appropriate for the Court simply to split the difference. 7. Given the financial circumstances of both parties, and the possibility that the need for sale of No 165 and No 163 will require the parties to make completely new residential arrangements, the amounts that would be ignored by means of the splitting of differences in the appraisals might have a significant effect on the outcome of the proceedings for the purpose of each party's future life. 8. Another significant feature of the two sets of appraisals is that, again taking the midpoints, Stephen's real estate agent appraised No 165 as being worth $315,000 more than No 163. Diane's real estate agent appraised the difference as being $50,000 in favour of No 165. 9. There is some evidence that Mrs Jones, in her 28 June 2010 will, left No 165 to Diane and No 163 to Stephen on the basis that it was then thought that both properties had an equal value because, being beachfront properties, their highest and best use would involve demolishing the existing residences and building new residences suitable for the location. Consequently, the difference in the inherent value of the two existing residences had ceased to be significant. This position was different from Mrs Jones's previous will that included a requirement that Diane would have to pay Stephen half of the difference in the values between the two properties. 10. If there is in reality the disparity between the two properties suggested by Stephen's real estate agent, that may be a factor required to be taken into account by the Court in determining Stephen's family provision claim, as it may be relevant for him to establish that Mrs Jones' intention that each of her children would receive a residential property of equal value had miscarried. The parties' existing or previous properties 1. In her 15 October 2019 affidavit, Diane stated, on the basis of an Internet search, that the value of her home was $430,000. She stated that the home had not been renovated or extended since 1973, and it was becoming unsuitable for use by persons of Diane's and her husband's ages. Diane provided an estimate of the works necessary to upgrade the property at $209,400. That estimate was not challenged by Stephen, and appears to me to be reasonable. 2. By means of Exhibit D5, Stephen provided an appraisal by a Kangaroo Valley real estate agent of his Kangaroo Valley property as being worth $400,000. The position taken by Stephen in his counsel's written submissions on the family provision application is that Stephen is entitled to 50% of the Kangaroo Valley property, giving him a property interest worth $200,000. Stephen's submissions do not appear to refer to the interest that Stephen apparently had at an earlier date in a home unit at Monterey, which he co-owned with his then wife. 3. That matter is dealt with in par 181 of Diane's counsel's submissions. Stephen stated in his 22 July 2016 affidavit that the property was sold for $1,250,000. Stephen said at T 194.42: "… I'm still waiting to get some sort of settlement from my property in Sydney that I have with my wife… 1.2 mill, I'm supposed to get half of that". In Stephen's 22 October 2019 affidavit, Stephen said that his former wife had sold the property and kept all the proceeds. Counsel for Diane refers to the Monterey property in par 181 of her written submissions as having a value of $1,540,000 by reference to a document called Binding Financial Agreement (without giving a reference to where that document is in the evidence). Counsel referred to cross-examination of Stephen on the subject at T 390 to T 394 with the observation: "in respect of the Monterey property it is still unclear what is the situation with respect to the property". That is a fair observation, as Stephen seems to have said that he participated in the sale of the property in 2016 but his former wife has not given him any part of the proceeds, notwithstanding that he had "asked her thousands of times about the money…": T 390.32. 4. Diane's counsel is correct. The state of the evidence provided by Stephen is unsatisfactory. It is not that Stephen has failed to disclose his prior interest in the Monterey property. Instead, he has given conflicting and incomplete evidence about what happened to the proceeds of sale of the property. 5. That is a shortcoming that must be remedied before the Court could deal with Stephen's family provision application. Unless the Court were entitled to reject his application entirely because of inadequate disclosure of his financial position, which may be an extreme step given that Stephen has disclosed the interest, the Court must require precise evidence of what happened to the proceeds of sale of the Monterey property, and if Stephen did not get a share, why that happened. Otherwise, the determination of Stephen's family provision application would be on a basis unfairly favourable to him. Stephen's financial circumstances 1. Stephen originally gave evidence concerning his day-to-day financial position in his affidavit of 18 April 2017. He said that he received a pension of $879 per fortnight, which gave him an annual income of $22,854. 2. Stephen listed in his monthly expenditure the need to pay council and water rates for No 165 and No 163, land tax for No 163 and insurance for both properties. The total annual amount, according to my calculations, was $12,645.76. 3. Stephen at that time estimated his total annual expenditure as being $32,997.12. If the holding costs for No 165 and No 163 are deducted from that amount, the balance is $20,351.42. 4. The point of these calculations is that Stephen's ordinary living costs, putting aside the holding costs for No 165 and No 163, were less than his annual pension income of $22,854. 5. In his 17 October 2019 updating affidavit, Stephen explained that he was then entitled to the aged pension of $933.40 per fortnight, which gave him $24,268.40 per annum. 6. Stephen said that his ordinary day-to-day expenditure was $22,080 per annum, which was less than his pension income. 7. Stephen's assets and liabilities included the following: Credit Card – CBA $22,246 Credit Card – BankWest $9,681 Credit Card – ANZ $4,205 Origin Electricity for No 163 $4,427.25 Origin Electricity for No 165 $11,489.55 Council Rates Debt for No 163 $14,537.71 Council Rates Debt for No 165 $15,706.71 Council Rates Debt for Kangaroo Valley $7,559.13 Water Rate Debt for No 163 $4,949.05 Water Rate Debt for No 165 $6,418.39 NSW State Revenue Debt $51,186.11 Hunter Lawyers family law Debt $7,100 TOTAL: $159,505.90 1. I infer that the NSW State Revenue Debt of $51,186.11 is for land tax. 2. I understand the position to be as follows. Holding costs have accumulated for both No 165 and No 163 because No 163 has not been leased, and Stephen could not pay for those costs out of his pension income. 3. I have referred to this evidence because it is a subject on which the Court needs the parties' submissions, in relation to how the properties should bear the costs that are attributable to them. On the face of it, Stephen's credit card, electricity, Kangaroo Valley, and family law legal costs are his sole responsibility. Family provision applications generally 1. It is now appropriate that I make some observations on the family provision applications more generally. 2. First, as I understand it, Diane's family provision application was, so to speak, a fall back against the possibility that she failed in her probate claim, so that she did not receive any share in Mrs Jones's state. 3. If that is a correct understanding, then Diane will be content with what is distributed to her in the administration of the estate in accordance with the 28 June 2010 will. Diane's entitlement to receive No 165 will depend upon how the burden of costs that ultimately must be borne by the estate may affect Diane's ability to retain the property. 4. Diane also contests Stephen's family provision application. 5. It seems clear that Stephen is prosecuting his application for a family provision order even on the assumption that the 28 June 2010 will is the subject of a grant of probate and that, subject to the effect of the costs that must be borne by the estate, Stephen would be entitled to No 163. 6. As stated by Stephen's counsel in his written submissions, Stephen seeks an order that No 165 be transmitted to him because that has been his residence since 2013. 7. Stephen stated, in par 21 of his 22 October 2019 affidavit, that he needed to have enough money to remain living in an unencumbered property, and that he would need: …a fund for my ageing related buffers and vicissitudes such as illness, disability. I need a cash fund (or property) of at least $1,000,000 (which is the current approximate appraisal of No 163) in addition to being able to stay living in No 165. At the end of the proceedings, I will also need sufficient funds remaining after payment of legal costs of the proceedings. 1. Stephen's proposition that, on a family provision application heard on the basis that the 28 June 2010 will was the last will of Mrs Jones, Stephen would be awarded sole ownership of No 165, and then No 163 would be sold and the whole proceeds of sale applied for Stephen's sole benefit is breathtaking in its unreasonableness. 2. It is difficult to understand how Stephen could have been allowed by his legal representatives to proceed upon the basis of that expectation. For one thing, as the estate only contains the two properties, and in practical terms the estate is encumbered by unpaid holding costs and at least some proportion of the parties' legal costs, simple arithmetic shows the impossibility of Stephen achieving the outcome in the family provision proceedings that he seeks. 3. For the reasons that I have discussed above, it is premature for the Court to express any final conclusion concerning the family provision applications. 4. However, it would be relevant for the parties to take into account that the terms of the 28 June 2010 will reflect the considered and long-held testamentary intentions of a free and capable testator. By her will, Mrs Jones treated both of her children equally. Both of those children are of similar age and of relatively equivalent financial position. Each of the children has health problems that require attention. 5. As is usual in these cases, the parties have conducted a forensic war for the purpose of demonstrating that the Court should interfere with Mrs Jones' testamentary arrangements, by attempting to prove serious shortcomings in the conduct of the other party in their dealings with Mrs Jones. 6. It is often the case that the only consequence of a forensic war of this nature is to progressively transfer the parties' funds to their lawyers. 7. I will also refer briefly to Stephen's application for leave to commence his family provision claim out of time under s 58(2) of the Succession Act. 8. Diane has strenuously contested that application made by Stephen. Diane has adopted that position even though she did not file her summons seeking her own family provision relief until 6 May 2016, one day before the 12 month limitation period for the making of that application expired. Diane did not challenge the grant of probate in respect of the 19 June 2013 will until she filed her statement of claim on 14 October 2016. By that time, the limitation period for Stephen to have commenced his own family provision application had expired, in circumstances where he had been given no reason to make that application. 9. It is true that Stephen did not commence his own application for family provision relief until he filed his amended statement of first cross claim on 31 March 2017. However, Diane has been unable to point to any real prejudice that she will suffer if the Court grants Stephen the leave that he seeks to make is application out of time. 10. It must be hoped that the parties' legal representatives are able to assist them to approach the resolution of the issues in these proceedings that remain outstanding in the most cost-effective way that is possible. 11. I will publish these reasons for judgment and then give the parties an opportunity to bring in short minutes of order to give effect to the findings that I have made, and to the extent necessary, to include sensible case management orders that will permit the Court to resolve all outstanding questions as efficiently as possible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020