Supreme Court New South Wales Medium Neutral Citation: Kenneth Walter Waddell v Allan William Waddell as executor of the Estate of the late Ronald John Waddell [2011] NSWSC 1174 Hearing dates: 4, 5, 6 April 2011 Decision date: 04 October 2011 Jurisdiction: Equity Division Before: Slattery J Decision: Defendant required to transfer the subject 10 acre block to the plaintiff - but plaintiff required to account for benefits he received from the deceased prior to his death after promises made to convey the 10 acre block to him - inquiry ordered as to the amount of benefit the plaintiff received. Catchwords: EQUITY - equitable remedies - plaintiff claims his late father made promises to devise to the plaintiff a 10 acre block of orchard land held in the father's name - the defendant executor disputed that the deceased made to his son the promises alleged - whether the promises were made - whether the plaintiff relied on the promises - whether the plaintiff suffered any detriment in reliance on the promises - what is the appropriate remedy if the promises were made - HELD - promises made and relied on and plaintiff suffered detriment remediable by conveyance of the 10 acre block to the plaintiff subject to financial adjustments - LIMITATION OF ACTIONS - whether plaintiff out of time to bring proceedings for to enforce the promises alleged to have been made - HELD - plaintiff's action not out of time. Cases Cited: Austotel Pty Ltd v Franklins Self Serve- Pty Limited (1989) 16 NSWLR 582 Dillwyn v Llewelyn (1862) 4 DeGF & J 517; 45 ER 1285 ER Ives Investment Limited v High [1967] 2 QB 379 Ramsden v Dyson & Thornton (1866) LR1HL 129 Walton's Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Category: Principal judgment Parties: Plaintiff- Kenneth Walter Waddell Defendant- Allan William Waddell Representation: Plaintiff- L. Ellison SC; H. Bennett Defendant- A. Hill Plaintiff- J.J.Francis Defendant- M. Boemi File Number(s): 2010/00158898 Publication restriction: No Judgment 1Since the 1880's the Waddell family have been orchardists in the Galston district about 40 kilometres north of Sydney. From the late 1950's family members farmed two adjoining properties in Galston Road, Galston, a 10-acre block and a 46-acre block. William Narqua Waddell, the grandfather of the parties to these proceedings farmed the smaller of these two properties until his death in January 1981. William Waddell's son, Ronald John Waddell ("Ron Waddell"), inherited the 10-acre block from William in 1981. Ron Waddell had already acquired the 46-acre block from other family. He owned both blocks until his death in 2009. Since the early 1960's the two blocks have together supported one integrated fruit-growing operation. 2The plaintiff Kenneth Walter Waddell ("Ken Waddell") is a son of Ron Waddell. The defendant, Allen William (known as "Bill") Waddell is another son of Ron Waddell and is the executor of Ron Waddell's estate. In that capacity Bill Waddell has become the registered proprietor under the Real Property Act 1900 of each of the 10-acre block and the 46 acre block, which are held in separate certificates of title. In these proceedings Ken Waddell claims that he is beneficially entitled to the 10-acre block and seeks orders for its transfer to him. Ken Waddell claims that during the 1970's and 1980's that it was represented to him that if he continued to farm at Galston with his father, Ron Waddell, and if he maintained and improved the orchard that upon his father's death his father would structure his affairs, including by the making of his will, so that the 10 acre block would pass to Ken Waddell. 3Ken Waddell says that he acted on the representations made to him, by staying on the farm, by not pursuing any other employment, and by committing his time to the improvement of the property, thereby increasing the obligations of his domestic life and forgoing other potentially remunerative career opportunities. Ken Waddell contends that Ron Waddell knew that when Ken continued to work on the farm, especially after William's death, that Ken was acting upon an assumption that Ron would ensure the 10-acre block would pass to Ken after Ron's death. Indeed in July 1981 Ron made a will to the effect that upon Ron's death (and assuming Ron's wife pre-deceased him) the 10-acre block would pass to Ken. 4But in November 2005, about 4 years before Ron Waddell died, he changed his 1981 will. His November 2005 will, which has been admitted to probate, did not give the 10-acre block to Ken Waddell. In these proceedings Ken Waddell claims that because of Ron Waddell's conduct during his lifetime towards Ken, that his executor Bill Waddell cannot now propound the terms of the November 2005 will without doing equity to Ken by transferring the 10-acre block to him. 5All of the parties and many of the witnesses in these proceedings are members of the Waddell family and have the same surname. I will therefore, and I hope without any disrespect to any of them, henceforth refer to them by their first names in these reasons. 6Bill on behalf of the estate contests Ken's claim on several grounds. First he says that Ron did not make any promise directly to Ken that the 10-acre block would go to Ken after Ron's death. Alternatively, he says even if it is found that Ron is to be taken to have promised that the 10 acre block would pass to Ken: that Ken released Ron from the promise in April 2005; that because of changed circumstances, it would now be harsh and inequitable to enforce the promise; that Ron made clear long before his death that he did not intend to keep any such promise, a position which it is claimed Ken accepted; and finally in any event, that Ken's action is now out of time. 7A curious feature of the plaintiff's account in the evidence in this case is that there is only one conversation between himself and his father, Ron, about what was to happen to the 10-acre block after Ron's death. On Ken's account this conversation was as late as 2005, long after he had made the sacrifices that he claims to have made in relying upon an expectation that the 10 acre block would come to him after Ron's death. Nevertheless he claims to have acted before that on the basis of an expectation induced in him by statements that his father made to third parties, which those third parties then passed on to him. One of those third parties was Bill. The legal effect of this unusual feature of the evidence was one of the matters in controversy between the parties. 8Ron Waddell and his wife Vera had four children. Bill the eldest child in the family was born in 1943. Ken the second eldest was born in 1944. Leonard Waddell ("Len") the next in the family was born in 1946. Diane Vera Waddell ("Diane"), the youngest of Ron and Vera's children was born in 1953. In September 1965 Ron and Vera took in a foster child Kathleen Tinkler, born in 1956 and who was therefore 9 years of age when she joined the Waddell family. 9All the current generation of the Waddell family, other than Kathleen, gave evidence. Kathleen's interests, a legacy under the November 2005 will, are not affected by Ken's claim. The Court heard from the defendant Bill, the plaintiff Ken, their brother Len and their sister Diane. 10The parties identified four groups of issues for the Court's determination. With minor adjustments that is the structure adopted in these reasons. The four issues are:- (a)The Plaintiff's Equitable Estoppel Case; (b)The Plaintiff's Proprietary Estoppel Case; (c)Has the Passage of Time Made Enforcement of the Alleged Promise Inequitable?; and (d)Was the Plaintiff on Notice that Ron Waddell Did Not Wish to Keep the Promise or Is the Estate Otherwise Bound by the Limitation Act ? 11Mr Ellison SC and Ms H Bennett appeared for the plaintiff and Mr A Hill represented the defendant. The legal representatives on both sides efficiently dealt with all issues in the proceedings in three hearing days, 4, 5, and 6 April 2011. 12To reduce the risk of identity theft the precise title details of the blocks of land in issue in these proceedings are not reproduced in these reasons. They are clear from the evidence and may be obtained from the Court's file if required. 13These reasons give an account of relevant events in the approximately forty-year time span of relevant Waddell family history and include the terms of the July 1981 and November 2005 wills. The account that follows records uncontested events and decides some contested matters. It principally concerns Ron and Vera and their children and commences well before William Waddell's death. The 1981 and 2005 Wills 14The issues in the proceedings pivot around the changes from the 1981 will made to the 2005 will, so this account starts with an analysis of the terms of these two wills. Then it covers relevant Waddell family events from the 1950's. The 1981 Will 15Six months after his father William died in January 1981, Ron made a will. Ron was contemplating a major subdivision of the farm at the time but did not proceed with that idea. In Ron's will dated 16 July 1981 he specifically dealt with the 10-acre block in a gift over in the event that his wife Vera pre-deceased him. The relevant provisions of the 1981 will are:- "2. I APPOINT my wife VERA WADDELL to be sole Executrix and trustee of this my Will AND I GIVE DEVISE AND BEQUEATH unto her absolutely all my real and personal property of whatsoever nature and wheresoever situated for her own use and benefit. (ii)IN THE EVENT of my said wife either predeceasing me or failing to survive me for at least thirty days then I APPOINT my sons ALLAN WILLIAM WADDELL and KENNETH WALTER WADDELL or the survivor of them Executors and trustees of this my Will AND I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate of whatsoever nature and wheresoever situated unto my trustees upon the following trusts: (ii)UPON TRUST for my son KENNETH WALTER WADDELL absolutely all that real estate at Galston bequeathed to me by my late Father WILLIAM NORQUAY WADDELL and being the land comprised in Certificate of Title Volume [number not published] AND I DIRECT that such devise shall be free of any liability whatsoever to contribute to any death estate or other duty assessed thereon in consequence of my death PROVIDED THAT IN THE EVENT of my said son KENNETH WALTER WADDELL predeceasing me then the said real estate hereinbefore described shall be held upon the trusts set out in Clause 3(d) hereof. (ii)UPON TRUST to sell call in and convert into money such parts thereof as shall not consist of money with power to postpone the sale calling in and conversion thereof including leaseholds or other property of determinable hazardous or wasting nature so long as they in their absolute discretion think fit and without being liable for loss. (ii)IUPON TRUSTS to hold the residue of my estate including the net proceeds of the sale calling in and conversion and any monies of which I die possessed upon trust for such of my children (including adopted children) as are hereinafter named in the following shares: (ii)As to 1/3 rd of the residue for my son KENNETH WALTER WADDELL. (ii)As to 5/24ths of the residue for my son ALLAN WILLIAM WADDELL. (ii)As to 5/24ths of the residue for my son LEONARD JOHN WADDELL. (ii)As to 1/6 th of the residue for my daughter DIANE VERA WADDELL. (ii)As to 1/12 th of the residue for my adopted daughter KATHLEEN JOY TINKLER. (ii)IN THE EVENT of any of the above beneficiaries in paragraph (a) and (c) (i) to (v) predeceasing me leaving a child or children them surviving then the share which such beneficiary would have taken had he or she survived me shall be held by my trustees upon trust for such child or children as survive and if more than one in equal shares." 16In clause 3 (a) of the 1981 will Ron, as testator, describes the 10-acre block as the land "bequeathed to me by my late Father WILLIAM NORQUAY WADDELL", as indeed it had been only about six months before the making of this will. This land is generally referred to throughout these reasons as "the 10 acre block". But many of the witnesses say that during Ron's lifetime the land was often called "Grandpa's block". Diane says that she does not recall the land ever being referred to in this way. Whilst I generally accept Diane's evidence, in this single respect I do not. Quite apart from the plaintiff's evidence, the numbers of other credible local witnesses that recall the 10-acre block being referred to as "Grandpa's block" are quite sufficient for the Court to infer that it was commonly referred to this way during Ron's lifetime. Although even some of these witnesses, such as Mrs Iris Black for example, recall this land also being occasionally referred to as "10 acres of grandpa's land" or "that 10 acres". 17The explanation for the difference between Diane and the other witnesses on this subject is probably that she was at the orchard less that they were and was less likely as a consequence to hear the 10 acres being referred to by the local witnesses in this way. In addition to my acceptance of the other witnesses on this subject it was natural for the land to be referred to as "grandpa's block". After William Waddell moved back to the Galston district from Ettalong he lived in the only cottage on the 10 acre block. Also the 1981 will itself describes the land in terms connecting it with William Waddell. The account of the evidence of the witnesses in these reasons will sometimes refer to the 10-acre block as "grandpa's block", because that is how they describe it. 18The July 1981 will remained undisturbed for 24 years until 2005. Other than conversations to which the plaintiff refers, which he says tend to reaffirm the testamentary intention expressed in the 1981 will, there was very little conversation between Ron and family members about this will. There is no evidence that Ron consulted a solicitor with a view to changing the 1981 will or expressed any unhappiness about it until 2005. The 2005 Will 19Ron made the will admitted to probate in November 2005. He did so after consulting two sets of solicitors and engaging in what appeared in the evidence to be quite tense family discussions, detailed later in these reasons 20The 2005 will is structured rather differently to the 1981 will. The 2005 will was made on 11 November 2005 and relevantly provided:- "2. I APPOINT ALAN WILLIAM WADDELL to be the Executor and Trustee of this my Will AND I DECLARE that in the interpretation of this my Will the expression "my Trustees" shall mean and include the Executor, Executrix, Executrixes, Executors, Trustee or Trustees hereof whether original or substituted. (ii)I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate unto my Trustees UPON TRUST to pay thereout all my debts funeral and testamentary expenses and all duties of every description payable in consequence of my death and to hold the balance thereof after all such payments (herein called 'my residuary estate') UPON the following trusts:- (ii)For my wife VERA WADDELL absolutely, provided she shall survive me for a period of one (1) month; (ii)If my said wife does not survive me for the said period of one (1) month or predeceased me then UPON THE FOLLOWING TRUSTS: (ii)as to the sum of $200,000 for KATHLEEN TINKLER for her sole use and benefit absolutely; (ii)as to the balance of such of ALAN WILLIAM WADDELL, KENNETH WALTER WADDELL, LEONARD JOHN WADDELL and DIANE VERA WADDELL as shall be living at the date of my death and if more than one in equal shares as tenants in common PROVIDED ALWAYS that if any of the said ALAN WILLIAM WADDELL, KENNETH WALTER WADDELL, LEONARD JOHN WADDELL and DIANE VERA WADDELL predecease me leaving a child or children living at the date of my death then any such child or children who attain the age of twenty-one (21) years shall stand in the place of the him or her so dying and take per stirpes and equally between them if more than one the share in my residuary estate which the said ALAN WILLIAM WADDELL, KENNETH WALTER WADDELL, LEONARD JOHN WADDELL and DIANE VERA WADDELL would have taken if he or she had lived to attain a vested interest therein under the preceding trusts hereof." 21In both the 1981 and the 2005 will, Ron gives the whole of his estate to his wife Vera and the gifts to the children under the wills are all gifts over in the event of Vera not surviving the testator by 30 days. But in these gifts over the 1981 and 2005 wills differ in two main ways. First the 2005 will does not make a specific gift to Ken of the 10-acre block that Ron inherited from William. Second the 2005 will provides for the testator's estate to be divided equally among Bill, Ron, Len and Diane rather than unequally, as the 1981 will does. The evidence does not really explain Ron's logic for unequal division of residue in the 1981 will. After the gift of the 10-acre block to Ken in the 1981 will the testator gave residue to the children in the proportions Bill (5/24ths), Ken (8/24ths), Len (5/24ths), Diane (4/24ths) and Kathleen (1/24 th ). So Ken is favoured not only in the gift of the 10 acre block but with the largest share of one third of residue. Strangely too the total number of shares that Ron provided for in this will only add up to a total of 23/24ths. Some miscalculation appears to have resulted from expressing some of the shares of residue as fractions with different denominators such as 1/3 rd (for Ken), 1/6 th (for Diane) and 1/12 th (for Kathleen) rather than expressing all of them as fractions with a common denominator of 24. 22Ron's wife Vera died on the 1 st of August 2009, two weeks before his death on 14 August. Thus clause 3(b) of the 2005 became operative upon his death subject to any trusts declared as a result of these proceedings. Ron and Vera Waddell at Galston 23From the 1940s to the 1980s the present generation of the Waddell family grew up at the Galston orchard and one by one left home. Ron Waddell originally purchased the 46 acre block in the late 1930's from his grandfather, William Norquay Waddell's father, and commenced farming it. William Norquay Waddell seemed less interested in farming. William pursued a career in coal mining from the mid 1940's when he moved to the Cessnock area. It was then that the 10 acre block that William Waddell owned was left to Ron to look after and farm whilst William was away. It was a convenient arrangement both for William and for Ron. The 10 acre block was adjacent to the 46 acre block and augmented farming operations on the larger parcel of land. When he first moved up to Cessnock, Wiliam would regularly travel down from Cessnock and assist planting and clearing on the enlarged farm. In the 1950's Ron constructed a dam on the lower portion of the 10 acre block which irrigated the larger block as well. Ron planted fruit trees on the 10 acre block as well as the 46 acre main farming block. Over time the two properties were farmed as one. 24William Waddell retired as a coal miner and moved to Ettalong on the Central Coast. But eventually in about 1963 William moved back to the 10 acre block and lived in the old cottage there. It was from this time, until his death in 1981 that William had close contact with Ken, who had left school in November 1959 at the age of 15 and was starting work on the farm. When he started there were three people working on the farm, Ron, Ken and Vera's brother, Dave Johnston. Ron did not marry until April 1967. 25Both before and after his marriage, Ken's farming work brought him into daily contract with his grandfather, William: when Ken was in the orchard working; when Ken was driving to the juice factory or to market; or when Ken was doing night deliveries of citrus trees to Woolworths for retail sale. After William's wife died, William would also have lunch with Ken on a regular basis. It is not surprising then, in view of the closeness of this relationship between William and Ken that William should talk to Ken about what would happen to the 10 acre block after his death, as I find that he did. 26Ron and Vera Waddell's farm supported a growing family. When Bill left school he went to work for a local motor dealer, JE Allan's Motor Dealers, which he did until 1987, when Vera's brother David Johnston became ill and could no longer work full time on the farm. Bill returned to work on the farm in partnership with Ron and Ken, as will be explained below. 27The other two children Len and Diane both worked on the farm as children and were expected by their family to contribute to its prosperity in that way from an early age, and they did. But in early adulthood they left the farm and pursued other career interests. Len left school following his passion in 1961 what was then the Intermediate Certificate. He says, and I accept, that he asked his father Ron for a job on the farm but was told that there was no prospect of this as Ron was "already employing your uncle Dave and your brother Ken". The farm could not support any more. Len applied for an apprenticeship in aviation and was accepted into the Qantas Apprenticeship School. He worked for Qantas for the next forty-three years until his retirement in 2004. Len had an extraordinarily long travelling and working day when he started as an apprentice. His early salary as an apprentice was insufficient to cover his board away from home so he had to take a job on weekends at a local motor service station at Galston. When he moved back home he needed to rise at 4.45am Monday to Friday in order to get to Mascot by 7.00am for work. The travel at the other end of the day was equally onerous. 28Len worked on the farm on a voluntary basis whenever he could, especially on weekends. He married in May 1968 and moved closer to his work but he says, and I accept, that he and his wife maintained a close relationship with Ron and Vera and spent regular time at the farm on weekends. Drawn back to farming life, in 1979 Len purchased a two hectare farming block in Galston situated only two kilometres from the family farm. There he established a small orchard to give his young family a similar upbringing to his own. He and his wife saw much of his parents from there and hosted many of the extended family functions there. 29Diane lived on the farm until 1972 when after leaving school her studies at the University of Technology, Sydney, required her to live away. She returned though on weekends and holidays and worked, as many of the other children did, on the farm's roadside fruit stall and gave general assistance around the farm. She did this for four years before becoming employed in the Sydney CBD for a research company for a period after which she was transferred to Melbourne. Diane's career took her interstate and overseas but she returned to Sydney in 1988, when she was starting to raise a family. From this time on she was geographically closer to her parents and was able to see much more of them. As Ron and Vera's health began to fail after 1999/2000 Diane began to spend as she described it, and which I accept, "considerable and more consistent periods of time back on the farm with my parents". She believed that she was the most appropriate one of the children to look after their health needs. 30Because her interests are not affected by this litigation there is little evidence about Kathleen Tinkler's role in the family. But it is quite clear from such evidence as there is that she was, and was expected to be fully involved in family farming activities as were the other children. 31During his lifetime William Waddell encouraged Ken to stay on the farm. It was William's direct encouragement along with Ken's sense of duty that kept Ken on the farm until William's death in 1981. About 10 years before William's death I accept Ken's evidence that William said to him words to the effect "Ken, I really want you to have my property but I think we should leave it to Ron first so that he can continue to farm the property as a whole." William's statements kept Ken interested in staying on the farm in the long term but Ron did not repeat or reinforce them before William died in 1981. 32Len recalls different statements from his grandfather that did not refer to Ken receiving the 10 acre block. These statements were made but they were vague enough to be consistent with what William had said to Ken. Ron, Bill and Ken and the 10 acre block 33Ken became aware of Ron's 1981 will through Bill, not directly from Ron. Late in 1981, after Ron had made the 1981 will, I accept Ken's evidence that Bill came to the farm and saw Ken and told him about the 1981 will. I find that Bill said, "Dad got the solicitor to come out to the farm and dad asked me to be present so I was. You're definitely getting Grandpa's ten acres and you're getting one-third of the rest of the property." This seems to have been quite a solemn statement. Bill had been present when the 1981 will was made. By saying this to Ken, Bill was deliberately conveying Ron's 1981 testamentary intentions to Ken. It is unclear on the evidence whether Ron specifically asked Bill to convey this information to Ken. But the evidence of later statements made in Ron's presence and that he conveyed to third parties who he (Ron) knew had contact with Ken, means in my view that he must have expected this information to be conveyed to Ken and he must have known soon after it was conveyed that it had been conveyed. 34Bill's statement to Ken told Ken what was in Ron's 1981 will. But the statement did not tell Ken that Ron would not change the 1981 will if Ken continued to work on the farm. That connection though is made up in other ways. 35Ken seemed quite convinced that he had been promised Grandpa's block and he says that was the reason he continued to work on the farm for as long as he did. As he says " I always understood that I would be looked after by my father and that I would receive Grandpa's block". But Ron did not discuss with Ken, but with Bill, his intentions about Grandpa's block or the division of his property, including Grandpa's block. 36Ken was not one to assert himself with his father about his expectations. He seemed to be content to rely upon what was conveyed to him by his brother Bill and various other persons about what his father was planning. Ken recalls that Bill would say to him "you will get Grandpa's block plus a third of the balance". I accept Bill often said this to Ken. Whilst it at first may seem strange that Ken could go for so long without having a direct conversation with his father about the 10 acre block, Ken seemed to me to be of a deferential nature and seemed to assume that this would all be taken care of by those older than him. Ken never broached the subject directly with his father in the early days but was content with what Bill had told him. Ken's work on the Farm 37Ken committed himself to working on the farm. He never left. He never raised any suggestion that he would leave the farm either before or after 1981. 38I accept Ken's evidence that whatever be the situation before William's death in 1981 the reason that he stayed on the farm was what Bill said to him about the 1981 will. He says and I accept that he felt that for the family farm to survive that he had to stay on the property. This was because the farm was not generating enough income to employ someone. So Ken was required to work in order to maintain the farm's productivity. Ken says, and I accept, that he "was not happy working such long hours" but that he felt an obligation to see the family farm survive. He also had the tangible incentive that Bill had communicated to him that the 10 acre block had been promised to him and that he would be looked after in Ron's will, among other things in relation to that block being transferred to him. I accept that Ken was also motivated by the Waddell family tradition to maintain the family farm. But in my view, Bill's communication to Ken about the 1981 will was and remained a powerful, though a not much articulated, influence on Ken's career choice to stay on the farm and work there for his father and then after 1986 to join and stay in partnership with Bill and his father. 39Ken's hours were long, 7.00am to 5.00pm six days a week. In the very early days he was paid no wage at all. He also often had to rise early to take the orchard's fruit up to the juice factory and to take produce to the markets at night, a run from Galston to the markets and back that took two to three hours. Employees could undoubtedly be found to work these hours. But with overtime or casual wages they would have added to the operating costs of the orchard. One of the reasons in my view that Ken kept working these long hours was what Bill had told him about the 1981 will. 40About five years after Ron made the 1981 will Vera's brother Dave Johnson became ill and could no longer work on the property. Until his illness he had worked an eight hour day for wages for about 5 to 6 days a week doing general orchard work, picking and tractor work. I accept at this time Ken was working on the farm approximately a 60 hour week (7am - 5pm six days a week) plus other duties which became especially intense during the picking season. When Mr Johnson retired the family needed to restructure the working arrangements. They could not afford to employ someone else full time. So Bill was approached to assist in running the farm. 41Bill took up the invitation to work on the farm and he, Ron and Ken entered into a partnership agreement which commenced on 1 November 1986. The deed of partnership is unremarkable and provided for the three to become partners "in the business of orchardist and fruiterer hitherto belonging to and carried on by the said Ronald John Waddell". The partnership could be determined on 6 months notice and traded under the name of "Waddell's Orchard". After payment of outgoings the partners agreed to share net profits equally. The partnership was clearly in relation to the business carried on the two blocks and was not designed to convey any equitable interest in the real estate. The provision for partners' salary was that "each or any partner should be entitled to such sum per week as salary as shall be agreed to from time to time by the partners and such salary shall be paid out of the income or capital of the partnership and shall be deemed to be a partnership outgoing" (Clause 13). The parties initially agreed to pay a salary of $1,000 per week under this clause to each of the partners, which it was anticipated could be adjusted upwards as and when the business could bear the increase. It was incrementally adjusted upwards. By the time Ron died in 2009 a salary of $2,400 per week was being paid pursuant to this clause. 42About the time the partnership was established Ron subdivided part of the farm which brought its total size down from 56 acres (10 and 46 acres) to forty five acres. He sold the subdivided portion to a neighbour, Mr John Gilmour, although the sale did not settle until 1991. Ron himself appears to have benefited from the proceeds of sale. Len says that about the same time Ron paid for some capital works on the farm but it is not clear on the evidence that this gave a substantial benefit to Ken. 43On the evidence there does not seem to have ever been a question about whether or not Ken would enter into the partnership. It seemed to have just been assumed among all the partners that that is what Ken would do, because it involved staying on the property and adjusting himself to the new legal arrangements that were necessary after Mr Johnston's retirement. The absence of any discussion about alternatives for Ken at the time the partnership was entered reinforces the inference that Ken had already made a choice to stay on the farm to assist his father when he was aware of the 1981 will. Although there was no clear evidence before the Court as to the comparative financial advantages or disadvantages for Ken of employment versus partnership, his involvement in the partnership entrenched from 1986 onwards, longstanding arrangements by which he had never, in the time he had worked on the farm, been paid ordinary employee benefits such as overtime, long service leave, annual leave or superannuation. The partnership was the new legal structure under which he could stay on the property and do without these benefits. Len says that he benefited financially from higher wages. But even if this is right, (and the evidence does not allow me to decide it either way), the loss of the enforced tax effective savings from superannuation through the way worked and was paid a significant detriment. 44This structure had other long term financial negative effects upon him. For example Ken's evidence, which I accept, was that he had greater difficulty in demonstrating to financial institutions that he had a reliable source of income from the partnership, than he otherwise would have had as an employee. This limited his capacity to borrow money for investment purposes because of his difficulty in demonstrating serviceability of his financial obligations. This in turn limited his capacity to generate wealth in the longer term. The Plaintiff's Supporting Witnesses 45Four witnesses giving oral evidence supported the plaintiff's account of what his father had promised him. These witnesses, Iris Black, John Millauro, Gerard Hill and Harold Cranston were of different ages and had quite different relationships with the Waddell family. I accept all their evidence, which was clear, cogent and credible. Their evidence generally consisted of an account of various statements that Ron had made to them. A brief account of my findings from the relevant parts of each of their evidence follows. 46Iris Black. In 1966, Mrs Iris Black and her husband moved to the Galston area. They purchased a 5-acre property across the road from the Waddell family. Iris Black knew Ron and Vera Waddell for over 40 years. She also knew William Waddell and gave an account of William Waddell saying to her in the mid 1970's " I would like my property to go to Ron after I pass away and then my property to go to Ken". 47Mrs Black helped out occasionally at the Waddell's orchard. There was regular contact between her and the Waddell family through the work she did for them. During her work she was involved in conversations with Ron from time to time about the farm and about Ken. Although Mrs Black was senior in years, that did not impair the quality of her evidence. She came across to the Court as an astute and precise witness who was careful about the truth. She recalls a conversation about Ken and the 10-acre block that she had with Ron in about 1980 before William Waddell died. This 1980 conversation resembled the one she had had with William about five years earlier. In this 1980 conversation Ron said to her "Grandpa's property will be left to me but I will eventually leave Grandpa's property to Ken, because that is what Grandpa wanted". 48Mrs Black's recollection was that Ron expressed that he was then very pleased with Ken as a worker on the farm. Soon after William Waddell's death in 1981 Mrs Black recalls that Ron had another conversation with her about this subject and said, "Ken is a very loyal employee to the farm, whatever he has to do he does well, I never complain about Ken". 49Between William Waddell's death and the late 1990's Mrs Black had a series of conversations in which Ron talked about Ken's "entitlement" to "that 10 acres", the subject matter of which was Grandpa's block. Mrs Black talks of various conversations in this vein. She was an elderly but nevertheless a quite precise and clear witness whose evidence, as it is set out in this section of these reasons, I accept. She said that Ron made these statements on numerous occasions. She says that Ron said "Ken is entitled to more than the other family because he came to the farm at the age of 15 and I think he should get more than the rest of the family". 50But Mrs Black was more precise about Ron's later statements. During the early 1990's a group of friends, who included Mrs Black, her husband, Ron and Vera Waddell, would gather at a nearby Dural Country Club on Friday nights. She recalls that the discussions among this group of friends would sometimes turn to their families and problems they might be having. She recalls on these occasions that Ron was quite clear about his own family inheritance plans saying "I have got no problems with what I want to do because Ken is entitled to the 10 acres of Grandpa's and part of the farm because that was always Grandpa's wish that Ken have that 10 acres after I passed away". Mrs Black says that she is the last surviving member of this group of friends who regularly gathered at the Dural Country Club on Friday nights. 51Mrs Black recalls that Vera Waddell made similar statements to her about Ken's inheritance. She recalls Vera saying in the late 1990's, "Ken is entitled to more than the others because he's worked the farm up and he's produced a good farm and Ken, because of his loyalty, missed out on a lot of things". Vera's statements are not those of the testator but taken with other evidence are capable of basing inferences about what Ron knew of his son Ken's assumptions and expectations about the 10-acre block. 52Mrs Black confirms evidence that I accept, from several other sources, about Ken's hard work on the farm. Mrs Black could see Ken working long hours on the farm. So she assisted Ken's wife, Rhonda in many ways for example with babysitting and with taking the children to medical appointments. 53At one stage in her oral evidence Mrs Black described Ron's intentions about Grandpa's block as "common knowledge". Of course, "common knowledge" among certain groups of people in the Galston area has no legal force and such knowledge is no basis on which to found any conclusions about the Waddell family. But when Mrs Black mentioned "common knowledge" in this way she was in my view summarising the result of one of Ron Waddell's character traits that was demonstrated at several points in the evidence. Ron was quite prepared to share information about his testamentary intentions beyond his immediate family, with close friends and with acquaintances that he respected. The number of persons with whom I find that he shared such information is an indication, in my view that he had strong and well-formed testamentary intentions. Mr John Millauro was another person with whom Ron shared his testamentary intentions. 54John Millauro. The Waddell family engaged Mr John Millauro to sell their produce at Paddy's Markets and then at the Flemington Markets. Mr Millauro has lived in the Galston area since 1975. His principal association with the Waddell family is a commercial one, as the vendor of their produce. But his friendship with family members went beyond commercial affairs. He says that he was very close to Ron and I accept that as I do the rest of his evidence as set out here. He also says that he was close to Ken, Bill and Len. 55Mr Millauro was a blunt and at times argumentative witness. He had a tendency to unnecessarily disagree with the proper and often uncontroversial matters put by his questioner. This made for a frustrating and difficult cross-examination for Mr Hill on behalf of the estate. Mr Millauro's unusual confrontational style seemed to spring from his puzzlement as to why any cross examiner could possibly hold a different view to his (Mr Millauro's) own about the facts, such as, for example, views about what Ron Waddell had said to him. In my view he was argumentative with his questioner Mr Hill because he wanted to ensure that "the truth" as he remembered it was made perfectly clear to the Court. Despite their at times aggressive expression, in my view Mr Millauro's firm convictions about his contact with Ron Waddell reflected a genuine and undistorted memory. 56One of the rituals of Mr Millauro's farming life in the Galston area was a regular afternoon tea in the Waddell orchard. He would take tea with the Waddell family about 5 times a week between 1975 and when Ron and Vera passed away in 2009. It was quite clear from his evidence that Mr Millauro was very fond of Ron and Vera Waddell. He saw them as family and this social ritual meant much to him. He gave evidence that I accept about a conversation he and Ron had at one of these afternoon teas in I infer about 1983. His account of this conversation with Ron follows. "Ron Waddell: I have a bloke who's interested, wants to buy the place. He's got 9 kids, loves the farm, wants to buy it. Mr Millauro: Ron, at the end of the day, you've got 5 kids, you love the farm, where are you going to go? Not only that, Ken knows the farm and he'll look after it for you. Ron Waddell: I promised Ken the 10 acres up the top for staying on the farm with me." 57I also accept Mr Millauro's evidence that about 18 months later in mid 1985 at the work shed during another one of these afternoon tea breaks Ron again said to him "I promised that 10 acres to Ken because he stayed on with me". Mr Millauro's accounts of these two conversations in 1983 and 1985, uniquely among the witnesses captures that Ron's promise of the 10 acres to Ken was, to use Ron's words, " for staying on the farm with me." Mr Millauro's evidence is an important basis to infer that Ron was conscious that by staying and working on the farm Ken was relying upon and acting to his (Ken's) detriment upon Ron's promise of the 10 acres. 58But there was yet another occasion in 1988 when in a wistful moment Ron, I accept, again said similar things to Mr Millauro. Ken and Bill were away fishing that day and Ron was showing Mr Millauro some photographs of himself and William Waddell. The conversation turned to Ken. Mr Millauro recalls Ron saying to him "I promised that 10 acres to Ken for being on the farm with me and staying on the farm and working". I do not accept that Mr Millauro was either making this up or that he was mistaken about it. Despite his unusually assertive style I found Mr Millauro a good witness and he survived all the challenges made to his credibility. I accept Ron Waddell did make all the statements that Mr Millauro attributes to him. 59Gerard Hill. Ron Waddell was a man with an open and friendly nature. The evidence well establishes that when Ron found himself with a person ready to talk he enjoyed what would be commonly called "a good yarn". One such person was Mr Gerard Hill, who did regular plumbing and drainage work for Ron, Bill and Ken Waddell at the orchard. But Mr Hill was a farmer too. In the early 1990's when Mr Hill's father in law Peter Grazianie became ill he was required to work on the family farm. This gave him a deeper common interest with Ron Waddell in farming and they became good friends. Like many others drawn to Ron and Vera Waddell's warm and welcoming household Mr Hill regularly dropped in to see them both. Friendly though Ron Waddell was, he was careful with his money. Mr Hill gives a colourful and I accept wholly accurate picture of Mr Ron Waddell ringing him from time to time from the early 1990's to engage him to do plumbing and drainage work by saying to him "I bloody well need you again unfortunately". Mr Hill was an engaging, direct and convincing witness whose evidence I wholly accept. 60Mr Hill recalls an incident in 1995 in which Ron Waddell requested Mr Hill to do some plumbing and drainage work on the fibro house situated on Grandpa's block. As Ron explained to Mr Hill at the time of the work, "This is pop's old place." Upon Ron showing Mr Hill the particular galvanised steel pipe that was leaking and needed repair, I accept the following conversation occurred between them:- "Ron Waddell: What do we do about this? Mr Hill: You'll have to renew the whole lot. Ron Waddell: Bloody Ken should be paying for this one. Mr Hill: Why? Ron Waddell: Because when I die, this is his joint, Mr Hill: How come it's his. Ron Waddell: Because I promised it to him as he's been with me from the beginning and without Ken I would have had to shut shop years earlier because I can't do this work any more. 61Later in the same discussion when Mr Hill was inspecting the pipe work the conversation continued:- Mr Hill: Does this pipe go all the way back to the main meter on the farm? Ron Waddell: No, this property has it's own meter. Mr Hill: That means it's a separate title. Ron Waddell: Yes, so is my house and another one out the back. Mr Hill: Well, how big is the property? Ron Waddell: About 50 acres. Mr Hill: Well how big is this one (referring to the property Mr Hill was working on) Ron Waddell: 10 acres" 62Mr Hill was doing this work on the 10 acre block known as "grandpa's block". Consistent with the terms of Ron's 1981 will, this conversation confirmed that Ron's then intention at least was to give grandpa's block to Ken by will. It does not on its own go so far as to confirm that Ron felt under an obligation not to change his will but that inference may be drawn from other evidence as is explained later in these reasons, including the evidence that follows of another conversation between Ron, Ken and Mr Hill a few months later. 63Not much later in the same year, 1995, Ron asked Mr Hill to attend near the fibro house on Grandpa's block, again to repair a blocked sewer. When he arrived on site Ken was already there with Ron. I accept on this occasion a conversation took place between them to the following effect, a conversation that built upon the humour that has already passed between them:- "Mr Hill: Well, it's going to cost you more money mate. Ron Waddell: Yeah, I know that. Mr Hill: Well, do you want me to bill Ken? Ken Waddell: No, it's not mine yet, he's [referring to Ron] not dead yet. Mr Hill: To make it cheaper, let's get Ronnie Keel up to dig the trench that way you can get some of the rent he owes you. Ron Waddell: Beauty" 64I accept that this exchange did take place in Ron's presence. Although Mr Hill's somewhat cheeky quip directed at Ron "do you want me to bill Ken?" did not generate a response from Ron, it clearly assumed that Ron remembered his (Mr Hill's) earlier on site joke about billing Ken. Ken's reply grimly extended the humour, "No, its not mine yet, he's not dead yet". Ken had not been present at the previous conversation between Ron and Mr Hill but his reply shows he was conscious that Ron had already made such promises. Ken could not have participated in the humour in the way that he did unless he had already been made aware of the promises. Ron is not recorded as dissenting from any of the humour, enjoyed partly at his expense, but he witnessed the conversation and in my view must have appreciated what it implied about Ken's state of mind about his (Ron's) testamentary intentions. The exchange founds a number of important inferences in the proceedings as at about mid 1995: (1) that Ken had for some time expected to receive the 10 acre property under Ron's will after Ron's death; that (2) Ron had become aware of Ken's existing expectation, however it had been formed; that (3) Ron did not see fit to correct any part of Ken's articulated expectations; and that (4) Ken's expectations and Ron's acknowledgment of them were of a sufficiently well formed character that they could be shared outside the family. 65Mr Hill was another witness who confirmed Ken's continuous work in the orchard. I accept Mr Hill's evidence that Ken was at the orchard regularly between 7 am and 5pm and that Ken would often be on duty at night to fix a pump or to shoot fruit bats or to drive to the market. Many businesses and professions can involve an onerous time commitment. Bill, Len and Diane's professional work undoubtedly had these characteristics. The evidence does establish that Ken also committed long hours to his work at the orchard and thereby contributed to its maintenance and improvement. The level of Ken's commitment is partly to be explained by his own natural inclination to farming. But I accept his evidence that the level of his time commitment on the property was also the result of his relying upon his assumption about inheriting the 10 acre block. 66Harold Cranston . Mr Harold Cranston, a Dural orchardist, was another old friend of Ron Waddell. Mr Cranston's family has a long-standing association with the Waddell family in the district through a common interest in orcharding and through social and recreational contacts that go back decades. Their properties were about 4 kilometres apart. Harold Cranston would often ring Ron Waddell for advice about farming matters. Occasionally Mr Cranston would join Ron Waddell at what he described as the well known "smoke-o time" at the Waddell family orchard at 9.30 in the morning or 3.00 in the afternoon. Mr Cranston was an impressively considered and careful witness, whose evidence as set out here I wholly accept. 67In the mid 1980's on one of the occasions when Mr Cranston was consulting Ron Waddell about specific varieties of peaches, Mr Cranston recalls that he asked Ron how Ron's family were going. Mr Cranston received the following perhaps unexpectedly complete reply to his question:- "Ron Waddell: It's hard times, well, they're very hard times, but you've got to work through them. Mr Cranston: Well, how are all your lot going? Ron Waddell: They're all doing pretty well, Len's with Qantas, he's doing extremely well, Billy is with Johnny Allen, his liking that and doing well, Ken is helping Vera and me on the farm, we couldn't do without him. As far as we're concerned, we're doing well but the old man took a particular interest in Ken and wants Ken to have the block on the hill." 68Mr Cranston recalls that conversations to this effect occurred on a further five or six occasions from the mid 1980's to the year 2000. He also recalls a conversation in these words "I am particularly proud of Len because of his achievement with Qantas, Bill's doing really well with Johnny Allen, me and Vera are particularly happy with what Ken is doing assisting us on the farm". Mr John Allen who is referred to here was the local motor dealer for whom Bill worked. 69Mr Cranston's narrative is less direct than Mr Millauro's about the connection between Ken staying on the farm and his inheriting the 10 acre block. But his evidence, which I accept, assists the inference that Ken asks the Court to draw. It well explains that Ron was pleased with Ken's work and that Ron acknowledged a sense of obligation that his (Ron's) father William had wanted Ken to have the 10 acre block. Again Ron's willingness to have such a conversation outside the family with friends such as Mr Cranston shows that his intentions were sufficiently firm that they could be made semi-public without any concern on his part about the embarrassment that might follow from going back on them. If Ron was at all tentative about the idea of Ken acting on the assumption that he (Ken) would receive the 10 acre block, then it is difficult to see why Ron would share this information so widely. 70There were two other non family witnesses, Robert Tunks and Dorothy Keel, whose affidavits were read, but who did not give oral evidence. Mr Tunks died in December 2010 and Mrs Keel was unable to attend Court for medical reasons. Their evidence was of much less weight because they were not cross-examined but nevertheless their evidence was generally consistent with and reinforced that of the other non family witnesses. For example well after William's death and in the early 1990's Mr Tunks, a nurseryman, recalled saying to Ron "you're lucky to have Ken" and Ron replying to him "Well Ken will be looked after, he's getting Grandpa's 10 acres". And again he recalls that in 1997 Ron said to him "Ken's going to get grandpa's ten acres for his loyalty and for the work that he's done for many years". 71Mrs Keel and her husband have lived in the Galston area for over 40 years. She met the Waddell family through purchasing fruit at their roadside stall and their children and Ron and Vera's children were friends at school. About 20 years ago she began working on the family farm selling and packing fruit. As she was usually present with Ron at the stall and in the farm shed she heard him often compliment Ken as his "right hand man", for his dedication and for "putting in the long hours". And again she recalls Ron saying "the farm would not be here if it wasn't for someone like Ken putting in so many hours to keep the place running". She also recalls, and I accept, that on one occasion in 1995 when Ron was ill and was away from work that Bill told her of Ron's 1981 will, "He's covered all bases and made out a will and I'm a witness to the will...and Ken gets Grandpa's 10 acres and the rest of us are well looked after. For all that Ken's put into the farm, he gets the majority of the estate". 72The evidence of these non family witnesses is unusually important in this case, because Ron did not have a direct conversation with Ken about his testamentary intentions until quite late, in 2005. Ken's perception was that Bill, as the eldest son, was given greater responsibility and was taken more into his father's confidence. Bill's involvement in the making of the 1981 will confirms that this was partly right. Whether it was a desire to keep his counsel with Bill, or some other reason, Ron did not speak directly with Ken about his testamentary intentions. 73But he did proclaim his views about his testamentary intentions quite widely, as this part of the reasons demonstrates. In my view, the range and number of the witnesses to whom he stated his testamentary intentions is a basis, to infer that Ron must have anticipated that at least some of them would pass the information on to Ken. 74That is what they did. I accept Ken's evidence that Mr Millauro said to him on several occasions when Mr Millauro was working at the farm, "Your dad said to me that he is going to leave you the 10 acres for your loyalty and service and all the work that you have done". I also accept that Mr Tunks said to Ken in the 1990's at the farm, "Your father said to me that you'll get Grandpa's blocks". Ken says that there were numerous other people with whom he had similar conversations and it is probable that the other non family witnesses who gave evidence in these proceedings and with whom he was in regular contact, were some of them. When, for example, Ken spoke about his expected entitlement to the 10 acre block under Ron's will to Mr Hill in Ron's presence, in my view, it must have appeared to Ron that these other non family members had communicated to Ken what he, Ron, had said to so many of them, including Mr Hill himself. 75So far the accounts of Ron's statements have all come from sources other than Ron. But there was one direct conversation between Ken and Ron about the subject of Ron's testamentary intention, although it was not until 2005. The 2005 Ron - Ken conversation 76The issue of Ken's inheritance of the 10 acre block came up between Ken and Ron in April 2005. The conversation that the plaintiff says that he had with Ron at that time, started out as a discussion about doing something for Bill and was to the following effect:- "Ken Waddell: Dad, I feel as if maybe Bill has not been properly looked after as he's given up his career to assist us on the farm. Ron Waddell: In what way? Ken Wadell: I know that you have left him in the same position as Lenard I know that you've left me Grandpa's Block and one-third of the balance. I would be prepared to give up part of my share to assist Bill. Ron Waddell: Whatever you reckon Ken Waddell: That will be fine with me." I accept that Ron and Ken did have this conversation. I accept it in part because Ken's evidence as to it was credible and his credibility survived challenge. But I also accept it because it is consistent with what the other non-family witnesses said about Ron's intentions, because it took place at a time when Ron's 1981 will was unrevoked and because it accurately records a looming issue. The conversation took place only months before Ron was to start seeing lawyers about what became the 2005 will. The laconic "whatever you reckon" that fell from Ron in this conversation is a little strange. It is best interpreted, in my view, as the first expression in the evidence of Ron's reticence about discussing the division of his and Vera's assets by will among their children. In mid 2005 Ken was starting to seek greater certainty about what had been promised to him under Ron's will. But Ron and Vera had immense difficulty in dealing with the issue. But I do not think that Ken really understood this. Diane and Len seemed to appreciate the problem. Preparation of the 2005 Will 77The circumstances of the preparation and execution of the November 2005 will are important to the issues joined between the parties. The events of that time found some of the defences that the estate raises. The estate says that Ron made clear by this time that he was abandoning any prior promises he may have made for Ken's benefit. 78The relevant events of this period commenced on 29 June 2005 with the taking of instructions for Ron's will, through a solicitor Mr Joseph Francis. Following this Ron gave different instructions to another solicitor, Mr Andrew Stuart, who drafted and then took to completion the 2005 will that Ron actually executed on 11 November 2005. 79Mr Francis, who practised in the northern suburb of Hornsby, had acted for members of the Waddell family for many years. Mr Francis had prepared a power of attorney for Ron in March 2001. He had business dealings with Ken. Mr Francis had employed and Ken's granddaughter as his secretary for a number years. Len recalls, and I accept, that in Len's presence his father had said to Mr Francis that his will was old and needed to be updated and that it would be through Mr Francis. But Len's expectation was that that would be done without Bill or Ken being present. 80Mr Francis attended on Ron late in the afternoon of 29 January 2005 to discuss a review of Ron's will. I accept his account of what passed between them. Mr Francis saw Ron and Vera together. After going through the provisions of the 1981 will Mr Francis recalls, and I accept, that he had the following conversation with Ron:- "Joe: Ron, what do you want to do in your Will? Ron: I want to leave the 10 acres to Ken. Joe: When you say the 10 acres, do you mean [the 10 acre block]? Ron: Yes. Joe: I'm concerned because the provision in the old Will leaves [the 10 acre block] to Vera in the first instance and not Ken. Vera: I don't want that property, I just want [address not published]. Ron: [The 10 acre block] is for Ken because he's always worked on the farm." 81The last part of this conversation, Ron's words, are confirmed by part of Mr Francis' file note of attendance, which reads "left Ken the 10 acres because he has always worked the farm". These words to Mr Francis confirmed what Ron had been saying for many years to other non family members such as Mr Hill, that Ron wished Ken to have the benefit of the 10 acres for his years of work on the farm. 82Mr Francis then discussed with Ron the options as to how he could change his will. Mr Francis recalls that the deceased gave him instructions to the effect that the 10 acre block would be given to Ken, the subdivided house block would be given to Vera and the rest of the estate divided between the 5 children in the following shares, 1/3 rd to Ken, 1/3 rd to Bill and 1/3 rd between the other three children. 83Mr Francis saw that Ron was somewhat confused about giving these instructions. The precise reason for this was unclear but in my view it can be inferred from other evidence, to which I will shortly come, that the deceased felt quite uncomfortable about aspects of these instructions to Mr Francis. Although I find that he did say, as Mr Francis recalls, at least twice the words "the 10 acres is for Ken because he has always worked the farm". Because of Ron's confusion I infer that Mr Francis suggested that Ron speak to the family more widely before Mr Francis went on to prepare the draft wills. Sensing Ron's confusion about the instructions, Mr Francis took what to him seemed an appropriately conservative course of encouraging Ron to speak more widely to the family. But such advice does not suit every family. As it turned out the task proved a distressing one for Ron and Vera to discharge. 84There were some difficulties in identifying the precise properties at the meeting between Ron and Vera and Mr Francis. To help with identification Ken and Bill were called in and asked to obtain records of rates notices in respect of the individual parcels of land. 85Ron and Vera Waddell did not contact Mr Francis again about their wills. He wrote to them on 13 July 2005 noting that he had not heard from them since 29 June, enclosing a tax invoice and indicating that he was awaiting their further instructions. The only other contact that Mr Francis had with the family was on 12 August 2005 when Diane telephoned him. In that conversation Mr Francis confirmed to Diane that Ron had not made a new will. He said to her, what I find to be a genuine and accurate summary of how he assessed Ron at the time, "I found your father to be a little bit confused and I suggested to him that he should discuss his affairs with all the children before he makes a new will". 86Mr Francis remained unaware until Ron died in 2009 that he had in fact changed the 1981 will. Instead, Mr Francis' well-meaning suggestion had led to tensions within the Waddell family and quite a different will than the draft for which Mr Francis took instructions. Diane Receives a Call 87About the time of Ron and Vera's consultations with Mr Francis, Vera rang her daughter Diane. Diane sensed that her mother was troubled by something and called in to her parent's house the next day. Diane gave an account of a conversation that she then had with her mother. I accept Diane's evidence as it is recounted in this section of my reasons. She was a most impressive witness whose evidence clearly conveyed the fact that she agonised about her parents well being and best interests at the time of the discussions of which she gave an account in 2005. 88As Vera did not raise the subject of the telephone call with Diane upon Diane's next visit, Diane did. And she received what she described as a reply in "an unusually rather abrupt tone". The conversation proceeded thus. Vera: "Your father has written a new will and I want you to go over to the shed and discuss it with the boys [Bill and Ken] and agree". Diane: "What do you mean?" Vera: "Your father needs a new will and I asked Bill to do this. Joe Francis was coming out to see Bill about something and Bill asked Joe to do it at the same time." Diane: "Who was there mum?" Vera: "I just asked Bill to sit in with us so your dad would have someone to give him some support". Diane: "Was anyone else there?" Vera: "Ken was there but he really didn't want to be. He just happened to be working at the back of the house so we called him in". Diane: "Why can't you tell me what is in the will? Why do I have to ask the boys?" 89But Vera refused to discuss the matter any further with Diane saying, "I would rather you hear it from the boys because I get confused and get things wrong". This was undoubtedly troubling for Diane who had a close relationship with her mother and who said to her, "I don't want to be difficult but I am uncomfortable discussing dad's will with my brothers as I feel that this is not their place to do so". 90This placed Diane in a very difficult position. She had at least two major problems with what she was being asked to do. The first was that she felt uncomfortable about discussing the contents of her father's will at all. Secondly, she was uncomfortable in doing so with only two of her brothers, Ken and Bill, who seemed to be involved in the redrafting of the will. The other brother, Len, would apparently be left out of the proposed discussions. Her discomfort at this situation was still evident at the time she was giving evidence before the Court. All of this appeared to her to be an imposition upon her parents and unfair to one of her siblings. 91Ron returned to the house during this conversation. Diane protested to Ron that she had explained to her mother, "I don't think it is right for me to be discussing your will with Bill and Ken and besides, mum can't even tell me what is in it. She says she gets it wrong. Whose will is this dad?" Ron said to Vera that Diane did not have to go and speak to Bill and Ken. I accept that Diane then said to both her parents, "I don't want to be involved in the writing of your will. I think this is improper. I am prepared to accept and honour whatever decision you come to as long as it is your decision, you understand what you agreed to and you are happy with it". Ron made a number of comments at this stage about his will but there was no mention of the 10 acre block or of Ron's intention about the 10 acre block. 92Diane then had to leave the house for a short time to retrieve something from her car. Ron came out to see her and out of earshot of Vera had the following conversation with Diane. Ron: "Di I want you to call Joe Francis and put a stop to this". Diane: "Would you rather wait until the draft will arrives and then discuss it with the boys?" Ron: "No I want you to ring Joe Francis and put a stop to this". Diane: "Why dad? Ron: "I don't want anyone dancing on my grave". Diane: "Dad I can't imagine anyone doing that". Ron: "I am not happy with this. I want you to ring Joe Francis and put a stop to this". Vera: "Are you sure?" Ron: "I want you to do this for me". Diane: "OK". 93This created an intensely difficult problem for Diane. Her parents were at odds with one another. This clearly distressed her. On the one hand, her sense of fairness to Len had, in a conversation with her mother, prompted her reluctance to speak to Bill and Ken on their own. On the other hand her father was now asking her to reverse Bill and Ken's instructions without consulting either of them. Len was not given quite the same difficult task as Diane but he came to find out about the instructions being given to Mr Francis. He took a similar view to Diane that this was not something to be discussed among the children generally. 94Diane carried out her father's request. She did so with diplomacy and sensitivity. It took her a while to reconcile herself to the fact that she needed to contact Mr Francis but she did so by mid August. She found out that Mr Francis had not in fact by then forwarded a draft will to her parents. Mr Francis had informed her that he had left the drafting of the will until there had been a family discussion and he explained to her, "I was waiting for someone to get back to me". Diane says that she then said to Mr Francis that she would tell her brothers that the draft was not coming and then she said, "It is awkward for Len and me to be involved in discussions with my brothers as we are outsiders when it comes to the business. This makes it difficult for us to have a family discussion". Vera's statement is to this effect is confirmed by file note Mr Francis made following the conversation and which he dated 12 August 2005. 95The next time Diane saw her father she informed him that she had spoken to Mr Francis. She was clearly reluctant to become involved personally in the detail of her parents' will. But because the issue was unresolved between them and apparently causing unhappiness to them she suggested the names of a number of local solicitors, including Mr Francis, who could assist with some professional advice. Ron selected one of them, Mr Andrew Stuart, to give her father advice. Once Ron had contact with Mr Stuart she removed herself entirely from any involvement in her father's instructions to Mr Stuart. She says, and I accept, that she was never informed what was in the November 2005 will. Nor did she ask. 96Exactly what was troubling Ron and Vera was never really clear to Diane, nor was it clear in my view anywhere else in the evidence. All that can it perhaps be inferred is that Ron and Vera Waddell were deeply troubled about benefiting all their children fairly under Ron's proposed will. The change between Mr Francis' instructions and the eventual form of the November 2005 will indicates that the appropriate disposition of the 10 acre block was one of those areas of concern. Anything more than these findings appears to be speculation. Events After 2005 97Ron subdivided part of the larger farm block in November 2007. The subdivision was of a further 5 acres; it already having been reduced in 1991 from 46 acres to 35 acres. The whole farm was now about 40 (10 plus 30) acres. It was sold that month and generated net proceeds of approximately $1.2 million. Of the proceeds $500,000 was advanced to each of Ken and Bill to provide them with loans for them to make superannuation contributions. They both received this loan benefit from their father at that time. Although the loan is repayable to the estate there were likely to be interest and tax benefits to Ken and Bill. Ron also gave part of the proceeds of sale ($169,000) to Bill's son Paul to assist him in paying off a mortgage. The Legal Issues The Equitable Estoppel Case 98The plaintiff primarily pleads his case in equitable estoppel. The case is based upon doctrines of promissory estoppel stated by the High Court in Walton's Stores (Interstate) Limited v Maher (1988) 164 CLR 387. The applicable law may be concisely stated. To establish an equitable estoppel a plaintiff must prove: (1) the plaintiff assumed or expected that a particular legal relationship would exist with the defendant and the defendant would not be free to withdraw from that relationship, (2) the defendant induced the plaintiff to adopt the assumption or expectation, (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation, (4) the defendant knew or intended him to do so, (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled, and (6) the defendant has failed to act to avoid that detriment: Walton's Stores (Interstate) Limited v Maher (1988) 164 CLR 387, at 428 - 429 per Brennan J. 99The pleaded representation here is that if Ken continued to attend at the property and devote himself to the maintenance and improvement of it that Ron would structure his affairs, including by the making of a will such that upon his death the 10 acre block would pass to Ken absolutely. In my view on the findings that I have made this estoppel is made out. The plaintiff did hold that assumption or expectation. It was induced by Ron by a combination of the direct and indirect methods that the Court has found, by making statements to third parties that he anticipated would come to Ken's attention and when he was made aware that the information had come to Ken's attention he did not correct it, especially as late as 2005 when it was discussed directly between Ken and Ron. In my view Ken did act in reliance upon that assumption or expectation and I infer that Ron intended him to do so. It seems to me that the detriment suffered by Ken is irreversible unless the expectation is fulfilled. A continued career choice since 1981 has resulted from Ken's adoption of the assumption or expectation. The detriment in this case is the failure to convey the 10 acre block to Ken. This can only be avoided by ordering that to occur. It does not matter that the 1981 will gave Ron's estate to Vera as she pre-deceased him. The Proprietary Estoppel Case 100Ken also relies on the proprietary estoppel cases, depending as they do upon a defendant's alleged "encouragement" in the cases derived from Dillwyn v Llewelyn (1862) 4 DeGF & J 517; 45 ER 1285 or the "acquiescence" cases following from Ramsden v Dyson & Thornton (1866) LR1HL 129. But it seems to me that these doctrines add little to the plaintiff's case in addition to the plea in equitable estoppel, except in one respect. 101The proprietary estoppel cases provide good examples of equity courts granting relief on principles of proprietary estoppel but making adjustments in order to do equity between the parties: see for example ER Ives Investment Limited v High [1967] 2 QB 379 and Austotel Pty Ltd v Franklins Self Serve- Pty Limited (1989) 16 NSWLR 582 at 607- 8 per Priestley JA. Here it seems to me that the Court should not grant relief in the plaintiff's favour without making some adjustment for the benefit that he has already received from the sale of part of the larger block. Notwithstanding the fact that he was promised the 10 acre block and not the larger block, the benefit he received in 2007 by way of advance for his superannuation can only be explained as a reward for the time he spent on the farm. In that sense what he received should be assessed in diminution of his benefits otherwise received. An inquiry will be needed as to what the value of that benefit has been to Ken and set off against the relief he claims. Time, Enforcing the Alleged Promise and Limitation Issues 102The defendant argues that the circumstances of the deceased had changed radically from when any promise was made in 1981 because of the partnership, of the proposed 1981 subdivision, of the creation of a right of way in the 1990's and of the 2007 advances. I do not think that these circumstances make any difference to the relief to which the plaintiff is entitled. In my view the plaintiff's entitlement arose long ago, at least in the 1980's. All that is presently required to do equity is for there to be an adjustment in respect of superannuation benefits that the plaintiff has received on account of staying on the farm. 103Nor do I think any Limitation Act issue arises as the relevant cause of action in my view arises upon the Ron's death upon the estate's refusal to convey the 10 acre block to Ken. Conclusions and Orders 104In the result I have found that Ken's equitable estoppel case is made out but that adjustments need to be made to do equity by ensuring that Ken gives credit for the benefits he received from his father Ron in 2007. I direct the parties to bring in short minutes of order to give effect to these reasons. ********** 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: 04 October 2011