Supreme Court New South Wales Medium Neutral Citation: Edith White v Judith Liane Wills [2014] NSWSC 1160 Hearing dates: 15, 16, 17, 18, 30 July 2014 Decision date: 22 August 2014 Jurisdiction: Equity Division - Expedition List Before: Sackar J Decision: See paragraph [560] Catchwords: EQUITY - undue influence - where plaintiff executed a deed not to revoke her will - whether presumption of undue influence arises - whether presumption rebutted - whether improvident transaction - whether plaintiff received independent advice - whether unjust under Contracts Review Act - whether doctrine of suspicious circumstances applies Legislation Cited: Contracts Review Act 1980 Evidence Act 1995 Powers of Attorney Act 1998 (QLD) Succession Act 2006 Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Allcard v Skinner (1887) 36 Ch D 145 Aslan Ahmed v Kopf Phyllis [1995] NSWCA 26 Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 Barkley v Barkley Brown [2009] NSWSC 76 Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 Blatch v Archer (1774) 1 Cowp 63 Bridgewater v Leahy (1998) 194 CLR 457 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v NSW Trustee and Guardian [2011] NSWSC 1203 Courtney v Powell [2012] NSWSC 460 Cubillo v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Fox v Percy (2003) 214 CLR 118 Gartside v Isherwood (1783) 28 ER 1297 Grace v Grace [2012] NSWSC 976 Hamilton v Carter [2011] NSWSC 394 Ho v Powell (2001) 51 NSWLR 572 Huguenin v Baseley (1807) 14 Ves Jun 273; 33 ER 526 Inche Noriah v Shaik Alle Bin Omar [1929] AC 127 Janson v Janson [2007] NSWSC 1344 Jenyns v Public Curator Qld (1953) 90 CLR 113 Johnson v Buttress (1936) 56 CLR 113 Jones v Dunkel (1959) 101 CLR 298 Jones v Moss [2007] NSWSC 969 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165 National Westminster Bank Plc v Morgan [1985] 1 A C 686 Nemeth v Australian Litigation Funders Pty Ltd [2014] NSWCA 198 Nock v Austin (1918) 25 CLR 519 Palmer v Bank of NSW [1973] 2 NSWLR 244 Poosathurai v Kannappa Chettiar [1919] LR 47 I A Provident Capital Ltd v Papa [2013] NSWCA 36 Quek v Beggs (1990) 5 BPR 11,761 R v Navarolli [2010] 1 Qd R 27 Re Coomer [1911] 1 Ch 723 Smith v Clegg [2005] 1 Qd R 561 Spong v Spong (1914) 18 CLR 544 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Trustee for the Salvation Army (NSW) Property Trust and Anor v Becker and Anor [2007] NSWCA 136 Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650 Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 Watkins v Combes (1922) 30 CLR 180 West v AGC (1986) 5 NSWLR 610 Westmelton (Vic) Pty Ltd v Archer [1982] VR 305 Whereat v Duff [1972] 2 NSWLR 147 Texts Cited: J D Heydon, Cross on Evidence, 9th edition Meagher Gummow and Lehane's Equity Doctrines and Remedies, 4th edition The Honourable Sir Frederick Jordan KCMG Chapters on Equity in New South Wales, 6th edition Young Crofts and Smith, On Equity Category: Principal judgment Parties: Edith White - plaintiff Judith Liane Wills - defendant Representation: Counsel: R Wilson SC, P Bolster - plaintiff M Henry SC, S Balafoutis - defendant Solicitors: Anthony Walker - plaintiff Kemp Strang - defendant File Number(s): 2013/382506 Judgment Proceedings 1By her statement of claim dated 20 December 2013, the plaintiff Mrs Edith White seeks a declaration that a will and a deed not to revoke that will, both dated 26 July 2013, were induced by undue influence on the part of her granddaughter, Mrs Judith Wills (the defendant). In the alternative, a declaration that the deed is unjust within the meaning of the Contracts Review Act 1980 is sought. In either case, an order is sought that the deed be set aside. 2By her defence dated 24 February 2014, the defendant denies any undue influence or that the deed was an improvident transaction and asserts that the plaintiff received legal and accounting advice prior to entering into the deed. She denies the plaintiff is entitled to the relief sought. A brief overview of the background facts 3The plaintiff was born on 20 September 1924 in Hungary, and is aged 89 at the time of the present proceedings. In 1947 she married Leslie White (Mr White) and they emigrated to Australia in 1950. They had a daughter, Liz Stoliar (Ms Stoliar), who suffers from bipolar disorder and is presently aged 59 years. Ms Stoliar has a daughter, the defendant Mrs Judith Wills (Mrs Wills) who is presently aged 33 years. The defendant has two young children, Jordan and Asa. 4The plaintiff and Mr White had set up various companies, of which the main operating company is L&E White Investments Pty Ltd. The main asset of that company is a block of units at Bellevue Hill. L&E White Family Holdings Pty Ltd as trustee of the White Family Trust, and White Corporate Management Pty Ltd, are the other main companies in the structure. However, it is not necessary to set out the precise ownership and structure of these companies in detail at this point, other than to note that both the plaintiff and Mr White had separate and significant interests. 5The plaintiff had made wills on 13 July 2007 and 24 December 2009 dealing with her interest in the various companies, both to the effect that her interest would pass to Ms Stoliar (either directly in the case of the 2007 will or, in the case of the 2009 will, being held on trust for Mr White during his lifetime and then the remainder interest passing to Ms Stoliar). 6On or about 21 September 2010, Ms Stoliar was scheduled under the Mental Health Act 2007 as an involuntary patient at the mental health facility at the Prince of Wales Hospital. She had previously been scheduled on 21 February 2007 and 21 March 2009. I will return to the detail of this period at greater length later in the judgment. 7During this period, the plaintiff and Mr White were living in a property in Serpentine Parade, Vaucluse (Serpentine Parade). 8The defendant gave evidence that she was out of the country from 16 September 2010 to 6 October 2010 (see T76-T77). 9While Ms Stoliar was scheduled in 2010, the plaintiff and Mr White visited their solicitor Mr Michael Henley on 14 October 2010 (CB3/718) and again on 25 October 2010 (CB3/723). The defendant also attended both meetings. Mr Henley had drafted the plaintiff's previous wills in 2007 and 2009. 10It should be noted at this point that the plaintiff did not accept the accuracy of many aspects of Mr Henley's file notes (amongst other contemporaneous documents of other solicitors, social workers, medical practitioners and police officers). However I am satisfied, for reasons I discuss further below, that those file notes assist me to provide an accurate chronology of events even though the precise nature of particular conversations may be contested. 11After discussion, the plaintiff and Mr White instructed Mr Henley to prepare their wills which they executed on 29 October 2010 along with other documents. Under those wills, the plaintiff and Mr White's shares in one of the family companies (L&E White Family Holdings) passed to the defendant directly. The shares in two other family companies passed to testamentary trusts established under their respective wills. The defendant and her children were some of the primary beneficiaries of the trust. Ms Stoliar was a secondary beneficiary, and the trust provided that income and capital be allocated to primary beneficiaries before secondary beneficiaries. 12Neither the plaintiff nor Mr White told Ms Stoliar about their 2010 wills. It is common ground Ms Stoliar did not discover the existence and terms of those wills until the death of Mr White in 2013 (T10/20), and there is no other evidence to suggest Ms Stoliar was otherwise aware of the contents of them. Indeed Ms Stoliar herself gave evidence that she was not aware of the effect of her father's will until June last year (T208/9). 13Following a fall on 13 May 2013, the plaintiff underwent a total hip replacement at Prince of Wales Hospital and then moved to the Wolper Private Hospital. 14Mr White died suddenly on 21 May. Probate of his will was granted to his executors, being the defendant, Edward Vesely and Gabriel Lorentz, on 21 June. Mr Henley acted as the solicitor for the estate on behalf of the executors. 15I should note that there appear to be separate proceedings that have been brought under the Succession Act against the executors of Mr White's estate by the plaintiff and Ms Stoliar (see T69), but that does not concern me for present purposes. 16Following the death of Mr White, the defendant assumed management of the family companies. 17On 30 May, Mr Gil Baron, the solicitor for Ms Stoliar, wrote to Mr Henley in the following terms (CB2/418): We act on behalf of Liz White (also known as Elizabeth White) the daughter of the late Leslie White and anticipate also receiving instructions for her mother, Edit (Eei) White the widow of the late Leslie White. We understand you have been appointed as the attorney for the Executors by the late Mr White's Will. We would be grateful if you could provide us with a copy of the said Will at your earliest convenience 18On or about 4 June, a copy of Mr White's will was sent to Ms Stoliar's solicitor. As noted above, this appears to be the first time that Ms Stoliar was aware of the contents of her father's will and the method in which he had disposed of his assets. 19On 11 June, the plaintiff was discharged from Wolper Hospital and admitted to the Sir Moses Montefiore Jewish Home Woollahra. On 19 June she moved to the Randwick Montefiore Home. 20On 24 June, the plaintiff had a meeting with Mr Henley at the Randwick Montefiore Home. At the meeting, Mr Henley explained the impact of Mr White's will, including that the shares in L&E White Investments and White Corporate Management were to pass to a testamentary trust under the control of the defendant, Edward Vesely and Gabriel Lorentz. 21The plaintiff indicated that she wanted to change her will to leave some mementoes such as certain items of jewellery and $1 million cash to Ms Stoliar, but otherwise her shares in the family companies would pass to the defendant, either directly in the case of L&E White Family Holdings or otherwise through a testamentary trust. 22On 1 July, the plaintiff had a meeting with Mr Henley at which she executed a new will, a memorandum of wishes in relation to the will and another memorandum in relation to the White Family Trust, a section 100 statement under the Succession Act 2006, an appointment of the defendant as the plaintiff's enduring guardian and a power of attorney in favour of the defendant. 23Under the 1 July 2013 will, the plaintiff gave $1 million cash to Ms Stoliar, gave her shares in L&E White Family Holdings directly to the defendant and transferred her shares in White Corporate Management Pty Ltd and L&E White Investments Pty Ltd to the testamentary trust set up under Mr White's will (of which the defendant and her children were the primary beneficiaries). The items of jewellery were dealt with in clause 7 of the 1 July will. 24In the memorandum of wishes in relation to the White Family Trust, the plaintiff expressed the wish that the trustees pay Ms Stoliar $170,000 per year (as adjusted for CPI). 25According to the file notes of Mr Henley, the defendant was not present either at the meeting of 24 June or 1 July both of which took place at the Montefiore Home (see CB3/810 and CB3/816). In contrast, the plaintiff initially said the defendant was present and "took me there", and then could not remember (T28/23-T29/7). 26On 5 July, the plaintiff called Mr Henley and advised him that she was considering immediately giving the shares in the family company to a trust for the benefit of the defendant and her children. She asked him to investigate the impact of this course with her accountant. 27On 12 July, a meeting took place between the plaintiff, Mr Henley, Associate Professor Tuly Rosenfeld and an accountant Mr Stephen Cribb. 28The invitation for Associate Professor Rosenfeld to attend the meeting was organised by Mr Henley and it seems to have been prompted by the plaintiff's reference to earlier comments by Ms Stoliar that she thought the plaintiff was showing signs of dementia. In organising Associate Professor Rosenfeld, Mr Henley took what I regard as the actions of an experienced and careful practitioner who was anxious to avoid unnecessary litigation over the plaintiff's testamentary capacity at some future point. I should also note that the defendant was not involved in the procuring of such an expert, even though the 1 July will (like the earlier 2010 will) had been substantially in her favour. 29The meeting with Associate Professor Rosenfeld was to assess the plaintiff's testamentary capacity and also to discuss the possibility of immediately transferring the shares to a trust. At the meeting the possibility of a new family discretionary trust called the Jordasa Family Trust was also discussed. 30On 15 July, on Mr Henley's recommendation and to avoid a conflict between him acting for the defendant as an executor of Mr White's estate and the defendant's position as a beneficiary under the plaintiff's will, the defendant retained Ms Christine Page to act on her behalf. 31On 19 July, the plaintiff met with Mr Henley privately at his office for about 40 minutes. Mr Henley discussed the issues of a prospective new will, the arrangements that would be necessary for the creation of the Jordasa Family Trust, negotiation and the White Family Trust. 32Immediately following that meeting between the plaintiff and Mr Henley, they met with the defendant, Ms Page and Mr Cribb. 33There continued to be discussion about the same issues, including whether an independent appointor would be necessary for the White Family Trust to secure for Ms Stoliar the amount of $170,000 that had been the subject of the plaintiff's previous memorandum of wishes. 34Both Mr Henley and Ms Page agree that it was Mr Henley who first proposed the idea of a deed not to revoke a will. 35An appointment was made for the plaintiff to attend Mr Henley's office on Friday 26 July 2013 at 10am to execute the deed and the new will, and other associated documentation. 36Between 23 July and 26 July, Mr Henley and Ms Page exchanged drafts of the deed not to revoke a will. 37On 25 July, the defendant delivered to the plaintiff a copy of the draft will and draft deed not to revoke her will (T104/44). There was some discussion at the trial about whether certain amendments were received by the defendant and whether they were discussed with the plaintiff, and the precise timing of events, to which I shall return. 38There was a telephone call made to Mr Henley at about 10am on 25 July. The plaintiff suggested that Mr Henley prepare a "false will" giving the shares to Ms Stoliar, and another in the form that actually reflected her wishes. Mr Henley (quite rightly may I add) advised against this course. 39On the same day at about 5.10pm, the plaintiff again called Mr Henley and cancelled the meeting scheduled for 10am the next day. The plaintiff also asked Mr Henley to send a copy of the plaintiff's will to her home. 40The defendant asserts that she discovered the meeting had been cancelled from Mr Henley, rather than her grandmother (T113/21). However, Mr Henley asserts that he did not ring the defendant later that evening (T167/39). 41That evening however, the plaintiff spoke to the defendant. The plaintiff asserted at the trial that the defendant was annoyed that the meeting was to be cancelled (see T3/24). The defendant asserts that the plaintiff asked that the meeting be rescheduled to earlier in the morning the following day (T113/43). 42The defendant sent a text message to Mr Henley requesting that the meeting be rescheduled to 8.30am. Mr Henley agreed. 43The precise events on the evening of 25 July were also contested, particularly around the presence of the defendant and Ms Stoliar at the nursing home, and I shall return to this at a later point. 44On 26 July, the defendant picked up the plaintiff from the nursing home, leaving at around 7.45am, and took her to the meeting with Mr Henley at the offices of TressCox Lawyers. According to the file note of Mr Henley, the meeting lasted for 1.1 hours. 45It appears uncontroversial that during the course of the meeting, the plaintiff said to Mr Henley that she had to be back at Montefiore by 9.45am or 10am and that she asked him to "hurry up" and said "I'm under pressure to get back" (see evidence of the defendant at T124/46, file note of Mr Henley at CB3/967-968). The plaintiff gave evidence that "during the meeting with Mr Henley I felt pressured to sign the documents... I felt pressure also that the whole process had to be completed quickly so that I could get back to the nursing home" (affidavit of the plaintiff at [32], CB1/18). However, the existence and source of that pressure was contested and I will return to this point in due course. 46At the meeting, and in the presence of the defendant, the plaintiff executed a will in which her shares in L&E White Family Holdings were given to the defendant directly. Her share in a property in Palm Cove (the Angsana property) was given to Ms Stoliar, along with various chattels. The residue of the estate, including the shares in the other two private family companies, was to be transferred to a trust of which the defendant is the proposed trustee. Under the trust, distributions of income and capital must, in the first instance, be made to either the defendant or her children or her grandchildren or their related entities. If, and only if, those persons die or cease to exist, distributions may be made to Ms Stoliar. 47Unlike the testamentary trust established under Mr White's will, and in a change from the plaintiff's will of 1 July, the 26 July will saw that the defendant alone was in control of the testamentary trust (and not Edward Vesely or Gabriel Lorentz). 48Another significant change was that the gift of $1 million to Ms Stoliar was taken out of the will. The plaintiff suggested at the trial that Mr Henley had removed the $1 million against her instructions on the basis that "she has enough" (T44/33). 49At the same time, the plaintiff executed a deed not to revoke that will, containing a promise not to make any subsequent will revoking the gift of the shares in the three companies and other assets referred to in Schedule 2 to the deed without the defendant's written consent. It also contained a promise not to dispose of that property set out in Schedule 2 in her lifetime without the defendant's written consent. 50A change was made at the meeting to Schedule 2 of the deed not to revoke the will so that it covered not only the shares in the three companies, but also the jewellery specifically gifted to the defendant and any other assets she may own at her death which would otherwise form part of the residue and pass to the testamentary trust. 51The plaintiff also executed a memorandum of wishes in relation to her will and a section 100 Succession Act Statement. It is noted that no new memorandum of wishes was executed in relation to the White Family Trust and therefore the wishes outlined in the earlier 1 July memorandum that $170,000 be paid to Ms Stoliar remained in place. 52The plaintiff returned with the defendant to the Montefiore Home, where Ms Stoliar was already waiting. According to Ms Stoliar, the plaintiff did not tell her that she had been to see Mr Henley but instead told her that she had been to breakfast with the defendant (T223/18-T223/30). 53Later that day, the defendant signed a consent that enabled the plaintiff to freely deal with all her assets referred to in paragraph 4 of Schedule 2 to the deed. This meant the plaintiff could deal with all cash, public listed shares, other investments, loans owed to her and her jewellery. However, for the sake of clarity, no consent was sought or granted in relation to the shares in L&E White Family Holdings, L&E White Investments or White Corporate Management. 54On 29 July, the plaintiff left the nursing home and recommenced living at her home in Serpentine Parade, where Ms Stoliar also resided. 55On 5 August, one week after returning to live with Ms Stoliar, the plaintiff made a new will, purporting to revoke her previous wills and leaving all of her assets to Ms Stoliar. The will was made with a different solicitor, Mr Leon Ratner, whom the plaintiff had not used professionally before (although she suggested at the trial she had met him on a prior occasion) and who had represented Ms Stoliar before the Mental Health Tribunal when she was scheduled under the Mental Health Act. 56On 6 August, the plaintiff rang Mr Henley at 8.43am and left a message on his voicemail. The message was played in cross-examination to the plaintiff, although it is noted that the plaintiff did not concede that it was her voice (T63/16-T64/6), and the parties later provided the following agreed transcript of the recording (Exhibit D2): Michael, Edith White is calling. I am at home in [XX] Serpentine Parade. I would like to leave another message; Please don't send the Deed to Leon Ratner; everything else you can send it I do appreciate it, if you listening to me; so I tried the office as well 57On 12 August, Associate Professor Rosenfeld produced his report on the plaintiff's testamentary capacity. I will return to the content of this report in due course. Legal principles 58Before setting out the principles upon which the plaintiff relies to set aside the deed, it is necessary to provide a brief overview of the principles relating to contracts not to revoke wills. I should note however that the ability of an individual to make such a contract was not under challenge in the present proceedings. 59In Palmer v Bank of NSW [1973] 2 NSWLR 244, the Court of Appeal considered a promise by a testator not to revoke his will, and circumstances where the will was not subsequently revoked but the subject property was dealt with in his lifetime. The Court held that the will of the deceased operated only in respect of such property as he had at the date of his death, and that a restriction on the right of the deceased to dispose of his property as he saw fit could not be implied from a mere promise not to revoke or vary his will. However, the ability of the testator to make such a contract was not under challenge. 60In Megic v Public Trustee for the Australian Capital Territory (1995) 59 FCR 165 (per Tamberlin J; Gallop and Kiefel JJ agreeing), a deed was made between the appellant and the deceased. By that deed, the appellant agreed to carry out repairs and renovations to the premises in return for a covenant by the deceased that his last will and testament would always provide that he devise the premises to the appellant. There was no submission on the appeal that the deed was void for uncertainty or that it was executed as a result of undue influence. Tamberlin J observed: [39] It is well settled that a person can, by contract, restrict his or her testamentary freedom. This can be done in several ways. A contract may be made to devise property under a will in favour of a particular person, or a covenant can be given not to revoke such a disposition. A person may act or fail to act in such a way that the personal representatives are estopped from denying rights in or over the property asserted by persons claiming as a result of such conduct. A testator may also act in such a way that the executors of the estate have to hold part of the property on trust for persons claiming an interest therein, otherwise than under the will. See Theobald on Wills, 15 edn. (1993) at 96-105; Certoma, The Law of Succession in New South Wales, 2 edn. (1992), at 56-59; Schaefer v Schuhmann (1972) AC 572; and Palmer v Bank of New South Wales (1973) 2 NSWLR 244 at 254-255, per Hutley JA. 61In Aslan Ahmed v Kopf Phyllis [1995] NSWCA 26, Gleeson CJ observed (Kirby P and Priestley JA agreeing) that "although a will is, by its nature, revocable, a testator may enter into a binding contract not to revoke a will, and breach of such a contract will give to the other contracting party a right of action for damages, and, depending upon the circumstances, a possible claim for equitable relief". 62More recently, in Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 489, Handley AJA (Allsop P and Giles JA agreeing) observed: [31] Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract: Birmingham v Renfrew (1937) 57 CLR 666 at 683. Undue influence 63Undue influence is a doctrine of equity that allows a court to set aside a transaction that has been unconscionably procured as a consequence of the relationship of the parties. The doctrine is a species of fraud, the crux of which as Sir Anthony Mason has noted, is in the existence of some "ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party" (cited in Bridgewater v Leahy (1998) 194 CLR 457 at 478 per Gummow, Gaudron and Kirby JJ). 64The doctrine therefore requires an examination of the relationship between the parties. Some relationships in their nature raise a presumption of undue influence; in other relationships proof of the existence of particular elements may cause undue influence to be inferred. 65Once a relationship of influence is established by the defendant, either because it is a recognised category or a special relationship, this will give rise to a presumption that the transaction was procured as a result of undue influence. The burden then falls on the defendant to prove the transaction was in fact the pure voluntary and well-understood act of the plaintiff: Johnson v Buttress (1936) 56 CLR 113. 66Undue influence is not limited to circumstances of voluntary transactions (eg a gift), however, in cases where consideration has been given, it is required that either the consideration given was insufficient, or that the transaction was in some way disadvantageous to the plaintiff. 67For a presumption of undue influence to arise, it is necessary to establish that the transaction in question was "so substantial or improvident as not to be reasonably accounted for on the grounds of friendship, relationship, charity or other ordinary motives on which ordinary persons act": Quek v Beggs (1990) 5 BPR 11,761 at 11,764 (per McLelland J); Courtney v Powell [2012] NSWSC 460 at [38] (per Ball J). 68The question of improvidence is of course largely a factual one. For example, in Hamilton v Carter [2011] NSWSC 394, Davies J considered a transaction where the gift of property to the defendant followed the execution of a will in which the property was to be left to that individual in any event. Davies J observed at [145]: Furthermore, I do not consider that the transaction was an improvident one from Norma's point of view. The Cronulla unit had been left to the Defendant in her will. What Norma was doing during her lifetime was only to limit her ability to sell the unit or, arguably, to raise a mortgage on the unit for some reason, because what she retained was only a life estate. There was no evidence that she did not have the wherewithal to pay for her full time care for the rest of her life. What little evidence there was suggested that, apart from her life estate in the farm and her ownership of the Cronulla unit, she had assets worth about $300,000. There was no suggestion that any bond to go into Seaview House or Heywood (to where she ultimately moved) remotely approached that figure. Further, retaining a life interest in the Cronulla unit meant that Norma could rent it out if there was a need for ongoing income. 69Another example of the factual basis of improvidence is to be found in the judgment of Brereton J in Grace v Grace [2012] NSWSC 976 (in relation to the inter vivos transfer of shares in a closely held family company): see [88]-[89]. 70I shall return later to the question of whether a disposition of assets under a will in the circumstances of the present case can properly be regarded or characterised as improvident. 71It should also be noted that in Trustee for the Salvation Army (NSW) Property Trust and Anor v Becker and Anor [2007] NSWCA 136, Ipp JA observed (Mason P and McColl JA) agreeing: [62] Before identifying the principal difference [between fraud and undue influence], I would note that the equitable doctrine of undue influence does not apply to testamentary gifts: Boyce v Rossborough; Craig v Lamoureux [1920] AC 349; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116. Importantly, probate undue influence differs from the equitable doctrine of undue influence under which the donor may fully intend and desire the transaction even though an inference of undue influence may arise: Bridgewater v Leahy (1998) 194 CLR 457 at 475 per Gaudron, Gummow and Kirby JJ. [63] Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will. The point was put succinctly in Wingrove v Wingrove (1885) 11 PD 81 by Hannen P (at 82): [i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence. See also Hall v Hall (1868) LR 1 P & D 481 where Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment. [64] The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh. [emphasis added] 72In the present case, it is important to keep in mind that it is the deed that the plaintiff seeks to set aside on the basis of undue influence, and therefore it is the equitable doctrine that must be applied: see further Young Crofts and Smith On Equity at [5.520]. 73In National Westminster Bank Plc v Morgan [1985] 1 A C 686 Lord Scarman, with reference to the early case of Poosathurai v Kannappa Chettiar [1919] LR 47 I A noted at 707: ... The wrongfulness of the transaction must, therefore be shown: it must be one in which an unfair advantage has been taken of another ... the doctrine is not limited to transactions of gift. A commercial relationship can become a relationship in which one party assumes a role of dominating influence over the other. 74Similarly, in Chapters on Equity in New South Wales (6th ed) the Honourable Sir Frederick Jordan KCMG noted at p 137: If a relationship of influence is proved to exist between two persons, then in a Court of Equity - (i) if a gift inter vivos is made to, or at the instance of the dominating party, by the other party, the gift, if substantial, will be presumed to have been produced by undue influence; (ii) if a transaction is entered into between them for value it will be presumed to have been produced by undue influence only if it is shown to be unfair, e.g. for undervalue. 75The traditional categories of presumed undue influence encompass guardian and ward, solicitor and client, doctor and patient, spiritual adviser and follower, and parent and child: Allcard v Skinner (1887) 36 Ch D 145, 185; Whereat v Duff [1972] 2 NSWLR 147, 168; Quek v Beggs (1990) 5 BPR 11,761. 76There is authority that the presumption arises between express trustee and beneficiary (eg Johnson v Buttress at 119 per Latham CJ and 143 per McTiernan J), but it has been argued that this requires qualification where no relationship of confidence exists between trustee and beneficiary: Meagher Gummow and Lehane's Equity Doctrines and Remedies (4th ed) at [15-095]. 77Although a parent might be presumed to be in a position of undue influence over a child, there is no presumption in the opposite direction. In Brown v NSW Trustee and Guardian [2011] NSWSC 1203 at [46], Brereton J observed: The relationship of parent and child is a presumed relationship of influence, but in the context that the parent is presumed to exercise influence over the child; there is no presumption in the opposite direction. There could only be a relationship of influence, such as could give rise to presumed undue influence, in this case if a special relationship of influence were proven. To establish such a relationship, more than mere confidence and reciprocal influence is required. For a relationship to be brought within the doctrine, it must go beyond one of mere confidence and influence to one involving dominion or ascendancy by one over the will of the other and, correlatively, dependence and subjection on the part of the other. It is not necessary to establish a relationship of actual dominion by one party over another, and it is enough to show that the party in whom trust and confidence is reposed is in a position to exert influence over the party who reposes it. But more is required than the influence that any person might have on another by making a recommendation or giving advice; as a minimum, it is necessary that one have some element of authority or superiority - which may be moral or practical, as distinct from legal - over the other. [emphasis added] 78Likewise, the existence of a fiduciary relationship is not one that automatically leads to a presumption of undue influence: Re Coomer [1911] 1 Ch 723; Barkley v Barkley Brown [2009] NSWSC 76 at [136] per Ward J. 79Whether or not a relationship arising under a general power of attorney is a presumed relationship of influence will depend upon the particular nature of the relationship: Janson v Janson [2007] NSWSC 1344 at [75] per Biscoe AJ. The defendant points to section 87 of the Powers of Attorney Act 1998 (QLD) which gives rise to a statutory presumption of undue influence in a transaction between a principal and attorney, and the decision of McMurdo J in Smith v Clegg [2005] 1 Qd R 561 at 570 that in the absence of such legislative intervention the presumption may not arise in every transaction between a principal and attorney. 80Outside of these established categories, the plaintiff may establish as a matter of fact that there is a special relationship of influence between the parties. The elements required to establish the existence of a special relationship outside the traditional categories are not closed (National Westminster Bank v Morgan), but such relationships necessarily involve some element of influence, ascendancy or dominion on the part of the dominant party or an element of confidence and reliance on the part of the weaker party: Johnson v Buttress (1936) 56 CLR 113, 134-135. 81Proven relationships of influence, leading to the presumption of undue influence, are helpfully described by Brereton J as "special relationships of influence": Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650. After setting out the relevant passages from the authorities, Brereton J observes: [51] In my opinion, these authorities show that more than mere confidence and reciprocal influence is required to establish a "special relationship of influence" from the existence of which undue influence will be presumed unless rebutted; for a relationship to be brought within the doctrine, it must go beyond one of mere confidence and influence, to one involving dominion or ascendancy by one over the will of the other, and correlatively dependence and subjection on the part of the other. It is true that some cases suggest that it is not necessary to establish a relationship of actual dominion by one party over another and that it is enough to show that the party in whom trust and confidence is reposed is in a position to exert influence over the party who reposes it. But more is required than the "influence" that any person might have on another by making an recommendation or giving advice. What is required, as a minimum, is that one have some element of authority or superiority (which may be moral or practical as distinct from legal) over the other. Thus, in the case of a solicitor, and perhaps a doctor, it arises from his or her professional status and expertise in a field in which the client will typically be ignorant, founding an expectation that professional advice would ordinarily be followed; in the case of a spiritual adviser, from the religious imperative to follow spiritual advice; in the case of a parent, from that authority which a parent naturally has over a child. A real estate agent, or a stock and station agent, no doubt has an opportunity to influence a principal, but these are not viewed as necessarily relationships of influence, because such agents do not have the same standing and authority in respect of a client as do those in the traditional categories. A husband and a wife obviously are vis-à-vis each other in positions of trust and confidence and influence, but one does not ordinarily have over the other such authority as to make such relationships a presumed relationship of influence, nor (without more) a special relationship of influence. It is where the relationship is such that one party is seen or supposed to be in some way beholden, obliged, or disadvantaged in relation to the other that such relationships are presumed or can be proved, and dominion or ascendancy is at least usually an important factor. 82Early cases such as Huguenin v Baseley (1807) 14 Ves Jun 273; 33 ER 526 applied the principles of undue influence by setting aside a transaction where it was proved the transaction was fraudulently obtained through one party assuming a position of ascendancy, control or management of the affairs of the other and procuring an advantage from that position. 83In that case there was a gift over of fee simple estate by a widow to a clergyman. It was pivotal to the case that the widow "placed confidence in him, as high as one individual ever placed in another" (per Eldon LC at 534, [294]). 84The element of trust and confidence is rooted in cases where the circumstances suggest a handling of the affairs of the one party by the other, as in the early case of Gartside v Isherwood (1783) 28 ER 1297. 85Later cases continue to correlate the requirements of trust and confidence with ascendancy and influence. In Johnson v Buttress Latham CJ noted at 119: Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised (Dent v Bennett, 4 My. & Cr. 269; see also Smith v Kay, (1859) 7 H.L. Cas. 750). Rebutting the presumption 86A defendant may rebut the presumption of undue influence if it is shown that the transaction was, per Eldon LC in Huguenin v Baseley: "the pure, voluntary, well-understood act of the mind," of the plaintiff: Johnson v Buttress at 119 per Latham CJ. 87Courts of equity impose the presumption of undue influence as a matter of public policy, in order to prevent an abuse of the relations which existed between the parties and to protect persons from the exercise of influence in circumstances where its proof may be impossible (Allcard v Skinner (1887) 36 Ch D 145, 183 per Lindley LJ). 88The difficulty of discharging the prescribed onus of proof is of course variable. In Westmelton (Vic) Pty Ltd v Archer [1982] VR 305, the Full Court of the Supreme Court of Victoria observed: The extent and weight of the burden cast upon the person in whom the confidence was reposed, and the matters (where the presumption applies) of which the court will require to be satisfied before it will regard the presumption as having been negatived, must vary enormously with all the circumstances of the case, and it is pointless as well as unjustified in law to attempt to lay down any particular requirements for all cases, or indeed any classes of case, because the circumstances and the requirements will vary infinitely with the infinite variety of human affairs. 89The burden of proof may be discharged, for example, by showing a gift proceeded from some laudable motive, that there was a long-held intention to make the gift, or that the donor decided to go ahead with the transaction following advice from an unbiased friend. 90In Johnson v Buttress Latham CJ noted at 120: In the case of an illiterate or weak-minded person it will be more difficult for the donee to discharge the prescribed onus of proof than in other cases. The burden will be still heavier upon the donee where the donor has given him all or practically all of his property. 91Latham CJ also observed at 123: In order to maintain the transaction, it was necessary for the defendant to show affirmatively that the deceased knew what he was doing when he made the transfer, in the sense that he understood its effect and significance in relation to himself, and further to show that the transfer was the result of his own will. 92And Dixon J noted further at 134 that beneficial title obtained by reason of undue influence will only be set aside where the donee: ...satisfies the court that he took no advantage of the donor and that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. 93Dixon J continued: The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. 94It may not be enough for the defendant to establish the disponor in fact intended to give the gift (Huguenin v Baseley (1807) 14 Ves 273, at 299-300). Nor may it be sufficient to show that the proposal came from the donor: see Spong v Spong (1914) 18 CLR 544 at 549; Whereat v Duff [1972] 2 NSWLR 147 at 169 per Asprey JA. 95The defendant is required to establish that the disponor acted independently of the influence of the dominant party and that she both knew and understood what she was doing (Watkins v Combes (1922) 30 CLR 180). The burden is therefore a high one (Allcard v Skinner (1887) 36 Ch D 145, at 182-183 per Lindley LJ). 96In the present case, the plaintiff submits that the Court cannot be satisfied that the execution of the deed and the will were free from undue influence on all three of the three limbs set out by Dixon J in Johnson v Buttress; namely, that it was not an independent act based upon the exercise of free judgment, nor was it a well understood act or based on information as full as that of the donee. I shall return to each challenge in due course. The presence of independent advice 97The presence of independent advice may go towards establishing the existence of a fully informed, free and independent will on the part of the plaintiff (although it is not essential to prove that independent advice was obtained in order to rebut the presumption). Latham CJ in Johnson v Buttress observed at 119-120: It may not be necessary in all cases to show that the donor received competent independent advice (Inche Noriah v Shaik Allie Bin Omar and Haskew v Equity Trustees, Executors and Agency Co. Ltd); the law as to this matter is still a subject of discussion (Lancashire Loans, Ltd v Black). But evidence that such advice has been given is one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor. 98However in that case, independent advice was not relied upon. Indeed the transfer under scrutiny was prepared by the managing clerk of the defendant's solicitor, the defendant accompanied the deceased to the office and was present at the interview with the managing clerk: at 121 per Latham CJ. 99Although no hard and fast rule has been laid to establish the requisite content, scope and effect of the independent advice necessary to rebut the presumption, in Jenyns v Public Curator Qld (1953) 90 CLR 113 at 131 the High Court noted that independent advice "must be that of some independent person who is not connected with the donee in business or in any other confidential way and he has a knowledge of all the material facts and he, in fact, advises the donor on all matters which might affect her consideration in determining whether to make a gift". 100In Inche Noriah v Shaik Alle Bin Omar [1929] AC 127 the Privy Council noted that to satisfy the requisite quality of independent advice, the advice must originate from someone acting solely in the interests of the donor, at 135-136: Nor are their Lordships prepared to lay down what advice must be received in order to satisfy the rule in cases where independent legal advice is relied upon, further than to say that it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give if acting solely in the interests of the donor. 101In Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 at 36, Street J made the following observations on the topic of independent legal advice: The need to provide meaningful advice in order to enable an independent choice to be made by a person in the position of the plaintiff is of great importance. The purpose of obtaining advice is to enable the making of an independent choice. It may be that to an informed and intelligent listener advice confined to explaining will enable an intelligent choice to be made to the effect that the document being explained is acceptable to the party being asked to execute it. But the mere fact that a document is explained, and that no questions are asked nor criticism made of it by the party to whom it is being explained, does not tend strongly in favour of the conclusion that this party made a deliberate and intelligent choice to adopt each and every one of the provisions contained in the document. 102It must however be acknowledged that the absence of legal advice will not in itself substantiate a lack of a fully informed understanding of the transaction. Those facts may emerge in and of themselves. Contracts Review Act 103Finally, the alternative claim under the Contracts Review Act 1980 (the Act) largely relies on the matters pleaded in support of the undue influence claim. However, the claim under the Act relies specifically upon the asserted lack of any consideration for the deed not to revoke the will. 104Counsel for the defendant submits that the deed does not in fact lack consideration, but rather $1 and natural love and affection are nominated. Whether or not the deed is unenforceable (and I express no view on this point), I agree with the defendant that this does not provide a basis for setting aside the deed under the Act. At its highest it means the deed may not be enforced by an order for specific performance. It is not in the course of these proceedings that any party is seeking specific performance. 105Section 7 of the Act provides as follows: 7 Principal relief (1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following: (a) it may decide to refuse to enforce any or all of the provisions of the contract, (b) it may make an order declaring the contract void, in whole or in part, (c) it may make an order varying, in whole or in part, any provision of the contract, (d) it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that: (i) varies, or has the effect of varying, the provisions of the land instrument, or (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument. (2) Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract) from some other time or times as specified in the order. (3) The operation of this section is subject to the provisions of section 19. 106Section 4(1) defines "unjust" to include "unconscionable, harsh or oppressive". Section 9 relevantly provides as follows: 9 Matters to be considered by Court (1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of: (a) compliance with any or all of the provisions of the contract, or (b) non-compliance with, or contravention of, any or all of the provisions of the contract. (2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following: (a) whether or not there was any material inequality in bargaining power between the parties to the contract, (b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation, (c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract, (d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract, (e) whether or not: (i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or (ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented, because of his or her age or the state of his or her physical or mental capacity, (f) the relative economic circumstances, educational background and literacy of: (i) the parties to the contract (other than a corporation), and (ii) any person who represented any of the parties to the contract, (g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed, (h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act, (i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect, (j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act: (i) by any other party to the contract, (ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or (iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract, (k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and (l) the commercial or other setting, purpose and effect of the contract. 107Under section 7(1) of the Act, a contract may be unjust in the circumstances existing when the contract was made. The contractual provision may be unjust, simply because it imposes an unreasonable burden on a person when it is not reasonably necessary for the protection of the legitimate interests of persons seeking to enforce it. Injustice may also flow because the claimant did not have the capacity to make an informed or real choice whether or not to enter the contract. 108The contract may be unjust because of its terms or consequences, or its effects may be unjust. McHugh JA, as he then was in West v AGC (1986) 5 NSWLR 610 said at 621: Any contract or contractual provision not excluded from the operation of the Act and which the court considers is unjust in the circumstances existing at the time when it was made, may be the subject of relief under the Act... If a contract or one of its relevant provisions is neither unfair nor unreasonable so far as the applicant is concerned, it is difficult to see how the existence of inequality in bargaining power or lack of independent advice, for example, can render the contract or provision of the contract unjust. 109The general policy of the law that people should honour their contracts has been stated in a number of authorities: see, for example, Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 at 9 per Gleeson CJ. 110The normative evaluation involved in determining whether or not a contract is one which calls for relief under the Act was discussed by Allsop P (as his Honour then was) in Provident Capital Ltd v Papa [2013] NSWCA 36 (at [7]): The broad evaluation of unjustness under the Contracts Review Act 1980 (NSW) ss 4, 7 and 9 involves the normative evaluation of the totality of relevant circumstances. Inevitably minds may differ as to conclusions about such questions. Also, it is often not fruitful to compare other cases with the particular circumstances at hand, lest one be deflected from an appropriate overall assessment by focus on particular aspects relevant to any such comparison. Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interests in the circumstances. Here, there was no predation. There was no behaviour in which [the lender] sought to take advantage of [the borrower]. 111In the judgment of Gleeson JA in Nemeth v Australian Litigation Funders Pty Ltd [2014] NSWCA 198 (Meagher and Leeming JJA agreeing), His Honour observed at [97]: In an application for relief under s 7 of the Act, the Court undertakes a three-stage process: Perpetual Trustee Co Ltd v Khoshaba (Khoshaba) at [99], per Handley JA; at [106], per Basten JA. The first stage is to make findings of primary fact. The second stage involves a finding that the contract is or is not unjust. The third stage is the exercise of the power to grant relief under the Act which may, but need not, follow from the conclusion that a contract is unjust. 112The plaintiff points to the 'public interest' consideration and suggests that it is against the public interest that she be permitted to execute a deed by which she bound herself not to deal with a significant portion of her assets and agreed to make a non revocable will where that deed is not supported by real consideration. In support of that argument, the plaintiff cites Jones v Moss [2007] NSWSC 969 in which White J observed: [93] Whether a contract, or its provisions, is unjust also has to be decided having regard to the public interest. In my view, it is not in the public interest, and it is unjust, that the plaintiff should have been exposed to the risk, which has materialised, of being left homeless and without any assets of value because he gave away his only substantial asset, when he did not have the means to pay outgoings and to carry out repairs, without which the house is or will become uninhabitable. That was a risk inherent in the transaction in 1996. [94] The circumstances which have now emerged were reasonably foreseeable at the time the contract was made. The fact that the plaintiff knew what he was doing and can be considered to have been foolish, does not detract from the substantive injustice that he gave away his only substantial asset when he could not afford to keep up the repairs. The contract is substantively unjust, notwithstanding the defendant was innocent of any improper conduct or any overreaching. Had the defendant not entered into the deed of conveyance he would still have had to have sold the property or mortgaged it to pay outgoings and the cost of repairs. As he does not appear to have the income available to service a mortgage, the likelihood is that he would in any event have to sell the property, or have it sold by a mortgagee. Nonetheless, if that were to have eventuated he would be in the possession of a modest capital sum to provide for his needs. It is not in the public interest that the plaintiff be thrown entirely on the public purse to provide housing, if public housing is available for him. Nor is it in the public interest that he be left indigent. 113It seems to me that White J's observations are largely factual. I shall also return to this question later in my judgment. Suspicious circumstances 114Some reliance is placed by the plaintiff on what is known in probate law as the 'suspicious circumstances' rule. In Nock v Austin (1918) 25 CLR 519, Barton and Duffy JJ held at 524: It is unnecessary to discuss a number of the cases cited; but we may as well quote the terse statement of the principle by Sir Samuel Evans in the case of Re Osment, (1914) P 129, at p 132 - It is well established that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and cause it to be vigilant and jealous in examining the evidence in support of the instructions for the will; it ought not to pronounce for the document unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. That is the principle ... 115Isaacs J said, to similar effect, at 528: The relevant law is not doubtful. It may be thus stated - (1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the documents. [citations omitted] 116It is a question of fact whether that suspicion has been dispelled. 117In Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600, Burchett AJ also set out many of the authorities in relation to suspicious circumstances and observed: [2] The central question in the case is whether, and if so how, the validity of the will propounded by the plaintiffs is affected by the doctrine of probate law commonly invoked by the use of the expression suspicious circumstances. The principle relating to suspicious circumstances was stated by a'Beckett J in In re Nickson, deceased [1916] VLR 274 at 281: "There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews [1875] LR 7 HL 448." [3] The burden imposed by the rule is the burden of removing the suspicion so as to show that the mind of the testator is indeed to be found reflected in the will that is propounded. In the authorities, what is required is expressed in different ways, but they are all to the effect that extreme care, the nature of which will vary according to the facts of the case, is required before the court can accept a will as valid where the will or the instructions on which it was drawn came into existence, or the making of the will was conducted, by the agency of a person who benefits substantially under it. In some instances, it may be virtually impossible to remove the suspicion attaching to such a will. From the many statements in the authorities, I select the following as indicating the extent of the burden. Sir John Nicholl, in Paske v Ollat (1815) 2 Phill Ecc 323; 161 ER 1158, said of a case of suspicious circumstances: "The Court is always extremely jealous of a circumstance of this nature. ... [I]n all instances of the sort, ... the proof should be clear and decisive." ... [6] In Tyrrell v Painton [1894] P 151 at 156, Lindley LJ put it that suspicious circumstances raised the question: "Do the defendants affirmatively establish to my satisfaction that the testatrix knew what she was doing when she executed this will?" After referring to Barry v Butlin and Fulton v Andrew, he made it clear (at 157) that the rule is not confined to the case where a will is prepared by or on the instructions of a person taking large benefits under it, "but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document". 118In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA (Basten and Campbell JJA agreeing) considered the operation of the "suspicious circumstances" rule in the context of an allegation of undue influence and an application to revoke a grant of probate. His Honour observed at [44]-[47]: [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. 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. [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. 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. [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". Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document. [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. 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. 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. [citations omitted] 119Although Tobin is concerned with suspicious circumstances and an attempt to revoke a grant of probate, the plaintiff submits that it is relevant to the present case as the deed not to revoke the will, and the will itself, are described as being inexorably tied together. The plaintiff asserts that in the circumstances of her involvement in the preparation or execution of the will, and taking a substantial benefit under it, the defendant bears the onus of establishing that the plaintiff knew and approved the contents of the will and comprehended and appreciated the claims on her testamentary bounty by both the defendant and Ms Stoliar. 120The defendant however asserts, correctly in my view, that the doctrine applies when the court is examining whether to grant probate of a will (or, as was the case in Tobin, dealing with an application to revoke it). 121Indeed the Court of Appeal clearly held in Tobin that "the suspicious circumstances rule does not operate at large. It operates to displace presumptions of fact in favour of those propounding the will": at [55]. 122In the present case, the Court is not being asked to grant or revoke probate of the 26 July will, nor is the defendant seeking to propound the will. In my view, the principles enunciated by the Court of Appeal in Tobin have no application in the present case. At best, the plaintiff must argue that the suspicious circumstances rule operates by analogy but given the clear statement by the Court of Appeal I am not of the view that it does operate in that manner. 123However as will become clear I have considered the application of the rule in the event I am wrong. Business records 124Much of the factual material agreed relevant by both sides comes from solicitor's diary notes, contemporaneous medical records (as business records), some letters written by Mr White, and a report by a police officer. Documents were tendered by both sides without objection. 125The medical records in this case are, as will appear, of particular significance. Many of the statements each side had relied upon were obviously created by persons who fell into the categories envisaged by section 69(2)(a) and or (b) of the Evidence Act 1995. See also J D Heydon, Cross on Evidence, 9th ed (2013) at [35545]. 126The special status accorded by the rules of evidence to business records has long been recognised, albeit in varying and more limited degrees (see for example, Thomas Peake, A Compendium of the Law of Evidence, 3rd ed (1808) Luke Hanfard & Sons at page 92 and Edmund Powell, The Practice of the Law of Evidence, (1856) Law Times Office at page 121 and following). The policy underlying the business records provisions (in what was then Part IIC of the Evidence Act 1898) was explained by Hope JA in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 (at [6]-[7]) and is relevant to the present form of the business records provisions: [6] ... Pt IIC ... has extended the common law rules of evidence in a way which is of great importance in the search for truth. Any significant organization in our society must depend for its efficient carrying on upon proper records made by persons who have no interest other than to record as accurately as possible matters relating to the business with which they are concerned. In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate. This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of Pt IIC. If a busy honorary such as the second respondent wished to remind himself what the appellant's precise problem or medical condition was, or to learn what had happened since he last saw her, he would undoubtedly refer to the records, and would act upon the basis that they were correct. If, for some reason, a new honorary had to take over the case, it is to the records that he would go to find out what had happened or what he had to do. No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, than in the recollection of persons trying to describe what happened at some time in the past. When what is recorded is the activity of a business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth. [7] The purpose of Pt IIC is to bring into the court room a method of establishing the truth which is relied upon by our society outside the court room - to bring into the rules of evidence a reality which they otherwise lacked. A report of the Law Reform Commission which led to the enactment of Pt IIC shows how thorough was the consideration given to reforming the law to this end. Properly understood and applied, Pt IIC makes available to courts, in a way to be found in many other parts of the common law world, a most valuable source of evidentiary material which rules of evidence devised in another age would exclude. Credibility of witnesses and failure to call or cross examine 127Generally speaking a trial judge is in no way restricted in his or her assessment of a witness; he or she is not bound to accept any of that which the witness attests to or indeed may only accept part thereof: Cubillo v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97 at [118]-[123]. 128The court is not obliged to accept evidence, even in the absence of cross-examination. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183, Tobias and McColl JJA observed at [112]: There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex, there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence. 129Another consideration is the reliance to be placed on appearances and the importance of contemporaneous documents. In Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ observed at 129: [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. 130For reasons which will become apparent the contemporaneous records from a number of sources have played a most significant role in my determination of the facts but also in assisting in the determination of the credit of all of the principal witnesses. 131Counsel for the defendant also invited me to draw a number of inferences of the type referred to in Jones v Dunkel (1959) 101 CLR 298. The rule in Jones v Dunkel is a particular application of the general principle in the law of evidence that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" (Blatch v Archer (1774) 1 Cowp 63 at 65 per Lord Mansfield). The statement of the rule in J D Heydon, Cross on Evidence, 9th ed (2013) LexisNexis Butterworths (at [1215]) was approved in R v Navarolli [2010] 1 Qd R 27 by Muir JA at [2]: [2] What is known as the Rule in Jones v Dunkel is summarised in Cross on Evidence Australian edition as follows: First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case. 132The rule can operate against parties not bearing the burden of proof and parties which do bear it as well: Ho v Powell (2001) 51 NSWLR 572 at [16] per Hodgson JA. 133In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303, Campbell JA (Basten JA and Sackar J agreeing) observed at [91]: Jones v Dunkel authorises, but does not require, a tribunal of fact to engage in two different types of reasoning. One is to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness. The other is that the tribunal of fact can draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn: Manly Council v Byrne [2004] NSWCA 123 at [51]. 134Three key witnesses were not called by counsel for the plaintiff, being Stephen Cribb (the plaintiff's accountant who was present at the meetings on 12 and 19 July), Julie Slezak (a friend of the plaintiff and Ms Stoliar who was asserted to have been present at the Montefiore on the morning of 26 July) and Leon Ratner (the solicitor purportedly engaged by the plaintiff to write a new will). I shall return to the proper inferences that can be drawn from the failure to call these witnesses in due course. Discussion The Witnesses The Plaintiff 135Two affidavits were filed on the plaintiff's behalf and she was cross-examined. I regret to have to say that I am simply unable to accept as truthful almost the entirety of the plaintiff's affidavit material together with most answers she gave in cross examination. In his final address, counsel for the plaintiff described her evidence as "perplexing" and as an "unsatisfactory witness" (T263/39-48). I must say I regard that as a serious understatement. 136She is in my view an intelligent, elegant woman caught in an intolerable situation, caused principally if not entirely by Ms Stoliar's mental illness and greed. She is fearful of Ms Stoliar and is, since her husband died, simply unable to cope with her. As a result she has taken a course of least resistance, and has engaged in a wholesale historical revision of most if not all of the relevant events. For that reason I am simply unable to accept, for example, any assertion by her that she could not understand the documents she signed or Mr Henley's various explanations. She sought to portray herself again quite untruthfully in my view as confused, tired and/or unable to follow what was happening. In passing I observe it was not suggested she lacked testamentary capacity on 1 or 26 July. 137In the first affidavit (her evidence in chief), she purported to assert that her granddaughter had in fact subjected her to pressure in relation to a number of issues but importantly for the purposes of obtaining the "shares" in the family companies. As will appear I reject the plaintiff's assertion as false. 138Mr Henley, her erstwhile solicitor, had recorded in a diary note that she indeed told him Ms Stoliar might pressure her to make a will in Ms Stoliar's interest when and if she returned home. She denied that this was the case as she asserted she had always had a good relationship with Ms Stoliar. Indeed she denied at paragraph [22] of her affidavit dated 14 March 2014 ever telling Mr Henley that she felt pressure from Ms Stoliar to change her will. I regard her denial of this matter as another example of quite false evidence on her part. 139The impression she sought to create in her affidavit was that Mr Henley was not acting in her interests but rather in the interests of the defendant. She also tried to make out that she had no real idea who was present at meetings, most importantly the meeting of 26 July at Mr Henley's offices. I reject these assertions. 140She denied Mr Henley read any documents to her aloud at the meeting of 26 July nor was she given any documents to read before she signed them. Again I reject that evidence. 141She expanded upon these themes in cross examination and I will return to the detail in due course. She felt compelled frequently in her evidence to deny and describe as false and/or inaccurate many of the things Mr Henley had attributed to her in contemporaneous diary notes which dealt with various meetings he held from time to time with the plaintiff and others. She has of course no diary notes herself. The plaintiff agreed in her cross examination that she believed she always told Mr Henley the truth (T7/8). I am satisfied that he accurately recorded what the plaintiff told him from time to time, and my acceptance of those notes as accurate substantially undermines the plaintiff's case in numerous respects. 142In her affidavit evidence she denied having told Associate Professor Rosenfeld certain things when he visited her at the Montefiore Home on 12 July 2013. As will emerge I regard her evidence in this regard again as false. 143Further she asserted that on 26 July she was very depressed and remained in mourning following the death of her husband. She also asserted that she was still suffering from pain from her hip operation and was receiving medication for it. She asserted that Mr Henley and her granddaughter were simply making decisions on her behalf and she did not object because she just wanted it all to be over. Quite expressly she asserted that she felt pressured to sign the documents at Mr Henley's office on 26 July. I regard this again as quite false. 144No expert medical evidence was called by the plaintiff to support any suggestion that she was in any way mentally or physically impaired at the relevant time. Indeed, in stark contrast to such a suggestion, there is a letter dated 15 July 2013 from Dr Michael Solomon (an orthopaedic surgeon specialising in surgery of the hip and knee) and addressed to Dr Irela Yaniv that stated (CB4/1382): Edith was reviewed on 15/07/2013, just over 6 weeks following her right total hip replacement. She has done very well and is walking comfortably without pain and her wound has healed well. There is no need for any further routine follow up unless she has problems but I would be more than happy to see her should the need arise. 145There is no doubt in my mind that she felt obliged in the course of the proceedings before me and prior in the preparation for them to give and be seen to be giving Ms Stoliar her wholehearted support. It is conceivable she had done so out of fear of verbal or physical reprisal or both. I am unable to detect any other explanation for the repeated untruths which she uttered in the witness box. She felt it necessary, contrary to the facts in my view, to deny any suggestion that she or her late husband had been subjected to any verbal or physical abuse or pressure in relation to any wills she or they may have intended to make. That sense of obligation or loyalty is in my view entirely misplaced. Ms Stoliar 146I am left with the same impression in relation to the evidence given by Ms Stoliar. I regard her evidence as again largely untruthful in relevant respects. She denied in my view untruthfully that she had ever subjected her parents or in particular her mother to pressure or physical or verbal abuse. Again she was anxious to attribute blame to either her own daughter, the defendant or for that matter Mr Henley, solicitor. 147Ms Stoliar has a history of serious mental illness. At times, perhaps at all times relevantly she has little or no insight into her dysfunctional behaviour. The hospital records which have been tendered in the proceedings and to which I will refer in some little detail below chronicle the extent of her illness. As I have observed, I am satisfied that her mother's conduct in the proceedings before me has been governed very largely by the unhealthy and overbearing influence exerted upon her by Ms Stoliar. She is it seems devoted to litigation and seeking greater financial benefits for herself. She has secured by pressure in my view a compliant ally in her mother who, along with Ms Stoliar, has likewise sacrificed her integrity. 148I should note that an allegation of an assault perpetrated by Ms Stoliar on the plaintiff is of course a very serious one, and I have kept in mind the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336. However, the combination of a number of materials (principally the reports of doctors and other trained medical staff, police and solicitors, but also the letter by Mr White to Dr Scott-Stephenson to which I shall return) convinces me that in all probability Ms Stoliar did assault her parents on more than one occasion. 149The fact is that Ms Stoliar had been a significant cause of concern for her aged parents long before her father died on 21 May 2013. Devoted as they were and are to her, the spectre of her managing the family business was simply at least from 2010 onwards was not in their minds a plausible reality. Ms Stoliar simply did not accept that proposition and her parents had great difficulty confronting her in relation to it. But they did so in the wills they made in 2010 to which I shall return. The Defendant 150I am satisfied that at all relevant times she did her best to tell the truth both in her affidavit material and in her oral testimony. She gave her evidence in a measured and I consider candid fashion. I am certain at the relevant time she had a warm and caring relationship with the plaintiff. She described her relationship with her mother as estranged since childhood and indicated that the plaintiff, along with Mr White, had been her primary carer (T104/36). 151Wherever there is a dispute in the evidence between she and the plaintiff I am satisfied that the defendant's version of events should be accepted. Insofar as there is any factual dispute between the defendant and her mother Ms Stoliar, I prefer the evidence of the defendant. 152She has had to deal for many years with a mentally ill, unstable and aggressive mother. Their differences are irreconcilable and I think have been for some considerable time. There seems little prospect of any form of reconciliation. Mr Henley 153Mr Henley is a solicitor of considerable experience and expertise especially in the area of wills and estates. 154He impressed me greatly both in terms of his approach to the various problems he confronted with the plaintiff which were complex and testing. He was retained and in my view for very good reason from May 2007 to August 2013 both by the plaintiff and/or her late husband. 155In what became an increasingly complex family situation he conducted himself with skill, patience and the utmost integrity. In most cases he took what can only be regarded as detailed contemporaneous notes of conferences he had from time to time especially with Mr White and more recently the plaintiff. I accept his notes as to their accuracy both in relation to the content of conversations and the manner in which conferences and meetings occurred. He was careful to record the plaintiff's intentions and concerns, especially in relation to the pressure being applied from time to time on her by Ms Stoliar. Associate Professor Rosenfeld 156I accept the evidence of Associate Professor Rosenfeld unequivocally. He performed an important function on 12 July when he visited the plaintiff at the Montefiore Home Randwick. He was there for the purpose of assessing her testamentary capacity. Admittedly he did so in relation to the will and other documents she had executed on 1 July. However in my opinion his evidence is also relevant to the documents she executed on 26 July, although as I have already observed her testamentary capacity on 26 July is not challenged. 157Again I am satisfied she told him about the pressure that she had been subjected to or would be likely to be subjected to by Ms Stoliar. Again the plaintiff denied any notion that she could have said such things. I reject her denials. 158The meeting she had with Associate Professor Rosenfeld also included in part a meeting with Mr Henley, and Mr Cribb the plaintiff's accountant. Indeed Associate Professor Rosenfeld observed that the plaintiff was able to correct both her lawyer and her accountant in respect of the detail of some of her affairs. Associate Professor Rosenfeld refers to this at [3.20] of his report. He said that that made a significant impression on him (T192/10). I can understand why as it likewise appears highly significant to me. 159Secondly there was some debate during the course of the trial as to whether the plaintiff was being burdened by having to sign cheques from time to time and more to the point that her granddaughter was effectively placing too much pressure on her grandmother to do so. Associate Professor Rosenfeld made comment at [2.2] of his report that at the conclusion of his consultation with the plaintiff she indicated she wished to settle his account, and produced a cheque that she signed for the amount he had quoted. It seems from Mr Henley's notes that cheque books were delivered to her at the Montefiore by Westpac as arranged by Mr Henley. She was in my view clearly in control of her affairs and I reject any suggestion by Ms Stoliar or the plaintiff that she was so burdened. Ms Page 160Ms Christine Page had been retained by the defendant from 15 July. Although cross-examined, no challenge was advanced in relation to her testimony and insofar as it is relevant I accept her evidence unequivocally. The Relevant Background 161In my view in order to properly assess the plaintiff's intentions and wishes as at 26 July 2013 it is necessary to view them in context. That context in my opinion is in large part that created by Ms Stoliar's various episodes of mental illness. I am satisfied that Ms Stoliar's mental illness from 2007 to 2010 is critical in making an evaluation of how and to what extent that shaped the plaintiff's intentions in that period and beyond in relation to her estate and that of her husband. In particular, the scheduling of Ms Stoliar in 2010 should appropriately be seen as a watershed. 162The episodes of physical and/or verbal abuse to which the plaintiff and her husband were subjected I am certain scarred them both but had little impact on Ms Stoliar perhaps because she cannot or does not wish to recall them. To that extent and because of her illness she may be in denial. 163The medical records and other contemporaneous records to which I will however refer put the lie to denials that these assaults occurred. The Medical Records 164The medical records (CB6) were tendered without objection. As will appear below they portray Ms Stoliar as a mentally ill person who from time to time needed to be scheduled. What is exposed would trouble any parent especially one having to contemplate the disposition of substantial assets and the maintenance and management of what was clearly a highly successful and affluent family business. I consider it reasonable to infer the plaintiff and her husband were fully aware of the events outlined in the records either because it involved them personally or they would have been fully informed by medical staff of Ms Stoliar's condition from time to time. 165I accept that independently of course of any mental illness Ms Stoliar suffered over the years she has also suffered tragedies at a personal level. These include the loss of her daughter (the defendant's sister) and a myriad of other health issues, some of a serious nature. 166That said, it is my very firm view that Ms Stoliar pressured both parents from time to time in relation to their estates. I am simply unable to accept the plaintiff's basic assertion that she was pressured by her husband or more importantly by the defendant. Indeed, of all the contemporaneous records available in this case there is no support for any assertion the plaintiff was pressured by anyone other than Ms Stoliar. 2007 167The medical records commence in 2007. There is a letter dated 26 March directed to Dr Scott-Stevenson who it is accepted at relevant times was Ms Stoliar's general practitioner (CB6/1730). The letter indicates that Ms Stoliar was scheduled and admitted to St Vincent's Hospital in Sydney under the care of a psychiatrist at the hospital on 21 February with "an acute manic episode". The letter further indicates that she was very thought disordered with a flight of ideas, that her speech was pressured and that she had multiple delusions. The letter also comments that "her family was finding it extremely difficult to manage". 168The letter also comments that she had a history of "untreated bi-polar 1 disorder" and that she was currently living with her parents. 169The notes for 21 February indicate that her parents had been caring for her as she could not care for herself. It was further observed that since the death of her daughter 5 years ago she had episodes of mania as well as suicidality and depression. The notes then record (CB6/1718): Recently (past few days), assaulted her mother (Elizabeth assaulted her mother) plus locked her in a room during a holiday in Cairns. Daughter reports she was afraid her mother was poisoning her food. 170After a description of her medical history it was noted that Ms Stoliar would not take psychiatric medications voluntarily (CB6/1719). 171It was also noted that her insight and judgment were "grossly impaired" (CB6/1721). 172Under the hearing "Requiring a Risk Assessment" it was noted that there was "a high risk of harm to family" (CB6/1725). 173Following an assessment and under the heading "Summary of Care", it is noted that Ms Stoliar was placed under a four week restraint order (CB6/1729). She was subsequently discharged into the care of her own medical practitioner. 174On 19 March 2008 Mr White sent a handwritten letter to Dr Scott-Stevenson (CB6/1730A). It is poignant and best not paraphrased. The following transcription was agreed by the parties: In desperation I am writing to you. Liz just arrived home from a holiday which should have ended 25th of February. She managed to spend some $360,000 - she is uncontrollable, aggressive and sometime violent to my wife Eci. Liz pushed her in the ship's bathroom and Eci got seriously injured. Liz also injured her arm and eye at the Rio Carnival. Liz is abusive to Judy and her fiancé Adam and not on the best terms with the in laws. She went to her former husbands sons Bar Mitzvah and behaved objectionable [sic]. Judy is afraid Liz may ruin her wedding also. Liz needs urgent medication - 1/1 175There is no evidence as to what if any action was then taken at this point. 2009 176On 21 March 2009 Ms Stoliar was again scheduled. The medical practitioner who completed the relevant forms (CB6/1748) observed that Ms Stoliar was manic, had highly increased levels of activity, pressured speech, delusions of grandeur, paranoid thinking. The following observation is also recorded: She is living with her parents who she bosses around. 177Also recorded on the form is the following: (b) (from daughter) History of bi-polar, when unwell she physically pushes her parents around, spends money indiscriminately, becomes delusional and paranoid. 178The relevant medical professional expressed the view that Ms Stoliar was mentally ill, sufficient to warrant her being scheduled. It was noted: Manic lady who is very angry and does not believe she is sick, she will resist transfer to POW. 179The reference to POW is a reference as I understand it to the Kiloh Ward at the Prince of Wales Hospital. 180It is plain from the records (CB6/1754) that the defendant had provided certain information to a member of the medical staff who made contact with her by telephone. The defendant expressed the view that she was concerned about her elderly grandparents and that Ms Stoliar pushed and shoved them and became quite intimidating. The defendant also expressed the view that Ms Stoliar appeared to be self medicating and that she had a bag full of tablets in a locked cupboard. 181On 22 March it was observed that Ms Stoliar was seen in the company of her elderly parents and that she apparently refused to let them leave (CB6/1755). 182To that effect on 23 March the following observations are made (CB6/1759): Remains entitled, irritable, grandiose and insightless. Angry with her daughter Judy whom she blames for her admission. V/B by both parents who are obviously used to being told what to do by Elizabeth. At one point I asked the parents to come with me so that I could talk with them; Elizabeth told them she had not given permission (the issue was to meet with their granddaughter) and Elizabeth's parents promptly sat down. 183It is plain from the balance of the record that the staff regarded her illness as posing a risk to others. 184On 7 April it is noted that Ms Stoliar wanted to leave the hospital "tomorrow" and was angry with her family around "issues". However this admission was for a period of 4 weeks. 185On 15 April Dr Thomas Li, psychiatric registrar, prepared a letter which relevantly stated as follows (CB6/1780): Thank you for assessing Elizabeth for case management and CTO. She is a divorced mother living with her elderly parents. She has one daughter who got married last year. She is currently an inpatient in our unit with bi-polar disorder, manic episode. She has a background of meningioma (resected some years ago) and chronic pain. This is her second admission for mania. Elizabeth has not had a case manager or CTO in the past. When Elizabeth is unwell she displayed disorganised behaviour and high irritability. She can be aggressive towards her parents and is at risk of misadventure. She is known to her GP as a difficult client due to high traits anxiety and obsessionality, poor consistency with follow up and tendency to misuse benzodiazepines and analgesics. Since discharge from her last admission she did not continue follow up or take medications as recommended. There is significant family stress related to conflicts over her need to get treatment.... Since admission her family has requested a case manager and possibly CTO on discharge. They believe that this will alleviate the stress within the family and ensure compliance and follow up. We therefore request an assessment in regard to this. 186Dr Li wrote to Dr Scott-Stevenson upon Ms Stoliar's discharge on 24 April (CB6/1784). Dr Li stated in part: I reviewed Elizabeth a few times since she went home. Her mood had been low. She was upset by the circumstances of her admission, her diagnosis of bi-polar disorder and the fact that she was under the Mental Health Act. She described loss of confidence in herself. She has on-going issues with her daughter and parents. Elizabeth has elected to see Dr Vivian Schneider for psychiatric follow up. She wanted to get her family counselling from her local Jewish service. If this does not occur she may benefit from individual counselling to work through trauma of the admission and relationship issues. 187On 28 April she was assessed at the Maroubra Health Centre for the purposes of the appropriate case management options. A member of staff, being a social worker named Ms Claire Hyland, conducted what appears to be a most detailed interview and assessment (CB6/1786-1794). Under the heading "Mental State Examination" Ms Hyland made a number of observations. It is plain from the assessment made Ms Stoliar was "angry with daughter". Ms Hyland formed the view that although Ms Stoliar's thought processes were generally logical there was some evidence of paranoid themes to do with her daughter's "motives". Ms Stoliar apparently chose not to elaborate during the course of the assessment. She acknowledged problems with anxiety but denied episodes of mania. It was observed that she placed blame for the recent events externally (CB6/1791). 188Ms Hyland came to the view that Ms Stoliar was then (April 2009) functioning well enough to access mental health services in the private sector through her general practitioner. 2010 189However on 21 September 2010 Ms Stoliar was again scheduled and admitted to the Prince of Wales Hospital. The psychiatry registrar who completed the relevant medical report under the Act observed (CB6/1796): Irrational, erratic, inappropriate behaviour, physically assaulted parents, kicked mother who received large bruises in her (l) leg, punched father in the face who received large cut underneath (r) eye. Thought disordered in form /content. 190The assessment by the psychiatric registrar, a Dr Aryan Arghandewal was at the request of a police officer, a Constable Drew attached to the Rose Bay Police Station. The constable also prepared a report (CB6/1798). 191It is apparent that the whole process was put in train by a family friend, Evelyn, who made a phone call to the Kiloh ward in the early hours of 21 September. Evelyn informed medical staff that she had concerns in relation to Ms Stoliar's mental state due to non compliance with medication. She informed staff in turn that Ms Stoliar had pushed her mother in "lift yesterday and had noticed scratch under Ms Stoliar's father's eye" (CB6/1800). 192It is noted that the defendant was currently in Paris and had apparently been in contact by phone and or text with Evelyn (CB6/1800). Evelyn was advised to ring 000 to enable an assessment of risk. The member of medical staff then made contact with the Rose Bay Police and was informed that officers were proposing to attend at the address to assess. Further the notes indicate that nothing more was heard at least at the ward until early the next morning (CB6/1801). 193According to the notes the police attended at the address at 9.15am on 21 September. The police detained Ms Stoliar and transferred her to the Kiloh ward for assessment. Evelyn was informed of this and seemingly informed the defendant of the outcome. 194In his report of 21 September (CB6/1798) Constable Drew commented in his report as follows: Elizabeth has been extremely violent. She has kicked her 86 year old mother in the leg causing extensive bruising and has punched her elderly father in the face causing a large cut and bruising. She is completely irrational in her behaviour and cannot stop talking about nothing in particular. She was running around her house one minute and the next she was saying that she cannot walk because she has broken ankles and wrists and vertebrae. Elizabeth is a danger to her elderly parents if she remains in their home. 195There is a note made by medical staff at CB6/1804 in the following terms: Patient is insightless, with poor judgment and non adherent towards management and treatment. She was according to parents, preparing a party for her mother's B'day (86) yesterday. At the party she had reportedly acted very irrationally. Parents state they tried to put the current house on the market for sale (downsizing) "the whole house is a big mess"...parents report patient is extremely non adherent to medications. That note is countersigned by amongst others the Psychiatry Registrar Dr Arghandewal. 196In passing I note that on 21 September it appears the plaintiff visited her general practitioner, Dr Yaniv (CB4/1094). It is apparent the plaintiff had suffered an injury to her leg and she seems to have told her doctor that "3 days ago (on Friday 17) [sic] had a fall". The wound was to the left shin and Dr Yaniv cleaned and dressed the wound. 197During her admission Ms Stoliar is also reported as having physically assaulted a member of staff and as a result her walking sticks were confiscated. It was observed that she was at times hostile and aggressive (CB6/1822). 198No doubt concerned on 23 September the plaintiff called but was advised against visiting Ms Stoliar due to her current mood and aggression (CB6/1822). 199I should observe that Ms Stoliar in her evidence explained the aggression towards the staff as her being held down to be given drugs which she was fearful would be toxic. I am unable to accept that explanation on the basis of the notes. In addition the plaintiff asserted that she had visited Ms Stoliar every day she was in hospital, which again I am unable to accept. It appears that the plaintiff did visit Ms Stoliar however on 24 September (CB6/1824) and whether as a result or not "Elizabeth became confrontational at times". 200There is a note taken on 27 September. It reports that Ms Stoliar had asserted that she had been scheduled or admitted as a result of a false allegation that she had been abusing her mother. The note records Ms Stoliar as saying (CB6/1827): "We believe it is David Manning. He made this allegation last Tuesday to Rose Bay Police. Its because he is envious. His wife has been helping me to pack up, he is envious that he is not in the same position as my parents are. On Monday we blasted him that he had ruined my mother's surprise 86th birthday party. The police told me that they had been called by a family member - that I am abusing my mother - they said they have to bring me here to hospital. My father has manic depression, my daughter has seen Vivian Schneider for "anxiety"." I have been seeing Dr Schneider since 2002... I see her fortnightly for social anxiety. She doesn't prescribe anything for me. 201Further observations were made to the effect that Ms Stoliar was still irritable, labile and making allegations about police, patients, staff, doctors and her father. It was also observed that she was talking non stop and that it was difficult to interrupt (CB6/1827). 202There was tendered in evidence a note (Exhibit P4), agreed to be in Mr White's handwriting, which is on a statutory declaration form but unsworn and undated. Counsel for the plaintiff told me from the bar table that it came from Mr Ratner (Ms Stoliar's solicitor) and suggested I infer it was written in 2010 (T247/45-T248/39). It reads: I did not ring or contact the police on this or any other occassion [sic] regarding my daughter and my or my wife's safety. We have become aware that the purported allegation came from the builder, David Manning, whom I fired. Leslie White 203There is no evidence it was ever sent to anyone, nor that it was deployed to assist Ms Stoliar. There is also no support for it being the truth, as all other objective material suggests otherwise. In any event, no submissions were made by counsel for the plaintiff to suggest I should regard it as truthful. Indeed I regard it as probable she forced her father to write the note. 204On 1 October the seemingly same member of staff, I infer from the handwriting, made the following comments (CB6/1828): Contacted by Eliza Rosenfeld who is pilates instructor and has become "a family friend". She is worried about the effects that her abusive behaviour has on her parents "I can see the pain on their faces when they are at home - because of her anger towards them. She has spent hundreds of dollars on line for things she does not need - shoes, cameras, camisoles, figurines and steamers. Please do something about her abuse of her mother and father - I have seen her mother all bruised and bleeding 205On 2 October there is a note that the defendant had telephoned from overseas expressing concern that her mother was texting or sending threatening messages to the plaintiff (CB6/1830). The defendant was to arrive back into Australia on 7 or 8 October and she was concerned that her grandparents were unable to cope anymore. 206Again on 2 October it is noted that Ms Stoliar was transferred to a different ward and her mother was notified accordingly (CB6/1830). 207On the same page it is noted that Ms Stoliar was to have no visitors until Tuesday 5 October. Further on the same day there is a note which indicates that he/she had contacted the plaintiff and told her not to visit before Tuesday but that she was at liberty to ring and enquire as to her daughter's progress. Ms Stoliar was also told that at the nursing staff's discretion she would have one phone call per day whilst ever she remains elevated, irritable and/or abusive. 208On 5 October a further assessment was made by staff and it was noted as follows (CB6/1832): Elizabeth's parents are not to visit Elizabeth for the rest of the week. 209A further note indicates that the plaintiff was contacted by hospital staff and given an explanation which it is noted she accepted as to why she should not visit (CB6/1833). 210On 8 October Ms Stoliar appears to have had a consultation with a Dr Hulme, psychiatrist (CB6/1835). During the course of that consultation she again asserted that she had been scheduled as the result of a "fraudulent allegation" made against her and that she denied shoving or pushing her father. Indeed she asserted that her father had assaulted her and the "matter" went to the Rose Bay Police Station. She also flatly denied stopping taking her medication which she asserted was erroneous and "completely wrong" and indeed an "absolute lie" (CB6/1835-1836). Dr Hulme appears to have concluded: Patient has played a victim's role for a long time with false evidences to back up her claims. Patient has an underlying severe mood disorder that flares up from time to time. There is a sense of relief amongst patient's family members that at last patient has started receiving treatment at this centre. There is no evidence to prove patient's claims regarding pains/aches, broken bones". 211It was also noted at the conclusion of Dr Hulme's report that the plaintiff had been contacted and told that she could come for a 30 minute visit to the hospital to see Ms Stoliar (CB6/1837). 212On 8 October it appears the plaintiff in company with the defendant had a consultation with Dr Yaniv and informed her that she had been kicked by Ms Stoliar in the shin (CB4/1094) and that effectively she had told Dr Yaniv an untruth on 21 September. 213On 11 October Dr Arghandewal prepared a report for the Medical Health Review Tribunal in relation to an enquiry for Ms Stoliar (CB6/1841-1844). Dr Arghandewal reports various matters asserted to him by the patient's parents and the patient's daughter. In particular the patient's parents had reported to him that Ms Stoliar had ceased taking her medication and was absolutely unaware of her mental illness. Further that she behaved in an irrational and bizarre manner in front of a number of guests and close relatives at the plaintiff's birthday party. Dr Arghandewal made an assessment of risk in the following terms: Patient is at high risk of harming her parents physically again and also at high risk of harming herself due to a backlash from other persons at the receiving end of her behaviour and abusive language. Patient has explicitly indicated to the treating team that she would not adhere to treatment and management plans that she would not take medications as she firmly believed she does not have a mental illness. Patient is completely insightless and has different opinion about her psychiatric problems based upon her false beliefs and convictions. Plaintiff has even hired a solicitor to defend her false beliefs. Patient has for a very long time thought of herself as a victim for which she cannot provide any evidence. Patient does have a very severe mood disorder that flares up from time to time triggered off mostly due to her sheer non adherence to treatment and medications. Patient has a very recent past history of a highly aggressive and violent behaviour with extreme outbursts of anger specifically towards her parents who are very frail physically as well as medically compromised. They are in their mid eighties. Another physical assault of then would seriously jeopardise their very lives. 214It is important to observe that in the midst of this crisis, and I am in no doubt as a result of it, the plaintiff and Mr White in company with the defendant visited Mr Henley for the purposes of making wills and other testamentary documentation. I will return to these events in detail. 215Ms Stoliar was discharged from the Kiloh Centre on 17 November. 216On that date a community treatment order was made by the Mental Health Review Tribunal. 217On 12 May 2011 a further six month community treatment order was made by the same Tribunal. 218Dr Casimir Liber, a consultant psychiatrist at the Maroubra Centre, continued to maintain contact with Ms Stoliar and the plaintiff. 219For example on 19 October a phone call was made to Ms Stoliar, but it was ultimately the plaintiff to whom the member of staff spoke. The plaintiff informed that person that Ms Stoliar was very withdrawn, refusing to go out and spending much of her time in her room sleeping. The notes thereafter indicate regular contact and review by members of staff who reported it seems to Dr Liber, who saw Ms Stoliar on a number of occasions during 2012 and 2013. 220On 30 April 2013 Dr Liber apparently saw Ms Stoliar. She appears to have told him that she was not doing well and that her headaches were intolerable (CB6/1897). 221The plaintiff apparently had a fall breaking her hip and was admitted to the Wolper Hospital and the care of Dr Solomon. 222On 21 May 2013, Mr White died suddenly. A number of medical notes were created. Ms Mary Doyle, who was a social worker apparently phoned the Maroubra Centre advising that Ms Stoliar had been quite disruptive at "Wolper Hospital today - accusing mother of causing father's death - generally loud/argumentative - visiting hours after 3pm so Wolper have decided not to allow Ms Stoliar access prior to 3pm" (CB6/1902). The notes also record that there was some dispute regarding funeral arrangements. 223On 24 May the notes from the Centre record that a phone call was received from Dr Scott-Stevenson who reported receiving "psychotic phone calls from client. She believes client is manic" (CB6/1903). 224In the meantime Dr Liber saw Ms Stoliar on 28 May. Dr Liber noted that unsurprisingly Ms Stoliar was distressed and upset but that she was also angry and accusing her daughter of stealing cheque books (CB6/1904). He was commenced her on some additional medication but it was also observed "bereavement exacerbating/triggering manic st [state]" (CB6/1905). 225The clinical notes record various events for 29, 30 and 31 May 2013. There was clear concern both on the part of the staff at the Centre and it seems the defendant who was contacted during those days that Ms Stoliar was suffering another manic episode brought on by the stress of her father's death. 226On 31 May for example the staff were concerned such that they phoned her to inform her that they needed to have a house visit that evening. It is reasonably clear from the note that they were concerned about the level of dosage of the medication in the context of her father having died. 227On 1 June medical staff visited Ms Stoliar who during the visit expressed the view that she felt there was nothing wrong with her and that she disliked taking medication. 228On 2 June it seems a Ms Tanya Harris, psychologist visited Ms Stoliar to ensure that she was compliant with her medication. The note records that she was happy with the house visit but felt that it was unnecessary because she had a Jewish carer who was there every night from 7pm to 6am. 229On 3 June another house visit was conducted. Ms Stoliar was at home with her friend/carer and informed a Ms Musgrave that she had that day been to the Wolper Hospital to visit her mother. She agreed to take her medication in front of staff and she promised that she would attend to see Dr Liber "tomorrow". 230Indeed Dr Liber did see her on 4 June and decided that no further daily involvement was needed and that he would see her again on "Thursday" (CB6/1911). 231Dr Liber saw her again on 11 June and observed that she seemed much better (CB6/1911). Dr Liber recorded that the plaintiff had been transferred from the Wolper Hospital to Montefiore. He noted "Elizabeth unhappy with this". Ms Stoliar it seems also told Dr Liber that she and her mother had made an agreement that mother would never go to "NH" (I take this to mean a nursing home). Importantly however Dr Liber made the following note: Telling me that she + mother are contesting will. - Ongoing issue with Judy 232On 25 July Dr Liber again saw Ms Stoliar. He also had a series of telephone conversations with various people including so it seems persons at the Montefiore Nursing Home, Ms Stoliar's GP, the defendant and the plaintiff. His discussion with the defendant indicates that she told him that Ms Stoliar was most angry and had changed the alarm code on the house and would not let her mother in the house until she changed her will (CB6/1914). The defendant also told Dr Liber that she was reluctant to get involved and that she had little contact with her mother. 233It also seems that Dr Liber had a discussion with the plaintiff who told him that she did not feel threatened by her daughter. The note indicates that she told Dr Liber that her daughter may be on a little "high" but was "ok", and that she felt happy to go home with her daughter (CB6/1915). The plaintiff had planned to return home on 29 July. 234Dr Liber had a discussion with Ms Stoliar who denied she had racing thoughts and she promised that she would go to her GP to get medication. He then posed a treatment plan including a range of medications and arranged to see her in the next week (CB6/1915). 235There are several notes created on 26 July by staff at the Maroubra Centre and also seemingly the social worker at the Montefiore Nursing Home. Dr Liber asked for the record from the Montefiore Home be printed and placed in his file. The note indicates that Ms Stoliar had spent 4 hours with her mother and was "very angry and verbally aggressive". The notes indicate the defendant was trying to mediate. Staff at the Montefiore were concerned about the plaintiff's welfare and what would happen when she went home the following Monday. At one point they remained present because of concern the situation would escalate (CB6/1918). 236It seems Dr Liber had a discussion with a Dr Large on whether or not there were grounds to schedule Ms Stoliar but concluded she did not appear to be "grossly elevated" and that plan was not taken any further. 237On 30 July the defendant spoke with Dr Liber and expressed concern about her grandmother having returned home as she was concerned that her mother was unwell and her grandmother may be at risk (CB6/1919). She expressed concern that she thought that her mother was pushing her grandmother too hard. 238Dr Liber formed the view that the situation warranted a home visit and his plan was to organise one that evening. The visit was unable to be organised because of work pressures at the clinic and a plan was to visit the next day. 239At 12 noon on 31 July a house visit was arranged. A member of staff and a medical student attended. The note records (CB6/1923): Elizabeth's mother answered the door. Presented as somewhat guarded. Discussed that "Elizabeth is fine" - perfectly OK. Denied any aggression, violence towards herself from Elizabeth. 240The note goes on to indicate that the staff informed the plaintiff that Dr Liber was concerned and requested a house visit to which the plaintiff advised that "money is a curse". She declined to call her daughter to the door for a face to face meeting, indicating that it would upset her and perhaps escalate matters between Ms Stoliar and her daughter. The plaintiff was given phone numbers in case she wished to call. 241At 12.20pm on 31 July Ms Stoliar called the Maroubra Centre. She reported that she was well and did not need any further intervention. The note records that she "sounded calm and polite". She indicated that she planned to see Dr Liber "tomorrow". 242On 29 August Dr Liber sent an email to a Petronilla Canto in the following terms (CB6/1925): Regarding Elizabeth Stoliar, I have been seeing her fortnightly at Kiloh as an outpatient, with some use of ACT, through a difficult social situation (death of her father, and conflict with her daughter). I intend referring her privately. Discussion 243A consideration of the hospital notes and other medical records provides an important profile of Ms Stoliar but more importantly a backdrop against which Mr White and more importantly the plaintiff's actions must be viewed. 244For how long prior to February 2007 the plaintiff and her husband appreciated they had a mentally ill and/or unstable daughter is not readily apparent from the materials before the Court, although there is a reference to her seeking psychiatric help as early as 2002. But certainly from 2007 onwards, Mr White and the plaintiff I am certain suffered a great deal of distress as a result of Ms Stoliar's mental illness. 245I have little doubt that she assaulted her mother in 2007 and locked her in a room whilst they were on holiday together. It must have been traumatic and distressing for the plaintiff and Mr White when he found out about it. More importantly it is plain and obvious from the records taken over the whole period 2007 to 2013 that Ms Stoliar had and perhaps has little if any insight into the fact that she was/is mentally ill, and on occasions seriously so. 246In March 2007 it was the considered view of the psychiatric staff at St Vincent's that she had had a 5 year history of untreated bi-polar disorder. Although she was discharged in 2007, her father was so concerned the following year that in desperation he informed their general practitioner Dr Scott-Stevenson about various issues on 19 March 2008. 247Her medical condition had significantly worsened again by March 2009 requiring her to be scheduled and admitted for approximately one month. 248However during 2007 to 2009 the plaintiff made wills and made gifts to her daughter. I will return to these in due course. 249By 2010 however the position in relation to Ms Stoliar's mental state again very significantly deteriorated. She physically assaulted both parents. She was scheduled in September 2010 and this time hospitalised until 17 November of that year. 250On this occasion the police were involved along with a myriad of other health care professionals. 251During the 2010 admission and thereafter relevant medical staff were concerned clearly and appropriately for the safety of her parents. It is plain thereafter that Dr Liber for example felt that Ms Stoliar needed relatively frequent monitoring to ensure that she did not regress. 252Quite frankly one can well understand that the plaintiff and her husband were beside themselves in attempting to manage Ms Stoliar. They witnessed first hand her lack of control, her anger, her aggression, her irrational behaviour and her volatility. When manic she was a danger to them and clearly potentially herself. 253Apart from caring for each other and wanting to ensure that each could continue to rightfully live a comfortable life they were clearly concerned that she did not go wanting. 254More to the point they appreciated they had a granddaughter who was well educated and who did not suffer from the serious mental illness which afflicted their daughter. It is easy to understand therefore against the backdrop of Ms Stoliar's hospitalisations in the years leading up to 2010 the extent to which that had shaped the context in which they decided to make their 2010 wills. 255By 2010 on one view her illness had become somewhat chronic. After all she had been scheduled three times in as many years. I am satisfied that by 2010, the plaintiff and her husband had finally and firmly formed the view that their daughter was simply incapable of managing the family business or their estates. The 2010 Wills 256As Mr Henley had been retained in 2007 and 2009 to act for and prepare wills for the plaintiff, it was entirely unsurprising that she and her husband consulted him again in 2010. 257In her July 2007 will the plaintiff left her daughter her interest in L&E White Investments Pty Limited, L&E White Family Holdings Pty Limited and White Corporate Management Limited together with the rest and residue of her estate. 258On 20 November 2007 the plaintiff had made a gift of her half share in the property in Serpentine Parade, Vaucluse to Ms Stoliar. 259However on 24 December 2009 having been scheduled twice, the plaintiff made a will giving her interest in the White group of companies to her trustee to hold on trust for her husband for his life with the remainder together with the rest and residue of her estate passing to Ms Stoliar. This change in my view is likely to have been provoked by Ms Stoliar's admission to hospital in March of that year. It arguably points to a concern or apprehension on the part of the plaintiff in giving some control of the companies to her daughter absolutely. 260Mr Henley had a meeting with the plaintiff and her husband on 14 October 2010. They invited the defendant to attend and had done so on previous occasions from time to time. Mr Henley however says in his affidavit, and he was not challenged on this, that his practice was always to make sure the plaintiff and/or her husband had no difficulty in him speaking "openly" and in front of the defendant (affidavit of Mr Henley at [31]). His diary note of the meeting is, as are all of his diary notes, made more or less contemporaneously and quite detailed (CB3/718). 261At the meeting on 14 October 2010, less than a year after her 2009 admission and whilst Ms Stoliar was scheduled, Mr Henley records in his note that the plaintiff indicated she had "now changed her mind and will not provide her assets to pass to Elizabeth upon her passing". The note records that although she had previously given instructions to benefit "Elizabeth" the plaintiff told Mr Henley that she had continually been badgered and pressured by Ms Stoliar to make a will in her favour. She also mentioned that Ms Stoliar was bipolar and was currently in hospital. She further indicated to Mr Henley that she would like to show Ms Stoliar a copy of "a will" in which she was the beneficiary to placate her but that her real intention was to write a will which did not benefit her because she felt she was spending money without regard and was wasting money. The plaintiff gave an example of Ms Stoliar having recently spent $50,000 on jewellery, which she thought was completely unnecessary. 262The plaintiff expressed her concern that she would perhaps be unable to resist Ms Stoliar if she took her to a Mr Kosmin, solicitor and made the plaintiff change her will. At that time according to Mr Henley who was not challenged, Mr Kosmin was a lawyer in Double Bay who was apparently acting for Ms Stoliar. Mr Henley when asked by the plaintiff whether she could do another will after that changing it back again to her real intentions, said he told the plaintiff that her last will "is" the final will and can only be challenged if she lacked testamentary capacity or there is a challenge under Family Provision legislation. Mr Henley expressed the view that he thought given Ms Stoliar's significant assets it would be highly unlikely she would be successful if she brought such litigation. However the plaintiff candidly confessed she felt unable to resist, if any request was made by Ms Stoliar presumably however unreasonable, making a will in terms against the plaintiff's wishes and in terms required by Ms Stoliar. It seems to me that even with her husband by her side the plaintiff believed she could not withstand the pressure which Ms Stoliar would inevitably place on her until Ms Stoliar got her way. 263Mr Henley observed in his diary note that he was satisfied that both Mr White and the plaintiff had the relevant testamentary capacity, that they were fully aware of what they were doing and that they were trying to balance the needs of those people to which they owed an obligation, namely, Ms Stoliar, the defendant and future great grandchildren. Mr Henley observed that at the time of the meeting the defendant was heavily pregnant with her first child on the way. 264Mr Henley recalled Mr White saying to him that he and the plaintiff had substantially provided for Ms Stoliar all through her life however they did not want to waste the money that they had and wished to save it for their granddaughter and her children. He and his wife made it clear that they wanted Ms Stoliar to be financially secure, but they wanted the defendant to have ultimate control of the family business. 265Indeed in July of that year Mr White and/or the plaintiff had purchased an apartment in Point Piper for Ms Stoliar for $3.7 million. It is accepted she has never lived there and it has remained vacant since purchase (T293). 266The diary note also records that Mr White was concerned about Ms Stoliar's existing rights as a director of the three major companies. He was concerned that should he or the plaintiff die the survivor may have difficulties in managing the company with Ms Stoliar's continual demands for money. A discussion then ensued as to whether a director of unsound mind could continue as a director. Mr Henley then gave certain advice but indicated that he would need to obtain the constitutions of the various companies in order to come to a final view. 267Mr White also indicated that he would have great difficulty in removing Ms Stoliar as a director not because he did not think it was the appropriate thing to do but because of all the angst, trauma and drama such action would involve. 268The defendant commented apparently that this was going to become a problem and she felt it would be better to deal with it now rather than at a later point in time. Mr White suggested some changes to his will which suggested that an 80% right of income to Ms Stoliar from the Family Trust and 20% to go to a new trust called the "Judy Wills Childrens Trust". 269Mr Henley advised Mr White that his only right pursuant to his will would be to gift his shares in the various companies and he could not dictate to the directors of the trustee of the Family Trust as to how they could distribute income but could merely write a memorandum of wishes which would suggest such a split. It was then suggested that rather than having a percentage arrangement Ms Stoliar would be entitled to $170,000 per annum in 2010 dollars before tax. 270Discussion then ensued about the setting up of the new trust and Mr Henley advised it would be better for both Mr White and the plaintiff to set up testamentary style wills because that would be tax effective for the defendant's family. He wanted to await however the receipt of the constitutions before he gave any final advice. 271Mr Henley gave further advice about how to make changes to the constitutions in order to maintain control over the companies. Mr White indicated that he was happy with the idea however he was concerned that Ms Stoliar would have to be told about it. 272I am satisfied that such a conversation and/or conversations as outlined by Mr Henley in his diary note took place and that in particular and importantly the plaintiff at the outset of the meeting indicated that she had changed her mind about providing assets to pass to Ms Stoliar. I am satisfied 2010 was a turning point for the plaintiff but also for Mr White. Both had in my view faced the realisation that although they wanted to provide for Ms Stoliar they could not trust her to run the family business or be in control of its assets. 273On 21 October Mr Henley had a telephone conversation with Mr White at about 2pm. He has a diary note which he took contemporaneously with the telephone call. Mr White asked him how he could guarantee that the defendant would pay dividends from the White Corporate Management Pty Limited and White Investments Pty Limited to the family trust to ensure that $170,000 was paid to Ms Stoliar. Mr Henley responded that it was ultimately a matter of trust and there was no guarantee post his death. Mr Henley did suggest however adding "Gabby and Ed" as additional directors of the Trustee company. Again I am satisfied that the diary note is an accurate account of the conversation between Mr Henley and Mr White. 274A further meeting took place on 25 October between Mr White, the plaintiff and with the defendant again present. This meeting lasted just over two hours. Mr Henley recalls at [37] of his affidavit that at this meeting Mr White said in 2007 the plaintiff had succumbed to pressure by Ms Stoliar to transfer her half share of Serpentine Parade against his better judgment and wishes. Mr White then said that to avoid the plaintiff being hounded to transfer his shares to Ms Stoliar after his death, he wanted his shares to go to either the defendant directly or to the defendant's testamentary trust in which she will be the sole trustee and appointor. Mr Henley recalls the plaintiff at the meeting saying that she would like her will to be a mirror of her husband. The plaintiff obviously agreed with what her husband said at the conference, not in my view because she was overborne in any way, but because it reflected the true state of her beliefs and intentions at the time. There is no rational suggestion from any reliable source the position was otherwise. 275Again Mr Henley has a contemporaneous and handwritten diary note of the meeting (CB3/723-724). The note confirms, accurately in my view, the essence of what Mr Henley asserts in his affidavit he recalls both Mr White and the plaintiff saying. 276I am satisfied Mr White and the plaintiff had wished that Ms Stoliar was to get $170,000 per year from the trust but no other gifts and more to the point the defendant was clearly intended by both of them to be in control. 277It is also plain from the diary note of Mr Henley that there was discussion about the preparation of a power of attorney and the appointment of enduring guardian. Mr Henley noted that the latter two were prepared during the conference and were explained to Mr White and the plaintiff and signed during the meeting. 278On 27 October Mr Henley received an email from the defendant (CB3/728), sent at 10.08am. The email indicated that it was drafted with Mr White, and confirmed their instructions amongst other things that in Mr White and the plaintiff's wills they had decided to leave their respective shares in the White Group of Companies directly to the defendant to safeguard them from any pressure from Ms Stoliar. Mr Henley was also asked to give some advice detailing the operation of the arrangements that they had made specifically addressing their joint intention to ensure that their daughter, granddaughter and great grand children were adequately provided for. Mr Henley was told that the purpose of the advice was to make Mr White's and the plaintiff's intentions patently clear and to deter Ms Stoliar from pursuing any legal action. 279At 12.15pm on the same day Mr White left a phone message with one of Mr Henley's assistants. It was to the following effect (CB3/729): His granddaughter sent you an email which he fully agrees with but in paragraph 5 which says about her [Liz's] judgment he would like to add "for example, she bought 4 apartments in Palm Cove without consulting with anybody which turned out to be a bad investment, purchased on auction $60k worth of jewellery, on several cruise ship auctions purchased paintings in the vicinity of $100k and lent four people without any documentation interest free loans totalling $116k 280Mr Henley then set about preparing a will for each of Mr White and the plaintiff and a memorandum of wishes and other documentation. 281On 28 October Mr Henley sent an email to the defendant indicating that he had prepared wills and a flow chart diagram which he enclosed. He also pointed out that the two wills are not an exact mirror of each other because the plaintiff no longer owned a half share in Serpentine Parade. In the plaintiff's will however she gifted her half share in the Angsana property and her jewellery to Ms Stoliar. Mr Henley also pointed out that Mr White's will gave the plaintiff a life interest in his half share of Serpentine Parade but the plaintiff had no share to give if Mr White survived. 282On 29 October Mr Henley provided his advice to Mr White and the plaintiff (CB3/733). He was of course to meet with them and at their invitation the defendant later that day. The purpose of that meeting was to review and sign the wills and other documents. 283The letter stated as its purpose to "detail the sad situation you find yourself in with respect to your daughter's bipolar disease". Mr Henley also made note of what he had been told about Ms Stoliar's inability to control money but he noted his instructions that although Mr White and the plaintiff loved their daughter they wanted to protect her financially and emotionally but they did not want her to squander the money "it has taken you so long to assemble to the disadvantage of your granddaughter Judy and her child to be born soon, and future great grandchildren". Mr Henley also commented that he had been told either by Mr White or the plaintiff that Ms Stoliar was vulnerable because of the wealth she has amassed and that unscrupulous people had taken advantage of her in the past and may well do in the future. She was also vulnerable in the sense that she was capable of making impulse purchases which she later regretted. Mr Henley made a number of other comments: I have felt that Edith has been particularly affected by the emotional manipulation that Elizabeth has displayed. Edith succumbed to pressure to transfer ½ of [XX] Serpentine Parade Vaucluse to Elizabeth which Leslie resisted. As you now intend to sell [YY] Serpentine Parade Vaucluse and move into [XX] Serpentine Parade Vaucluse as your home, you again find yourself in danger of Elizabeth attempting to exclude you from the home or selling it against your wishes. I understand that you bought Elizabeth a unit in Point Piper for $3.7 million recently. On several occasions Edith has made Wills in which she has said that she is under enormous pressure to make provision for Elizabeth and that Elizabeth has demanded to see copies of Wills made. Edith has even asked me to give her copies of Wills prepared to show Elizabeth knowing that she is preparing subsequent Wills which do not favour her. You have now come to the position that making further significant provision for Elizabeth has to stop and to that end you have decided to place most of your assets in the hands of your granddaughter. You will today sign section 100 Succession Act statements which detail that as at today you know that Elizabeth has over $9million in assets. Those statements will also evidence the fact that Edith will gift her half interest in unit 22, 1 Vievers Road, Palm Cove and her jewellery to Elizabeth and also that there is an income stream of $170,000 per annum being paid to her from the White Family Trust. That figure increases by the CPI from today. To that end you have gifted your shares in L & E white Family Holdings Pty Ltd directly to Judy on her promise that she will faithfully carry out your wish to make these payments to her mother. In order to do this there will need to be dividends declared in L & E White Family Investments Pty Ltd and potentially also White Corporate Management Pty Ltd. The shares in those companies are to be immediately gifted into a testamentary trust established for Judy and her family with the survivor of you to benefit as well as the survivor is included as one of the potential beneficiaries. The trustees of the trust have the right to take control of in L & E White Family Investments Pty Ltd and White Corporate Management Pty Ltd by appointing appropriate directors to fill the vacancies that will occur on your passing. Richard Slazenger has been given instructions to make Judy a director of the companies now. Please confirm to me in due course that that has occurred. I believe that the Wills you are signing today truly reflect your true intentions and are not affected by influence by either Elizabeth or Judy. 284On 29 October during the course of the meeting (which lasted approximately 2 hours) Mr Henley explained the wills and accompanying documents to the plaintiff and Mr White and handed over a copy of his advice. Each of the plaintiff and Mr White signed the new wills in his presence and in the presence of his secretary. Other documents were signed including a memorandum of wishes and statements under section 100 of the Succession Act. 285A number of observations may be made in relation to the documents. First, in the section 100 statement of the plaintiff she estimates Ms Stoliar's assets to be in the order of $9 million. I will return to this shortly. Secondly in Mr White's memorandum of wishes in relation to the White Family Trust the distribution of the $170,000 (before tax) to be paid to Ms Stoliar was of course only following the death of both Mr White and the plaintiff (CB3/797). It should also be noted that the memorandum of wishes is not and was not intended to be a legally binding document nor could it be. I am satisfied Mr Henley clearly explained this to Mr White in the presence of the plaintiff. 286Following the execution of the documents on 29 October Mr White and the plaintiff prepared a simple hand written note (CB3/803). It was to be attached to their wills. It read: Dear Elizabeth, Mum and I have to make sure that your future is safe and look after your every need. Your dad and your mum It was signed by both parents. 287Having reviewed the contemporaneous documents and having heard Mr Henley and the plaintiff give their evidence I am satisfied that the 2010 wills and other documentation truly reflected the intentions of Mr White and the plaintiff at that point in time, and they instructed Mr Henley accordingly. In her evidence the plaintiff rejected any notion that Ms Stoliar had been pressuring her to make a will which was favourable to her but rather it was her husband who placed pressure upon her. Indeed she asserted that her husband "needed me to sign the will and he did not give me time to read it" (T4/45). 288In denying that Ms Stoliar was pressuring her she said her husband was very sick at the time and as a result never gave her time to read the documents. Again she asserted her husband said "Just sign it and I want to go home" (T6/14). A little further in her evidence the plaintiff indicated that she believed that Mr Henley was not on her side but was rather on her husband's side. 289Given the circumstances which unfolded at the various meetings in 2010 some of which were very lengthy, held between Mr Henley, the plaintiff and her husband I regard those answers given by her quite frankly as false. There is not the slightest suggestion in any of the contemporaneous materials that the plaintiff was pressured by her husband or by Mr Henley or that she had not carefully considered the instructions she gave to Mr Henley and the reasons as to why she wanted to change her will in October 2010. No attempt, and for good reason, was made to ever put such a suggestion to Mr Henley. I reject her assertions to the contrary. 290I can only infer that the reason she gave that false evidence before me was because she believed out of some misguided loyalty there was a need to say things which Ms Stoliar would like to hear or which she believed would make her happy, or worse because she thought it might help her in the Succession Act proceedings. Again there is to my mind no other rational explanation. 291I have no doubt that the plaintiff had a long loving and trusting relationship with her husband. But they had a joint problem. That problem was the mental illness of their daughter which had manifested itself in very ugly and unfortunate ways on numerous occasions between 2007 and 2010. It was undoubtedly frightening and distressing when she during her bouts of manic behaviour lashed out at both of them both physically and verbally. They had decided on perhaps ignoring what she had done on many occasions because of their love and devotion to her. It was however perhaps just good luck one or both of them were not seriously injured during one of her manic episodes. 292However by 2010 the matter was far too serious just to be ignored and confronted by some overly optimistic and hopeful expectation that it all would simply evaporate or the purchase of an apartment for $3.7 million might placate Ms Stoliar. By 2010 I am quite certain Mr White and the plaintiff had come to the harsh and sad realisation that their daughter could not prudently provide for herself let alone future generations. I am satisfied the plaintiff and Mr White were seriously concerned Ms Stoliar would waste large sums of money and place the wealth that had been accumulated through the hard work of them in serious jeopardy during a bout of manic behaviour. 293The plaintiff readily and if I may say so truthfully on one occasion in her evidence agreed that in 2010 she wanted to protect the assets she and her husband had accumulated for the benefit of future generations of their family and that she had decided along with her husband that the defendant should be given control of the companies because she was the best person to manage the entities. She also agreed that at the time she and her husband had formed the view that Ms Stoliar was incapable of managing her own affairs let alone those of the White Group of Companies (T7/15-45). 294However, she regressed when confronted with her 2010 section 100 statement and her estimation of Ms Stoliar's current assets at $9 million. She asserted that it was some kind of mistake on her part at the time and that her assets were much less than $9 million because Ms Stoliar had on her husband's advice bought some property in Queensland at the highest price that then was not worth that much (T8/10 and T8/45-47). Again I regret to have to say I think that evidence is quite false. 295I do not believe that the plaintiff thought then or ever as a matter of honest opinion that the $9 million was overstated. I have little doubt she discussed it with her husband who also nominated the same figure (CB3/794). 296But in addition it was Mr White who on 27 October telephoned Mr Henley to inform him that Ms Stoliar had bought four apartments in Queensland without consulting anybody which turned out to be a bad investment. Mr Henley recorded this in his advice to Mr White and the plaintiff of 29 October in (a) on the first page (CB3/733). 297I cannot accept that Mr White deliberately lied to Mr Henley about that or the other impulse purchases he refers to in his telephone call of 27 October. 298Mr Henley's advice of 29 October was handed to the plaintiff and her husband at their conference. Strictly speaking there is no evidence that the plaintiff read it but I believe it would be highly likely that she would look through it and/or that she and her husband would have discussed its contents. I cannot believe that if she thought her husband was telling an untruth in relation to the Queensland units she would not have spoken up. She did not although she tried to convey the impression her husband was the sort of person who had or did pressure her. They were very close. They jointly worked together all their lives and shouldered the burden of their daughter. All contemporaneous materials point only towards a couple who cared for each other and looked out for each other's interests. She missed him unsurprisingly when he died and felt without his support she could not face her daughter. It is a pity she chose to denigrate the memory of her husband out of misguided loyalty and/or fear of her daughter. 299As is clear from comments I have already made I formed the impression that indeed through much of her evidence before the court that she was saying what Ms Stoliar would want to hear rather than what she genuinely thought was the truth. I do not think that those answers that she gave which I regard as untruthful are as a result of a mistaken recollection on her part or her advanced years. She did not strike me as someone who was not alert to what was going on around her and indeed I believe she quite consciously and deliberately gave answers which were false for the express reason of appeasing her daughter. 300What is a most telling piece of evidence in relation to the 2010 events is that the plaintiff and her husband clearly decided not to tell their daughter what they had done in relation to the wills. They knew to tell the truth would cause unnecessary confrontation they could not cope with. It was perhaps fortuitous that when they did the 2010 wills, Ms Stoliar had been scheduled and was as it were out of the way, and they clearly took the opportunity to sort out their affairs. Mr White Dies 301Somewhat unexpectedly Mr White died having suffered a heart attack on 21 May 2013. At that time the plaintiff was in the Wolper Private Hospital in Woollahra having undergone a total hip replacement. 302There is little doubt from the above analysis of the medical records that a number of medical staff connected to the Maroubra Centre were concerned how Ms Stoliar might react, and that a manic episode might be triggered. 303Notwithstanding these difficulties and the obvious stress on the family it appears it did not take Ms Stoliar long to become concerned about the status of her father's will and her inheritance. 304More importantly and unsurprisingly the plaintiff was also very concerned about her daughter's reaction to her father's death. She discussed this with staff at the Wolper. She expressed that very concern to a member of staff on the morning her husband died (CB4/1182). 305On 22 May it seems that Ms Stoliar was "insisting that all decisions are made by her and refusing to allow granddaughter or patient to have impact. Liz is very angry that minyan is not being held at her home. Liz appears to be behaving in a highly emotional erratic way. She became verbally demanding speaking over one and refusing any contrary information. Also rambling about who the family is, who has the money etc" (CB4/1185). 306The plaintiff became very distressed by her daughter's behaviour (CB4/1186). 307Staff at the Wolper spoke to the plaintiff at around 6pm on 24 May. To them she appeared worried about returning home to live with Ms Stoliar. The following note appears (CB4/1189): Pt seems frightened of daughter & seems to have adopted an appeasement policy to avoid daughter's outburst & aggression. PT torn as is worried about daughter's future. Discussed option of PT going somewhere else to live, such as Montefiore and daughter having carers in home. It was suggested PT think about this option. PT stated that she was frightened of daughter's response to this idea. 308Later that evening it appears arrangements had been put in place and the plaintiff spoke to the defendant. 309At some point earlier in the day the defendant says she had a conversation with the plaintiff. The plaintiff informed the defendant that Ms Stoliar had made her tell her the code to the safe in her bedroom. She had access to the safe and gave some family friends (the Jagoda's) allegedly $10,000. The plaintiff informed the defendant that her jewellery was in the safe together with cash. The plaintiff indicated to the defendant that she had a fight with Ms Stoliar during which she had threatened her that if she embarrassed her in front of anybody she would never see her jewellery again and that she was going to have the code on the safe changed so that the plaintiff would not know it. The defendant then asserts that she rang the family friend, a Mr Paul Jagoda, who confirmed that he had helped her mother to open the safe and that she gave him money to cover his expenses while he was in Sydney. 310In her affidavit in reply the plaintiff agreed that Mr Jagoda was a family friend and that her daughter did ask her for the code to the safe which she was happy to give her. The plaintiff however asserts that there were three safes in the house and that Ms Stoliar knew the codes for all of the safes. She denies however talking to Ms Stoliar about a $10,000 gift or loan to Mr Jagoda and denies talking about her jewellery and denies that Ms Stoliar threatened to change the code on the safe. 311Ms Stoliar denies she ever asked her mother for the code to the safe because she knew them all. She denies that there was a large sum in the safe but accepts that there was cash there. She agrees that she gave Mr Jagoda money to cover airfares and three nights accommodation at the Quest Apartments. She did so because she thought it might impose a significant burden on Mr Jagoda and his family otherwise. 312In the scheme of things this is a minor if not almost wholly irrelevant issue. However it does on any view go to the credit of each of the persons involved in the incident. I note that it was not put to the defendant or to the plaintiff and/or Ms Stoliar that their various versions were concocted and perhaps for good reason. I have to say however that because of the unreliability of the plaintiff and Ms Stoliar I accept the defendant's version of these events. In particular I am satisfied that the plaintiff did in fact express the concern attributed to her by the defendant in the latter's affidavit. This is entirely consistent also with Ms Stoliar's behaviour. I consider it is yet another occasion when through misguided loyalty the plaintiff has toed the line in an attempt to appease her daughter. 313The plaintiff clearly had concerns about going home to Serpentine Parade and she also wanted to get some more rest. 314On 29 May an insightful note appears in the Wolper records (CB4/1194): ...pt scared of daughter and her reaction if she goes to the Monte and this is the reason she is unsure however pt has clearly stated to SW and granddaughter that she is scared to go home and wants to go to Monte. Pt feels she is unable to manage at home any more - cannot manage daughter without husband's support. This record is signed by Ms Mary Doyle, Social worker. 315Arrangements were thereafter put in place for the plaintiff to move to the Woollahra Montefiore home. 316In the meantime on 30 May Mr Henley received a letter from Baron + Associates, solicitors (CB2/418). It was in the following terms. Re: Estate of the Late Leslie White We act on behalf of Liz White (also known as Elizabeth White) the daughter of the late Leslie White and anticipate also receiving instructions for her mother, Edit (Eei White) the widow of the late Leslie White. We understand that you have been appointed as attorney for the Executors by the late Mr White's Will. We would be grateful if you would provide us with a copy of the said Will at your earliest convenience. 317Ms Stoliar accepted in her evidence that at the relevant time, Mr Baron was her solicitor. He still is (T206/31-32). She also agreed that she instructed Mr Baron to send the letter. She also asserted that she had been instructed by her mother to contact Mr Baron and let him know that she would be asking him to represent her (T207/20-21). 318When asked why it was that she thought she and her mother might need to be represented by a lawyer at this point she indicated that she merely was following her mother's request. I do not accept that evidence. In my view Ms Stoliar was preparing for litigation and she required her mother to be on side. 319The plaintiff denies any suggestion that she had any association with Mr Baron as a result of pressure from her daughter. In her affidavit in reply she asserts that Mr Baron was never her lawyer, she had never met him and she was considering using him and then realised that she could not because he acted for her daughter. 320However in passing I observe Mr Henley had a meeting with the plaintiff on 24 June which lasted over two hours. He has a diary note of the meeting. During the course of the meeting, having discussed various matters, he asked whether she would like him to prepare a new will to which she answered "yes". He records in his diary note, which I accept as accurate, that the plaintiff told him she did not know what she was doing when her daughter put a piece of paper in front of her asking for Mr Baron to represent her. She went on to say to Mr Henley that once she had thought about it she thought she must be "crazy" and that she decided to contact Mr Henley to act for her. 321I am satisfied that Ms Stoliar tried to orchestrate a retainer with Mr Baron for her mother. However when the plaintiff thought about it she formed on this occasion it seems her own independent view that it would be foolish to instruct Mr Baron not because he acted for Ms Stoliar but simply because Mr Henley was steeped in the history of the various estates and had made numerous wills for both she and her husband over many years. He was the obvious choice. 322On or about 12 June the plaintiff and defendant met with Mr Ed Vesely and Gabriel Lorentz at the Montefiore. The defendant made a note of the meeting (CB2/419). It was not put to her in cross examination that her version of this meeting set out in her affidavit at [43]-[44], nor her file note, were inaccurate. During the course of the meeting the plaintiff it seems said words to the effect of: I do not want Liz to be a director of the companies with Judy and me...Liz is not capable of working with Judy to manage the family investments... I don't want to live with Liz anymore ...Liz forced me to write a note to her lawyer Gil Baron that I wanted him to be my lawyer from now on. But Michael Henley has been Leslie's and my lawyers for many years and I do not want this to change. 323The plaintiff denies that she said that she did not want her daughter to be a director of the companies. It was, she alleges, indeed the defendant and the other executors who proposed her removal. She asserts that she was too weak and tired to deal with the matter and she denies ever having said that she did not want to live with her daughter anymore. She also denies ever saying that her daughter had ever forced her to write a note to Mr Baron. 324The defendant said she made her file note of the conversation as a result of a suggestion made by Mr Vesely. I accept the defendant's version of this meeting and I accept her diary note (prepared the morning after the meeting) as accurate. I am satisfied the plaintiff again had falsely denied this conversation. Her denials in my view are both self serving and wholly uncorroborated. 325The diary note also attributes to the plaintiff a statement that "Liz has her ups and downs and is not even". That is clearly accurate in terms of her behaviour over many years. The plaintiff is also regarded as having been told by Ms Stoliar that she was "confused and has dementia". I am satisfied that the plaintiff told those present that her daughter had made that assertion. Indeed, although I will come to it in due course, Mr Henley has a diary note of his meeting with the plaintiff on 24 June in which he asserts that the plaintiff also told him the very same thing, namely that Ms Stoliar told her mother that she thought her mother had early dementia. Mr Henley's note, which I regard as an accurate account, therefore in my view corroborates the defendant's assertion that the plaintiff recounted that event to her on 12 June. 326The plaintiff is also attributed with having expressed the view during the meeting that Ms Stoliar was incapable of managing her own affairs and that her husband had done this prior to his death. Again I am satisfied that is precisely what the plaintiff said as at 12 June 2013. I am also satisfied on the day that she expressed the view that she did not want to return to Serpentine Parade, however I think she did change her mind on that out of fear and/or a sense of obligation to her daughter. 327I am also satisfied the plaintiff told the defendant that Ms Stoliar pressured the plaintiff to write a note to Mr Baron. 328On or about 19 June the plaintiff moved from the Woollahra Montefiore Home to the Randwick Montefiore Home. 329On 21 June Mr Henley rang the defendant and left a voicemail. It was to the effect that he had been called by the plaintiff who told him she had signed a costs agreement with Mr Baron and that Ms Stoliar had pressured her to sign it. However, she wanted Mr Henley to act for her but he did not want to do so until her instructions had been withdrawn from Mr Baron. 330The defendant spoke to the plaintiff and as a result the latter said that she would call Mr Baron and tell him that Mr Henley had been her lawyer and that she wanted him to act for her. She then called the defendant back and told her that she had informed Mr Baron's office that Mr Henley was going to represent her. 331On 24 June Mr Henley prepared and provided a costs agreement to the plaintiff at a conference he had with her on that date which lasted about two hours. For that purpose he attended at the Montefiore Home Randwick. He prepared a detailed diary note (CB3/810-815). 332Mr Henley sets out in the diary note that the first part of the meeting with the plaintiff involved him explaining in some detail the effect of her late husband's will. During the course of the meeting the telephone rang and Mr Henley became aware that Ms Stoliar was on the telephone. The plaintiff informed Mr Henley that Ms Stoliar had known that Mr Henley was coming to see her. According to Mr Henley's note the phone rang a number of times. Each time he believed it was Ms Stoliar. 333The plaintiff then asked Mr Henley to remind her of the terms of her 2010 will. He explained that like her husband, her interests in shares in private companies were to be given to a testamentary trust for the benefit of the defendant and her descendants (other than the shares in L&E White Family Holdings Pty Limited which went directly to the defendant). Her half interest in the Angsana property was to be given to Ms Stoliar, at which point the plaintiff interrupted and said that her interest in Serpentine Parade had already been given to Ms Stoliar. Mr Henley acknowledged this was correct. Mr Henley then explained that under the will all household chattels in the house, jewellery and cars would pass to the defendant. The plaintiff apparently said that she did not like that and wanted to make an alteration in her new will and she would explain after he had finished his explanation. At the conclusion of the discussion Mr Henley informed the plaintiff that any residue in her estate would pass to a testamentary trust. 334There was also discussion about the plaintiff's embarrassment as her credit cards had been cancelled as they were supplementary cards to her husband's. She asked Mr Henley whether she needed to wait for probate before she could access joint bank accounts and he informed her that she need not do so because they would pass to her by survivorship. Mr Henley then asked her whether she would like to prepare a new will to which she responded that she would. At that point he handed her a costs agreement. 335Mr Henley then records that the plaintiff gave him specific instructions as to her new will. The changes she wanted to make were that instead of the defendant receiving all of the chattels, she wanted Ms Stoliar to receive all of the chattels, except for four mementoes to be given to the defendant and she specified those. She confirmed that she wished to give her interest in the Angsana property to Ms Stoliar and also confirmed the giving of the private company shares to the testamentary trust created under her husband's will. However she informed Mr Henley that she now wanted to provide an amount of $1 million in cash to Ms Stoliar absolutely. 336During the course of the discussion she told Mr Henley that although she was comfortable at the Montefiore she would like to go back to Serpentine Parade Vaucluse but felt that she could not live with "Liz" in the same house. Mr Henley asserts that he told her that if they were in the same house she could be pressured constantly in relation to changing her will, requests for money and that he did not believe her mental strength would be sufficient to withstand the barrage from her daughter. She said that to stay at the Montefiore might well be the lesser of two evils. She also raised the possibility of discussing with Ms Stoliar's lawyers some arrangements so as to avoid litigation. 337Discussion then ensued in relation to the previous Memorandum of Wishes and the $170,000 to be paid to Ms Stoliar from the White Family Trust on an annual basis. The plaintiff and Mr Henley discussed that on a conservative basis Ms Stoliar already had assets of about "$8 million". The plaintiff told Mr Henley that Ms Stoliar had requested that she have an income of $300,000 per year. Mr Henley says he thought that was astounding for one person without dependents and he told the plaintiff that. 338The plaintiff then informed Mr Henley that Ms Stoliar had been talking to her about her possibly having early dementia, to which Mr Henley thought that was far fetched, but nonetheless he decided to conduct a test which he set out in some detail in his note (CB3/814). In my view an important question he asked her during the course of this exercise was the following: Q. How do you balance providing for Liz as opposed for Judy? A. I have given my shares in private companies to Judy and the testamentary trust because I want to honour my husband's wishes to put her in control of these companies because I truly believe that she can properly manage these companies better than anyone else. On the other hand I am aware the Liz has significant assets such as the Point Piper unit, a half share in the property at [XX] Serpentine Parade, Vaucluse, a half share in Angsana, four other home units in Palm Cove (Reef Retreat), a car, a pension fund of $800,000, two Westpac accounts with approximately $90,000 in one and $200,000 in the other, as well as a St George Account with some tens of thousands of dollars in it, although I do not know the exact amount. Knowing all this and being aware that the Memorandum of Wishes in relation to the White Family Trust will give her $170,000 net income I am satisfied that the gifts that I am making to her in my Will will be satisfactory for her future financial needs. I am aware that she can waste money but I am still happy to give her the $1 million in cash. 339Although the plaintiff puts some matters in issue in relation to this meeting they are relatively few in number. She denies for example saying that she could not live with Ms Stoliar and asserts that she did not feel that she would be pressured when she went home. 340In any event I am satisfied entirely with the accuracy of Mr Henley's evidence about this meeting and indeed the accuracy of his contemporaneous diary note. In so far as there are differences I reject the plaintiff's evidence to the contrary. 341Later that evening on 24 June the defendant telephoned the plaintiff. The plaintiff according to the defendant answered the phone in a most distressed state speaking in Hungarian and crying. The defendant asked her what was wrong. The plaintiff replied that she thought it was her daughter. The plaintiff explained that Ms Stoliar had visited that afternoon with other people and that she made a scene in front on them and was screaming. The plaintiff then said that she could not live with her daughter who kept saying that "her father wanted to change his will before he died and that I have to give her my shares". The plaintiff then asserted that she knew that that was not true and "she wants more and more and wants to control me". 342The defendant made a contemporaneous note of the phone call (CB2/422). 343Again the plaintiff's denials of this conversation are limited. She merely denies that she said that she could not live with her daughter and denies saying that she wanted to stay at the Montefiore indefinitely. Importantly she does not deny the balance of the conversation. I am satisfied that that conversation did take place as recounted by the defendant in her affidavit at [55], and that the contemporaneous diary note of the defendant is accurate. 344On 26 June the defendant visited the plaintiff at the Montefiore home. There was a conversation about her bills not being paid and the cancellation of her credit cards. The plaintiff does not deny this conversation. It clearly took place. In any event again the defendant has a contemporaneous diary note which supports her version of events and which I accept as accurate. 345On 29 June the plaintiff telephoned the defendant. Again the latter made a contemporaneous diary note of that conversation. During the course of their discussion the plaintiff told her that Ms Stoliar wanted a serious conversation with her about "the shares" and she wanted the plaintiff to cancel her appointment she had with Mr Henley on "Monday". It seems the plaintiff was most distressed at Ms Stoliar's persistent discussions about shares. 346In her affidavit in response the plaintiff asserts that in fact it was the defendant who was always pushing her to talk about business which she did not want to talk about and she did not recall a conversation with the defendant, nor telling her that Ms Stoliar wanted her to cancel the meeting with Mr Henley again. I reject the plaintiff's evidence. It was not put to the defendant that the diary note was inaccurate or not contemporaneous. I accept the defendant's version of events. 347On 1 July Mr Henley had a lengthy meeting with the plaintiff. It went for approximately one and three quarter hours. The purpose of the meeting was for him to explain the documents he had prepared following his initial consultation with her on 24 June. Again the meeting with her took place at the Montefiore Home in Randwick. 348Discussion ensured about the issue of a new credit card. Mr Henley told the plaintiff that a new cheque book would be delivered to her personally by an employee of Westpac together with an Amex card. 349Mr Henley says he then went through an explanation of the various documents commencing with the revocation of the appointment of enduring guardian. He then explained the detail of the new appointment documents and took her through them. During the course of this meeting the plaintiff said to Mr Henley that she would love to go back to Serpentine Parade but she felt under immense pressure from Ms Stoliar and felt it would be too much for her to go back to her home at this time. During the course of this meeting Mr Henley recorded the plaintiff as having said: You know I am very sad and I really would wish to die. I cannot take the pressure that Liz is giving to me. 350Mr Henley says he responded by saying it was a difficult time, she had lost her husband and no doubt things would get better. Following the explanation the plaintiff said she was happy with the document and she signed it in Mr Henley's presence. He then explained the revocations of the existing powers of attorney and the new power of attorney which appointed the defendant. Again during the meeting Mr Henley recalls the plaintiff saying "Liz believes and is saying to people that I have dementia". Mr Henley says he responded by saying that was not his view. 351He then moved to the subject of the will and explained the major changes including the additional $1 million to be given to Ms Stoliar. He then reiterated that the shares in L&E White Family Holdings Pty Limited would pass to the defendant directly consistent with her late husband's will and her own will made in 2010. He explained that following on from that the shares in White Corporate Management and L&E White Investments Pty Limited fell into her husband's testamentary trust because under his will that testamentary trust was now established. That in turn would avoid two testamentary trusts being set up. He then gave her a detailed explanation of the beneficiary groups. At the end of the conversation he asked whether this met with her intentions. She said "Yes" and she would like to sign it. An attempt was made to find witnesses but that could not be done satisfactorily until one of the nurses observed a woman called Ms Zamel who was in fact in another room at the Montefiore. Ms Zamel came in and witnessed the will. 352Mr Henley then provided two documents being the memorandum of wishes in relation to the will and one in relation to the White Family Trust. He gave her an explanation about these. He pointed out in particular that clause 3.2 directed, in a non binding way, the trustees of the White Family Trust to pay Ms Stoliar an amount of $170,000 (indexed to CPI). The plaintiff then asked questions about what tax her daughter would pay on the $170,000. The plaintiff then remarked that her daughter had previously made the claim that she wanted $300,000 a year because she wanted to travel. The plaintiff then signed the section 100 certificate, initialled a minor alteration that related to property owned by Ms Stoliar, and then executed both memoranda of wishes. 353Again the plaintiff does not challenge any relevant detail of Mr Henley's account of what occurred at the meeting and again he has a detailed contemporaneous diary note (CB3/816-821). I accept his evidence as to what occurred at the meeting and indeed what was said by him and to him by the plaintiff. 354On 5 July the plaintiff telephoned Mr Henley. Again he made a contemporaneous note of his conversation with her (CB3/880-881). The note records that she said that she had been discussing matters with the defendant and in particular how to resist the constant pressure being applied to her by Ms Stoliar to change her will to provide for the shares that she owns in the various companies to go to her daughter. She informed Mr Henley that after discussion with the defendant she really did want to go back to Serpentine Parade but because of the constant pressure she wished to give her shares away now to the defendant. 355The defendant however had suggested that rather than giving to her directly they should perhaps go into a new trust to be set up for that purpose but that she should speak to her solicitor about the matter (T83/45-T85/22). Mr Henley said that he then discussed the loss of dividend income if the shares were given away but the plaintiff interrupted saying that she had had a discussion with the defendant about that and that she would have the benefit of the income for her life. They then discussed a life interest. Mr Henley pointed out however a number of disadvantages in not giving the shares to a testamentary trust, for example stamp duty, a potential for capital gains tax, and loss of taxation benefits of distribution to minor children. The plaintiff said she would like to speak to Mr Cribb (her accountant) and ask him to work out what it would all cost so that she would have a better understanding. There was then a discussion about a proposed meeting the following Tuesday with Associate Professor Rosenfeld and that it had to be rescheduled. In any event the plaintiff indicated that she would have been unavailable because she had intended to accompany Ms Stoliar to several medical appointments that day. 356Later in the day Mr Henley informed the plaintiff of a new time for Associate Professor Rosenfeld, namely 12 noon on 12 July. 357Again the plaintiff does not seriously contest Mr Henley's version of events although she denies saying that Ms Stoliar was constantly pressuring her to change her will in relation to the shares. I reject the plaintiff's denial and I accept Mr Henley's version of events corroborated as it is by contemporaneous diary note. His email to Mr Steven Cribb of the same date, in which he suggests that the plaintiff had indicated that the stamp duty and capital gains tax liabilities "would be worth it to stop the persistent rankling of Liz asking her to change her Will", also corroborates his version of those events (CB3/882). 358On 8 July the plaintiff it seems telephoned Mr Vesely and told him that Ms Stoliar was "pestering her" for copies of the wills she had made with Mr Vesely. The plaintiff asked whether they could be sent to her. A brief note of this conversation appears at CB4/1355. 359In her evidence the plaintiff accepted that she had made contact with Mr Vesely but she denied telling him that Ms Stoliar had been pestering her and speculated that he may have misunderstood her (T35/20-42). I reject the plaintiff's evidence on this point and I am satisfied that she did call Mr Vesely and indeed tell him that. There was no question the note was made by Mr Vesely and he would have no reason otherwise to make it were it not for the fact the plaintiff rang him and made those statements. 360On 12 July as arranged Mr Henley along with Mr Cribb and Associate Professor Rosenfeld visited the plaintiff at the Montefiore at Randwick. Again Mr Henley made a detailed diary note (CB3/883-885). The visit took 2 hours. 361Mr Henley records that the plaintiff told Associate Professor Rosenfeld some background facts including matters concerning her surgery, the loss of her husband and that she planned to move home to Vaucluse on 29 July. His diary note suggests that the plaintiff said to Associate Professor Rosenfeld that she had lots of problems with her daughter and that "money is a curse". Mr Henley also records the plaintiff as having said that her daughter wanted to "break the plan" that had been set out in her husband's will and that she felt that as that plan had been developed together with her husband she wanted to honour it. She explained to Associate Professor Rosenfeld that she had made a new will recently with Mr Henley. 362At that point Mr Henley and Mr Cribb discussed various matters with the plaintiff concerning transfer of shares and other matters associated therewith. Associate Professor Rosenfeld, according to Mr Henley, took a "passive role" at this point. An explanation was then provided according to Mr Henley to the plaintiff about ways in which her shares might be transferred. This explanation was provided by Mr Cribb. Further discussion ensured between the plaintiff and Mr Henley in relation to a draft trust deed and that the new trust company would be called Jordasa (a combination of Jordan and Asa, being the defendant's children). He reassured the plaintiff that he would write into the deed that she would be entitled to all of the income for life however if she chose to provide any income to other beneficiaries she could request the trustees to direct income to others. At this point Associate Professor Rosenfeld and the plaintiff had a private discussion. 363Associate Professor Rosenfeld is a highly qualified consultant geriatrician and physician. He is attached to the Department of Geriatric Medicine at the Prince of Wales Hospital. Neither his qualifications nor expertise were challenged. In his report (CB1/300) Associate Professor Rosenfeld made comment that during the discussion he thought the plaintiff asked appropriate questions and responded in a manner which indicated her understanding of the issues. These issues were raised in respect of the explanation to her of the proposed trust which Associate Professor Rosenfeld observed. However in his report he stated as follows: 3.5 Mrs White indicated her concern that once she returned to her home she would continue to be pressured by her daughter Liz about her Will and her daughter's wish that she transfer the shares and control of the companies to her daughter. Mrs White indicated her intention that she wanted the shares and control of the company transferred to her granddaughter. 3.6 Mrs White indicated her concern that if she was to subsequently be pressured to make another Will that that Will would not go against her true intention to benefit her granddaughter. Mrs White explained that she wanted to ensure that her true intention to benefit her granddaughter would be sustained irrespective of any new Will she might subsequently undertake 3.7 Mrs White indicated that there would be a creation of a new trust and transfer of her shares in the family companies to that trust in order that she would be able if it was necessary for her to make a new will to satisfy her daughter's wishes (and she indicated a number of times that she thought this would be the case) that the shares and the control had already been transferred and that any new will could therefore not impact on her original intentions. 364Associate Professor Rosenfeld in my view then carefully touched on a number of issues and made some physical and other observations of her (CB1/302): Examination 3.21. On examination, Ms White was alert and attentive. Her effect was normal without indication of depression. There was no indication of the presence of delirium. She was insightful and able to indicate to me, with retained and normal insight, the reason for my attendance and the matters that had been discussed. She agreed that I would make notes and report of her view and my findings. 3.22. There were no obvious neurological abnormalities and on formal mini-mental state testing, she scored 29 out of 30. she was fully orientated for time and place, indicating the correct year, season, date, month and day. She was orientated for place, indicating correctly the state, city, suburb her current address and situation here at Montefiore. She was able to correctly indicate the floor and room number. 3.23. Ms White was able to register a number of items and was able to recall them all without hesitation after the distraction of a concentration task. She was able to perform serial sevens quickly and without any difficulty making one error in the final subtraction (between 72-63). Ms White was able to name a number of objects without evidence of nominal apahasia, copy a diagram, write a sentence ("today is a nice sunny day"). And draw a clock face without any difficulty, correctly indicating a time with the hands of the clock. She was able to recall items I had asked her previously even at the end of the examination and then later when I completed my interview. 365Associate Professor Rosenfeld formed the view that her cognitive status was normal without any impaired cognition. He said he was left in no doubt that she fulfilled the requirements for testamentary capacity of her will of 1 July. He was also of the view that she had capacity to have undertaken the appointment of her power of attorney and enduring guardian at the same time. 366In her affidavit in reply the plaintiff in relation to this visit said that she was not paying close attention to the discussion which was going on in the room between Associate Professor Rosenfeld and Mr Henley. She denies indicating to Associate Professor Rosenfeld that she had any concern about being pressured by her daughter when she returned home and denies that she indicated that she wanted the shares and control of the companies transferred to the defendant. Her idea in relation to the trust was to provide a means whereby the defendant could honour the plaintiff's wishes as she put it to "look after Liz after my death". She does recall the Jordasa Trust being mentioned but says she was not concerned about being pressured by Ms Stoliar. I reject the plaintiff's evidence in this regard. 367The meeting took place between her trusted solicitor, her trusted accountant and a highly qualified geriatrician. They were there for a number of purposes but one certainly was to assess her ability to understand what was being discussed. I am satisfied that Mr Henley's diary note is an accurate account of the matters that he and others raised. I am also satisfied that the plaintiff knew precisely what was being discussed and participated in the discussion. I am also satisfied that she told Associate Professor Rosenfeld that things he has recorded in his report especially those matters concerning her anxiety about pressure being exerted by her daughter. I am also satisfied that she participated in a discussion about the trust and was concerned to ensure that that was a mechanism that would assist the defendant obtaining control of the companies as both she and her husband had wanted at least since 2010. 368It was not put to Mr Henley that what he had recorded in his diary note, nor to Associate Professor Rosenfeld in relation to what he had recorded in his report, as to what the plaintiff had said either did not happen or was untrue. 369Some slight hint was raised in cross examination that somehow Associate Professor Rosenfeld's views were not independently formed. He was concerned to say in his evidence which I accept that he really did not understand the complicated legal issues that were being discussed. He reiterated in his evidence (T190/13-25) that the plaintiff made it clear at the meeting that she wanted to ensure that whatever would happen subsequently that her wishes at the time would be maintained. I accept his evidence as accurate and truthful. 370At another point in his evidence Associate Professor Rosenfeld said (T192/10-17): In that context I was sitting at the table with this very smart accountant and smart lawyer discussing this and I don't know I got it and clearly I didn't because Mr Henley corrected me and that is why I was reduced to just saying I made a point of it in my report that not only did I see to take the view - I took the view Mrs White understood it but I made the point that Mrs White was in fact at the table correcting the lawyer and the accountant in some of the affairs. and that made a very significant impression on me. She was not only calling them out but they were agreeing "Yes you're right". 371At this stage of course Mr Henley had not thought of the concept of a deed not to revoke. I am satisfied however the plaintiff made comments on this occasion which clearly portrayed in my view her intention and resolve in two important respects. The first is that I am satisfied that she told both Mr Henley and Associate Professor Rosenfeld that she was concerned that when she returned home she would be pressured and would likely succumb to the pressure from Ms Stoliar to make a new will. This of course was not the first time she expressed this fear. Secondly as a result she wanted to ensure by whichever mechanism (at this point a rather complex trust arrangement) that her true intention to benefit her granddaughter and in turn her children would be achieved notwithstanding a new will to the contrary. 372The plaintiff, with her husband in 2010 and she again in July 2013, faced the reality that her mentally ill daughter was not the future of the family. She also, however, believed with considerable justification that she would be unable to resist the inevitable badgering and the pressure from her daughter which she believed lay ahead. Ms Stoliar's illness to one side, the plaintiff clearly appreciated that her daughter was obsessed with material wealth. Hence the plaintiff's comment expressed on more than one occasion, "money is a curse". 373I am satisfied what the plaintiff wanted from at least 2010 (and that position never changed, up to and including 26 July) was to ensure her granddaughter would be in control upon her death and she wanted to preserve her intentions in that regard. 374It was clear that a further meeting would have to take place in order to discuss the way forward. That meeting took place on 19 July. There had been a plan to meet earlier but Mr Cribb was unavailable. 375Mr Henley expressed the view that he thought it advisable that the defendant obtained separate legal representation going forward and he recommended Ms Page of David Landa Stewart in an email to her and others on Monday 15 July (CB3/926). In the same email Mr Henley raised the question of purchase of a shelf company (Jordasa Pty Ltd) and to have the papers ready so that matters could be put in place on Friday 19 July. Mr Henley also asked the defendant to have the plaintiff contact him about the question of the trust "today" so that things could be put in train (CB3/927). There is no evidence of any conversation between the defendant and the plaintiff as suggested by Mr Henley. Nor did the plaintiff it seems make contact with Mr Henley. 376No doubt as a result of the discussions with the plaintiff on 12 July a new will would likely be necessary. It is not clear when (if at all) prior to 19 July it was raised. 377In any event a two and a quarter hour meeting did take place at Mr Henley's offices on 19 July. At the meeting were Mr Henley, the plaintiff, the defendant, Ms Christine Page (who by that stage had been retained by the defendant) and Mr Cribb. 378Mr Henley made a detailed diary note of the meeting (CB3/928-931). Again I accept Mr Henley's diary note as an accurate record of what occurred at that meeting. I should also say I accept his account of what he says occurred in his evidence at the meeting as both accurate and truthful (affidavit of Mr Henley at [102], [106]-[119]). 379Mr Henley both in his diary note and in his affidavit emphasises that the meeting was in two parts, the first in which he had a private discussion with the plaintiff and the second when, having clarified the plaintiff's intention in relation to her will, he invited the defendant, her solicitor Ms Page and Mr Cribb to join the meeting. That part of the meeting he thought took approximately one and a half hours. That sequence is not challenged. 380I accept that Mr Henley asked the plaintiff whether she had any objection to a discussion taking place in the defendant's presence and equally I am satisfied the plaintiff indicated she did not. Mr Henley asserts that there was a discussion led by Mr Cribb who explained the Jordasa Trust concept. I have no doubt this was discussed and is clearly identified as a topic from Mr Henley's handwritten notes and also the typescript notes of his conference. 381The note indicates that he had a private conversation with the plaintiff for the first 40 minutes of the two and a quarter hours. During that time he says in his affidavit that he noted some points on a white board (CB3/933) and discussed each of the items with her. The first column was headed "new will". The plaintiff had made it clear during the meeting, having discussed the matter with the defendant, that it did not make sense to have her private shares repose in her late husband's testamentary trust. Mr Henley asserts that she indicated to him that she would like the shares in L&E White Investments Pty Ltd and White Corporate Management Pty Ltd to go to the new testamentary trust. Mr Henley agreed with her that it was no longer necessary to have other trustees over and above the defendant. 382During the course of the discussion the plaintiff also made it clear to Mr Henley that in her view it was impossible for the defendant and her daughter to work together as managers but she wanted to ensure that the latter had enough money for her expenses. She raised the prospect of giving Ms Stoliar the balance of Serpentine Parade but it was said by the defendant, somewhat forcefully perhaps, that that would be a matter for the executors. 383During the course of this discussion however the plaintiff said that she also wanted the $1 million gift (in her 1 July will) to Ms Stoliar to be removed. Mr Henley says that he was surprised at this and he made a notation in his handwriting to that effect with a box around the notation (CB3/933). There is no doubt he did do this and I accept he did it contemporaneously with the plaintiff raising the issue. 384The plaintiff has some recollection of this meeting but she asserts that Mr Henley commented that he thought Ms Stoliar had too much and that she did not need the $1 million and she denies using any words to suggest that she wanted that gift removed. 385It was put to Mr Henley in cross examination that the reference to the removal of $1 million did not appear in his typescript of the meeting of 19 July but rather only in his handwritten notes. He agreed. The plaintiff's version of events was put to Mr Henley namely that it was not her suggestion that it should be removed but rather he made the comment that Ms Stoliar had too much (T156/31-45). He was tested further and asked whether he had a specific recollection of the plaintiff instructing him to remove the $1 million gift and he said that he did. He agreed that they may not have been precisely the words used but he recalled he was very surprised when it was put to him. Having heard and observed Mr Henley during his cross examination only fortifies my view that indeed the plaintiff did expressly instruct him to remove the $1 million gift. I consider her suggestion that her solicitor suggested it and in fact deliberately acted contrary to her instructions as not only fanciful but blatantly untrue and she knew it was. She told Mr Henley when she first raised the $1 million issue that "she can waste money". She clearly had reflected upon that and in my view thought that would likely be what Ms Stoliar would do and decided to remove the prospect of handing her $1 million in cash. 386Mr Henley asserts that then he gave the plaintiff a description and explanation of the proposed Jordasa Trust. He formed the view that she did not entirely understand the explanation he gave but was nonetheless clear in her instructions not to allow Ms Stoliar to get hold of the shares. 387There was no doubt a discussion, promoted I am satisfied by the plaintiff, as to how best to secure her daughter receiving the $170,000 per year from the White Family Trust. Mr Henley said that at the meeting he expressed the view that this could be secured only with the appointment of an independent appointor to ensure that the defendant made the payments. Mr Henley and others returned to this topic later in the second part of the meeting and the defendant had made it clear then that she did not want an independent appointor to the trust and that it was always the intention of her grandparents that she receive the assets of the trust. Mr Henley said he made the point at the meeting that it was also the intention of her grandparents that Ms Stoliar's financial security be assured. He thought from a litigation point of view it would be advisable to have an independent appointor. Ms Page, the defendant's solicitor also agreed but the matter was left for further discussion and I am satisfied further instructions if any. 388The plaintiff in her first affidavit at [25] suggested that Mr Henley was "dismissive" of suggestions that were made by her to the effect that Ms Stoliar's future financially should be secured. Mr Henley rejects this notion, indeed with some considerable justification. According to his diary note, which I accept, he was in fact making suggestions about the appointment of an independent appointor to secure the $170,000. This in my view is another example of the lengths to which the plaintiff was prepared to sacrifice her integrity in order to somehow misguidedly appease and support Ms Stoliar. 389Undoubtedly discussion also ensued about the White Family Trust. Mr Henley asserts that he raised the question for the plaintiff to consider at this meeting as to whether she could give her shares to the defendant immediately to secure her ability to control the White Family Trust and appoint an independent appointor for the duration of Ms Stoliar's life. Mr Henley says he told the plaintiff she could give her share in L & E White Family Holdings to the defendant "now" to secure her ability to control the White Family Trust. 390During the course of the discussion about the White Family Trust and the possibility of an independent appointor Mr Henley says that he raised for the first time, having just thought of the idea, a deed not to revoke the will. In his typed diary note he refers to a "contract not to change her will" (CB3/930). He then asserts that a discussion took place between himself and Ms Page about that possibility in the presence of the others. 391Ms Page confirms at [32] of her affidavit that Mr Henley raised in terms a notion of the deed not to revoke the will. He asked her whether she thought it would work and she recalls indicating she thought it probably would. The question of who would be a party to the deed was left outstanding. 392At [33], Ms Page recalls Mr Henley and the plaintiff having a conversation in which Mr Henley told the plaintiff that she could make another will but that she would not be able to change anything in her original will and it would be a cheaper option than the trust option and not as complex. She recalls the plaintiff as having said that that sounded good particularly as her original will would stand. Mr Henley, according to Ms Page, indicated that he needed to give it some further thought and asked the plaintiff's permission to discuss the matter with Ms Page. 393In cross examination it was put to Ms Page that the discussion about the deed was very much at the end of the meeting to which she agreed. It was also put to her that the plaintiff did not participate in that discussion. Ms Page rejected that. She asserted that the plaintiff asked questions, in particular she wanted to know if her original will would stand (T200/12-25). I accept Ms Page's evidence. 394On the other hand Mr Henley goes a step further and suggests that he said to the whole group that a trust would be impressed on the later will so that the beneficiaries of the earlier will receive what they should have received had there not been a later will. He also confirms that he made the statement that it would be a lot simpler and cheaper than the trust option. Mr Henley says he was instructed to prepare a draft deed for discussion. I also accept Mr Henley's evidence. 395The plaintiff on the other hand says she has no recollection of Mr Henley raising a deed not to revoke her will and she asserts that she never gained any understanding that such a deed was possible. She then asserts that had she been given a proper explanation of the effect of such a deed on 26 July she would never had signed it because she wanted to remain free to change her will at any time and this was important to her. She also denies Ms Page's version of the events of that meeting. 396I reject the plaintiff's evidence on this point. I am satisfied that the topic was raised both from the evidence of Mr Henley and his diary notes corroborated by Ms Page. The plaintiff's evidence that she would not have signed such a deed had she understood its effect is I regret to say false. I accept that she did want to have the ability to make a new will not because she wanted to change her true intentions but to avoid her having to have a confrontation with her daughter when she knew fully well that she would be pressured into making a new will and would succumb. The idea as explained of the deed would have relieved her I am satisfied of the pressure she knew she would be subjected to because she need not resist the making of another will as the deed would protect her come what may. In those circumstances I am satisfied she would be very interested to hear that such a mechanism was available to protect her true intentions and accordingly give instructions to ensure it was implemented. 397As a result of the meeting on 19 July in my view the plaintiff understood fully well that Mr Henley had suggested a mechanism that would (subject to further consideration as to the precise details) ensure that her intention that her granddaughter's control of the shares be protected when Ms Stoliar forced her as it were to make a new will. By the end of the meeting I am also satisfied partly due to the fact that she may not have entirely understood the explanation in relation to the trust she understood that a deed in principle could be prepared which was cheaper, less complex and protect her testamentary intentions in the event that the inevitable occurred. There is nothing that I have seen, apart from false denials on the plaintiff's part, to suggest that she did anything other than confirm expressly her clear instructions that her daughter not be placed in a position to control the family companies, by whatever means. 398I am also satisfied the plaintiff appreciated more than anyone else that her return home was imminent. She knew what would be waiting for her. She would be pestered, harassed and pressured by her daughter about her will to the point that she would have to do effectively whatever her daughter forced her to do. She was and had for a long time been seeking assistance and guidance from Mr Henley and the defendant as how best to confront and deal with this problem. I am satisfied she was most anxious that whatever occurred her true intentions would survive. 399I am also satisfied she wanted to provide for Ms Stoliar but she knew she had to make a judgment on whether she would trust the defendant or not in relation to the $170,000. That however was not a novel proposition. It had been discussed extensively in 2010 with her husband and Mr Henley, according to the file notes of the latter, and it is reasonable to infer she would have discussed it with Mr White outside of their appointments with Mr Henley. I am indeed satisfied that the plaintiff fully appreciated that this was only ever contained in a memorandum of wishes which was not legally binding and that for some years she fully understood that it would be up to the defendant whether or not the $170,000 per year was paid to her daughter. That position had not changed. She clearly had a change of heart about the $1 million. She was I infer concerned that Ms Stoliar would be profligate and likely just to waste it. 400Mr Henley in my view had clear instructions following the meeting to prepare a draft deed for discussion. On Monday 22 July he requested his assistant Ms Nicole Downes to prepare documents in accordance with his discussion with the plaintiff on 19 July (CB3/936). 401On the $170,000 Mr Henley said in his evidence that he had given a full explanation to the plaintiff and going back earlier with she and her husband. It had been discussed at the meeting of the 19th and he left the topic on the basis that if any instructions were to be given the plaintiff was to do so. Mr Henley also agreed in cross examination that the plaintiff at all times wanted her daughter to receive $170,000 from the trust (T141/25-27). He rejected the notion that he saw the plaintiff in his professional capacity as subjected to conflicting influences from both the defendant and Ms Stoliar. He stated that his perception was that throughout the history of the matter the influence was coming from Ms Stoliar (T144/6-8). 402He was further asked whether as a result of the meeting of the 19th there were outstanding issues. He rejected that notion in relation to the $1 million but accepted as I understood his evidence in principle that it was still outstanding that there might be a transfer of the plaintiff's share in White Family Holdings directly to the defendant. He accepted that there were issues needing resolution surrounding that topic. I am not entirely sure that is correct given his email of 22 July to Ms Downes. That email I think is somewhat contrary to that proposition. It reads: I need a new Will for Edith White based on the one that was done on 1 July 2013. The differences with this Will are: a) instead of having the shares in L&E White Investments and White Corporate Management passing to the testamentary trust of Leslie White, this will pass just to a testamentary trust that is created in this Will of Edith White. (The share in L&E White Family Holdings Pty Limited is still to pass to Judy); b) The $1 million gift to Liz is to be removed; c) The sole trustee of the TT is to be Judy not Judy, Ed and Gabi; and d) The appointor is to be Judy only. Do a deed poll in which she appoints Adam Wills (her husband) as substitute appointor. You will need to again do the memorandum of wishes and section 100 with the updated date 26 July 2013. 403In any event Mr Henley after further cross examination said other than the "share issue" there was no other issue that remained outstanding in his mind. He accepted however that the Jordasa Trust issue was not "bedded down". Although he said it was not a realistic option and he described it as a furphy, he did concede it had not been excluded (T158/15). He also accepted that the $170,000 payment remained open, by which I took him to mean he was awaiting instructions if any (T155/29-36). He did accept candidly that there was some uncertainty (T156/13-16). 404Mr Henley expressly rejected however that the topics that were discussed at the meeting on 19 July were in his view "stretching Edith's capacity to understand" (T159/39-49). He rejected that notion and I accept that he was of the view at the meeting that the plaintiff did understand all topics with the possible exception of the proposed loan arrangement. On the deed not to revoke the will Mr Henley conceded in cross examination that there was nothing "said" by the plaintiff which would suggest she understood the concept of a deed or contract not to revoke the will (T161/11-14). I am satisfied however that she did fully understand the explanation. In one sense it is unnecessary for the plaintiff to have understood the precise mechanism. Rather when the concept was floated she was clearly anxious to embrace any device or mechanism which could legitimately insulate her from her daughter's pressure in that regard. She was there to be advised and she obviously accepted in my view if there was such a mechanism it was what she wanted. 405On the $170,000 when again asked about it Mr Henley said that he understood the plaintiff's position was that she wanted to ensure that there would be sufficient funds for her daughter going forward and it was his suggestion that an independent appointor would secure that position. That issue was never taken up and he never received instructions to take it forward (T161/45-50). Mr Henley said that he did not perceive a difference of opinion between the defendant and the plaintiff on this. I accept his evidence. 406I infer that he proceeded on the basis that having given quite express advice on 19 July that as he put it in his evidence the best way to secure the result was for the appointment of an independent appointor, he was waiting to hear if there were any further instructions. I am satisfied the plaintiff understood the issue clearly and further understood the defendant would not agree to an independent appointor so she would have to trust her granddaughter or not. I do consider Mr Henley let the matter die, as was suggested. He simply had no instructions. The memorandum of wishes was a non binding document and he had on more than one occasion advised the plaintiff accordingly (T163/8-16). 407It was put to him explicitly that it was a clear conflict in the positions between the defendant and the plaintiff in relation to the appointor and that he resolved that matter in favour of the defendant by (deliberately I assume) never raising it again with the plaintiff. He rejected that notion. I reject such a criticism of him if that is what it was. In my view having expressly raised it, the matter having been the subject of discussion in the past and once again the defendant's position having been made clear at the meeting, it was entirely a matter for the plaintiff as to whether she was prepared to trust the defendant or to give instructions which could lead to the appointment of an independent person. 408My impression of the plaintiff, not from the untruthful answers she gave, but from the contemporaneous documents I have reviewed and evidence I have otherwise considered was such that I am in no doubt that as at 19 July and thereafter to the time that she signed her will and other documents on 26 July she trusted her granddaughter. After all she wanted her to be in control of the businesses and above all else she did not want her daughter to get her hands on the shares and to ruin or waste the estate which she and her late husband had built over many years. She was I am sure quite single minded about these things but she was acutely conscious of the fact that at the time to put her wishes as she hoped finally in place was running out. Mr Henley put it in his evidence which I am satisfied is a fair summary of the position at T170/21-26: I don't think the mechanisms of how protection of her will was to be achieved was relevant. What was relevant to her was that her intention be carried out, that this be her last will and her intention be carried forward. The mechanism of deed, trust, giving away her shares was irrelevant. It was all about making sure that her intentions to have the company shares passed to Judy or Judy's trust be carried out. That was fundamental. 409The plaintiff did not call Mr Cribb, and in the circumstances where all of the other attendees at the meetings of 12 and 19 July gave evidence, I was invited to draw an inference that Mr Cribb's evidence would not have assisted the plaintiff's case. I am satisfied that it is appropriate to draw such an inference and it fortifies my view that the plaintiff's evidence of those meetings should be rejected. 410Following the meeting on 19 July Mr Henley set up a meeting for Friday 26 July at 10am at his offices for the various documents including the will and the deed to be signed. This was the last day he thought it possible for the plaintiff to arrange her estate matters prior to returning home on 29 July. 411On 22 July at 10.31am the defendant emailed Mr Henley asking whether a meeting could take place at 9.30am on Friday of that week at the "Monte". Mr Henley responded promptly indicating that he could do it, but that it would be better held at his offices because he thought "she would be involved" and because it would be easier to find witnesses. He noted that the staff at the Montefiore were not permitted to be witnesses. He informed the defendant that he had not finally determined who would be the parties to the deed. 412Mr Henley received two phone calls from the defendant on 22 July. In the first she confirmed that she was against there being an independent appointor. Mr Henley recorded in his diary note of that conversation (CB3/938) that this was against his advice as it gave Ms Stoliar no financial security in relation to the White Family Trust. The defendant also indicated that she wanted the transfer of the share "now". 413However shortly thereafter she telephoned Mr Henley again and indicated that she in effect changed her mind and did not want to press for the immediate transfer. Mr Henley recorded as having noted that the defendant indicated to him that it would happen on the plaintiff's death at a time when a negotiated settlement could take place (CB3/939). 414As Mr Henley received no further instructions from the plaintiff concerning the share transfer and the appointment of an independent appointor for the White Family Trust he did not prepare a deed poll nominating a successor/appointor, nor did he take the issue concerning the $170,000 any further. 415On 23 and 25 July Mr Henley and Ms Page communicated with each other by email. He provided her with a draft deed not to revoke a will and a draft will on 23 July. 416Also on 23 July Mr Henley sent an email to Ms Page, the defendant and Mr Cribb and his assistant. He asked when the documents were in "final format" he would like the defendant to deliver copies to the plaintiff to read before the scheduled Friday 26 July meeting. 417On 25 July Ms Page communicated her comments in relation to the draft deed which she said she had discussed with the defendant. That email from Ms Page to Mr Henley was at 9.40am that morning. Mr Henley responded on 25 July at 12.52pm with a series of detailed comments on Ms Page's earlier email. Mr Henley made mention in that email of the fact that whilst he was considering Ms Page's email he had received a phone call from the defendant who was going through the draft documents with the plaintiff at that time. He refers to the opportunity he had to discuss some of the issues with both the plaintiff and the defendant. 418Mr Henley recalls a phone call from the plaintiff at around 10am on 25 July. He made a handwritten note of that conversation (CB3/963-964). As requested the defendant had taken the draft will and deed to the plaintiff and I accept she read them to her as she asserts (see affidavit of the defendant at [68]). I reject the evidence of the plaintiff that one or two pages were read to her by the defendant who then said "Look, it is all repetition, it's all the same". I also reject her evidence that she has no recollection of the defendant reading any part of the deed (see affidavit of the plaintiff at [54]-[55]). 419The defendant confirms that she was in the plaintiff's company on the morning of 25 July. The plaintiff however had some questions and asked the defendant whether she could call Mr Henley. Mr Henley's note indicates he spoke to both of them for about half an hour in total. 420The plaintiff told Mr Henley she wanted to go home but her daughter had said she could not go home unless she signed a new will in which she gave the shares to her. The plaintiff then suggested the preparation of a false will to fool her daughter as it were. Mr Henley said he advised against it as it could have adverse legal consequences. Mr Henley suggested that the plaintiff "present" the deed not to revoke the will to her daughter as a "fait accompli". The plaintiff rejected that idea saying although she had a legal right to live in the house, her daughter would not allow it. Mr Henley also recalls a discussion with the defendant who came on a "loudspeaker" about amendments to the deed recommended by her solicitor (CB3/964). The defendant said she needed more time to address these issues but that the plaintiff was anxious that any amendments be done quickly (affidavit of Mr Henley at [129]). 421The plaintiff does not deny the terms of the conversation Mr Henley alleges he had with her on the morning of 25 July. I am satisfied she had the conversation Mr Henley alleges took place with him. 422At about 1.30pm on 25 July the defendant and the plaintiff had a conversation. The plaintiff was distressed. The defendant has a file note of the conversation. It was a note she added to over the next few days (affidavit of the defendant at [70]-[72] and CB2/428). 423The plaintiff according to the defendant told her that Ms Stoliar and a friend of hers, a Ms Julie Slezak, were going to meet with the plaintiff on Friday morning to explain how Mr White had done the wrong thing in his will. The plaintiff also allegedly told the defendant that Ms Stoliar was going to get "Julie" to pressure her to go to another lawyer to rewrite the will having obtained a copy of the existing will from Mr Henley. The defendant also alleges the plaintiff was concerned about going home and that she had to see "Michael" before she went home otherwise she was fearful her daughter would not thereafter let her speak to Mr Henley. 424The defendant sets out in some detail no doubt in part with the benefit of the diary note the terms of further conversation at [72]. 425The plaintiff denies for the most part the defendant's version of events. Indeed she goes as far as to suggest in her affidavit in reply that it was the defendant who would suggest the plaintiff was unsafe in Ms Stoliar's company (affidavit of the plaintiff in reply at [59](d)(iii)). 426Again I regard the plaintiff's evidence as untruthful and I prefer the evidence of the defendant on this issue. She also has the distinct benefit of a contemporaneous diary note. 427However Mr Henley says the plaintiff telephoned him again at 5.10pm. He did not believe at the time it was her because the person had "a very shaky voice". He later however confirmed it was the plaintiff. In any event she said she wanted to cancel the meeting planned for the next morning with him. Mr Henley indicated he would call her in the morning. 428I consider it probable that it was Ms Stoliar who caused the plaintiff to be so distressed on 25 July. I have no doubt she threatened the plaintiff that if she did not change her will she would not let her go home and I reject Ms Stoliar's denials in that regard. 429Indeed a few days earlier the plaintiff had told Mr Vesely a very similar story. On that occasion she told Mr Vesely that unless "Liz got copies of Wills she would not let Edith go home". Again I have no doubt that Ms Stoliar did exactly that. Indeed I think she had become very used to pressuring her mother and equally very used to her mother giving in. Frankly her behaviour towards her mother has been nothing short of monstrous. She may of course have little insight into her behaviour but I regard her as a woman singularly focussed on achieving an outcome regardless of what physical and/or verbal pressure she feels the need to impose upon her frail elderly mother. Her denials in cross-examination that she never pressured either parent are in my view quite false. 430After he had spoken to the plaintiff Mr Henley rang the defendant. He told her of a "very strange" call from perhaps Ms Stoliar impersonating the plaintiff and he was instructed to send the plaintiff's will to the Serpentine Parade address. 431The defendant immediately rang to speak with the plaintiff and discovered her mother was at the Montefiore with her. One of the nurses managed to call the defendant back. The plaintiff said she was "ok" and asked the defendant to call back at 10pm to make sure Ms Stoliar had gone and she asked the defendant to ask Mr Henley if he could he see her earlier in the morning as she needed to be back by 9.30am as "Liz" was still coming to see the plaintiff with Julie Slezak. 432When the defendant rang back at 10pm the plaintiff was crying because Ms Stoliar had told the plaintiff she had changed the alarm code and if the plaintiff did not change her will and leave all her shares to her, she could "rot at the Montefiore Home" and she would not be coming home. The plaintiff said to the defendant amongst other things that "Liz" is "lonely like a dog" and "sick" and that it was the plaintiff's lot in life to look after her. 433The defendant has a diary note to that effect (CB2/430). 434The plaintiff again denies this evidence and for example says her daughter wanted to change the alarm code at home so the defendant could not visit. Again I regard this evidence as false. 435I am satisfied the defendant's version is both accurate and truthful. 436During the evening of 25 July the defendant sent Mr Henley a text message. It was for the purpose of rearranging the conference for the next day not at 10am but at 8.30am. Mr Henley agreed to the earlier time slot even though it was not convenient to him as he was concerned it would be the plaintiff's last opportunity for her to sort out her estate before she returned home the following Monday, 29 July. 437Early on the morning of 26 July the defendant picked her grandmother up from the Montefiore to take her to the appointment with Mr Henley. 438Mr Henley has the plaintiff and the defendant arriving at 8.30am. The defendant was cross examined at length about how long it took her drive into the city and get her grandmother up to Mr Henley's office. However I am satisfied that Mr Henley's time of 8.30am is accurate and that he spent the allotted time with them. 439Ms Page did not attend the meeting and says in her affidavit at [40] she would not have expected to attend the meeting as the plaintiff was Michael Henley's client. She was also comfortable that the defendant understood the nature of the transaction and she had understood further that the purpose of the meeting was merely to formalise the transaction. 440Mr Henley said that at the beginning of the meeting he asked whether the plaintiff had any objection to the defendant joining as she was also a party to the deed and the plaintiff indicated that she had none. Mr Henley recalls asking the plaintiff why she had rung yesterday afternoon to cancel the meeting to which she replied "to appease Liz who was badgering me not to sign this new will". 441Mr Henley then says in his affidavit at [138] that he commenced slowly reading out aloud and explaining the terms of the deed to the plaintiff. The point he makes which is obvious is that it is a short two page document but he says that he took time to ensure that she understood its effect (CB3/973-974). Again he has a diary note of the meeting (CB3/966-968). 442The plaintiff asserts that when she met Mr Henley on 26 July she was very depressed and still in mourning following the death of her husband. She also asserts that she was in pain from her hip operation and was receiving medication for it. I have already referred earlier to the note of Dr Solomon which provides a different picture of her health around this critical time. I reject the plaintiff's evidence on this matter. 443She asserts that Mr Henley and the defendant were making all the decisions for her and she did not want to object because she wanted simply to get it all over. Further she states that Mr Henley did not read aloud the terms of the deed not to revoke or the will she felt pressured to sign them as I understand her evidence otherwise simply did not understand them. I reject her evidence in that regard. Again I think it is untruthful. 444I am satisfied Mr Henley told the plaintiff that having explained the deed that it meant any will she later made would not be valid. I am also satisfied Mr Henley made it abundantly plain to her and that she understood that in signing the deed she could not alter the will she was about to sign in relation to gifts made to the defendant and her testamentary trusts without her consent nor could she dispose of her private company shares in her life time without her consent. I am also satisfied that the plaintiff said, as is recorded in Mr Henley's diary note (CB3/966) that she was certain Ms Stoliar would make her sign another will and she would find it hard to resist. I am equally satisfied that she said to Mr Henley that she wanted to make sure that the deed covered any situation where a later will was made so that the will she was about to sign would be her last. 445I am also satisfied Mr Henley discussed the potential amendments with the defendant at the meeting, and I am satisfied she indicated that although she had not had an opportunity to discuss the amendments she was satisfied that the deed would overbear any later will. As the result Mr Henley made some amendments to the deed. He then asked the plaintiff whether she was happy with the changes which were in fact a change to Schedule 2 and some minor amendments to Recital F by adding the phrase "another asset". I am also satisfied that the plaintiff understood his explanation and indicated that she was happy with the changes and simply reiterated that she wanted the document to protect any later will that she may be forced to make. I reject the plaintiff's evidence in so far as she purports to assert that she was given no explanation of either the deed or the will. 446I am again satisfied, as asserted by Mr Henley at [140], that the plaintiff asked that the process be expedited because she had to be back at the nursing home by 10am and she did not want her daughter to know that she had been gone. 447Mr Henley's notes suggest that there was discussion between himself, the defendant and the plaintiff about the possibility of a new power of attorney. I am satisfied that that conversation took place. Mr Henley then attended to the plaintiff's execution of the deed and expresses the opinion at [141] that in his view she understood the nature of the deed she signed. Having read the deed and having observed the plaintiff in the witness box I am equally satisfied that on the day she understood precisely what she was signing. She was I believe beside herself at the prospect of returning home and being forced to change her true testamentary intentions. This provided her in my view the very solution she was looking for and she readily understood the terms of this deed. 448Mr Henley then says he explained the terms of the will and told her again that the major change from the will she signed on 1 July was that the defendant alone was in control of her testamentary trust and not "Ed or Gabi". Mr Henley has in his diary note "she acknowledged that that's what she wants". I accept his diary note as an accurate indication of what the plaintiff told him. Mr Henley had the plaintiff sign the memorandum of wishes. The diary note again indicates that she signed the memorandum of wishes quickly because she was anxious about getting back to the Montefiore home. Mr Henley says he said goodbye to the plaintiff and the defendant on the way to the elevator. He said to the plaintiff that with the deed not to revoke the will she was in the best position to have her intentions as set out in that will carried out following her death. She then said that she would like to join her husband in heaven as soon as possible. 449When the plaintiff returned to the Montefiore on the morning of 26 July she was confronted by her daughter. A diary note prepared and sent to Dr Liber (CB6/1918) indicates that Ms Stoliar had spent four hours with her mother that morning and "was very angry and verbally aggressive". I have previously dealt with this event. 450The defendant points to the unexplained failure to call Ms Slezak to give evidence of what occurred when the plaintiff and the defendant returned to the Montefiore Home on 26 July. I was invited to draw an inference that Ms Slezak's evidence would not have assisted the plaintiff's case, and I am satisfied that is an appropriate inference to draw. 451I have no doubt Ms Stoliar upon the plaintiff's return home likely pressured and badgered the plaintiff into going to see the former's solicitor Mr Leon Ratner in Double Bay. She did and as a result on 5 August made a new will leaving her entire estate to her daughter, the very outcome the plaintiff had predicted. 452In relation to the failure of the plaintiff to call Mr Ratner, I was also invited by counsel for the defendant to draw an inference that Mr Ratner's evidence of the circumstances surrounding the signing of the 5 August will by the plaintiff would not have assisted the plaintiff's case. However, the 5 August will and circumstances surrounding its execution were not before me by way of any claim and in my view it is inappropriate to draw any inferences from the failure to call Mr Ratner. 453It is clear that the plaintiff did not want her daughter to see the deed not to revoke the will. The plaintiff agreed in cross examination that she did not tell her daughter that she had been to see Mr Henley and she also agreed that she did not want her to know that, and if she found out there would be problems (T59/5-13). Further she did not want her daughter to know that she had signed a new will or a deed and she thought she would be most upset if she found out about the deed in particular (T58/17-36). Her conduct in requesting that Mr Henley not send a copy to Mr Ratner not only confirms her knowledge of the deed but indicates it was something she understood reflected her true intentions. 454The plaintiff in cross examination could not recall whether she had left a message for Mr Henley on 6 August or whether the voice on the recording was hers (T63/16-T64/6). I am satisfied, having heard the voicemail and read Mr Henley's file note of their subsequent conversation in which he records that the plaintiff made the same request, that it was the plaintiff's voice on the recording and I reject her evidence to the contrary. 455Importantly in her evidence the following questions and answers were given (T59/22-30); Q: It was important to you to sign the deed and the will on the Friday because you thought that would be your last opportunity to sign those documents before returning home to Liz, Correct? A: Yes Q: That is true, isn't it? A: Yes 456If she did not fully appreciate the significance of what she signed and its effect, she would not have instructed Mr Henley not to send Mr Ratner a copy of the deed and the answers she gave and set out above would make no sense. 457In summary and at the risk of repetition, I am satisfied that prior to her meeting with Mr Henley in October 2010, the plaintiff formed a clear intention that her daughter not be placed in a position of management or control of the family companies. It is likely she formed that intention having discussed it with her husband, but I am equally satisfied it was an intention arrived at as a result of her own independent will and not influenced by the defendant for example. I am certain her intentions were formed as a result of the deterioration of her daughter's health and its effect on her and her husband. I am satisfied she and her husband had also clearly formed the intention they wanted the defendant to exercise control, and to that end they realised that control over the relevant shares was crucial in ensuring their true intentions were implemented. 458The plaintiff in 2010 and at all times thereafter faced the reality that her daughter would, especially if she knew what the plaintiff and her husband intended, force her to make a new will and that the plaintiff felt she would be unable to resist such pressure. 459I am satisfied that the plaintiff's intentions relevantly were not affected by her husband's death. She maintained them on 1 and 26 July I am satisfied partly out of a desire to honour her husband's wishes but predominantly if not entirely because she had quite rationally come to the view there was no other position available. I do not consider on 1 or for that matter 26 July she did anything other than remain true to her real intentions formed freely and independently. The Resolution of the Issues 460As has been noted above, the ability of the plaintiff to enter into a contract not to revoke her will was not under challenge in these proceedings, and therefore it is only necessary to resolve the issues of whether the deed should be set aside as a result of having been obtained by undue influence or under the Contracts Review Act. Undue Influence 461The plaintiff by her statement of claim seeks a declaration in respect of both the deed not to revoke the will and the will executed on 26 July on the basis that they were induced and procured by undue influence on the part of the defendant. Furthermore the plaintiff seeks an order that the deed is voidable for undue influence and be set aside. 462The plaintiff submits that one of the categories where the presumption of undue influence has been held to exist is in context of a relationship of trustee and beneficiary. Obviously the particular nature of the relationship is important from the point of view of whether or not a presumption will or will not arise as a matter of law. A relationship of confidence if it exists is an important underlying factor or characteristic. 463It is certainly true that the authorities tend to indicate that the categories of cases in which a relationship of undue influence may or may not be presumed to exist are not closed. However the presumption will only arise where one party has come to occupy or assume what is said to be a position of ascendency, power or dominion over the other. In particular it is the exercise of the dominion by reason of the position of trust and confidence reposed by one person in the other. The reason why it is important to focus upon this notion is that it has been said that equity does not tie itself down to any formal classes of relationship: Spong v Spong (1914) 18 CLR 544 at 551. 464The defendant submits that for example even where one of the traditional categories is encountered in the context of a parent and child, the parent is presumed to be in a position of undue influence over the child not the reverse: Brown v NSW Trustee and Guardian [2011] NSWSC 1203 at [46] per Brereton J. 465The defendant submits that the relationship between the plaintiff and the defendant does not fall within any of the established categories. It is submitted that the defendant was not the guardian of the plaintiff and that the appointment of an enduring guardian executed on 1 July had not taken effect as the plaintiff was "not in need of a guardian". The defendant also submits that the plaintiff was not totally or partially incapable of managing herself at the time she executed the deed. 466The plaintiff on the other hand submits that as the plaintiff was relevantly a trustee and the defendant a beneficiary, the relevant principles governing the presumption arise. 467In any event the plaintiff submits that following Mr White's death, she became dependent on the defendant by the latter being her principal carer (as is evidenced, it is submitted, by a number of medical records) and by the defendant's assumption of responsibility for managing her grandmother's shareholding in the White Family companies, paying bills and arranging credit cards consistent with the general power of attorney. 468Another aspect of the plaintiff's dependence on the defendant was whether or not unrestricted access was available to her great-grandchildren, Jordan and Asa. I should note that there was no evidence of any such restriction and, to the contrary, the defendant gave evidence that her grandmother "still has unrestricted access to my children" (T87/24). 469Further it is submitted that the defendant accepted that her grandmother trusted her, that their relationship was very close and that she stepped in and fulfilled the role of providing advice guidance and care that Ms Stoliar could not provide (T87/40). On this basis the plaintiff submits that there was a presumed relationship of undue influence at the time the deed was executed. 470Of course in the statement of claim there are a number of additional features of the relationship relied upon. 471First it is alleged that the defendant's position as donee of the general power of attorney gives rise to the presumption. But that relationship alone is not sufficient to give rise to the presumption, although it may well be a factor to be considered: Janson v Janson [2007] NSWSC 1344. In any event there is no evidence the power of attorney or the appointment of the plaintiff as enduring guardian has ever been used. 472It is also alleged that the defendant's position as one of three trustees of the testamentary trust under Mr White's will gives rise to the presumption. The plaintiff of course was one of the beneficiaries of that trust. It is pointed out by the defendant that she was one of three trustees, the other two being solicitors. The defendant's powers were limited, with Mr Vesely having the power to remove her at any time and she is unable to make any decision without the consent of both of the other trustees. It is further pointed out that the trust holds some shares in L&E White Investments Pty Limited and White Corporate Management Pty Limited, companies for which the plaintiff was a director. It was also put by the defendant that there is simply no evidence that by virtue of the shares held by the trustees of Mr White's testamentary trust, the defendant was in a position to exercise dominion over the plaintiff. I agree with that submission. 473As the defendant puts it, there needs to be a relationship where one party is seen or supposed to be in someway beholden, obliged or disadvantaged in relation to the other that such relationships are presumed or can be proved. Brereton J in Brown in my view correctly observed to establish the relationship of influence more than mere confidence and reciprocal influence is required. There has to be some notion or element of authority or superiority, whether it be moral or practical. 474The defendant submits that such a relationship did not exist here between the plaintiff and the defendant at the date of the execution of the deed. A number of matters are relied upon. 475First, the plaintiff was not suffering from any cognitive impairment or depression. I agree. These observations were made clearly by Associate Professor Rosenfeld as the result of his consultation on 12 July. There is no doubt whatever that the plaintiff was still in mourning and may well have been on anti-depressants. She does not appear however, given the report of Dr Solomon of 15 July, to have been suffering any or any significant pain on 26 July. As Associate Professor Rosenfeld pointed out at least on 12 July she was sufficiently composed and alert to be correcting her lawyer and accountant from time to time about the detail of her affairs. There is simply no evidence to suggest that she had impaired cognition on 26 July. 476Secondly the defendant submits that there is no suggestion that the plaintiff was financially dependent on her granddaughter. The plaintiff held bank accounts at the relevant time in excess of $2 million (CB4/1263-1265). The defendant also points out that on 19 June Mr Henley informed her that somewhere between $2.5 and $3 million in cash had passed into the plaintiff's sole name as the result of Mr White's death. The plaintiff had enough money to pay her own bills were she to choose to do so from her own bank accounts and she, not the defendant, was the signatory on those accounts. That submission is clearly correct. 477It must also be observed that the plaintiff clearly had access to a cheque book on 12 July because she insisted on paying Associate Professor Rosenfeld's account on the spot. When one reads the diary notes of Mr Henley it is plain that he had organised for Westpac to deliver not only credit cards but also a cheque book to the plaintiff at the Montefiore. Quite frankly, the mere fact that the defendant may from time to time have organised cheques to be signed by her grandmother is the fulfilment of an administrative function rather than being suggestive of the management of the plaintiff's shareholdings in the relevant companies or her affairs more generally. 478The defendant thirdly submits that the plaintiff was not relying upon the defendant to care for her. The defendant denied she had cared for her grandmother in the past (T88/26) and I think that she rightly points out there was little prospect that she would care for her in the near future. The plaintiff had not previously needed a carer and in any event was in full time care at the Montefiore at the relevant time. The plaintiff had by 26 July decided clearly to return home to live with Ms Stoliar and there was not the slightest suggestion that the defendant would have any role of carer following her return. 479The defendant fourthly submits that the plaintiff had indicated on more than one occasion that it was Ms Stoliar who was applying pressure to her and that she could not withstand it. As the defendant, in my view again rightly, points out this undoubtedly arose from the history of emotional and physical abuse which plainly occurred and may well be continuing given plaintiff's untenable position adopted in the witness box in the face of for example Mr Henley's detailed diary notes. Further as I have already observed there is not one contemporaneous reference prior to 26 July in any notes taken by any person (legal, accounting or medical) where the plaintiff complained she had been subjected to any form of pressure or indeed influence by the defendant. As the defendant pointed out in her own evidence, her grandparents had been her principal carers. The mere fact that there was a close, loving and indeed trusting relationship between the plaintiff and the defendant prior to the former's return home could not as a matter of rational analysis of itself give rise to any presumption. The mere fact for example that the defendant was managing the family companies to the point where she was supervising the remediation of concrete cancer in a block of investment home units does not either. 480Finally the defendant submits, again in my view correctly, that the plaintiff rejected the defendant's requests when it suited her. This occurred, it is submitted, on three occasions when the defendant asked the plaintiff not to resume living with Ms Stoliar. Indeed the defendant indicated that she would have done anything to stop her going back home, but that her grandmother would not listen. There is little doubt that the plaintiff had doubts and that from time to time flirted with the prospect of staying in care, and may have been more than mildly interested in moving in with the defendant. However Serpentine Parade had been her home with Mr White and I am of the view that she dismissed the suggestion not to go home because she felt an obligation to care for Ms Stoliar and, quite frankly, simply wanted to be in her own home. Her ability to make important decisions about her living arrangements that were contrary to the suggestions of the defendant is significant and in my view it does militate heavily against any notion of dominion in the relevant sense. 481The plaintiff of course makes the point that the relationship between herself and the defendant changed when she returned home to Serpentine Parade. The defendant conceded as much (T87/8). Counsel for the plaintiff submits that the only credible explanation for the decline in the relationship was that the making of the will on 5 August 2013 placed in jeopardy the arrangements set out in the deed not to revoke and the will on 26 July 2013. I am simply unable to accept that submission. It seems to me plain and obvious that the plaintiff predicted the very thing that happened, namely the making of the will on 5 August that left everything to Ms Stoliar. 482On one view of the evidence Ms Stoliar orchestrated that will by taking the plaintiff to her solicitor and indeed she made numerous demands upon the plaintiff prior to 26 July about making a will effectively in her favour otherwise dire consequences would follow. The plaintiff lives at Serpentine Parade and wants to maintain a peaceful existence. Indeed she needs to maintain a peaceful co-existence with Ms Stoliar. I have no doubt whatsoever that she feels that she cannot maintain any relationship with the defendant now because Ms Stoliar would not permit it and likely subject her to verbal and/or physical abuse. The plaintiff has been made to take sides in my view. I am not convinced that her current attitude towards the defendant has anything to do with her exercising any freedom of choice. She has I think been coerced into litigation which, given the plaintiff's age, could only be as a practical reality designed for Ms Stoliar's benefit, at least indirectly. 483It is my view given the state of the authorities and the facts I have found them in this case that this is not a relationship of a type in respect of which the presumption of undue influence exists. First I do not think it falls within one of the well-established categories, nor do I think it is truly analogous to any. More to the point I simply do not see the requisite dominion. 484However if I am wrong about that I will nonetheless consider other issues that arise assuming such a presumption does operate. 485The plaintiff submits correctly that where there is a presumed relationship of undue influence the onus passes to the donee to establish that the disposition was "the independent and well understood act of a man in a position to exercise free judgment based on information as full as that of the donee" per Dixon J in Johnson v Buttress. As the plaintiff points out the rule is founded upon public policy whereby a donee should be required to justify any benefit received. The presumption however can be rebutted. The question is whether it has been in this case, assuming of course the presumption arises in the first instance. 486The plaintiff points to a number of factors which she submits need to be considered in this context. 487It is submitted that the nature of the transaction is relevant and whether, for example, it could properly be characterised as improvident. If so characterised, it would certainly assist any person seeking to set aside a transaction on the basis that it was either not thoroughly comprehended or not an act of free will. The plaintiff also points to adequacy of consideration where it is submitted the principle is more stringent and absolute in the case of a gift than when there is a bargain or a contract. 488The plaintiff points to the presence or absence of independent advice as being relevant to the ability on the part of the relevant person to comprehend the transaction when entered into. In the same vein the plaintiff submits that although a person may be perfectly competent to understand and intend what he or she did equitable principles may be invoked to set any gift aside. The plaintiff submits that the question is not whether she knew what she was doing or proposed to do but how the intention was indeed produced. It is of course relevant but not decisive in that context whether the proposal emanates from the donee or the donor. 489The plaintiff also emphasises as relevant the characteristics of the donor such as intelligence, education and personality as relevant considerations. 490The defendant, upon the assumption that the presumption arises, does not really challenge any of these propositions as matters of principle and I accept them as correct. 491The plaintiff relies on a number of factors that it submits militate against the deed not to revoke in the will being the product of an independent and well understood act of the relevant person exercising free judgment. 492First it is submitted that the deed is an improvident transaction. The plaintiff submits that for an illusory consideration of $1 based on natural love and affection, the plaintiff agreed not to revoke the will she made on 26 July together with agreeing not to dispose of property set out in Schedule 2 in her lifetime without the consent of the defendant. Such consent was only given in relation to the assets in clause 4 of that schedule, and therefore it follows that by the deed the plaintiff has agreed not to deal in her lifetime with any of the shares held by her in the family companies. The plaintiff submits that the deed is equivalent to a gift effectively now to the defendant of that shareholding, such a gift to take effect on her death. The plaintiff also submits that the element of irrevocability in the deed points to improvidence. Furthermore, the circumstances surrounding entry into the deed are, it is submitted, clearly inconsistent with the exercise of an independent and well understood act. 493Next it is submitted that the deed and will and accompanying documents were introduced to the plaintiff on 25 July by the defendant, the primary beneficiary under the documents. 494Further the deed and accompanying documents were executed in some haste in the presence of the defendant who took an active role in the process of discussion and execution. It is submitted by that fact alone it cannot be said that the plaintiff's decision to execute the deed was independent and an exercise of free judgment. The plaintiff also points to commentary by the defendant during the meeting on 26 July to the effect that the deed would ensure that any later will were overborne by the deed, resulting in the deed being amended to impose a restraint on the plaintiff dealing with all of her assets and being executed by her in that final form. That occurrence is said to be inconsistent with the exercise of any free judgment. 495Next the plaintiff submits that the arrangements finally set out in the deed were not resolved until the "abbreviated" meeting on 26 July and therefore there must be real doubt as to whether the plaintiff thoroughly understood them at the time of execution. 496Further it is submitted that the plaintiff was precluded from exercising any free judgment on information as full as that of the defendant because she was not privy to the defendant's decision not to agree to an appointor to the White Family Trust and had not been advised by Mr Henley that as a result the income of $170,000 to Ms Stoliar from the family trust could not be secured after the plaintiff's death. It is submitted that had the plaintiff been informed of this, she might well have wished to reinstate the $1 million to Ms Stoliar that had appeared in her 1 July will. 497The plaintiff then raises the question of whether it can be truly said that Mr Henley gave her independent advice on the topic of whether or not she should or should not execute the deed or take any other course of action. It is therefore submitted that Mr Henley did not proffer truly independent advice. The precise nature of that submission is set out in the plaintiff's final written submissions at 30. First, the plaintiff suggests that Mr Henley did not advise her that the defendant would not agree to an independent appointor to the White Family Trust and that he could not secure the payment of $170,000 and that in light of that she may wish to consider the deletion of the $1 million legacy to Ms Stoliar. Second, Mr Henley could have suggested that she simply waited to see how things worked out when she returned home on 29 July. Third, Mr Henley should have advised her that if she signed the deed not to revoke her will and its existence became known to Ms Stoliar, then the making of another will in Ms Stoliar's favour would be likely to result in litigation between her and the defendant. I should note that the plaintiff did not assert there was a conflict between Mr Henley acting for the defendant as an executor of Mr White's estate and his acting for the plaintiff in relation to the deed. 498The plaintiff also submits that merely by reason of the fact that she understood the nature of the deed not to revoke the will, it is certainly not determinative of the matter. More important, the plaintiff submits, is how the intention was produced. The plaintiff submits that the genesis of the deed was the suggestion by the defendant that the plaintiff give her all the shares in the White Family companies during the plaintiff's lifetime. That suggestion then developed into a proposal by the defendant that the shares be transferred inter vivos to a new trust. Furthermore, the proposal for a new trust was then developed by Mr Henley and the defendant with the aid of her solicitor Ms Page. Ultimately that was transposed it is submitted into a deed not to revoke the will. 499Finally it is submitted that in coming to a view as to whether the donee has discharged the onus of justifying the transaction, the Court should have regard to the circumstances in life of the donor. It is submitted that the plaintiff was 89 years of age suffering from grief and depression following the death of her husband. Her circumstances were such that her ability to make a decision independently and in her best interest were compromised particularly having regard to her divided loyalty between the defendant and Ms Stoliar. It is therefore submitted that her execution of the deed should not be seen as an independent and well understood act of a person exercising freedom of choice. 500The defendant agrees that if the transaction, that is the execution of the deed, could be seen as improvident that would go towards establishing a presumption of undue influence. The defendant however submits that the question is whether the quantum or improvidence of the transaction is such that it cannot be explained on grounds of friendship, relationship, charity or other ordinary motives. 501The defendant puts that the deed was not improvident, as it did not result in the disposal of any of the plaintiff's assets or reduction of her income. In other words, it had no effect in reality on her financial position. I think that is correct. 502Instead of being regarded as an improvident transaction, the defendant submits the two obligations that the deed imposed on the plaintiff were in fact to her benefit. 503First, although the deed prevented the plaintiff from disposing of her shares in the family companies there is no suggestion in the evidence that she wished to sell those shares. Further the defendant submits that given the plaintiff did not own 100% of any of the companies it may well have been a difficult exercise in any event for her to sell the shares to outside interests. I add the valuation of those shares may prove difficult if not impossible. 504The defendant in my opinion rightly points out that there was a risk that the plaintiff would have been pressured to transfer those shares to Ms Stoliar once she returned to live with her daughter. The plaintiff had complained to the defendant that Ms Stoliar was demanding the transfer of the shares and, if she had done so, arguably the plaintiff would have lost the dividend streams from the shares. In this case given Ms Stoliar's likely motivation induced by either illness or greed or both it would be by no means clear that she would or indeed could look after her mother. 505Second, the deed prevented the plaintiff in effect from making a further will altering the gifts of shares and investments she had made in her will of 26 July. It was submitted that the evidence of the defendant, Mr Henley and Associate Professor Rosenfeld is that the plaintiff saw this as a substantial benefit. In my view she explained to each of them that she wanted to ensure that her true intention to benefit the defendant would be sustained irrespective of any will that she might subsequently make. Given the history they could not have thought she was telling them an untruth. She did this because she wanted to honour the 2010 arrangement with her husband to give control of the family companies to the defendant. She had also assessed, despite her denial to the contrary, that Ms Stoliar already had assets valued at approximately $9 million. One of those assets was given, so it seems, to Ms Stoliar in July 2010 namely the unit in Point Piper which had been acquired for $3.7 million. Clearly in my view, the intention of the plaintiff, along with her husband while he was still alive, that the defendant control the family companies was a longstanding one and in my view it remained so as at 26 July. 506The defendants submit, again in my view correctly, that the plaintiff well knew that Ms Stoliar would make her life intolerable and that she would be under pressure to change her will in favour of Ms Stoliar and would likely do so. Without Mr White by her side I am satisfied she did not feel she would have the strength to withstand the pressure. The plaintiff told both the defendant and Mr Henley not to speak of the deed until she was dead. She certainly did not want a copy of the deed given to Ms Stoliar and specifically instructed Mr Henley by voicemail and in the subsequent telephone conversation (CB3/1044) not to send the deed to her new solicitor Mr Ratner. The benefit to the plaintiff accruing from the deed was that even if she was pressured into making a new will her true intentions would be preserved as it were. In my view the plaintiff in truth saw that as a most substantial benefit. 507I consider the submissions of the defendant are correct, and in my view the deed should not be regarded as an improvident transaction. 508The defendant accepts that in order to rebut the presumption it must be proved that the gift was that of a person bearing the characteristics attributed to him or her by Dixon J in Johnson v Buttress. 509The defendant submits that the plaintiff's desire to enter into the deed was independent of outside influence. Further it is submitted that the desire to enter into the deed originated from at least two longstanding wishes she held. 510It is submitted, in my view correctly, that she had a longstanding wish to bequeath her assets to the defendant and her children. She expressed this wish in the 2010 meeting with Mr Henley, at which she expressed her concern at the way in which Ms Stoliar spent money without regard. That was clearly a view also held by Mr White who was appalled both at the imprudent investments made by Ms Stoliar in Queensland and the way in which she spent money whilst on holiday. 511I am satisfied that after Mr White died, the plaintiff told Mr Henley that she still wanted to give the family company shares to the defendant. I am also satisfied that she indicated to him that this honoured her husband's wishes and that she believed that the defendant could manage the companies better than anybody else. She repeated this, as the defendant points out, to Associate Professor Rosenfeld. Mr Henley was under no doubt that it was the plaintiff's longstanding intention to put the defendant in control of the plaintiff's shares and therefore the family companies. 512It is also obviously correct, as the defendants point out, that the plaintiff did not wish to, indeed could not, stand up to Ms Stoliar. It was clear that both she and her husband had formed the view that the documents they executed and put in place in 2010 should not be given to Ms Stoliar. Both parents knew exactly what Ms Stoliar would do if she read them, and they must have feared both physical and verbal abuse until she simply got her way. 513I am satisfied and indeed have no doubt that the plaintiff wanted to put in place, if it were possible, some mechanism which could insulate and protect her going forward when she regarded as inevitable that Ms Stoliar would apply pressure which she would find intolerable and irresistible such that she would simply do effectively whatever Ms Stoliar required in order to appease her. It was the plaintiff's idea at least on two occasions that a will in favour of Ms Stoliar be fabricated as a ruse in order to fool her. The plaintiff's plan was to keep the true position away from Ms Stoliar's eyes and then make a new will giving effect to her true intentions. I have no doubt that she told Associate Professor Rosenfeld the truth recorded in the paragraphs of his report at paragraphs [3.5], [3.6] and [3.9]. It is common ground that the defendant was not present either on 1 July when the plaintiff made that will, or 12 July when seen by Professor Rosenfeld, Mr Henley and Mr Cribb. 514More importantly when the plaintiff later met with Mr Henley, I am satisfied that she told him that she wanted to make sure that the deed covered any situation where a later will was made so that the will that she was then signing would be her last. That had been in fact her longstanding and abiding intention for some years and she could not have made her wishes and instructions in my view any clearer, and that is what she wanted her lawyers to achieve on her behalf. 515The plaintiff clearly did not want and was not capable of having a confrontation with Ms Stoliar. I dare say she had given up trying to rationalise the position with Ms Stoliar or even get her to compromise in some way. Ms Stoliar on the other hand, unless she got things entirely her own way, was intent either on her own or with the assistance of friends both of hers and her mother's to bully the plaintiff around to her way of thinking. 516Mr Henley had acted for the plaintiff and her husband for many years, since at least 2007. He never acted for the defendant other than in her position as one of three executors of Mr White's estate and I am satisfied that he was acutely aware of any possible conflict of interest. 517On 19 and 26 July he gave advice to the plaintiff on the effect of the deed. 518As I have found on 19 July in particular he explained to the plaintiff that the effect of the deed was that she could still make another will but would not be able to change anything in the original will. He also explained that the deed was a means of protecting the plaintiff's will should she submit to pressure by Ms Stoliar to change it later. 519I have found that on 26 July Mr Henley again explained the deed by reading it slowly out loud and satisfying himself that she understood the nature of it. He had had extensive experience in doing such things and making such assessments as to capacity but more relevantly had done so on numerous occasions in relation to the plaintiff. His judgment that she understood his explanation, although not determinative of the issue, should be accorded significant weight given the context. 520The exchange which I accept occurred between Mr Henley and the plaintiff makes it clear to me that the plaintiff appreciated that if she was forced to make another will when she went home the arrangement that she was then making would not be "upset". I have found that Mr Henley told her explicitly that she could not alter her will in relation to her gifts to the defendant and the trust and that he also told her that she could not dispose of her private company shares in her lifetime without the defendant's consent. I have found the plaintiff indicated that that is what she wanted and understood what she was doing and why. 521I have already referred to the fact that the plaintiff said that Mr Henley read the deed to her and explained her effect but she asserted that she did not understand what she was told. I have already rejected that evidence as being untruthful. 522As the defendant points out with some force, the plaintiff's instruction to both her and Mr Henley not to disclose the deed which was repeated after she signed her new will clearly demonstrated that the plaintiff well understood the effect of the deed and Ms Stoliar's inevitable reaction to it when she discovered it. 523The defendant submits, again I consider correctly, that the fact that defendant was present on 26 July when Mr Henley explains the position does not detract from the plaintiff bearing the characteristics Sir Owen Dixon referred to. In my view, the plaintiff had made her mind up before the 26 July meeting that she would enter such a deed because it would achieve exactly the outcome she sought. I am firmly of the view that the plaintiff appreciated at all relevant times but certainly on 26 July that to execute the deed would maintain and preserve her true intentions. It follows that her doing so should properly be seen as a voluntary act on her part. 524Insofar as there is some suggestion that Mr Henley did not or could not give independent advice to the plaintiff, I reject that. I think he was acutely aware of the very difficult situation he was called upon to deal with. He ensured that the defendant had her own legal representation in her capacity as a potential beneficiary and he ensured most importantly that he gave the plaintiff his full attention both at meetings conducted and in the preparation of documents on her behalf. 525Even if there was a tenable argument (which I reject) that Mr Henley was not independent, I am satisfied in any event that the plaintiff understood both the terms and effect of her will and the deed. They reflected and preserved her true intentions. 526I do not accept as the plaintiff has sought to submit there were unresolved issues, as at 26 July. Insofar as there were any alterations made to the deed on 26 July, I am satisfied they were fully and properly explained to the plaintiff. Not only was she capable of understanding them she did indeed understand them. I could not accept for a moment given the sensitivity of the situation that Mr Henley would have placed the plaintiff in any position through lack of time or care that such explanation as he gave was not adequate. In my view Mr Henley's entire focus was in protecting and preserving the plaintiff's true intentions and any purported criticism of him in my view is quite misplaced. 527Further I also consider to be misplaced any suggestion as was submitted that the plaintiff was not fully informed because she was unaware of the defendant's decision not to agree to an independent appointor. In my view the evidence discloses that the plaintiff was in fact fully aware of that position. At the meeting on 19 July the proposal of an independent appointor was expressly raised by Mr Henley. Initially he raised it in conference with the plaintiff alone, and later the topic was discussed in the presence of other persons. The plaintiff was fully aware that the defendant had rejected the proposal, and she again confirmed her rejection in a telephone conversation with Mr Henley on 22 July. 528The defendant submits, I consider correctly, that the existence of an independent appointor to the White Family Trust was not material to the decision to enter into the deed. The plaintiff's real concern was that Ms Stoliar had sufficient funds but she had accepted that the latter already had assets of at least $9 million, despite her later denials. Mr Henley was the person who floated the idea of an independent appointor as a litigation strategy in order to confront or address the question of the payment of the $170,000 to Ms Stoliar. As Mr Henley made the point in his evidence an independent appointor would not secure the payment. 529At all times, the plaintiff was aware that the wish that Ms Stoliar received the $170,000 a year from the White Family Trust was not binding on the trustee. This had been the subject of discussion as early as 2010 when she and Mr White met with Mr Henley on 14 October and were given advice to that effect. It is reasonable in the circumstances to infer that they must have discussed with each other, as husband and wife, his advice that the payment of the $170,000 to Ms Stoliar would be subject to the control of the defendant and would have to be a matter of trust. 530I am satisfied Mr Henley advised the plaintiff that any direction was not binding on the trustee. That issue was discussed again on 19 July with the plaintiff. I do not regard that as an unresolved issue but as Mr Henley himself surmised one upon which the plaintiff as far as he was concerned must have resolved the issue on the basis that she would simply trust the defendant to carry out her wishes. 531Again correctly in my view the defendant submits that there is simply no evidence that the plaintiff's decision to remove the gift of $1 million to Ms Stoliar in her 26 July will was influenced by the existence or otherwise of an independent appointor to the White Family Trust. The defendant correctly points out that the plaintiff does not say this. But more importantly, the defendant never once said that she did not intend to pay $170,000 yearly to Ms Stoliar. Nor was she asked about it in cross examination. I am satisfied, as I have already indicated, that after the 1 July will was executed the plaintiff on her own and without anybody influencing her had serious doubts about placing such a large sum of money as $1 million in Ms Stoliar's hands. She thought she was a profligate. She had no confidence that it would not slip through Ms Stoliar's fingers rapidly and wastefully. I have no doubt that she gave express instructions to Mr Henley to remove it from the will. 532Finally, as I have already noted, the plaintiff criticises the adequacy of Mr Henley's advice on two other grounds, namely that he should have advised her that she could have simply waited to see how things worked out when she returned home and that the execution of the deed would be likely to result in litigation. 533In the circumstances, the first criticism is in my view untenable. The plaintiff had on numerous occasions indicated that she would be under immense pressure from Ms Stoliar and would be unable to withstand it. If Mr Henley believed the plaintiff was telling the truth, there was no time to be wasted because her true intentions would almost certainly not be preserved if she did not execute the deed before returning home. This is especially so since she did in fact execute a new will and the reality that she was an elderly woman from whom Mr Henley had taken instructions for several years. 534The second criticism of Mr Henley is that the deed was bound to provoke litigation and that somehow he should have advised the plaintiff to avoid it. That is also an untenable suggestion. The evidence suggests that from at least 11 June, when she told Dr Liber that "she + mother are contesting will" (CB6/1912), Ms Stoliar was contemplating litigation and wanted to co-opt her mother. In addition, however, there was little doubt that had the plaintiff's will included anything unpalatable to Ms Stoliar, further litigation would have been inevitable. 535In any event, I do not accept that Mr Henley had any obligation to speculate whether or not litigation would have ensued in the event the deed was executed. The fact that he did not do so, in the circumstances, does not diminish in any way the quality of his advice. As he saw it, his obligation was to preserve his client's intentions and the deed was the most appropriate mechanism to do so, as opposed to the possibility of some negotiated settlement (assuming it could ever be achieved with Ms Stoliar). 536Therefore, for those reasons if a presumption of undue influence does arise, I am satisfied that the defendant has satisfied the onus of rebutting such a presumption. Suspicious Circumstances 537The plaintiff submits that because the case involves an inter vivos deed not to revoke a will it necessarily requires a consideration of both equitable and probate principles. The plaintiff submits that the deed not to revoke the will and the will are inexorably tied together. Put shortly, the plaintiff says the deed is only as good as the will and cannot operate in a vacuum. If the plaintiff did not know and approve of the contents of the will, the deed must necessarily be set aside. Equally, if the plaintiff knew and approved of the content of the will but did not understand the deed the will can only operate unfettered by the deed. The plaintiff calls in aid a number of authorities, most relevantly Tobin v Ezekiel which I have discussed above. 538It is submitted that in the present case the defendant was a person who relevantly played a part in the preparation of the will and took substantial benefit under it. It is submitted she was also involved in the preparation and execution of the will. It is also submitted she took substantial benefit under the deed as well. 539As outlined above, in my view I am not satisfied that the suspicious circumstances rule has any application in the current proceedings but I will nevertheless deal with assuming it does have such application. 540In any event, the effect of the doctrine is relatively narrow, operating to displace presumptions of fact in favour of those propounding a will. It is further submitted and correctly in my view by the defendant that there is a presumption that if a will is rational on its face and is proved to have been duly executed the testator was mentally competent. I also agree with the defendant that proof, or indeed in this case concession of testamentary capacity and due execution, carries with it a presumption of knowledge and approval of the contents of the will at the time of execution. 541It is also in my view correct as is submitted by the defendant that the suspicious circumstances does not apply at large and it is necessary to identify the presumption to which particular circumstances are said to be relevant. 542The defendant rightly points out that the court is here not being asked to grant probate or revoke probate of the 26 July will, but only whether the deed should be set aside for undue influence. As I have said already in my view I am more than satisfied that the plaintiff knew and approved of her 26 July will. 543However, the plaintiff points to a number of matters which are said to give rise to suspicious circumstances surrounding the preparation and execution by the plaintiff of her will on 26 July. First, the defendant was present when the content of the plaintiff's will was discussed on 19 July. Secondly, the defendant delivered the draft will and deed to the plaintiff at the nursing home, where she read the plaintiff asserts a couple of pages and had a cursory discussion with her concerning it and the deed. I have rejected this as a tenable finding of fact. In any event, thirdly it is submitted the defendant was involved in the execution of the will. She was sitting next to the plaintiff at the time the will was executed and engaged in discussion with her immediately prior to the execution of the deed and the will. 544As a result, the plaintiff submits the onus would pass to the defendant to establish that the plaintiff knew and approved the contents of the will and comprehended and appreciated the claims on her testamentary bounty. 545Many of the other submissions made by the plaintiff in relation to this aspect of the claim I have already disposed of. I reject any suggestion that she did not voluntarily give those instructions. I reject any suggestion that Mr Henley did not read the will aloud by giving an explanation of the terms of the will. I do not accept that an explanation of the defendant being in control of the White Family Trust in the absence of a reference to the exclusion of $1 million gift (fully intended by the plaintiff) would have confused her in any way about the $1 million gift remaining in the will. She simply could not have been confused because she expressly instructed that it be removed. It was on my view quite an independent act on her part. 546Having found the plaintiff's true intentions as I have, I have absolutely no doubt that she comprehended and appreciated the claims on her "bounty". The plaintiff repeats in this context her not knowing of the defendant's attitude to an independent appointor and matters of that sort. I have dealt with those matters. 547The plaintiff realised she was ninety years of age. She did not know how much longer she will live but knew what she wanted to achieve. 548I am satisfied that even if this matter gives rise to a so-called suspicious circumstances doctrine, the defendant has discharged the onus of establishing that the plaintiff knew and approved of the contents of her 26 July will and appreciated the claims on her testamentary bounty. Contracts Review Act 549In the alternative the plaintiff seeks a declaration that in the circumstances the deed is relevantly unjust in accordance with the provisions of the Contracts Review Act 1980 (NSW). 550The plaintiff fairly points out that the claim under the Act largely relies upon the matters pleaded in support of the claim that the deed be set aside for undue influence. 551The plaintiff submits that it is strongly arguable that the deed not to revoke the will is a voluntary settlement and hence should be seen as unenforceable in equity. The plaintiff did not submit that natural love and affection could not however be good consideration. 552The plaintiff submits that Mr Henley failed to advise the plaintiff there was a real risk that the deed would be unenforceable in equity as lacking consideration. Further it is submitted that it would be both unjust and against the public interest that the plaintiff be permitted to execute a deed by which she bound herself not to deal with the significant portion of her assets and agreed to make an irrevocable will where the deed is not supported by real consideration. 553The defendant makes a number of points, each in my view entirely valid. 554First it is submitted that there was no inequality of bargaining power in the relevant sense. I have already expressed the view that the plaintiff was not dependent on the defendant for financial support or financial care and indeed in my view was represented by an independent and highly experienced and competent solicitor. 555The next matter that the defendant points out is that the terms of the deed were negotiated between the respective lawyers for the parties. Further the terms of the deed did not unreasonably impose difficult terms on the plaintiff. Quite to the contrary, those terms were there to protect her very concerns about maintaining and ensuring her true intention. In the circumstances I think it is appropriate to describe Mr Henley as having provided independent legal advice on the terms of the deed which the plaintiff understood. I have already rejected any notion of undue influence so therefore that issue does not arise. 556In answer to the plaintiff's submission that the deed should be seen as a voluntary settlement and hence unenforceable in equity as lacking consideration, the defendant responds by submitting in my view correctly that concern does not give rise to a valid claim under the Act. 557Even if it were arguable that the deed is unenforceable such an argument would provide no basis for setting aside the deed. As the defendant points out, at its highest the plaintiff's submission is that there exists a possibility that the deed may not be enforced by an order of specific performance but I do not see how that translates into a valid claim under the Act. 558More importantly as the defendant contends the deed was proposed and indeed drafted by the plaintiff's own solicitor to address her abiding concerns about ensuring that the management of the family business went into the defendant's hands. It is a little difficult in those circumstances to suggest that the plaintiff was unable to protect her own interests when she had a highly competent solicitor devising the very mechanism which would do that. I agree with the defendant that the plaintiff quite consciously and deliberately entered the deed because she saw it as being of benefit to herself, not only in relation to Ms Stoliar's imminent onslaught which she regarded as inevitable, but for the very purpose of protecting her true intentions until her death. 559In all the circumstances I am unable to accept that the Act has any application to the current situation or that the plaintiff in any event is entitled to relief under it. Conclusion 560The plaintiff has therefore failed in her claim for a declaration that the deed not to revoke and the will itself were induced and procured by undue influence on the part of the defendant. She has also failed in her claim for a declaration that the deed is unjust within the meaning of the Act. Therefore I will refuse to make an order that the deed be set aside on either basis. 561I invite the parties to prepare short minutes to give effect to my reasons, and to relist the matter if necessary so that the question of costs may be determined. ********** 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: 22 August 2014