Supreme Court
Re Jones [2021] VSC 273 (17 May 2021)

IN THE SUPREME COURT OF VICTORIA

Re Jones [2021] VSC 273 (17 May 2021)

Last Updated: 19 May 2021

Link to this case on Austlii

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 14173

IN THE MATTER of the will of MARK STEPHEN JONES, deceased

APPLICATION BY: STATE TRUSTEES LIMITED (as the executor of the estate of MARK STEPHEN JONES, deceased)

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JUDGE:McMillan J

WHERE HELD:Melbourne

DATE OF HEARING:16 & 17 March 2021

DATE OF JUDGMENT:17 May 2021

CASE MAY BE CITED AS: Re Jones

MEDIUM NEUTRAL CITATION:[2021] VSC 273

PROBATE – Where plaintiff seeks to prove will in solemn form – Whether will duly executed – Whether deceased lacked testamentary capacity – Whether deceased knew and approved of the contents of the will – Where necessary to appoint a contradictor – Application dismissed – Wheatley v Edgar [2003] WASC 118; Burnside v Mulgrew [2007] NSWSC 550; Banks v Goodfellow (1870) LR 5 QB 549; Veall v Veall [2015] VSCA 60; (2015) 46 VR 123; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.

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APPEARANCES:

For the Plaintiff: 

Counsel: Mr T Mah

Solicitor: State Trustees Ltd

For the Contradictor:

Counsel: Mr P D Reynolds

Solicitor: Elvin Lawyers

HER HONOUR:

Introduction

1 Mark Stephen Jones (‘the deceased’) died on 6 February 2019, aged 61. The deceased was survived by his daughters, Melanie  Papps  (‘Melanie’) and Ebony Elise Franzi-Jones (‘Ebony’).[1] The deceased was never married.

2 The will purportedly made by the deceased on 5 November 2016 (‘the will’) named the ‘Victorian Government Solicitor’ as executor and bequeathed the deceased’s Chevrolet motor vehicle and ninety per cent of his residuary estate to Ebony and the balance of ten per cent of his estate to Melanie. According to the tenor of the will, State Trustees Limited (‘the plaintiff’) is deemed the executor of the will.

Plaintiff’s application

3 By originating motion filed 5 September 2019, the plaintiff sought a grant of probate of the will. As the plaintiff considered there was an issue as to whether the deceased had sufficient testamentary capacity at the time of the execution of the will and whether he knew and approved the contents of the will, the plaintiff sought leave to prove the will in solemn form.

4 By orders made on 28 October 2019, the plaintiff was at liberty to prove the will in solemn form. Both Ebony and Melanie were notified of the application. The plaintiff informed the Court that Melanie had spoken to a solicitor and was concerned as to the costs of the litigation. In the circumstances, the Court appointed a contradictor to represent the interests of Melanie.

Applicable principles

5 An executor has an absolute right to seek to prove a will in solemn form.[2] The practice of seeking proof in solemn form may be used where an executor has some reason to question the validity of a will and he or she desires the protection of a grant in solemn form. In order to make a grant in solemn form, the Court must be satisfied on the evidence adduced by the party propounding the will of the formal validity of the will and that the testator had the capacity to make the will at the relevant time, from which knowledge of and assent to its contents by the testator will be assumed.[3]

6 Where a will has on its face apparently been regularly executed, three rebuttable presumptions arise: first, that the will was regularly executed,[4] secondly, that the testator was competent,[5] and thirdly that the instrument was executed with the knowledge and approval of the testator.[6] The applicable principles concerning these three presumptions are well established.

Due execution

7 The proponent of a will bears the onus of proving due execution, including that the signature on the will is that of the testator.[7] There is a presumption of due execution towards a will that on its face appears regular and bears the signature of a testator and two witnesses.[8] As Mayo J said in Re Gramp:

After the script had been received in evidence, and the signatures of the deceased and two witnesses shown to be their own, the presumption omnia praesumuntur rite esse acta[9] came into operation. The signatures as such were, never, disputed. The burden of proof to show that the script was not duly executed undoubtedly passed to the defendants as soon as the fact of the genuineness of the signature became definite.[10]

8 However, where there is evidence contrary to such due execution, the presumption will not be applicable, as it will accordingly have been rebutted.[11]

9 Further, where a grant of probate is sought in solemn form, the propounder of a will must at a minimum adduce evidence as to due execution of the will.[12] As Heenan J observed in Wheatley v Edgar:

In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 and Pereira v Pereira [1901] UKLawRpAC 11; [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.[13]

Testamentary capacity

10 The classic formulation of the legal test for testamentary capacity was stated by Cockburn CJ (on behalf of the Court) in Banks v Goodfellow as follows:

It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[14]

11 The test has been restated in more modern language as being that to prove a testator had testamentary capacity, the Court must be satisfied that the testator:

(a) understood the effect of making a will;

(b) was aware of the general nature and value of the estate;

(c) was aware of those who would have a natural claim to the estate; and

(d) was able to evaluate and discriminate between such claims.[15]

The ‘necessary corollary’ is that the testator must not be detrimentally affected, in disposing of his or her property, by any mental illness or disorder.[16]

12 In Veall v Veall, Santamaria JA (with whom Beach and Kyrou JJA agreed) outlined the principles applicable to a determination of testamentary capacity as follows:

The onus is upon the propounder to establish testamentary capacity. Where a will is rational on its face and is proved to have been duly executed, it is presumed that the testator was mentally competent. That presumption is displaced where there are circumstances that raise a suspicion about the testator’s capacity. Where there is a doubt that the testator was of ‘sound and disposing mind’, ‘[t]hat 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’.[17]

13 Where suspicious circumstances are raised, the Court must exercise a ‘vigilant examination of the whole of the evidence which the parties place before the Court’.[18] That formulation has been approved and applied on many occasions up to the present.[19] The call for vigilance reflects the principle in Briginshaw v Briginshaw[20] that reasonable satisfaction depends on the nature and consequence of the facts to be proved.[21]

14 What will be sufficient to allay a suspicion will vary with the circumstances of the case. The graver the doubt, the greater the burden to dispel the doubt. In Wintle v Nye, Viscount Simonds said:

The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.[22]

Knowledge and approval

15 Knowing and approving the contents of the will means that the will needs to have reflected the testator’s testamentary intentions.[23] Testamentary capacity and knowledge and approval are separate and distinct concepts.[24] An assertion that a will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, which goes beyond testamentary capacity. It is the testator’s understanding that is decisive in determining whether he knew and approved the contents of his will. Even where the Court is satisfied that the testator could have understood his will and its effects, the Court must also be satisfied that the testator did, in fact, know and approve the contents of his will.[25]

16 In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ agreed) provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:

(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 document.

(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.

(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will.

(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.

(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.

(7) The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.[26]

17 More recently, in Tobin v Ezekiel, Meagher JA stated:

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…

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VicRp 75; [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.[27]

18 Circumstances of fraud may often give rise to the suspicion that the testator also did not know and approve the contents of his will.[28] In such cases, affirmatively satisfying the Court of knowledge and approval may also require the propounder to disprove fraud.[29]

The evidence

Family background

19 The deceased was the second youngest of six siblings, which included his brothers Paul Jones (‘Paul’) and John Jones (‘John’).

20 Melanie was born in 1988. She lived with the deceased and her mother in Mordialloc. The three of them then moved to Dereel, near Ballarat. Shortly after, the deceased’s relationship with Melanie’s mother ended. Melanie and her mother moved to Darwin and the deceased moved to the Frankston area. Subsequently Melanie and her mother moved to Beaumaris.

21 Paul was a policeman with the Victorian Police for 20 years. He retired on the grounds of ill health. In 1989, Paul moved from Melbourne to Queensland where he worked part time teaching people how to swim.

22 Paul kept in contact with the deceased and would get in touch with him when he visited Melbourne, which at that stage was every two or three years. Paul and the deceased would meet at their father’s place while their father was still alive. Paul recalled two occasions when the deceased brought Melanie with him. Melanie said that before the deceased became sick in 2014, she had only met Paul once at her grandfather’s funeral, and that after the deceased became sick she met Paul probably five times.

23 Ebony was born in 2003. The deceased called Ebony by the nickname ‘Bon’. Paul recalled seeing her while she was a young child growing up in the Frankston house in which the deceased lived at the time of his death. The deceased’s relationship with Ebony’s mother ended when Ebony was around 10 or 12. Ebony and her mother then moved somewhere towards Phillip Island.

24 Some years ago, Paul began a relationship with Meryl Brown (‘Meryl’) and they lived in Queensland. Meryl had family in Melbourne and she and Paul would visit on various birthdays and Christmases. They both retired from working about five years ago. In their retirement, they have visited Melbourne at least two or three times a year.

25 During their visits to Melbourne, Meryl met the deceased four or five times at his house. She has some contact with Ebony and met her about four times before the death of the deceased. She has only met Melanie once, which was at the deceased’s funeral, but has spoken to her on the telephone a few times.

October 2014 hospital admission and alleged forged will

26 On 21 October 2014, the deceased was admitted to Frankston Hospital. Initially, it was suspected that he had pancreatitis. On 22 October 2014, he was transferred to intensive care at the Alfred Hospital suffering from heart failure. He was intubated and put on an extracorporeal membrane oxygenation (ECMO) machine, which replaced the function of his heart and lungs. The deceased remained in a coma for around two weeks.

27 Melanie and her British partner at the time, Thomas (‘Thomas’), had planned to fly to London to live on 23 October 2014. Due to the deceased’s health, Melanie decided not to travel to London. She lived at the deceased’s property and spent time with him in hospital. Thomas flew to London.

28 Melanie said that while the deceased was in a coma, Paul asked her whether the deceased had a will. Melanie said she looked for a will where the deceased kept his important documents, but was unable to find one. Melanie told Paul this and he said it would be best if something was drawn up because if the money went to Ebony’s mother, it wouldn’t be for Ebony because her mother would be reckless with it. Melanie said she had agreed that it probably would not be a good thing if Ebony’s mother had access to the money left to Ebony. She said that Paul proposed that he could write a will and say that he and Meryl had done it with the deceased at another time when they were visiting, and suggested certain terms including that Ebony’s share be held on trust for her with two trustees.

29 Melanie gave further evidence that not long after, while the deceased was still in a coma, Paul showed her a copy of a signed will with the conditions they had discussed, providing for the trust for Ebony. Melanie said that the urgency was because they were worried that the deceased would pass away without a will and at that point it looked likely that he might pass away. Melanie accepted that she did not object to Paul forging the deceased’s signature.

30 Paul denied Melanie’s account, only agreeing that he had a discussion with Melanie about the deceased’s will at the time the deceased was in a coma. His evidence was that Melanie proposed they make a will for the deceased and said that she could sign the deceased’s signature. Paul said that he responded that they did not need to do that because if the deceased died without a will his estate would be split equally between Melanie and Ebony. Melanie denied Paul’s account.

31 Paul also gave evidence that while the deceased was in a coma, Melanie told him that she had received some bills for the deceased. Paul said not to worry about the bills, except for the electricity bill, and if she did not have the money for this, Paul would fix it up. Melanie denied that Paul offered to fix up any bills and stated that he would have had no reason to say that because while the deceased was in a coma, she set up disability support pension payments for the deceased, and with the assistance of a social worker set up Centrepay services which paid the gas, electricity and water bills out of each payment.

32 The deceased remained in intensive care until 21 November 2014, when he was transferred to the cardiac ward within the Alfred Hospital. On 27 November 2014, he was transferred back to Frankston Hospital, where he stayed for a couple of weeks. The deceased was then moved to the Golf Links Road Rehabilitation Centre in Frankston until he was discharged on 2 January 2015.

33 Paul said that he did not talk to the deceased about a will while he was in hospital after his October 2014 admission.

Post 2014 hospital admission

34 Around the time that the deceased returned home, his ‘on and off’ ex-partner Jess (‘Jess’) returned to live with him. Melanie felt uncomfortable living there and around 11 or 12 January 2015 she flew to England. Melanie kept in contact with the deceased and one of her friends regularly attended his house to check on him and take food to him.

35 In April 2015, Melanie’s friend sent her a photograph of the deceased showing that he had lost a lot of weight. Melanie decided to return home. Melanie and Thomas returned in May 2015 and they stayed with her older sister (by a different father). Jess was no longer living with the deceased at that time. The deceased was frail and weak and was unable to put on weight. One day, when he was short of breath and ill, he called an ambulance and was taken to hospital, where he was diagnosed with pancreatic insufficiency malabsorption syndrome. He was sent home and later admitted again.

36 Paul gave evidence that after the deceased returned home following his October 2014 hospital admission, at the first or next occasion he saw him, he asked the deceased whether he had a will. After the deceased indicated he did not Paul suggested he make one. Paul said he suggested that the deceased go to the ‘public trustees’ because a solicitor would charge more fees and that the deceased ‘just sort of agreed’ but was not saying ‘yes’ or ‘no’ to making a will. Paul said he believed that on two visits he spoke to the deceased about making a will, and that on the second occasion the matter was again left open. Paul also said that while he was having these conversations about the will, the deceased said that Ebony’s mother wanted him to leave everything to Ebony but he did not trust Ebony’s mother because she was going to get hold of the money and spend it all.

The deceased’s stroke

37 In mid-June 2015, the deceased was again admitted to Frankston Hospital. Melanie said that his doctors ceased giving him an anti-coagulant, and three days later, around 21 June 2015, the deceased suffered a major stroke. Melanie described the deceased’s condition when she saw him in the hospital as ‘awful’. She said his right side was ‘droopy’, he could not move his right arm or leg, he had no speech other than ‘yeah, nah’ and he was ‘just staring blankly’. Melanie was at the hospital with the deceased every day.

38 From the hospital, the deceased was taken to the Geriatric Evaluation and Management (GEM) facility in Mornington, where he remained very sick and frail and was fed by nasogastric tube. In consultation with the dietician, Melanie brought in food to help the deceased get his weight up, which he did, and the nasogastric tube was then removed.

39 At the same time, Melanie and Thomas prepared the deceased’s house for him, installing a concrete ramp, grab rails, a bedframe, a shower chair, and wheelchairs. Melanie and Thomas paid for most of these changes, with some assistance from the deceased. Earlier that year, Melanie was made a signatory to the deceased’s bank accounts.

40 Paul recalled visiting the deceased at either Frankston Hospital or the GEM facility in Mornington and seeing a sign on the wall opposite his bed suggesting that staff and visitors try to ask yes/no questions of him. Paul said that was designed to stop the deceased getting frustrated trying to speak and so having a conversation with the deceased was a ‘one-way conversation, in a way’.

Post 2015 hospital admission

41 The deceased was discharged from hospital care in September 2015. Melanie and Thomas lived with the deceased at his home. Neither Melanie nor Thomas were working as Melanie had assumed full time care of the deceased and Thomas did not have a working visa. Melanie said that the deceased was ‘really angry… and frustrated and he didn’t really have anyone else to take it out on’ other than her. Melanie only had the assistance of council workers who would come to the house twice a week.

42 Melanie said the deceased’s condition improved slightly, but he never regained his use of words. He would forget things, and would become frustrated — he ‘wasn’t the same person after that’. Melanie said she accompanied him to speech pathology sessions and did homework with him. She said communication with the deceased was ‘extremely difficult’ and the deceased could rarely articulate what he wanted. She said it was ‘the actual word finding he found difficult’ in both ‘speaking and writing’ and he would become frustrated and angry ‘when he couldn’t get it’.

43 In January 2016, Jess reappeared saying she had been kicked out of her parent’s house. Melanie said Jess told the deceased that she would care for him, that she loved him, and that she wanted to move back into his house. The deceased then kicked Melanie and Thomas out of the house so that Jess could move in.

44 Melanie and Thomas had nowhere to live. Melanie said that Thomas had it in his head that it was Melanie’s fault that they were in the situation they were in, and was very forceful in his view of what Melanie should and should not do. Melanie said that Thomas decided they should take money from deceased’s bank account. Melanie admitted she took around $10,000 from the deceased’s bank account. She said that they had planned to collect their things, but the deceased had thrown or given them away, including Thomas’s passport and birth certificate. Melanie did not see the deceased again until about March 2017.

Taking of instructions for the will

45 Paul said that the first time he saw the deceased after his stroke was in either May or August 2016 at the deceased’s home. On that occasion, the deceased produced a small brown paper bag on which there was some writing and the deceased’s signature although Paul said he did not take much notice of the writing. Paul said he took it to be the deceased’s will and said to him that it was ‘not good enough’ because it needed to be dated and witnessed. Paul could not remember what was written on the paper bag and he did not study it.

46 Paul then asked if the deceased wanted the ‘public trustees’ or solicitors to prepare the will but the deceased said ‘no’, so Paul asked if the deceased wanted him to do it and the deceased said ‘yeah’. Paul gave evidence that he then asked the deceased if he wanted a 50-50 split between Melanie and Ebony, to which the deceased responded ‘nah’. Paul said that the deceased may have also said ‘all to Bon’.

47 Paul said that the deceased then brought his bank book over to him, and pointed to it and said ‘fucking bitch’. Paul then asked whether Melanie had taken out some money that she shouldn’t have, to which the deceased responded ‘yeah, yeah’. Paul said he then told the deceased that if he left all his estate to Ebony then Melanie might contest the will and pointed out that Melanie had installed the ramp out the front of the house for him. Paul said that the deceased then wrote ‘$10,000’ on his note pad, and Paul asked ‘$10,000 to Mel?’ to which the deceased responded ‘yeah’. Paul then asked if he wanted to give the rest to Ebony and the deceased said ‘yeah, and the Chevy to Bon’. Paul gave evidence he said ‘leave it to me’ and then left the deceased’s house and returned to Glen Waverly, where he and Meryl were staying with Meryl’s sister.

48 Paul said that before he and Meryl went back to Queensland, he returned to the deceased’s house with Meryl to talk about the will. Paul raised the matter of the executor and the deceased said that he wanted ‘the trustees’ to be his executor, not Paul. Paul said that the trustee would need a solicitor and there would be expenses, to which the deceased shrugged his shoulders.

49 Paul said that he raised the deceased’s idea of leaving $10,000 to Melanie and that there may be a problem with that because if he had to sell his house to look after himself then Melanie might get $10,000 and Ebony might get nothing. Paul then suggested a percentage instead, and that the deceased said ‘yes’. Paul then took the deceased through a 50–50, 60–40, 70–30, 80–20, then 90–10 split Ebony to Melanie. Paul said the deceased said ‘no’ to each suggestion before 90–10, to which he said ‘yes, yes’. Paul described the deceased’s responses to his various suggestions as being ‘instamatic’ and that he moved onto the next percentage suggestion ‘straight away’. Paul told the deceased to leave it to him and he would get the will organised.

50 In cross-examination, Paul said that the evidence he gave in his affidavit sworn on 24 August 2019, that the deceased had showed him a brown paper bag with what appeared to be his will prior to the deceased having his stroke was incorrect. It was also put to Paul in cross-examination that his affidavit only referred to one meeting with the deceased, during which instructions were taken for his will, and did not mention that Meryl was present at that meeting. Paul replied that ‘somebody else wrote this for me, and I’ve just, as I said, signed it’. Paul conceded he did not take notes of the meeting, keep the note pad that the deceased wrote on or read the deceased’s instructions back to him.

51 Meryl gave evidence that she was present when Paul and the deceased spoke about the will. She dated this discussion about two months before the deceased signed the will, which was in November 2015. She said that after lunch they were sitting on the lounge and Paul asked the deceased if he had made his will, to which he replied that he had not, and Paul then offered to make one for him, and the deceased said ‘yep’ and nodded his head. Meryl gave evidence that she recalled a conversation about the deceased leaving Melanie $10,000 and that Paul told the deceased that if he had to sell his house then Melanie might get $10,000 and Ebony would not get anything. Meryl gave evidence that Paul then asked the deceased if he wanted to leave his estate to Melanie and Ebony 50–50, to which the deceased shook his head and said ‘nup, nup’. Meryl said that the deceased gave the same response for a 60-40 split down to but not including a 90–10 split, to which the deceased nodded his head and said ‘yeah, yeah’.

52 Meryl initially said that the conversation took half an hour, but later said that it would have only been a few minutes. Meryl did not recall whether she, Paul or the deceased took notes or whether the deceased’s instructions were read back to him.

Preparation of the will

53 Paul and Meryl returned to Queensland. Paul bought two blank wills. He dictated the will to Meryl, taking some wording directly from his father’s will. Meryl wrote out two copies by hand. Paul said Meryl accidently omitted a word in the second will, which she inserted using an inverted ‘V’. Meryl said she may have made a small error in writing out the wills, possibly writing a ‘B’ for a ‘D’ or a ‘D’ for a ‘B’.

Signing of the will

54 Paul and Meryl returned to Melbourne and on 5 November 2016 took the wills to the deceased. Paul said that he told the deceased he made two wills because he was, ‘frightened that one of them might disappear because of the earlier conversation [he] had with Melanie at the hospital’. Paul said he gave the deceased one of the wills and asked the deceased to read it through. He then asked, ‘Is that what you want?’ and the deceased said, ‘yes’. He then got the deceased to read through the other will, which he did. Paul asked, ‘that’s the same?’, to which the deceased said, ‘yes’.

55 Paul said that when the deceased got to the part taken from his father’s will (in particular the phrase ‘to give and bequeath’) he ‘screwed up his face’. Paul said, ‘that’s a bit of legal jargon… read through it… that’s what you’ve got to have, because that was in Dad’s will’. Paul said that the deceased ‘was happy with that’ and signed the will, after which Paul and Meryl signed it. Paul later gave evidence that he asked the deceased to initial the will with the alteration, which he did, and that was the first will the deceased signed. Paul said it was ‘just one word’ and that he had a specific recollection of asking the deceased to initial the alteration because ‘that’s what we used to do in the police force’. Paul and Meryl both said that the date on the will was put in on the day.

56 Paul did not read the will out to the deceased. Paul said that he did not explain to the deceased the meaning of the words ‘remainder’, ‘disposition’ and ‘residuary estate’ or what would happen to the deceased’s estate if one or both of his daughters pre-deceased him. Paul said that the deceased took a ‘couple of minutes’ to read the two wills. Paul said that by ‘the amount of time and everything else [it] was quite obvious that it was going in’ and that had ‘no hesitation’ that the deceased knew what he was reading and then signing. In cross-examination, Paul said that the deceased ‘certainly’ understood the full effect of the documents and denied that the deceased did not have the mental capacity to make a will and that the deceased lacked the ability to sign his will.

57 Paul said he left the will that had the alteration with the deceased, and that the deceased put this copy on his mantelpiece. Paul asked the deceased if it was alright for him to have the other will, and took it back with him to Queensland. He said that he made sure the will he brought home was the last one signed.

58 Meryl gave evidence that she and Paul returned to Melbourne two months later, took the wills to the deceased, and the deceased read both wills and signed them in their presence. When asked to elaborate, Meryl said, ‘he just read and when he got to the end, and he just said, “yes, yes” and nodded his head’. Meryl could not say how long he took to read it. She could not recall any conversation about the content of the will after the deceased finished reading it. Meryl did not take any notes, did not explain the meaning of the words ‘remainder’, testamentary’, ‘disposition’, or ‘residuary estate’ to the deceased and did not ask the deceased whether he understood what would happen if his daughters predeceased him. Meryl said the deceased did not read the will out loud or explain to her and Paul what his understanding of the will was after reading it. She said he ‘just read it’ and said, “yep. yep” and then they signed the wills. Meryl denied that she knew the deceased lacked the mental capacity to make a will and so she and Paul made a will for him themselves.

59 Meryl said that after the deceased signed the documents, the deceased’s copy was left on the coffee table. She said that Paul took a copy to bring home, as the deceased had indicated he wanted Paul to take a copy and if anything happened, that copy was to go to the trustees.

Paul’s alleged discussion with deceased in late 2016

60 In his oral evidence Paul said that after the will was made he had another conversation with the deceased when he was in ‘Mornington Rehab’ again. He said he could not remember where this conversation took place. It appears that it took place at a family meeting called by ‘members of the board’. From his evidence it may be inferred that both Melanie and John were to attend this meeting. Before the meeting took place, Paul said he asked the deceased whether he wanted to change his will. The deceased asked ‘why’. Paul said words to the effect that Melanie had been giving the deceased some drugs he has asked for and Paul thought that the deceased should not have put Melanie in that position. Shortly afterwards Paul was called into a meeting with unnamed persons and without John or Melanie in attendance. One member asked Paul if Melanie had a power of attorney for the deceased. Paul said that she did not, as he had offered that to him earlier when he spoke to him about a will. Paul said he then turned to the deceased and asked him if he had changed his mind or given a power of attorney to anyone. The deceased said ‘no’.

61 In regard to this evidence by Paul, his affidavit does not refer to a meeting in late December 2016, and in giving his evidence of his conversations with the deceased concerning a will, he did not ever refer to a discussion about a power of attorney.

62 Paul’s evidence also suggests that the family meeting was to include John and Melanie. No affidavit was filed by John in regard to the meeting. In respect of Melanie, in January 2016 she had been kicked out of the deceased’s house as a result of the return of Jess and did not see the deceased again until March 2017.

Paul and Meryl’s observations of the deceased’s condition after the stroke

63 Paul gave evidence that he noticed the impact of the stroke on the deceased’s speech. He said the deceased could not have a normal conversation and would sometimes use a notepad if he was stuck trying to say a word. Paul said that when the deceased wrote things down, a letter might be missing or back to front and it was ‘more like capital writing or, you know, single letter words, wasn’t all joined together’. He also said that sometimes the deceased would get stuck trying to say a word and then get frustrated and say ‘it doesn’t matter’. Paul gave some examples. He said that ‘sometimes [you had to] use leading questions to get the answer you’re looking for’. Paul agreed the deceased had difficulty expressing himself but said that he never found that the deceased had difficulty understanding what was said to him.

64 When asked whether the deceased read anything after his stroke, Paul said that he never saw him reading anything apart from the wills. However, he then gave examples of the deceased reading a menu at a fish and chip shop, and deciding what he wanted for lunch at Frankston Shopping Centre.

65 Meryl gave evidence that the deceased could communicate, but he could only use a few words and could not speak in a sentence. If he was asked a specific question he could answer ‘yes or no’. In cross-examination, Meryl agreed that the deceased had difficulty expressing himself, but disagreed that the deceased had difficulty comprehending what was said to him. Meryl never saw the deceased write anything except when he signed his will; nor did Meryl see the deceased read anything apart from the will.

Discovery of the will

66 Melanie separated from Thomas towards the end of 2016. In early 2017 her new boyfriend died in tragic circumstances. Around this time, Melanie had been talking to Ebony, who had seen the deceased, and she indicated that the deceased wanted to see Melanie. As a result, in March 2017 Melanie went to see the deceased. Melanie said he was not in a good condition, he was frail, thin and not well. Thereafter, Melanie saw the deceased regularly.

67 In July 2018, while Melanie was away for a couple of weeks, the deceased became stuck on his couch for two days where he was incontinent and lay in urine and faeces. He was admitted to Frankston Hospital for a number of weeks, and was then discharged to the GEM facility in Mornington.

68 During the deceased’s hospital admission, the deceased’s couch was removed and Melanie arranged for and bought a new lounge set. While she was steam cleaning a rug, she saw a document at eye level on the bookshelf, which she identified as the deceased’s will. She read the will, cried (presumably in response to the 90–10 split in Ebony’s favour) and called John, who came straight over and looked at it and spoke to Paul. No evidence was adduced from Paul about this. John was not called to give evidence. No evidence was adduced from Melanie about any further actions taken in relation to the will.

The two copies of the will

69 Paul and Meryl were taken to an electronic copy of the will provided by Paul to the plaintiff and which is the subject of the application for probate (‘Paul’s copy of the will’) and an electronic copy of the will in Melanie’s possession (‘Melanie’s copy of the will’). Both confirmed that the handwriting on each will, except for the signatures, was Meryl’s. Paul and Meryl identified the deceased’s signature on both copies of the will and said that they saw him sign the documents.

70 Paul was asked to find the alteration on Melanie’s copy of the will. He was unable to find it. When asked to point out the alteration referred to, Paul was unable to find it. Looking at Melanie’s copy of the will, he said, ‘I think that’s the same will as what I sent into the government trustees. I don’t think that’s the one that was left in his house’. Paul then acknowledged that the signatures on the two copies of the wills were different. Following an adjournment, Paul was again asked to identify the insertion in the two copies of the wills. He then said ‘all I can think is that somebody has interfered with the second will that you showed me’, in reference to Melanie’s copy of the will.

71 Meryl was taken to the word ‘debts’ in the fourth line from the bottom of the first page of Melanie’s copy of the will, and said that that was the small error she had made. Meryl was then taken to Paul’s copy of the will and acknowledged that the same mistake appeared, but said that she could have made the same mistake twice.

72 In cross-examination, Paul and Meryl were both taken to numerous identical features in both copies of the will. Although they were not cross-examined on the original documents, it was put to each of Paul and Meryl that one copy of the will was a photocopy of the other, which they both denied.

73 Melanie was then taken to her copy of the will. Melanie gave evidence that she did not believe the purported signature of the deceased on that document was the deceased’s post-stroke signature. Melanie was then taken to the execution page of Paul’s copy of the will and described the deceased’s purported signature as ‘a perfect example of my dad’s signature pre-stroke’. Melanie was also taken to the deceased’s purported signature on the previous page and said:

It’s — again, it’s not — post-stroke I don’t believe that my dad could have done that so neatly. I’ve never — I never saw him do that, I never saw him write anything post-stroke that was — you know, that was the same as pre-stroke’.

74 Melanie gave evidence that she was familiar with the deceased’s pre-stroke handwriting from seeing his handwriting through the course of her life. She also said that she was familiar with his signature. When taken to the deceased’s driver’s licence, she identified his pre-stroke signature. Melanie gave evidence that she gained familiarity with the deceased’s post-stroke handwriting through attending his speech pathology sessions and through his use of a notepad to communicate, and that she saw his handwriting every day when she was living with him. Melanie was also taken to a ‘communication book’, in which the deceased’s carers wrote notes to one another. On the first page of the document, next to an entry which stated ‘Shopping list for 2/11/18’, Melanie identified the deceased’s post-stroke signature.

75 Following the trial, the original versions of Paul’s and Melanie’s wills were delivered to the Court. An inspection of these documents established that all of the handwriting on Melanie’s copy of the will was written in wet ink. By contrast, on Paul’s copy of the will, only the printed names and signatures at the end of both pages and the day of the month ‘Fifth’ on the signature page were written in wet ink. The rest of the handwriting on Paul’s copy of the will is a photocopy of Melanie’s copy of the will.

Neuropsychological assessment

76 Dr Areti Plitas is an experienced clinical neuropsychologist. She saw the deceased for neuropsychological assessment on 18 January 2017 (18 months after his stroke, and 2 months after the date of the will) and produced a neuropsychological assessment report dated 20 February 2017. The purpose of the assessment was to assess the deceased’s cognition to devise cognitive strategies to assist with his treatment. The consultation was approximately three hours (with breaks) and involved a clinical interview and testing. Dr Plitas’ report and clinical notes were tendered in evidence.

77 Dr Plitas recalled that the deceased had difficulties with expression and word-finding, and would become frustrated because of those difficulties. Once provided with a pen and paper, the deceased was able to communicate by writing some words. Dr Plitas recorded that deceased was right-handed. She kept the paper on which the deceased wrote down his answers among her clinical notes. She said his writing was generally legible, but that there were sometimes words misspelt that she could not decipher. Dr Plitas also used closed questions, being yes/no type questions, which was helpful for the deceased. Dr Plitas said that she would employ certain strategies to assist with the deceased’s responses, including shortening information, pausing, and clarifying what she meant. She agreed that the deceased would likely have had a harder time understanding someone who did not use such strategies.

78 Dr Plitas’ report referred to speech pathology notes which ‘indicated expressive language dysfunction, severe apraxia of speech, limited verbal output other than automatic phrases, impaired naming and repetition, moderately to severely impaired receptive language skills, difficulty following two-stage and longer instructions and mild dysarthria.’ Dr Plitas clarified the meaning of the terms ‘apraxia of speech’ (difficulty with co-ordinating and producing speech), ‘dysarthria’ (difficulty producing speech), ‘receptive language skills’ (the ability to understand language), and ‘fluent expressive aphasia’ (difficulty producing language).

79 In her report, Dr Plitas wrote that the deceased was ‘able to comprehend task instructions and generated short phrases on occasion’. She observed that in a test looking at a person’s ability to perform movements in response to a verbal command, the deceased was able to understand what he was being asked to do, notwithstanding difficulty performing the movements.

80 However, Dr Plitas said that the deceased had difficulty understanding and comprehending questions during the sections of testing which involved more complex presentation of information. For example, he responded incorrectly to the question, ‘are bananas yellow?’. Dr Plitas said that might have been because he had said the wrong word, or because he could not understand the word ‘yellow’ or ‘bananas’ because they were not present in the room.

81 Dr Plitas was asked why the deceased could generate full sentences like ‘I haven’t got anyone’ or ‘I used to drink all the time. I was fucked in the head’. Dr Plitas said that phrases that are used repeatedly can come out more easily. She said swear words are referred to as ‘automatic speech’, similar to ‘thank you’. Dr Plitas said the deceased was unable to generate a short sentence without context.

82 Dr Plitas gave evidence that the deceased was able to respond to yes/no questions that involved automatised, contextual and familiar items, where ‘contextual’ items are things that are happening at the time, in context. But the deceased’s answers were not accurate when the questions involved complex syntax, that is, complex relations between ideas and actions (e.g. in response to the ‘are bananas yellow’ question). Dr Plitas said that there could be multiple reasons for such mistakes, including difficulties in understanding the word, understanding the structure of the words, holding the information in one’s head, and producing a response. In her notes, Dr Plitas’ wrote ‘yeah, married, divorced’ and she agreed that would have been a response to a direct yes/no question. As the deceased was never married or divorced, this was an example of an incorrect answer to a yes/no question.

83 Dr Plitas was taken to a written check box test, where the deceased had gotten two of five answers wrong. For ‘Does a rat look like a big mouse?’ the deceased had ticked ‘No’ and for ‘Which one do we cut with?’ the deceased had ticked ‘string’. Dr Plitas agreed that this many errors in this test were not due to an inability to say the words.

84 Referring to her finding that the deceased’s ‘auditory attention span and working memory were significantly below expectation and within the extremely low range’, Dr Plitas clarified that auditory attention span refers to information that one can hold in one’s head that is heard. She explained that, if information is greater than a person’s attentional store, that person will have difficulty following. Dr Plitas also found that the deceased’s information process speed was within the extremely low range.

85 Dr Plitas concluded her report by stating:

Mr Jones is considered to have a cognitive disability, most likely an acquired brain injury secondary to stroke, which has affected a number of cognitive domains, his daily functioning, and his ability to participate with therapy and engage with services. Given that the assessment was conducted approximately 18 months post stroke, it is likely that most natural recovery would now be complete and the apparent deficits will be permanent.

On that basis, Dr Plitas agreed that two months earlier, at the time of the execution of the will, cognitively the deceased was likely to have been in a similar situation, unless some other event had occurred.

86 Dr Plitas was taken to clause 3 of the will, which is the dispositive clause and which consists of one long sentence of 158 words. Dr Plitas agreed that the deceased would have likely had difficulty reading and understanding the sentence without some of the strategies she used when assessing the deceased. Dr Plitas agreed that the terms ‘remainder’, ‘discretion’, ‘testamentary’, ‘disposition’ and ‘residuary’ were ‘non-contextual’ terms, as she had defined it. She also agreed that the syntax — that is, the relationship between words and concepts — of clause 3 would be considered complex. On that basis, Dr Plitas agreed that, given that the deceased’s abilities in those areas were in the very low range, he would have had difficulty understanding clause 3 of the will.

87 Dr Plitas declined to give an opinion on whether the deceased could have understood the concept of a will, as she did not speak with him about a will. For the same reason, Dr Plitas declined to give an opinion on whether the deceased’s memory would have hindered his understanding of a will, or on whether his ability to comprehend instructions would have assisted him in understanding a will. Similarly, Dr Plitas would not comment on the deceased’s understanding of his financial assets, having not discussed them specifically with him. Dr Plitas also did not opine on whether the deceased could understand the concept of making provision for people or suggestions put to him as to how to divide his estate. Finally, Dr Plitas would not comment on whether the deceased could have read and comprehended his will; nor would she say whether he could have understood it if it were read aloud to him.

Discharge summary

88 The deceased’s discharge summary from Peninsula Health dated 7 February 2019 was tendered. It records his cause of death on 6 February 2019 as being from septic shock. The background section states, amongst other things, ‘Left MCA stroke 07/2015 – with Right sided weakness and expressive and receptive dysphasia’.

89 The discharge summary also includes entries from earlier admissions in October 2018 (for apathy, a pressure ulcer, malnutrition and neglect), March 2016 (for cardiomyopathy) and January 2016 (for alcohol abuse). The October 2018 entry relevantly includes a section headed ‘Speech Pathology’ completed by Claire Jasudasen, a speech pathologist at the Mornington Centre. Under the heading ‘expressive language dysfunction’ the entry records that the deceased presented with ‘chronic moderate-severe fluent expressive aphasia, moderate dysarthria, moderate-severe apraxia of speech and impaired cognition’ which was elaborate on as meaning that amongst other things the deceased:

has difficulty understanding what is said

has difficulty understanding what he reads

has difficulty saying or writing what he means

finding the right words to say

sometimes uses incorrect words or non-words

sometimes he says ‘yes’ when he means ‘no’, or ‘no’ when he means ‘yes’

90 The speech pathologist also rated the deceased’s ‘receptive language dysfunction’ as ‘moderate to severely impaired’, ‘dysarthria’ as ‘moderately impaired’ and ‘speech dyspraxia’ as ‘moderately impaired’ and identified ‘cognitive dysfunction’. The speech pathologist suggested strategies for effective communication including using simple language, verifying the deceased had understood the message, asking yes/no questions, providing the deceased with two options to choose between, allowing additional time to respond and writing key words to support his understanding.

Consideration

Due execution

91 The plaintiff, as propounder of the will, bears the onus of proving due execution, including proving that the signature on the will is that of the deceased. More so, as the plaintiff is seeking a grant of probate in solemn form, the plaintiff must at a minimum adduce evidence as to due execution of the will.

92 It is not in dispute that the will is duly executed on its face. The will is in regular form and bears on each page the signature of the deceased and sufficient attestation clauses signed by Paul and Meryl. Both Paul and Meryl gave evidence that they witnessed the deceased signing the will. The presumption of due execution operates strongly in such circumstances.[30]

93 However, the contradictor submits that the Court should not be satisfied that the alleged signing of the will ever occurred. Rather, the contradictor submits that Paul and Meryl made a will for the deceased and one of them forged his signature, knowing that he lacked the capacity to make a will or would die before he could make one. The contradictor submits that is the reason for their accounts being ‘so confused, inconsistent, and in certain respects probably false’.

94 The plaintiff submits that no expert handwriting evidence has been tendered to support this allegation, and that the only evidence of the deceased’s signature is that on his driver’s licence and the only evidence of the deceased’s handwriting is that contained in Dr Plitas’ clinical notes. The plaintiff further submits that Melanie’s evidence is the only evidence that supports the allegation that the signature contained in the communication book is that of the deceased and ‘given the dearth’ of evidence of the deceased’s handwriting, it is not possible for the Court to come to a conclusion in relation to the allegation.

95 It is trite that the Court should not make a finding of serious wrongdoing in the absence of comfortable satisfaction in accordance with the principles set out in Briginshaw.[31] However, it does not follow that in the absence of such evidence, the plaintiff’s case must succeed.[32] The plaintiff must still prove its case in accordance with the requisite principles.

96 Having regard to all of the evidence, there is evidence contrary to due execution, with the result that the presumption, even at its strongest operation, is rebutted.

97 It is convenient to begin with the two purported signatures of the deceased on each of Paul’s and Melanie’s copy of the will. Each signature reads ‘Mark Jones’ in angled cursive handwriting, with the ‘M’ and ‘J’ in upper case and the remainder in lower case. The ‘M’ is pointed. If compared with the deceased’s signature on his driver licence in isolation, there would be little or no reason to doubt the signature’s authenticity. On the contrary, to an untrained eye, the signatures appear to match, however, all of the evidence must be considered in determining the issues.

98 The deceased suffered a stroke in June 2016. One of the effects of the stroke was ‘right sided weakness’. The deceased was right handed.

99 Melanie’s evidence was that she did not believe that the purported signature of the deceased on the copy of the will in her possession was the deceased’s post-stroke signature. In respect of the purported signature of the deceased on Paul’s copy of the will, Melanie said she did not believe that the deceased could have done a signature ‘so neatly’ post-stroke. She said she never saw him write anything post-stroke that was the same as pre-stroke.

100 Melanie also identified the signature in the communication book next to the entry dated 2 November 2018 as the deceased’s post-stroke signature. That signature is unintelligible, but bears some semblance in form to the signature on the driver licence. It begins with a sharp ‘M’ shape which continues into a horizontal squiggle.

101 The plaintiff does not object to the admissibility of Melanie’s evidence. Melanie’s evidence about the deceased’s handwriting is admissible as she is in a better position than the Court, particularly in the absence of expert evidence, to make such an assessment because of her familiarity with the deceased’s handwriting and signature both before and after his stroke.[33] That Melanie will benefit if the plaintiff’s application does not succeed is not a matter which goes to the admissibility of her evidence, but is a matter which must be borne in mind in assessing its weight.[34]

102 Further, on Paul’s own evidence the deceased’s handwriting was ‘more like capital writing or, you know, single letter words, wasn’t all joined together’ and that ‘a letter might be missing or back to front’.

103 Significantly, undisputed examples of the deceased’s handwriting are included in Dr Plitas’ clinical notes from the assessment concluded two months after the purported signing of the will. There are over thirty words and numbers. The handwriting is in upright block script, in a mix of upper and lower case. Some words slope up or down. There are some crossed out letters and numbers, or letters or numbers which have been written over, indicating errors. While there is no example of the deceased’s signature, he did write out his name in block print and in upper case. The ‘M’ is rounded, as is the ‘A’ and ‘R’. The middle line in the ‘A’ and the top line in the ‘J’ are disconnected. The hook of the ‘J’ does not join to the next letter. Objectively, the deceased’s handwriting in the clinical notes looks markedly different to the signatures in the will.

104 Another relevant aspect of the evidence is the confusion over the two copies of the will. While Paul and Meryl were not cross-examined on the original documents, they were taken to numerous identities and it was put to each of them that one will was a photocopy of the other and both of them denied this. While the fact that Paul’s copy of the wills is a photocopy of Melanie’s copy of the will (except for the signatures) does not entail that Meryl must not have written out two wills by hand, it does cast doubt on the reliability and credibility of Paul and Meryl’s evidence. Added to this doubt is Paul’s allegation in cross-examination, against no one in particular, that the deceased’s signatures on Melanie’s copy of the will were forgeries.

105 Finally, there is Melanie’s evidence, denied by Paul, that in October 2014, while the deceased was in a coma, Paul proposed that he forge the deceased’s will and then a few days later showed Melanie a will containing the terms they had discussed, which appeared to have been signed by the deceased. The contradictor submits this is evidence that Paul had a tendency to forge the deceased’s will in circumstances where he believed that the deceased would be unable to make a valid will. The plaintiff does not object to the admission of this evidence but says that there was ‘simply no reason’ to motivate Paul to forge a will.

106 There are a number of factors that weigh in favour of Melanie’s account. First, Melanie’s account tends to inculpate her in acquiescing to forgery at the time. Secondly, Melanie’s account is plausible, as both Paul and Melanie had reason to be concerned about what would happen to Ebony’s share if the deceased’s died intestate. Thirdly, Paul’s account is inconsistent. He gave evidence that he told Melanie not to worry about the deceased’s will while he was in a coma because his estate would be split equally between his daughters, but suggested to the deceased that he make a will when he returned back home. This stated reason for not making a will while the deceased was in a coma remained valid after the coma. Lastly, Melanie gave a vivid, candid and coherent account of events by contrast to Paul’s account which was muddled, inconsistent and evasive, particularly as against Melanie’s evidence that the Centrepay payments meant there was no reason for her to raise the issue of bills, as alleged by Paul.

107 The plaintiff submits that it is ‘inherently implausible’ that Paul and Meryl would forge the deceased’s signature on the will. The plaintiff says Paul and Meryl were not particularly close to either Melanie or Ebony and had little contact with them, so there is no plausible reason why they would deliberately forge a will that favoured Ebony over Melanie. Further, the plaintiff submits that it is implausible that Paul would forge a will in 2014 (which included terms that Ebony’s share be held on trust in order to prevent her mother from spending her share) and yet not take the same measure in 2016. With respect to the first point, there may be a plausible reason about which evidence has not been adduced, such as a dispute over treatment of the deceased, but it is unnecessary for the contradictor to prove the motivation. As to the second point, it is also unnecessary for the contradictor to prove Paul’s motivation but explanations may exist, such as Ebony being under the custody of her brother rather than her mother by 2016, removing the risk that her mother may spend her share, which was acknowledged by Paul in his evidence.

108 On balance, the Court is satisfied that the presumption of due execution is rebutted. It is unnecessary to find affirmatively that there was a forgery in respect of the will or the alleged earlier forged will.

109 What evidence can the plaintiff then rely on to prove due execution? By the plaintiff’s own submission, there is a ‘dearth’ of evidence of the deceased’s handwriting. The only evidence adduced by the plaintiff is the oral evidence of Paul and Meryl, whose credibility and reliability has been diminished by their conflicting and confused evidence. Paul and Meryl are not solicitors, who regularly attest to the execution of wills. There are no contemporaneous file notes or other evidence.

110 In such circumstances, the Court cannot be satisfied that the plaintiff has proved that the signature on the will is that of the deceased and accordingly that the will was duly executed. As a result, it is not strictly necessary to consider whether the deceased had testamentary capacity or knew and approved of the contents of the will. However, for completeness, the issue of testamentary capacity will be considered on an assumption of due execution.

Testamentary capacity

111 The plaintiff bears the onus of establishing that the deceased had testamentary capacity at the time he executed the will.

112 As the will is rational on its face, under a notional assumption that due execution has been proved, it should be presumed that the testator had testamentary capacity. However, this presumption may be displaced where there are suspicious circumstances. In the Court’s opinion, at least the following circumstances give rise to a reasonable suspicion that the deceased did not have capacity at the time the will was executed.

113 First, and most significantly, the deceased suffered a stroke 18 months before the date of the will. While proof of a serious illness does not necessarily lead to a conclusion of want of testamentary capacity, there is medical evidence that the illness profoundly affected the testator’s mental facilities, including his working memory, attention span and his ability both to comprehend and articulate information.[35]

114 Secondly, Paul and Meryl, who gave evidence that they took the deceased’s will and witnessed it, are not solicitors and do not otherwise have experience in taking wills or assessing testamentary capacity.

115 Thirdly, although Melanie took money from the deceased’s bank account, the deceased’s will fails to account for the significant care and support that she provided to the deceased from his first hospitalisation until the events of December or January 2016.

116 Having regard to these circumstances, a heavy burden rests on the plaintiff to satisfy that the deceased had a sound mind, memory and understanding at the time of execution of the will.

117 The plaintiff submits that the deceased’s attempt to prepare a will on the brown paper bag demonstrates his ability to understand the concept of a will and prepare a document to dispose of his assets after his death.

118 The plaintiff further submits that the steps that Paul and Meryl took to prepare the will demonstrated that the deceased had the ability to give instructions and execute the will.

119 In particular, the plaintiff submits that the deceased’s response to Paul’s suggestion to give his estate to Ebony and Melanie 50–50 is important. Paul’s evidence was that the deceased showed Paul his bank book, pointed to it and said ‘fucking bitch’, responded ‘yeah’ when Paul asked if Melanie had taken money and then said ‘all to Bon’. The plaintiff says that the deceased’s awareness that Melanie had taken money without his permission is ‘crucial’. First, because it demonstrates the deceased’s awareness of his finances and that he had given Melanie authority to withdraw funds. Secondly, because it explains the deceased’s decision to prefer Ebony over Melanie in his will. The plaintiff also points to the deceased’s acceptance of Paul’s explanation that Melanie may challenge the will and the decision to leave her $10,000 as demonstrating his appreciation that he ought make some provision for her.

120 The plaintiff also points out that the deceased did not passively agree to Paul’s suggestions. The deceased said no to Paul being his executor and said he wanted ‘the trustees’. He also said no to the various divisions of the estate until saying ‘yes’ to the suggestion of a 90–10 division.

121 In respect of the signing of the will, the plaintiff says that Paul and Meryl gave consistent evidence that the deceased read the two wills and that the details of Paul’s evidence that the deceased ‘screwed his face up’ when reading the legal jargon lends credibility to his evidence. The plaintiff submits that as neither Paul nor Meryl are solicitors one would not expect them to understand or explain every word in a will. As to the will itself, the plaintiff notes that it simply does four things — appoints the Victorian State Government Trustee as executor, gives the Chevrolet to Ebony, gives 90 per cent to Ebony and gives 10 per cent to Melanie — and these are not difficult concepts which Paul and the deceased had previously discussed.

122 The plaintiff says that although Paul and Meryl are not professionals trained in assessing cognitive capability, the evidence of their observations and interactions with the deceased are still useful.

123 Turning to the medical evidence, the plaintiff says that the deceased was able to understand Dr Plitas’ instructions to him, was able to correctly provide responses to many of her questions and was able to communicate with her with the aid of pen and paper in legible and neat handwriting.

124 However, it is accepted that the deceased had a cognitive disability at the time of Dr Plitas’ assessment and his cognition was likely to have been impaired at the time of the instructions and execution of the will. Her evidence demonstrates that the deceased’s ability to comprehend non-contextual and complex information at the relevant times was very poor. Dr Plitas found the deceased’s working memory and attention span were below expectation. She said the deceased had difficulty with expression and understanding and comprehending more complex presentation of information. Dr Plitas’ evidence is consistent with the findings of the speech pathologist in 2018.

125 It is said in Craig Birtles’ and Richard Neal’s, Hutley’s Australian Wills Precedents that:

Where the solicitor is drafting a will and there is any possibility that the testator’s capacity might later be questioned, the solicitor should ask questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking instructions for a will must have the Banks v Goodfellow tests at the front of her or his mind.[36]

126 Paul and Meryl are not solicitors. For this reason they could not be expected to, and did not, consider the requirements in Banks v Goodfellow as they took the will. They did not ensure that a contemporaneous assessment of testamentary capacity was carried out by a medical or legal professional, or that such professionals assisted in preparation and execution of the will. Except for the asking of closed questions, there is little evidence that Paul and Meryl used any strategies to assist the deceased to understand the nature and effect of his will. Moreover, it is generally not desirable to ask closed questions requiring yes/no responses when taking instructions for a will. While there was little choice in the circumstances and in fact that strategy might have been recommended had the deceased had testamentary capacity, such an approach does hinder the consideration of whether he did in fact have testamentary capacity. It is also noted that there was evidence of the deceased providing the wrong answer to yes/no questions.

127 At the taking of instructions, neither Paul nor Meryl took notes. Neither did the deceased take notes. Paul and Meryl did not read out or explain the deceased’s instructions back to him. In response to Paul’s explanation of the role of an executor, the deceased merely shrugged his shoulders. His questions were ‘[i]nstamatic’ and Paul moved on from question to question ‘straight away’. The whole (of the second) conversation lasted less than half an hour. There was no evidence that the deceased was asked about the extent or nature of his property, or how his estate was to be distributed apart from there being a 90–10 split.

128 At the signing of the will, Paul and Meryl did not ask any questions of the deceased that would have elucidated whether he had testamentary capacity at the time. The deceased is said to have read through both wills in their entirety by himself, unassisted. Dr Plitas gave evidence that the deceased would have had great difficulty with this without some of the strategies she used when assessing the deceased. Paul said that the deceased took a ‘couple of minutes’ to read both documents. The deceased’s neuropsychological results suggest that it simply would have been impossible for him to digest the contents of the will in that amount of time. Paul and Meryl both acknowledged that they did not read the contents of the will out to the deceased. Nor did they explain any of the terms used in the will, including non-contextual, technical terms, like ‘remainder’ and ‘residuary estate’, which would need to be explained even to a lay person of ordinary mental acuity. They did not discuss the contents of the will with him afterwards.

129 Paul and Meryl did not explain to the deceased or ask him whether he understood what would happen to his estate if one or both of his daughters were to predecease him. They therefore did not ascertain whether the deceased understood an important aspect of his testamentary act and its effects. Given that the deceased’s attention was not specifically drawn to the matter, it may be inferred, in the light of his mental capacity, that he did not appreciate and understand it.

130 Further, the exclusion of persons naturally having a claim upon the estate is also relevant evidence in determining a challenge to competency.[37] Although the deceased bequeathed 10 per cent of his estate to Melanie by the will, this was a nominal amount and, in effect, can be considered exclusion. While Melanie did take money from the deceased’s account, it was in the context of her having been kicked out of his house, effectively leaving her homeless, after caring for him for a significant period of time. The deceased’s apparent failure to consider her circumstances coupled with medical evidence about the deceased’s low mood and apathy, suggests that the dispositions could be evidence of an ‘absence of capacity, not merely its prejudiced exercise’.[38]

131 For these reasons, the Court cannot be satisfied that the deceased had testamentary capacity at the time the instructions were given for the will and when the will was executed.

Knowledge and approval

132 As with testamentary capacity, the existence of suspicious circumstances displaces the presumption that the deceased knew and approved of the contents of the will.

133 The circumstances described at paragraphs [113] to [115] are relevantly suspicious. Additional relevant suspicious circumstances include Melanie’s evidence that Paul proposed to make a will for the deceased and forge his signature in November 2014, while the deceased was in a coma, and the difference between the signatures on the copies of the wills and the deceased’s post-stroke signature in the communication book and his post-stroke handwriting in general.

134 Again, a heavy burden rests on the plaintiff to remove the suspicion by proving affirmatively clear and satisfactory evidence that the deceased knew and approved the contents of the will.

135 As doubts about the deceased’s testamentary capacity cannot be dispelled by Paul and Meryl’s evidence, a fortiori doubts about the deceased’s knowledge and approval cannot be dispelled. However, even if the Court were satisfied the deceased had testamentary capacity, the Court must still be satisfied that the deceased did, in fact, know and approve the contents of the will.

136 The analysis set out at [123] to [130] above, as to the medical evidence and way in which the instructions and the will were taken, is relevant in this context. The allegation of forgery of the will is also significant and, as discussed, has not been disproved by the plaintiff.

137 In the absence of clear and satisfactory proof, the Court cannot be satisfied that the deceased knew and approved of the contents of the will.

Orders

138 The Court orders that the plaintiff’s application for a grant of probate of the deceased’s will dated 5 November 2016 in solemn form be dismissed.

Costs

139 Given the circumstances surrounding the creation of the deceased’s will, it was necessary that the plaintiff seek a grant of probate of the deceased’s will in solemn form. Pending the hearing and determination of that application, on 30 June 2020 orders were made providing the plaintiff with a limited grant of administration pendent lite for the purposes of selling the deceased’s real property, paying outstanding fees and minimising any further liabilities of the estate. Those orders provided that the costs of that application be costs in the administration of the estate of the deceased. In respect of the plaintiff’s costs of the solemn form application, such costs are also costs in the administration of the estate of the deceased.

140 In respect of the costs of the contradictor, the orders made on 28 October 2019 provide that the costs of the contradictor be paid from the estate of the deceased on an indemnity basis.

[1] The deceased also had a son, who was adopted out.

[2] Re Levy (deceased) [1953] VicLawRp 17; [1953] VLR 652, 657 (Sholl J).

[3] Barry v Butlin [1838] EngR 1056; (1838) 2 Moore PC 480; (1838) 12 ER 1089; Re Levy (deceased) (n 2) 665 (Sholl J); Wheatley v Edgar [2003] WASC 118, [20]-[24] (Heenan J).

[4] Re Unsworth (1974) 8 SASR 312, 320 (Bray CJ); Re the Will of Kimbell [1969] 1 NSWR 414, 416 (Helsham J); Re Gramp [1952] SASR 12, 26–7 (Mayo AJ).

[5] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283 (Dixon J); Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 188 [202] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]); Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 771 (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]).

[6] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570–2 (Issacs CJ); Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528 (Isaacs J).

[7] Burnside v Mulgrew [2007] NSWSC 550, [26] (Brereton J).

[8] West v Smith [2018] WASC 12, [58] (Martin J).

[9] Shorthand for the proposition that everything is presumed to have been done correctly.

[10] [1952] SASR 12, 26–7 (Mayo CJ) (citation added); see also Burnside v Mulgrew (n 7) [20]–[25] (Brereton J).

[11] Ibid.

[12] West v Smith (n 8) [58] (Martin J).

[13] Wheatley v Edgar (n 3) [24] (Cockburn CJ).

[14] Banks v Goodfellow (1870) LR 5 QB 549, 565.

[15] Grynberg v Muller [2001] NSWSC 532, [18] (Hamilton J), quoting Read v Carmody (New South Wales Court of Appeal, Powell JA, 23 July 1998) 2–3.

[16] Ibid.

[17] Veall v Veall (n 5) 188 [202] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]), quoting Tobin v Ezekiel (n 5) 771 (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]).

[18] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).

[19] Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284, 289–90 (Gleeson CJ); Tobin v Ezekiel (n 5) 772 [48] (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]); Veall v Veall (n 5) 178–9 [180]–[181] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]).

[20] [1938] HCA 34; (1938) 60 CLR 336.

[21] Tobin v Ezekiel (n 5) 772 [48] (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]); Veall v Veall (n 5) 178 [202] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]).

[22] [1959] 1 WLR 284, 291.

[23] Veall v Veall (n 5) 175–6 [173] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]).

[24] Ibid 175 [173] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]), quoting Hoff v Atherton [2005] WTLR 99, [62] (Chadwick LJ).

[25] Veall v Veall (n 5) 175–6 [173] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]).

[26] Bailey v Bailey (n 6) 570–2 (Isaacs J) (citations omitted).

[27] Tobin v Ezekiel (n 5) 771 [46]–[47] (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]).

[28] Ibid 772–3 [51] (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]); Veall v Veall (n 5) 195 [198] (Santamaria JA, Beach JA agreeing at [232], Kyrou JA agreeing at [233]).

[29] Tobin v Ezekiel (n 5) 773 [53] (Meagher JA, Basten JA agreeing at [1], Campbell JA agreeing at [19]).

[30] See, for example, Re McMahen [1954] VicLawRp 84; [1955] VLR 173; Smith v Smith (1985) 80 FLR 444; Re Bercovitz [1961] 2 All ER 481, affirmed in Re Bercovitz [1962] 1 All ER 552.

[31] Burnside v Mulgrew (n 7) [26] (Brereton J).

[32] Ibid [26]–[28]; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 167–8 (Barwick CJ, Kitto and Taylor JJ).

[33] Evidence Act 2008 (Vic) s 78; Lithgow City Council v Jackson (2011) 244 CLR 352, 370–1 [45] (French CJ, Heydon and Bell JJ); John D Heydon, Cross on Evidence (LexisNexis Butterworths, 12th ed, 2020) [29105]; Kheir v The Queen [2014] VSCA 200; (2014) 43 VR 308, 323 [65] (Maxwell P, Redlich and Beach JJA).

[34] Burnside v Mulgrew (n 7) [17] (Brereton J).

[35] Bailey v Bailey (n 6) 560 (Knox CJ and Starke J).

[36] (LexisNexis Butterworths, 9th ed, 2016) [1.14].

[37] Norris v Tuppen [1999] VSC 228, [338] (Ashley J).

[38] Ibid quoting Re Estate of Griffith; Easter v Griffith (Supreme Court of New South Wales, Santow J, 17 June 1994) 32.