Supreme Court New South Wales

• Medium Neutral Citation: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81
• Hearing dates: 21-25 September 2009, 19 & 20 November 2009, 9 December 2009
• Decision date: 01 March 2011
• Jurisdiction: Equity Division - Probate List
• Before: Brereton J

Decision

Plaintiffs' claim for revocation of grant of probate by reason of lack of testamentary capacity fails. Plaintiffs' claim for revocation of the grant of probate by reason of undue influence fails. Plaintiffs' claim for revocation of the grant of probate by reason of the testatrix not knowing and approving the content of the will fails. That provision for the Plaintiffs out of the testatrix's estate pursuant to the (NSW) Family Provision Act, 1982 fails.

• Catchwords: SUCCESSION - Wills and Estates - testatrix devises real property to defendant sons - plaintiff daughters contest capacity of testatrix at time of preparing and making will - legal onus on defendants to establish testatrix freely and capably executed will - evidential onus on plaintiffs to rebut presumption of capacity - at time of execution will was rational on its face - medical evidence and evidence of persons who observed testatrix at time of preparation and execution do not raise doubts as to capacity - held: testatrix was of sound mind, memory and understanding at time of executing will.; SUCCESSION - Wills and Estates - whether will procured by undue influence - burden of establishing undue influence falls on party impugning the will - necessity to establish will of the testatrix was overborne - circumstantial evidence - undue influence must be more probably than not the explanation for the will - burden of proof to the Briginshaw standard - undue influence said to be inferred from: change in former testamentary position of equality amongst four children of testatrix; involvement of defendant sons in execution of the will; testatrix's vulnerability to defendant son; failure and irregularities of legal protections surrounding preparation and execution of the will by a solicitor; and dishonesty of defendants in giving evidence to the court - held: most probable explanation of circumstantial evidence is not coercion of testatrix's will.; SUCCESSION - Wills and Estates - plaintiffs contend that notwithstanding failure to establish defence of undue influence there were sufficient circumstances of suspicion to cast onus on defendants to establish testatrix's knowledge and approval of will - proponent of will generally bears onus to establish testator knew and approved contents - knowledge and approval usually satisfied by proving testamentary capacity and due execution of will - suspicion of undue influence not a relevant suspicion in removing presumption of knowledge and approval - held: testatrix knew and approved the contents of the will.; SUCCESSION - Family Provision Claim - plaintiffs eligible persons as daughters of testatrix - whether testatrix made adequate provision for proper maintenance of plaintiffs - no provision made for plaintiffs under will - equality is not starting point for purposes of Family Provision legislation - essential question is whether testatrix failed in a moral duty to make proper and adequate provision for eligible persons for whom the community would expect provision to be made - defendant was dependent on testatrix and his father for accommodation - defendants in relatively worse financial positions than plaintiffs - held: in circumstances, neither plaintiff left with inadequate provision for their proper maintenance.
• Legislation Cited: (CTH) Family Law Act, s 79; (NSW) Family Provision Act 1982 s 9(2), s 24, s 27; (NSW) Succession Act 2006; (NSW) Succession Amendment (Family Provision) Act 2008; (NSW) Wills, Probate and Administration Act 1898, s 18A
• Cases Cited: Atter v Atkinson (1869) L.R. 1 P. &D. 665; Bailey v Bailey (1924) 34 CLR 558; Banks v Goodfellow (1870) L.R. 5 Q.B. 549; Bool v Bool [1941] St R Qd 26; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Boyse v Rossborough (1854) 43 ER 321; Buckley v Maddocks (1891) 12 LR (NSW) (Eq) 277; Bull v Fulton (1942) 66 CLR 295; Callaghan v Ryan (1880) LR 1 (NSW) 351; Churton v Christian (1988) 8 NSWLR 241; Craig v Lamoureux [1920] AC 349; Easter v Griffith, NSWCA, unreported, 7 June 1995; Gregson v Taylor [1917] P 256; Guardhouse v Blackburn (1866) LR 1 P&D 109; Hall v Hall (1868) LR 1 P&D 481; Kantor v Vosahlo [2004] VSCA 235; Nicholson v Knaggs [2009] VSC 64; Nock v Austin (1918) 25 CLR 519; Parfitt v Lawless (1872) LR 2 P&D 462; Public Trustee v Permanent Trustee Company Ltd; Estate of Rintoul [1999] NSWSC 722; Re Crooks (Estate); Ackerman v Brown NSWSC, Young J, 14 December 1994, unreported; Re Fenwick [1972] VR 646; Re Fulop (deceased) (1987) 8 NSWLR 679; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698; Ridge v Rowden, NSWSC, Santow J, 10 April 1996, unreported, BC9601342; Singer v Berghouse (No 2) (1994) 181 CLR 201; Stewart v McDougall (NSWSC, Young J, 19 November 1987); The Public Trustee v McKeon (1917) 17 SR (NSW) 157; Timbury v Coffee (1941) 66 CLR 277; Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136; Tyrrell v Painton (No.1) [1894] P 151; Vernon v Watson; Estate Clarice Quigley [2002] NSWSC 600; Vigolo v Bostin [2005] HCA 11, (2005) 221 CLR 191; Walker v Walker, Unreported, NSWSC 17 May 1996; Watson v Kerridge (1888) 9 LR (NSW) Eq 35; Williams, formerly Cook v Goude and Bennett (1828) 1 Hag Ecc 577; Wingrove v Wingrove (1886) LR 11 PD 81; Winter v Crichton (1991) 23 NSWLR 116; Woodley-Page v Simmons (1987) 217 ALR 25; Worth v Clasohm (1952) 86 CLR 439
• Category: Principal judgment
• Parties: Evelyn Tobin (first plaintiff); Clara Ezekiel (second plaintiff); Morris Ezekiel (first defendant); Albert Ezekiel (second defendant)
• Representation: Counsel: Mr J Gormly SC (plaintiffs); Mr T Hale SC w Mr J Tobin (defendants); Solicitors: T D Kelly & Co (plaintiffs); McLachlan Chilton (defendants)
• File Number(s): 2006/275504

Judgment

1 HIS HONOUR : Lily Ezekiel died aged 81 on 2 November 2005 on 19 July 2000, predeceased on 19 July 2000 by her husband Abraham Ezekiel, aged 85, and survived by their four children, in order of seniority Clara, Albert, Morris and Evelyn. Probate in common form of Lily's will dated 10 December 1997 ("the Will") was granted on 3 February 2006 to the defendants - the two sons Morris Ezekiel and Albert Ezekiel - and the only significant asset in her estate, namely the family home at Beach Road, Bondi Beach, to which Lily had succeeded by survivorship upon Abraham's death, has since been transmitted, in accordance with the terms of the Will, to the sons, who now hold it as tenants in common in equal shares. The plaintiffs - the two daughters Evelyn Tobin and Clara Ezekiel - claim revocation of the grant of probate of the Will.

2 The daughters relevantly plead: (1) that Lily did not have testamentary capacity at the time of preparation and execution of the Will; (2) that Lily executed the Will as a consequence of undue influence exerted upon her by Albert Ezekiel; and (3) alternatively, that the Will makes inadequate provision for their proper maintenance and advancement in life. They claim: (1) a declaration that the Will is invalid; (2) revocation of the grant of Probate; (3) setting aside of the transmission of title of Beach Road to the sons; (4) a declaration (pursuant to (NSW) Wills, Probate and Administration Act 1898 , s 18A), that a purported earlier will of Lily apparently dated 28 September 1977 ("the 1977 Will") embodies her testamentary intentions and constitutes her last will; (5) alternatively, a grant of administration of her intestate estate; and (6) further alternatively, provision out of Lily's estate under (NSW) Family Provision Act 1982 ("the FPA"). The sons relevantly: (1) deny that Lily lacked testamentary capacity at the relevant time; (2) deny that Lily executed the Will as a consequence of undue influence exerted upon her; and (3) deny that the Will leaves the daughters with inadequate provision for their proper maintenance and advancement in life, and accordingly deny that they are entitled to an order for provision out of Lily's estate.

3 The main issues are:

(1) Did Lily have testamentary capacity? I conclude that she did;

(2) Was the will procured by undue influence? I conclude that undue influence has not been proved;

(3) Did Lily know and approve the contents of the will? I conclude that she did;

(4) Did the purported will of 1977 embody Lily's testamentary intentions so as to be a valid informal will under s 18A? In the light of the resolution of the previous issues, this does not arise; and

(5) Ought provision be made, pursuant to the FPA, for the daughters out of Lily's estate? I conclude that no order for provision should be made.

Background

4 Lily and Abraham, who were both of Jewish (Sephardic) ethnicity, were born, and grew up, in India, where they married on 4 April 1944. In India, the family was relatively well-off. Abraham was involved in 'cotton figures', a business that involved betting, and also had interests in racehorses.

5 From about 1963, the children began to emigrate from India. First, Clara moved to England in 1963, where she worked as a secretary. Then, in 1964, Albert moved to Australia, and in 1965, Morris followed him. Also in 1965, Lily and Abraham decided to follow Albert and Morris to Australia, and brought Evelyn with them. Clara joined them in Australia later, in December 1967.

6 In Australia, Abraham worked as a bookmaker and in a watch-selling business, interests which the sons shared. Lily was never engaged in remunerative employment.

7 In October 1965, Abraham and Lil y purchased the Beach Road property, as joint tenants, for a price of 8,800, which was provided by a 4,000 mortgage advance from the Commonwealth Bank, 1,000 from the children's grandfather, 500 from a family friend Helen Moses, 250 from Albert, 250 from Morris, and the balance of approximately 3,000 from Lily and Abraham. The mortgage loan was repaid by about 1973.

8 Beach Road was to remain Abraham and Lily's home for the rest of their respective lives, until first Abraham and later Lily were adm itted to a nursing home before their respective deaths. Although each of Clara, Morris and Evelyn sooner or later left home, married and had children, Albert has always remained resident in Beach Road.

9 On 30 July 1971, Abraham made a will appointing Simon Judah his executor, and leaving all his possessions to Lily, but in the event of their simultaneous deaths, to their four children. On 28 September 1977, Lily made the 1977 Will, appointing Simon Judah her executor, and leaving all her possessions to Abraham, but in the event of their simultaneous deaths to their four children. This will was apparently witnessed by Solomon Sassoon and Simon Judah, but on different dates, so that they were not both present at the time of execution and attestation.

10 In the 1990s, for reasons which the evidence did not fully reveal, the relationships between the sons and the daughters began to deteriorate, and this has persisted.

11 Sometime prior to 19 November 1997, Lily attended the office of Gibsons, solicitors, where she saw Mr Woolley, solicitor, who is since deceased, and gave instructions for a will. Evelyn's son Brett Tobin gave evidence of having driven Lily to Mr Woolley's office, accompanied by Albert and Morris, on this occasion. Although he is naturally aligned with his mother, his evidence appeared entirely credible. When his affidavit was prepared he was deployed with the 3 rd Battalion, the Royal Australian Regiment, in Timor Leste, and the circumstances of its preparation, essentially by himself, remote from influences, add to its credibility. I accept his evidence. Of significance is that on the way into town Lily asked questions suggesting some uncertainty as to where and to whom they were going, but also that on the return journey Lily made a statement to the effect "Who has the will?" or "Where is the will?", indicating that she knew that the subject matter of the attendance was a will.

12 Both Morris and Albert say that Lily went into the solicitor's office alone, and that they did not enter; yet they did not, thereafter, sit together; one went to a cafe. While there is nothing to corroborate their assertion from any independent source, there is no evidence to the contrary, and the gravest doubts about their reliability and honesty - which, as will appear, are amply justified - cannot establish it. Moreover, it is improbable that an experienced solicitor, as I accept Mr Woolley was, would have allowed potential beneficiaries to be present while instructions were given.

13 On 19 November, Mr Woolley forwarded to Abraham and Lily draft wills for each of them. Mr Woolley's letter of that date refers to a recent discussion with Mr and Mrs Ezekiel, which may be a reference to another consultation involving both, but might also, somewhat imprecisely, encapsulate separate meetings with each of them, or - less likely - refer only to the attendance on Lily. In any event, a draft will was prepared for each testator.

14 On 10 December 1997, Abraham and Lily executed their "mirror" wills, each appointing Morris and Albert as executors, and purporting to leave Beach Road to the surviving spouse (it was in any event held by them in joint tenancy), but in the event that the other spouse did not survive the testator then Beach Road was left to Morris and Albert equally, with the residue to Albert. There was no dispute that the Will was duly executed by Lily, in the presence of Mr Woolley and Mr Musrie. Its execution occurred contemporaneously with the due execution by Abraham of his "mirror" will. Mr Musrie's evidence establishes that Mr Woolley read the wills over to each testator, explained them (in such a manner that Mr Musrie was apprised of their contents and effect), and had them read over by each testator, who acknowledged that it accorded with their wishes by responding "yes" to the question "Is that okay?", before they were executed and witnessed. Mr Musrie's evidence also establishes that neither Albert nor Morris was present, or even in the house, when the wills were executed.

15 On 16 December 1997, Mr Woolley sent a letter to Abraham and Lily, reporting on the execution of the wills and advising that they should be reviewed from time to time, and that Gibsons would hold the originals. In addition, Abraham and Lily executed general powers of attorney in favour of Morris and Albert, which Mr Woolley certified he had explained before execution to the donor, and witnessed. They are dated 23 December 1997, and although there is some doubt as to just when they were executed, the combined effect of Mr Musrie's evidence (that they were not executed, or otherwise discussed, in his presence on 10 December) and the correspondence from Gibsons (particularly their letter of 16 December, "We refer to our recent attendance at your home when you both executed a will and we now enclose Powers of Attorney") is that, despite some contrary indications (including some other aspects of the same letter), I am unpersuaded that the date of execution was other than the date the documents bear, namely 23 December 1997. This is of significance, as it suggests that there was probably another attendance by Mr Woolley on Abraham and Lily on 23 December 1997.

16 On 1 February 1999, following a conversation with Albert, Gibsons informed Albert of the existence of the powers of attorney in favour of Morris and himself, and provided certified copies to him. The significance of this lies in the circumstance that prior to this point Albert had apparently not been given a copy of the powers of attorney.

17 On 1 April 1999, Abraham made another will, appointing Morris and Evelyn executors, and leaving his whole estate to the four children equally. However, as Beach Road was held in joint tenancy, Lily succeeded to it by survivorship upon Abraham's death, and there being no other assets of significance, probate was not sought of any will of Abraham.

Credit

18 The case involved a thorough and sustained attack on the credit of the sons.

19 Albert proffered no reason for his low opinion of his sisters; this was very incredible. He said that he had no reason for not attending his parents' 50 th anniversary; this also was very incredible. Of his affidavit of 19 June 2006, paragraph 88 (which he now says is false), he incredibly said "My solicitor made me sign it". It is incredible that he did not ask why Lily was going to see a solicitor on the occasion when he, Morris and Brett Tobin accompanied her to Mr Woolley's office, and she - even if in the office with the solicitor alone - gave instructions for the Will. He falsely deposed that Mr Woolley had been his parents' solicitor for many years; only after Brett Tobin's evidence was served did he refer to the involvement of Rachel Brook in sourcing Mr Woolley. He was shown to have made deliberate and repeated false statements to obtain credit of significant amounts, about which he is quite shameless, responding "I lied". Despite documentary evidence to the contrary, he denies any discussion with anyone about reluctance fully to disclose his property, income and resources. He often resorted to the equivocating answer "Maybe" when confronted with adverse material demanding a concession.

20 Morris Ezekiel conceded to "lying" in his original affidavit evidence about the manner in which Mr Woolley was sourced. This was on a most material matter, in respect of which he endeavoured to deceive the daughters and the Court. He sought to "correct" this, and altered his evidence, in his oral evidence in chief late in the course of the proceedings, in a manner which accommodated the evidence of Ms Brook, only after it had become apparent that she could be found and would be called - as it transpired, his belated concession dispensed with the need for her to be cross-examined.

21 Both the sons are utterly unreliable witnesses. Indeed, this is one of those rare occasions on which it is possible and appropriate to go so far as to say that they have given evidence dishonestly. However, strong as that finding is, it does not serve to establish the opposite of their evidence, particularly where the daughters bear the onus of proof.

22 Nor is it to say that everything the daughters said must be accepted. They were of course very interested witnesses, who held strong views as to the unlikelihood of their mother having voluntarily made the Will, and as a result lacked objectivity.

Testamentary capacity

23 The test for testamentary capacity was authoritatively stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 (at 565):

It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view 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.

24 The onus of proving that a document is the intended last will of a free and capable testator lies on the party propounding it, and if this onus is not satisfied, the Court is bound to pronounce against the will [ Bailey v Bailey (1924) 34 CLR 558, 570; Worth v Clasohm (1952) 86 CLR 439]. However, while the legal onus always remains on the proponent, an evidentiary onus may fall on the opponent, by reason of the prima facie presumption of capacity that arises from proof of due execution of a will rational upon its face [ Ridge v Rowden , NSWSC, Santow J, 10 April 1996, unreported, BC9601342, 39] .

25 Thus while the proponent of a will bears the formal onus of establishing testamentary capacity, capacity will be inferred in the case of a will that is rational on its face and duly executed. However, if there are doubts as to testamentary capacity - for example, the presence of insane delusions, but not mere old age or physical infirmity - the burden reverts to the proponent, who will have to affirmatively satisfy the Court that upon the evidence as a whole, the testator was of sound mind, memory and understanding [ Banks v Goodfellow ; Bailey v Bailey , 570; Bull v Fulton (1942) 66 CLR 295, 343; Ridge v Rowden , 47 ]. Extreme age, or grave illness, displaces a prima facie case of testamentary capacity only if the testator's mental capacities are shown to have been so affected as to make him or her unequal to the task of disposing of his or her estate [ Timbury v Coffee (1941) 66 CLR 277] . T he standard of proof in respect of testamentary capacity is the balance of probabilities [ Worth v Clasohm , 453 (Dixon CJ, Webb and Kitto JJ); Kantor v Vosahlo [2004] VSCA 235, [22]] .

26 Judged as at the time when it was made, the Will is not irrational on its face. Lily, as might be expected, left her only substantial asset, her interest in Beach Road, to her husband, Abraham ( Lily is no rarity amongst testators in attempting to make testamentary provision in respect of property held in joint tenancy) . Albert and Morris were only to receive an interest in Beach Road if Abraham predeceased Lily, in which event they were to inherit it as tenants in common in equal shares, while the residue of the estate, both real and personal (such as it might be), was left to Albert; but if Albert predeceased Lily, the whole of her estate was to pass to such child or children who survived her - if more than one, as tenants in common in equal shares. Thus, while it is true that it was only in a remote eventuality that the will made provision for her daughters, it did not altogether ignore them. I do not accept that in the circumstances then prevailing that a will that - providing first and foremost for the surviving spouse - then made provision for the sons to the exclusion of the daughters, was prima facie irrational. While the reasons why such a will was not irrational are elaborated below in connection with the family provision claim, in short they are: that the sons were needier than the daughters, who were in better financial positions; that Albert had always resided and continued to reside with his parents in Beach Road and was dependent on them for accommodation; and that (given the poor relationship between the sons and the daughters) the daughters might disturb Albert's occupation of Beach Road, whereas Morris was unlikely to do so.

27 The Will is consistent with statements made by Lily to Rabbi Chriqui, who gave evidence that, 'around either Mr Ezekiel's passing or after Mr Ezekiel's passing' - which was on 19 July 2000 - he had a conversation with Lily, who said to him: "I have taken care of the girls, and now I have to take care of Albert. He has no place to live". According to the Rabbi, Lily mentioned that she had already helped Clara purchase her house (which was next door to the Beach Road property); he did not recall whether she mentioned Evelyn by name; she referred to the Beach Road property; and while he is unsure whether she referred only to Albert or to both of the sons, at least Albert was mentioned. The Rabbi observed no deterioration in Lily's condition - she was "the same Mrs Ezekiel as I knew her before, no change, no difference ". If this conversation took place at the time suggested by the Rabbi, it was some years after the Will was made; but it indicates a state of mind consistent with the intentions reflected in the Will. The Rabbi's evidence tells in favour of testamentary capacity.

28 The circumstances surrounding the preparation and execution of the Will do not raise doubt as to, but tell in favour of, Lily's capacity. Brett Tobin's evidence, already mentioned, indicates that, shortly after giving instructions to Mr Woolley, Lily knew that she had seen him in connection with a will.

29 Generally, the critical time for determining testamentary capacity is the time of the execution of the will, and it is sufficient if, when the will is executed, the testator, then being free and capable, acknowledges the will as setting out his or her wishes and has the requisite capacity [ Re Crooks (Estate); Ackerman v Brown NSWSC, Young J, 14 December 1994, unreported ] . David Musrie, one of the attesting witnesses, gave evidence and was cross-examined about the events of 10 December 1997, when he and Mr Woolley attended on both Lily and Abraham for the purpose of signing the Will (and Abraham's mirror will). He received a telephone call from Lily that day, who asked him to call at Beach Road to witness the execution of her will - which strongly suggests that she knew that she was making a will. He agreed to do so. When he arrived at Beach Road, Mr Woolley was already there. The occasion was a formal one; only Abraham, Lily, Mr Woolley and he were present. After reading over the wills orally, first Abraham's and then Lily's, Mr Woolley provided a detailed explanation of their terms, sufficient that Mr Musrie was able to understand and relate their effect. Then, Mr Woolley had Abraham and Lily read the wills. He asked them "Is this okay?" - and they each responded, "Yes". To Mr Musrie's observation, Lily seemed in good health. Although I take into account that he apparently did not observe that she was then in perhaps the initial stages of whooping cough, and that he receives some minor assistance from Albert and Morris, Mr Musrie appears to be essentially independent, and his evidence withstood powerful cross-examination; I see insufficient reason to doubt it.

30 Mr Woolley, the other attesting witness, being deceased, his evidence is not available. Although much was sought to be made of the absence of any file note or other record, his file was routinely destroyed in 2005, so any file notes are unavailable, and their absence is unexceptional.

31 Dr Ursula Christopher, who had been Lily's treating doctor for over 20 years, knew her well and saw her often, including on 11 December 1997, the day after she executed the Will, when she presented with coughing and wheezing, which was subsequently diagnosed as whooping cough; she was also very mildly anaemic. According to Dr Christopher, she was physically sick with whooping cough, but mentally well and normal. Dr Christopher described Lily as a woman of strong character who would not do anything she did not want to do, and a resourceful woman who was managing to cope with the pressures of looking after her ill husband. Dr Christopher had numerous elderly patients and knew the protocol for testing for suspected dementia - a mini mental examination - but never saw any need to administer it to Lily, who exhibited no signs of difficulty with comprehension or memory, or any other cognitive dysfunction. She pointed out that Lily was compliant with a complex medication regime, and that there was nothing in her demeanour to suggest that she was confused, demented, or cognitively impaired.

32 Dr Christopher was well-placed to form a view as to Lily's capacity. She knew Lily and her physical condition well, and maintained that her mental state was unimpaired, at least before about 2003. An attack on her credit, based on a letter to the daughter's solicitors in which she had professed no recollection beyond what was in her notes, miscarried when it emerged that it was with reference to Abraham, not Lily. Not only was there was nothing in her evidence to cast doubt on Lily's capacity; it tells firmly in favour of capacity. Her evidence is important: the evidence of those with experience in dealing with elderly people, and who have personally observed the testator at and around the relevant time, is of considerable significance, often more than the opinions of others, medically qualified or not, who have not personally observed the testator at relevant times [ Ridge v Rowden , 50 (citing Kirby P in Easter v Griffith , NSWCA, unreported, 7 June 1995)].

33 Dr Ernest Tam, a consultant physician and geriatrician retained on behalf of the daughters, provided reports in which he expressed a firm opinion that Lily likely lacked capacity at the time when she executed the Will. However, he had not seen Lily (nor had any of the medical experts other than Dr Christopher). His opinion was based on her physical illness, coupled with what he considered the striking change in testamentary intention to exclude provision for the daughters. However, in cross-examination, he withdrew from the statement in his report that Lily's physical condition would likely have caused her to lose capacity, to one that it merely could have done so. He also accepted that the apparent change in testamentary intention was not relevant to testamentary capacity. His evidence ultimately amounted to no more than that it was possible that Lily's capacity was affected by her physical condition. But there is simply no evidence supportive of that possibility. First, there is no obvious reason why her physical conditions would have impacted on her testamentary capacity. Secondly, Dr Christopher's evidence is that they did not, and that Lily's cognitive functioning was in fact unimpaired.

34 The psychiatrists retained by each of the parties - Dr Stephen Allnut for the sons and Dr Robert Russell for the daughters - provided a joint report, after a conclave, in which they agreed that there was insufficient medical evidence to conclude that Lily lacked testamentary capacity. Dr Allnut said:

We agreed that she had the cognitive capacity to make a will. Where we disagreed was her vulnerability, some disagreement to the extent of her vulnerability, as far as I understand, as her susceptibility to external influence, an autonomous will. ...

35 He adhered to the view that notwithstanding some loss of vision and hearing, respiratory problems, a (remote) possibility of some minor cognitive difficulties, and stress, there was no significant doubt as to her testamentary capacity at the relevant time. When asked about the potential impact of the difficult behaviour of a relative (such as Albert) at home, he answered:

Well, I don't think that necessarily means her capacity to make an autonomous decision about making a will would necessarily be affected. Again it depends on the circumstances. I think one, what one has to come back to is that cognitively she had capacity. There was no evidence of significant incapacity. While she might have been vulnerable I don't think that is a significant vulnerability and it depends on what that relationship was and whether that went to the making of a will.

36 This was not even a case of "extreme old age" - Lily was 73 years of age when she executed the Will, living at home, looking after herself and Abraham (and, to some extent at least, Albert), making doctor's appointments, managing her medicines, and living a more or less independent life. It was to be another eight years before she died, and it was not until five or six years later that her medical records begin to refer to any sign of dementia. There is no doubt that in late 1997 Lily had issues with her physical health - she had whooping cough; she had longstanding visual and hearing defects, but not such as to preclude her from reading and hearing; and she was probably dependent on the benzodiazepine drug Serepax. However, there is nothing to suggest that in 1997 she had any cognitive defect.

37 The estate, and the terms of the Will, were hardly complex. The estate substantially consisted of Beach Road. I see no basis for doubt that Lily knew that she and Abraham owned it, and that it substantially constituted their estate. Nor do I see any basis for doubt that Lily knew that those with claims on her bounty were primarily her husband and thereafter her children. It is implausible that Lily simply 'forgot' her own daughters (which would imply that Abraham did so as well), notwithstanding that they had three weeks to consider the draft documents after they were received shortly after 19 November and before they were executed on 10 December 1997. Lily's later statement to Rabbi Chriqui provides a much more likely explanation for the daughters' omission from the Will.

38 There is much more reason to doubt Abraham's capacity in late 1997. By the mid-1990's, his health had deteriorated, and he was admitted to St Vincent's Hospital on 26 October 1995 with "acopia" (an inability to cope), and again a month later for two weeks with "dementia acute deterioration". Mr Musrie's evidence suggests that he said and did little in the course of the will execution process on 10 December 1997. On any view, Lily's capacity would seem to have been much less dubious than Abraham's. Yet there is reason to suppose that even Abraham, though unwell, did not lack capacity. First, the presence of some dementia is not incompatible with testamentary capacity. Secondly, in early 1999, while Abraham was in Montefiore Nursing Home, Evelyn told him that Albert was walking around the house saying "This house is mine", and would not let Clara's daughter Yvette stay in it. Abraham responded "I'll see to that. I'll fix it. Get me a solicitor". Although Evelyn was unable immediately to procure a solicitor, Abraham somehow did so three weeks later, when he made his 1999 will - apparently during a period of leave from the nursing home, for which he was collected by Albert. It will be recalled that that will made equal provision for the four children, and excluded Albert as an executor. These circumstances point to his knowing - even eighteen months after he made his 1997 will - (1) that he owned Beach Road, (2) who had a claim on him, (3) the will-making process, and (4) that he had previously made a will (the 1997 mutual will) excluding his daughters.

39 Since the Will is duly executed and rational on its face, prima facie testamentary capacity is established. In my view, no serious doubt appears as to Lily's testamentary capacity. Her physical health problems do not indicate that she had any cognitive defect. There is nothing in the contemporaneous medical records to suggest any impairment of capacity. Her treating doctor says none was apparent. Although, no doubt, under some stress from caring for her ailing husband, she was apparently functioning quite well. That her will did not make provision directly for her daughters would not of itself raise a doubt as to capacity, because there are other explanations, and all the more so in the light of what Lily later expressed to Rabbi Chriqui. On the whole of the evidence, insufficient doubt attends her capacity to shift the evidentiary onus to the sons. And even if there were a doubt, on the whole of the evidence, any such doubt is not sufficiently substantial to prevail over the evidence that tells in favour of Lily being of sound mind, memory and understanding at the time of execution of the Will.

Undue influence

40 The doctrine of undue influence operates quite differently in the context of wills from its operation in the field of inter vivos transactions. In the law of wills, undue influence is equivalent to coercion, by actual force or threats - but not by appeals to sentiments of affection, gratitude, pity or ties of kindred, which may legitimately be pressed on a testator. Influence generally in the form of persuasion or moral pressure to favour a person by will, whatever its degree, is not invalidating in probate unless it produces a will contrary to the will of the testator [ Ridge v Rowden , 46]. There must be an overpowering of the testator's volition [ Hall v Hall (1868) LR 1 P&D 481, 481-2]. As Sir John Nicholl said in Williams, formerly Cook v Goude and Bennett (1828) 1 Hag Ecc 577 (at 581):

The influence to vitiate an act must amount to force and coercion destroying free agency - it must not be the influence of affection and attachment - it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion - by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.

41 The burden of proving undue influence is borne by those impugning the will [ Boyse v Rossborough (1857) 6 HLC 1, 51]. What must be proved is actual coercion of the mind as to produce an act contrary to the will of the testator [ Boyse v Rossborough ]. It is insufficient to show power or opportunity to overbear the testator's will; it must be shown that that power was exercised , and that it was by means of its exercise that the will was produced [ Hall v Hall; Wingrove v Wingrove (1885) LR 11 PD 81, 83; Buckley v Maddocks (1891) 12 LR(NSW)(Eq) 277; Winter v Crichton (1991) 23 NSWLR 116, 121; Woodley-Page v Simmons (1987) 217 ALR 25].

42 The party alleging undue influence must prove the claim on the balance of probabilities. However, an allegation of undue influence is a serious one, and the Briginshaw test applies, as Vickery J explained in Nicholson v Knaggs [2009] VSC 64 [at 130]:

An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd .

43 That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1 NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in probate circles, that the defence has never succeeded in New South Wales]. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation. This accords with well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357):

As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49) was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.

44 To support an inference of undue influence, the daughters rely upon the circumstances: (a) that the Will effected a substantial change to Lily's long-standing testamentary intentions so as to exclude two children for whom she would have been expected to make provision, and did so for no explicable reason, which was inherently improbable in the case of a free testator; (b) that the sons were involved in procuring a will that substantially benefits them, and have given false evidence about relevant matters, from which it should be inferred that the truth would have been harmful to their case; (c) that the sons, and in particular Albert, had a motive for influencing Lily to make a will in their favour; (d) that Lily was vulnerable and submissive to domineering behaviour towards her by Albert; and (e) that there were failures and irregularities of ordinary legal procedures and protections, including in connection with Abraham's mutual will.

Change in settled testamentary intention?

45 One circumstance on which the daughters rely to support an inference of undue influence is what was said to be a radical change in an otherwise long settled testamentary intention of equality of division, said to be established by Abraham's 1971 and Lily's 1977 will, and by statements attributed to the parents consistent with those wills.

46 Abraham's 1971 will left his estate to all four children equally; it evinced no predisposition to favour the sons, nor to exclude the daughters. Lily's 1977 will was to the same effect. The daughters contend that those wills established a "standard" approach of equality amongst the children in distribution of their estates, which was not altered at any time over the next 20 years, so that the departure from it involved in the 1997 wills was so radical and unexplained as to point to the exercise of some sinister influence, it being improbable that the parents would ever freely have changed their minds about treating the children equally - unless perhaps they were concerned about housing for Albert - so that unless there is evidence to overcome the likelihood that the parents intended equality (for example, for the purpose of providing ongoing accommodation for Albert), then the wills of 1971 and then 1977, together with the statements of the parents reported by the daughters as to the contents of those wills, should be regarded as reflecting their permanent intention.

47 The daughters never saw the 1970s wills, but knew of their existence , and they attribute to their parents various statements about their effect consistent with their content. Their evidence of ongoing statements consistent with equal division among all four children is self-interested and tendentious, and is unclear as to the timeframe. While it is quite conceivable that such statements were made before 1997, I doubt - and am unpersuaded - that they were made thereafter. On the other hand, while the sons assert that their parents, at different times and in different combinations, always said that the house was for the boys or one of them, that is unlikely to have been so, at least before about 1997, although it could have occurred after 1997. It is improbable that the parents would have told their daughters, but not their sons, what was in the 1970s wills.

48 While conceding that it is conceivable that, in their later years, the parents adopted a preferential approach to Albert - who, unlike the others, had never married, had no children, had never lived elsewhere, and wants to remain in the Beach Road property for the rest of his life - so that, as Mr Gormly put it, even if Albert had not been promised (as some such children are) that in return for his continuing presence and care, he would be left the house; even if he were not a model child; and even if he were not under any disability, his parents might have taken the view that he should be rewarded (or perhaps compensated), for his lifelong company and support and associated sacrifices. But Mr Gormly then rejects that possibility, and submits that a desire to provide long-term accommodation for Albert was not an independent testamentary intention underlying the 1997 wills - as the house was left not to Albert alone, but to Albert and Morris, the latter of whom who has been married with children, has business acumen and - at times - a successful business career; and as the sons say that their discussions with the parents were to the effect that they intended that either Albert or both of them would inherit the house for reasons other than provision for Albert's housing - such as to reflect their contribution, or gender preference . Accordingly, it is said, the change from equality is sinister, and unexplained .

Sons' involvement in will-making process?

49 A second circumstance on which the daughters rely for an inference of undue influence is the involvement of the sons in procuring the 1997 wills, from which they benefited, reinforced by their unwillingness to tell the truth about that involvement.

50 The ultimately undisputed evidence of Rachel Brook established that she received a telephone call from Morris, who asked who was her solicitor in Sydney; she told him that it was Mr Woolley. Brett Tobin's evidence establishes that Albert asked Brett to drive Lily into the city "for an urgent appointment", and that Albert and Morris knew that Lily was going to see "Rachel Brook's solicitor".

51 Both Albert and Morris originally said that their mother initiated the visit to Mr Woolley. Albert said that his mother made the appointment, and only told him of it on the day of the appointment, saying " Rachel Brooks recommended him ". Albert even described Mr Woolley as "the family solicitor" - when in fact he had had no previous or subsequent contact with the family apart from the making of the 1997 wills and powers of attorney. Albert said that he did not know why his mother wanted to see a solicitor on the day of the visit to Mr Woolley, and did not ask before or after the visit.

52 Morris originally said that his mother had said to him " Rachel Brooks has recommended a good solicitor, he helped her when her husband died", and that he had the impression that his mother had telephoned earlier to make an appointment with Mr Woolley. Morris belatedly said that his mother told him that she wanted to make a will and asked if he knew a solicitor, in response to which he contacted Rachel Brook, who provided Mr Woolley's details.

53 I am satisfied that the original evidence of the sons in respect of sourcing Mr Woolley was false, and it must have been intended to assist their case and mislead the court. It is also incredible that they did not know that Lily was going to the solicitor in connection with a will, and I do not believe it.

54 The daughters submit that it is highly improbable that Lily, at that time and in her state of health, initiated a visit to a solicitor she had never met in order to make a new will; and that having regard to the evidence of all the children as to the respective roles of the parents and the level of consultation between them, one would have expected conversations between both parents and the boys as to the new will; yet neither son gives evidence of any such conversation. However, while Lily had some problems with her physical health, she was functioning quite well - well enough, for example, to attend on her doctor - and she seemed well enough to Mr Musrie on 10 December 1997. In any event, poor health or frailty is at least equally consistent with providing a reason for making or reviewing a will, as it is for not doing so. The private nature of will making means that testators often do not disclose their intentions during their lifetimes, let alone before making a will. While there is some evidence that these testators had previously discussed their intentions with their children to some extent, it does not follow that they would necessarily have done so while preparing to make the 1997 wills. It must be remembered that those who could best illuminate these events - Abraham, Lily and Mr Woolley - are no longer available to do so.

55 I am satisfied that the sons sourced Mr Woolley from Rachel Brook. I am also satisfied that the sons knew that the purpose of the visit to Mr Woolley was for Lily to give instructions for a will. But there is no evidence that they then made the appointment. There is no evidence of any discussion between them and their mother as to her testamentary intentions. There is no evidence that they, as opposed to their mother, initiated the idea of making a new will, or spoke to their mother about what the Will should contain. And there is no evidence that they were present while instructions were given to Mr Woolley, let alone that they were involved in the giving of instructions.

Sons' motivation?

56 As the eldest male child in the family, Albert had some traditional cultural expectation of inheriting the house. Albert had contributed to the purchase of 88 Beach Road, and denies that Clara did. By 1997, Albert, who had no other residence, expected to be able to remain there indefinitely. He believed that his sisters had disentitled themselves by conduct of which he disapproved from sharing in their parents' estates . He understood that if his sisters were to share in the estate (in accordance with the 1977 Will), the house would probably have to be sold, and he would have to find other accommodation. Accordingly, need coupled with supposed entitlement gave him motive to influence his parents, or either of them, to make a will favouring him, and excluding the daughters.

57 Morris has been close to Albert all his life, has worked with him, and can and does for the time being live with him. He disapproved of his sisters' attitude to Albert, who, as the eldest male in the family, was the successor to their father's family leadership. He, too, had motive to side with Albert, and to facilitate a will that excluded the daughters.

Lily's vulnerability and submission to Albert?

58 In the Ezekiels' traditional Sephardi family order, Abraham was, by reason of his gender, and his control relating to matters beyond the household, the head of and the dominant person in the family. As a mother and wife Lily had authority within the household, and could express her own views, cajole and persuade; but she did not deal with money or the outside world - she did not drive, catch public transport alone, work, or attend to business, which matters were left to her husband, and later her sons. B y 1997, Abraham's capacity to exercise influence within the family was waning, and his capacity for sustained conversation was limited. As Abraham's health declined, Albert's influence as his successor increased. The daughters submit that by 1997 the relationship between Albert and Lily had become one of abuse, oppression and domination, such that Lily's will was subordinated to Albert's wishes, in order to "keep the peace"; in short that Albert exerted pressures on her, which she could not withstand.

59 Of this, there is, first, the daughters' own evidence. Evelyn Tobin, in her affidavit of 23 October 2006, said:

86 On many occasions as I was leaving mum's home after a visit, I would hear Albert shout abuse at her, such as: 'Why don't you go and live with your daughters. You all love each other and you're just a burden on me'

87. My mother also often said to me words to the effect: 'You won't believe how I'm suffering at home with Albert. He shouts at me all the time and never helps me. I'm absolutely fed-up with my life with him.'

60 Clara, in her affidavit of 27 October 2006, said that when she asked Lily why Albert was not asked to shop for something, Lily replied: " Whenever I ask him, he screams and shouts abuse at me". In her affidavit of 29 May 2008, Clara said:

124. From the mid-1990s however, my mother seemed rarely to be happy. She was very focused on her problems at home, the deterioration of my father and, above all, Albert's behaviour towards her. She would sometimes call Albert 'Mr. Cruel'. Sometimes she would call him a 'fucking bastard' or a 'fucking pig' but generally she would alternate between agitated and unhappy or depressed and flat. Sometimes it was hard to make her see reason, for example, about getting outside help and with our father. We had some help but she told me that Albert would not allow any more help because he said it was not necessary.

61 In the same affidavit, Clara said:

139 Sometimes when Evelyn and I would try to intervene to stop Albert from bullying our mother, our mother would say in a quiet voice 'stop it. Don't do it. We can talk at the Club. He is always abusing me. He's always shouting at me. You'll only make it worse if you interfere'.

140 She told us that she would just try to keep quiet. She said it was impossible for her now to fight back. She said she did not have the energy anymore and she did not have Abe (her husband) to rely on to back her up. She said that she was miserable but she did not ever want to leave her home.

62 The above evidence tends to show that Lily reported Albert as being rude, truculent, demanding, and sometimes offensive towards her, and that as time passed she did not fight back. But it does not show that he overbore her will. And it shows that Lily was able to complain to others close to her of Albert's behaviour.

63 Two apparently independent witnesses called by the daughters to give evidence illuminating the nature of the relationship between Lily and Albert were Mr Nelson Santander , a home care attendant who assisted Lily, and Sally Sheridan, a family friend. Mr Santander said, in his affidavit of 26 May 2008:

31. He [Albert] would sit at the table and shout for his breakfast. If she was too slow he would shout at her to hurry up.

32. Sometimes he would shout and bang his fists on the table while he was waiting for his breakfast to be served by his mother. He would leave things on the table for his mother to pick up and clean after him.

33. I did not ever see Albert and his mother have a nice conversation or even any proper conversation.

64 In the same affidavit, Mr Santander described the following events, which he attributed to a time following his return from a six week holiday in Chile in January 1997, when he noticed a distinct change in her behaviour:

46. I would ask her 'what is wrong? What has happened?' sometimes she would not reply and she would just cry. Other times she would tell me how bad Albert was. She was not a woman who swore very often but she referred to Albert as a 'fucking pig' with real anger in her face.

47. I had heard her call Albert words like that in the earlier years after I got to know her.

...

51. When I did have conversations with her she would complain about Albert. She said 'I am frightened of him'.

65 Mr Santander gave supplementary oral evidence, referring to Lily's expressed fear of dying in a nursing home, and that Albert wanted to send her to one; and to Albert shouting at Lily and using abusive language, such as " Stupid woman " and " You are crazy ". Mr Santander recalled three relevant conversations with Lily in 1997. One was to the effect that she said, "I'm afraid"; he asked, "Why?"; and she replied, "I'm afraid of Albert", and began to cry. In the second, she said, "Albert is a fucking pig"; he asked, "Why?"; and she replied, "Because he is very dirty"; she seemed sad and angry. In the third, she said, "Albert is a fucking pig". Nothing further was said on that occasion.

66 Sometime after 1998 - probably between 2000 and 2003 - Lily said to Mr Santander, "I don't want to go to a nursing home". He inquired, "Why?". She responded, "Because I don't want to die there. I want to die in my home". He asked, "Can I help you?", to which she answered, "No". To his "Why?", she replied, "Albert send me there" or "Albert wants to send me there".

67 Mr Santander's evidence tends to show that Lily resented Albert's insensitive and disrespectful behaviour, and - at least from 1998 - was afraid of being forced into a nursing home, which Albert may well have advocated at times. It reveals some expression of fear of Albert in 1997. But it does not show her as being submissive to Albert's will - and particularly not in or before 1997.

68 Ms Sheridan, in her affidavit of 22 May 2008, said:

11. In the early 90's she [Lily] started complaining a great deal about Albert and how nice it was to go to the Club to get away from him.

12. She used to say that the Club gave her time with her daughters. She would say 'I can talk to them without being tormented by Albert.'

...

21. She would also complain a great deal about Albert [in the butcher's shop]. She said he would not stop shouting at her and would humiliate her ordering her to do things.

22. Lily used to describe Albert as 'Mr. Cruel'. Lily used to say to me 'He knows I can't manage on my own. He makes fun of me for being deaf. He humiliates me because I am dependent on him. I just have to do as he says'.

23. She made these complaints many times from 1994 but they seemed to get worse as the years went by. I noticed that over those years she would sometimes become tearful when she was talking about Albert's behaviour towards her.

69 Ms Sheridan gave oral evidence in chief that Lily used the expression " Mr. Cruel" of Albert. In the statement she attributes to Lily, "I just have to do as he says", there is an element of submission on the part of Lily to Albert's demands. But whether it took place before or after late 1997 is not clear. It was unconnected with testamentary provision. And the conversation confirms that Lily felt at liberty to speak to others about her issues with Albert's behaviour.

70 Rachid Kabbara, in an affidavit sworn on 2 June 2008, said:

31. His [Albert's] mother would say to me in Arabic 'see the way he treats me?' On other occasions she said to me 'He wants to put me in a nursing home. I hate the idea but he is going to make me go'.

32. Sometimes I would turn up at 88 Beach Road and I would be told by Lily to talk quietly because Albert was in his room. Albert would stay in his room throughout my visit.

33. I saw many incidents of that kind but after this one Lily said to me that Albert had said to her in Hindi 'You're losing your mind. You should go into a nursing home'.

35. She often complained about her son Albert and his behaviour towards her. She said 'There is nothing I can do. I just do as he says. I wish he would leave me alone'.

71 Again, in the statements " I hate the idea but he is going to make me go", and "There is nothing I can do. I just do as he says. I wish he would leave me alone", there is an element of submission by Lily to Albert's will, in order to keep the peace. But again, the timing of these statements is unclear, and is more likely to have been after Abraham's admission to a nursing home, and therefore in or after 1999.

72 Mr Isaac Moses, on the other hand, described a close relationship between Morris and Albert and their parents, and said that the sons helped their parents constantly around the house and cared for them when they were in ill-health.

73 There is very slight evidence of submission by Lily to demands of Albert prior to about 1999. Also she apparently complained to her daughters, Mr Santander and Ms Sheridan, amongst others, about Albert's behaviour - including in particular the fear he would force her into a nursing home - there is no evidence that she ever complained that he had forced her to make a will against her wishes.

Failures and irregularities in legal protections?

74 The daughters point to: (1) absence of evidence of instructions from Abraham, independently of Lily or at all, and failure to test for or detect Abraham's incapacity; (2) the solicitor's apparent ignorance of the prior wills, and failure to call for and inspect them; and (3) the absence of any written explanation by the solicitor that failing to provide for the daughters might cause suspicion or provoke family conflict, and of any file note or letter of advice about risks and consequences of excluding the daughters as beneficiaries. The burden of the submission is that the presence of such irregularities assists an inference that the explanation for the Will is undue influence, or at the least reduces any inference of regularity that might otherwise be drawn from the involvement of an apparently experienced solicitor.

75 The validity of Abraham's 1997 or 1999 wills was not an issue in the case, and the defendants would not necessarily have been expected, or even permitted, to adduce evidence probative of his capacity, or his knowledge and approval. If there were a source from which his instructions to Mr Woolley might have been proved, it would have been himself, Mr Woolley, or possibly Lily - none of whom are available. It is unsurprising and innocuous that in 2009, any notes Mr Woolley might have had of his instructions given in 1997 would not survive - they were destroyed in 2005 - and it cannot be inferred that none was made. Gibsons' letter of 19 November 1997, as has been mentioned, at least suggests that Mr Woolley had, prior to that date conferred with Abraham as well as with Lily.

76 As to Abraham's alleged incapacity, there is Mr Musrie's evidence of what occurred on 10 December 1997, when the wills were read over to and by Abraham and Lily, explained and executed. Although he responded to the proposition that by December 1997 it was "really quite difficult to have a conversation with Abe", with "I would say so", and that Abraham would have had difficulty following a serious conversation, he also said "He was all right. He was okay. He was alright. He wouldn't lose concentration so much". When asked by Mr Woolley, after the wills were read, "Is this okay", Abraham as well as Lily responded, "Yes".

77 Moreover, Abraham's response in 1999 to learning that Albert was asserting that the house was his, by making a new will, suggests that Abraham probably knew that his pre-existing (1997) will favoured the sons, or at least Albert. It is improbable, then, that in 1997 he lacked capacity, or was so enfeebled that he too was overborne by Albert.

78 Accordingly, while I accept that some doubt attends Abraham's capacity in December 1997, on balance the evidence does not establish that he did not give instructions for his 1997 will, nor that he did not then have capacity. I do not accept, therefore, that the existence of alleged irregularities pertaining to his mutual 1997 will is capable of providing any circumstantial foundation for an inference of undue influence in respect of Lily's will.

79 As to knowledge and inquiries of prior wills, I am not prepared to assume that it is standard practice for a solicitor instructed to make a will to inquire in respect of previous wills, let alone call for and inspect them. In any event, the evidence does not establish that Mr Woolley made no such inquiry of Lily; it is simply silent, in the absence of the relevant witnesses and of any file note. There is no basis for concluding affirmatively that Mr Woolley did not know of or was misled about prior wills; but if he did not know about them, that is not a circumstance calling for explanation.

80 As to the absence of a written explanation about the potential risks of excluding the daughters, again that is unsurprising. Some solicitors would no doubt give advice about the risk of a family provision claim, but if Lily had explained that Albert was resident in the home, and the sons were worse off than the daughters, little if anything would be required. In any event, the evidence does not establish that no oral explanation was given, Mr Woolley's file being no longer available.

81 In my view, it is not established that Mr Woolley departed from appropriate or usual practice. If anything, his procedures - it is known, at least, that he saw Lily in his office, drafted the wills, forwarded them to Abraham and Lily, and after some time attended on them, read them over and explained them and had them appropriately attested - suggests that he acted regularly.

Should undue influence be inferred?

82 Accordingly, the circumstantial basis for an inference of undue influence comprises: (1) the apparent change in testamentary intention to exclude the daughters; (2) the role of the sons in selecting Mr Woolley, and conveying Lily to his office, and their unwillingness to tell the truth on those and related matters; (3) the motive of the sons to procure a will that favoured them; and (4) the submissive nature of Lily's relationship with Albert. Ultimately, the question is whether coercion of Lily's will is the probable explanation of those circumstances.

83 They invoke the dictum of McCrossin SPJ in Bool v Bool [1941] St R Qd 26 (at 39):

A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.

84 While I accept that the apparent change in testamentary intentions is a factor, to be taken into account with all the others, in deciding whether it should be inferred that Lily's will was overborne, its impact is affected by a number of matters. First , Lily's 1977 will is itself an unpromising foundation for a "settled and longstanding testamentary intention". It was not prepared by a solicitor; it is written in the hand of an unidentified person; it was prepared and executed in circumstances where it is unclear whether any advice was given to the testator; and it was not executed correctly, as the witness Simon Judah attested it three weeks after the other witness Solomon Sassoon had done so, notwithstanding that the document incorrectly asserts that it was 'signed by the testator as for her last will in the presence of us both present at the same time, who in her presence and in that of each other have hereunto subscribed our names as witnesses'. Secondly , I do not accept that wills made in the 1970s that were unchanged for twenty years bespeak a permanent testamentary intention of equality, or provide a firm basis for an inference that a change is best explained by undue influence. Testamentary intentions are not set in stone. They may change for any number of reasons, some logical and based in reason or financial need; others emotional; some ephemeral. A change in "long-settled intention" after twenty years is a faint basis for a conclusion of undue influence. Over two decades, much can change: some children may receive more assistance than others; some may fall on harder times than others; some may fall into and some out of favour; views as to equality amongst children, preference for male children or for seniority may become held with greater or lesser strength.

85 As to the sons' involvement in the formation of Lily's intentions, the acts of f inding a solicitor, and conveying the testator to the solicitor's office, of themselves are innocuous and do not of themselves suggest undue influence. However, I accept that neither of the sons was truthful about their involvement in sourcing Mr Woolley, or their knowledge that Lily was going there about making a will. But for the emergence of Brett Tobin's evidence, neither of the sons would have told the court of their involvement in getting Lily to her appointment with Mr Woolley; but for the emergence of Rachel Brook's evidence, neither would have told the court about their role in finding a solicitor, but would have misled the court that their mother had used a solicitor found by her, if not already the family solicitor. While this does not prove that they were involved in Lily's testamentary decision-making, let alone that they or either of them overbore her will, it is necessary to consider why they were so reluctant to tell the truth about these events, and whether one should infer, from their unwillingness to tell the truth, that something happened, on and before the day of the visit to Mr Woolley, disclosure of which would not assist their case.

86 One explanation is that Morris has, if belatedly, now told the truth. If so, that still begs the question why he was previously unwilling to do so, and why his evidence has disclosed his role only as and to the extent that the emergence of other evidence has practically compelled it - revelation of which at the outset would have been innocuous. Albert never told the whole truth, maintaining to the end his denial of knowledge that Lily was going to make a will. I have searched in vain for an innocent explanation for this. In my view, I should infer that they believed that the truth would not have assisted their case. Although there may have been more to their involvement than they have yet revealed, it does not necessarily follow that any such involvement extended to undue influence - it may be that they believed that revelation of any involvement at all on their part in the process might be adverse to their interests.

87 I accept that both Albert and Morris had a motive for influencing their parents to make wills in their favour. That said, every beneficiary has a motive for influencing a testator, and of itself motive is a faint basis for an inference of undue influence.

88 I also accept that Albert sometimes engaged in rude, disrespectful and sometimes demanding behaviour towards Lily, of which she complained to people she knew, and that as a result she was often unhappy. It may well be that, at least from 1999 onwards, she was frightened of having to go into a nursing home, feared that Albert would somehow make her do so, and behaved as best she could to avoid conflict and keep the peace. But the evidence of submission to Albert's will prior to 1998 is very slight, and such evidence as bears on the subject in and after 1998 has to be weighed against her apparent ability to complain to others about Albert, and the absence of complaint about any demand that she make or change her will.

89 In 1997, Lily was caring for her ill husband. She was functioning quite well. She could and did speak her mind, including about Albert. The medical evidence of her mental and physical condition at the time of the preparation and execution of the Will does not suggest that she was prone to be overborne. On the other hand, Lily's statement to Rabbi Chriqu - that she had taken care of the girls and now had to take care of Albert - suggests an independent judgment on her part that that was so.

90 Moreover, contemporaneously, Abraham was making a mutual will. As their wills were "mutual", they reflected not simply one person's testamentary intentions, but their shared views as to the disposition of their estates. There must have been discussion between Lily and Abraham as to their mutual testamentary intentions. Even if he was not his former self, i n 1997, Abraham was still living at home, and his wishes would probably have remained a not insignificant consideration for Lily. The mutuality of their wills points to concurrence between them on their mutual testamentary intentions. This rather tells against those intentions being the product of undue influence by the sons or either of them.

91 So too do the circumstances of execution. It was not until 10 December 1997 - three weeks after Mr Woolley forwarded the draft wills to Abraham and Lily on 19 November 1997 - that they were executed - so that they had three weeks to reflect on them. Mr Musrie's evidence - that he was called by Lily to witness the wills, that Mr Woolley read the wills over to the testators and explained their contents (so that Mr Musrie was able to understand and remember their contents), and then had the testators read them, that Lily appeared in good health and humour, and that neither son was present - tells against Lily's will being the product of undue influence.

92 A further, if minor consideration, is that it appears that Albert was not furnished with the power of attorney, for which instructions were given at about the same time, for more than a year (in early 1999). If the wills were procured by his influence, it is improbable that the powers were not; yet remarkable that they were retained out of his control for so long.

93 One explanation for Lily's 1997 will - that contended for by the daughters - is that because of her desire to keep the peace with Albert, and her fear of his outbursts (and perhaps admission to a nursing home) if she did not, she succumbed to a demand on his part that she exclude the daughters from benefitting under it. That involves that Albert's influence was so powerful as to supervene even the reading over and explanation of the will by Mr Woolley in his absence; that she was able to conceal from Mr Woolley and Mr Musrie that she was acting under such coercion; that although she was able to and did complain in strong terms to others about objectionable behaviour on the part of Albert, she never complained to or confided in anyone that he had forced her to make a will against her wishes; that somehow Abraham was persuaded to make a corresponding will; and that what she later told Rabbi Chriqui did not reflect her real wishes, but only what she was doing under compulsion.

94 An alternative explanation - assuming that the 1977 will in fact expressed Lily's then testamentary wishes - is that Lily and Abraham together came to form the view that, in the circumstances and given the limitations of their estate, Clara and Evelyn were well-enough provided for - or at least better off than the sons (as Lily's later comments to Rabbi Chriqui suggest), and perhaps also that Albert and Morris had made more significant contributions to the acquisition of Beach Road; and that Albert, who had lived with them all their lives, had no home and should be permitted to remain in Beach Road - and that while Morris would not disturb his occupation, the daughters (given the deterioration of the relationship between them and the sons) might; that given Abraham's inferior health, making the arrangements was left to Lily; that as she did not know a solicitor, she asked Morris who might be suitable and, as he eventually described, he sourced from Rachel Brook and provided to Lily the name of Mr Woolley. It is a mistake to insist too closely on a correspondence of the views that the parents might have held with proven facts - the issue is not whether Lily acted on a correct appreciation of the facts, but whether her will (including any change in testamentary intentions) is, more probably than not, to be explained by coercion. Thus, the availability of a rational innocent explanation is not necessarily undermined even if, as the daughters submit, Albert was not unable to move out - they could still wish to accommodate him in the home that he had always occupied, notwithstanding that it might not have been impossible for him to move elsewhere. That hypothesis accommodates many of the facts proved by the evidence. Its shortcoming as an explanation of the circumstances is that it does not really explain why Albert and Morris found it necessary dishonestly to conceal their role. But lies do not always admit of explanation.

95 There is no direct evidence of actual coercion of Lily's will. In order to infer undue influence, I would have to be satisfied that the sinister explanation of the circumstances is the probable one - that is, that its probability exceeds the combined probability of all available innocent hypotheses. While the innocent explanation to which I have referred has the deficiency of insufficiently explaining the sons' unwillingness to tell the truth about their role in the making of the will, the deficiencies of the sinister explanation, as explained above, are more extensive. I cannot be satisfied that the probable explanation of the circumstantial evidence is coercion of Lily's will. Undue influence has therefore not been proved.

Knowledge and approval

96 However, the daughters contend that, if they do not establish the defence of undue influence, there are nonetheless sufficient circumstances of suspicion as to cast on the sons the onus of removing such suspicion by clear and affirmative proof of knowledge and approval. The daughters identify the relevant suspicion as one that the Will was procured by the undue influence of, in particular, Albert. The daughters' case was that there was a suspicion of undue influence. Mr Gormly's submissions articulated it in the following terms:

In this case, we submit, that if it is necessary to go further than raise a suspicion such that we must identify about what the suspicion is of, we describe it as follows - that the Will was secured by an influence which was not physically coercive (and may not even have been fraudulent in the classic sense), but which was beyond lobbying and was undue in that it had the effect by coercive conduct, of overpowering the volition of the Testatrix. Put specifically Lily was in a controlled and emotionally oppressive and abusive relationship with her son Albert, such that she would comply with his wishes to leave her Estate as he chose and contrary to the way that she had chosen in the past and would have chosen if acting of her own volition .

97 This raises for consideration the relationship between "knowledge and approval", which the proponent of a will must establish (albeit, absent suspicious circumstance, aided by a presumption), and "undue influence", a defence to be made out by an opponent.

98 The proponent bears the onus of establishing that the testator knew and approved the contents of the will. Ordinarily, knowledge and approval is inferred from proof of testamentary capacity and due execution: unless suspicion attaches to the document propounded, a capable testator's due execution of a will that is rational on its face is sufficient evidence of his or her knowledge and approval of its contents [ Re Hodges; Shorter v Hodgers (1988) 14 NSWLR 698; Guardhouse v Blackburn (1866) LR 1 P&D 109]. But where there are "suspicious circumstances" - typically, but no means uniquely, where a beneficiary is involved in giving instructions for the will - there is no such presumption, and the proponent must remove suspicion by affirmatively proving, "by clear and satisfactory proof", that the testator knew and approved the contents of the will, so as to "judicially satisfy the Court that it contains the real intention of the testator". This is a heavy onus, as was made clear by Burchett AJ in Vernon v Watson; Estate Clarice Quigley [2002] NSWSC 600 (5 July 2002), which contains a summary of cases on the impact of suspicious circumstances, and the proof required to overcome them .

99 For the daughters, Mr Gormly ably argued, with extensive and helpful reference to authority, that (1) the concept of knowledge and approval reflected the requirement that, to be admitted to probate, a will must be one of a free and capable testator, and involved dual concepts of knowledge of the contents of the will and the nature of the testamentary act, analogous to capacity, and willing approval of the will in the sense that the testator's assent was freely given, and not procured by undue influence or fraud; and (2) it was unnecessary to identify any particular suspicion, but (3) in this case the suspicion was that the will had been procured by undue influence.

100 In my view, however, (1) the concept of "knowledge and approval" is concerned with the contents of the will, and whether they express the testator's intention, and not with the process by which the testamentary intention was formed; (2) any relevant suspicion must be one that casts doubt on whether the testator knew and approved the contents, and must relate to the preparation and execution of the will, and (3) suspicion of fraud or undue influence does not attract the "suspicious circumstances" doctrine, those being affirmative defences which assume that the testator knew and approved the contents (in the sense that he or she intended to make a will in the form in which it was made) but challenge how that intention was procured.

101 That the concept of "knowledge and approval" is concerned with the contents of the will, and that the relevant suspicion must be one that they do not accord with the testator's intention, appears from many authoritative statements of what a proponent must prove when suspicious circumstances are raised. In Atter v Atkinson (1869) LR 1 P&D 665, Lord Penzance said (at 668) that where the maker of a will takes a large benefit "You ought to be well-satisfied, from evidence, calculated to exclude all doubt, that the Testator not only signed it but that he knew and approved of its content " (emphasis added). I n Tyrrell v Painton [1894] P 151, Lindley LJ (at 156) posed the question as follows:

Do the Defendants affirmatively establish to my satisfaction that the Testatrix knew what she was doing when she executed this will?

102 His Lordship thought that the rule

... 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 ...

103 In the same case, Davey LJ said (at 159):

... the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator , the Court ought not to pronounce in favour of it unless that suspicion is removed. Here the circumstances were most suspicious, and the question a judge has to ask himself is whether the defendants have discharged themselves of the onus of shewing the righteousness of the transaction.

104 In the High Court of Australia, in Nock v Austin (1918) 25 CLR 519, Barton and Gavin Duffy JJ adopted Lindley LJ's question. In this Court, in The Public Trustee v McKeon (1917) 17 SR (NSW) 157, Street J said (at 164) that probate ought not be granted unless the Court could feel (emphasis added):

...full and entire satisfaction that the instrument did express [the Testator's] real intentions.. .

105 Mr Gormly submitted that the "suspicious circumstances" rule does not require the identification of the circumstances or the actual nature of the suspicion, but only what Parke B in Baker v Batt [1838] Eng 643; 12 ER 1026 described simply as circumstances which form " a just ground of suspicion" . But in context, it necessarily requires suspicion that the contents of the will might not accord with the testator's intention. And it must relate to the circumstances of the preparation and execution of the will [ Davis v Mayhew [1927] P 264; Re R [1951] P 10, 17; Public Trustee v Permanent Trustee Company Limited; Estate of Rintoul [1999] NSWSC 722, [51] (Young J)].

106 I accept Mr Gormly's submission that the doctrine means that "telltale signs of an absence of knowledge and approval by a testator should either be explained or they should prevent a grant of Probate of the Will" (emphasis added). But this does not mean that suspicion, falling short of proof, of undue influence or fraud has the same effect. A testator who executes a will without knowing and approving the contents does not know - or is mistaken as to - what he or she is doing. A testator who executes a will as a result of undue influence or fraud nonetheless knows what he or she is doing when executing the will. A will procured by fraud or undue influence nonetheless expresses the testator's intention - albeit one that was improperly procured. Thus, a testator nonetheless knows and approves the contents of a will which reflect an intention that has been procured by fraud or undue influence. Those defences do not undermine knowledge and approval; they assume it but attack the process by which the testator's admitted intention, as expressed in the will, was produced. If the testator does not know and approve the will, one does not reach the defences of fraud and undue influence. If suspicion were enough to cast the onus on the proponent, then there would be no point in casting the burden of proof of those defences on the opponent. It follows that suspicion of undue influence is not a relevant suspicion when it comes to removing the presumption of knowledge and approval of the contents of a will. Suspicion that a beneficiary may have participated in the giving of instructions or preparation of the will, so that its contents do not accord with the testator's intention, is quite a different matter. Only in this way can the elements of knowledge and approval, the doctrine of suspicious circumstances, and the defences of fraud and undue influence be reconciled so as to produce a coherent approach to this aspect of probate law.

107 It is true that, in Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 - in which the Court of Appeal treated an application by Nicholas J of caution and vigilance to self-interested evidence (which was, nonetheless, ultimately accepted) as amounting to an application of the " suspicious circumstances" rule - Ipp JA (with whom Mason P and McColl JA agreed) identified the actual nature of the suspicion raised as " fraud or undue influence". However, that was because the case had been conducted on that basis. Moreover, the beneficiary was the sole person present when the testatrix prepared the will using a will kit, and was also present when it was executed and witnessed, so that there was arguably potential for her to have influenced the will-making process such that the will might not have reflected the testatrix's intention - which would have been proper territory for the application of the "suspicious circumstances" doctrine. I do not consider that Becker decides that a suspicion of undue influence - or for that matter fraud - attracts the "suspicious circumstances" doctrine so as to remove the presumption of knowledge and approval of the contents of a will that arises from its due execution.

108 That suspicion of undue influence (as distinct from of want of knowledge and approval) is insufficient to remove the presumption and cast the onus of "clear and satisfactory proof" of knowledge and approval on the proponent accords with the position that, to establish undue influence, facts must be proved from which the inference can be drawn [ Watson v Kerridge (1888) 9 LR(NSW) Eq 35, 43], as distinct from circumstances arousing suspicion [ Parfitt v Lawless (1872) LR 2 P&D 462, 471-2]. The daughters' proposition - that suspicion alone, if it is sound and substantive of the essential nature of a Will, can and should bar admission to probate if not answered - cannot stand with the fundamental principle that undue influence and fraud are affirmative defences, the onus of proving which lies on the opponent, and is irreconcilable with Parfitt v Lawless .

109 Accordingly, suspicious circumstances once established dispense with the presumption of knowledge and approval that arises from due execution of a prima facie rational will, so as to cast on the proponent the onus of removing the suspicion and proving, by clear and affirmative proof, that the testator knew and approved the contents of the will. Undue influence and fraud, however, are affirmative defences, which assume that the testator knew and approved the will in the relevant sense, but assert that such knowledge and approval was improperly procured - either by fraud, or by undue influence - in respect of which the opponent bears the onus of proof. Having failed to establish undue influence, the daughters cannot by a side-wind cast the onus of proof of knowledge and approval on the sons by raising a suspicion of undue influence.

110 But are there otherwise circumstances which give rise to a suspicion that the instrument did not express Lily's true intention? In order to invoke the "suspicious circumstances" doctrine, the opponent bears the evidentiary onus of proving facts that raise a relevant suspicion [ Ridge v Rowden ]. Potential for suspicion is said to arise from (1) the possibility that the sons were involved in making arrangements and giving instructions for the will; and (2) the change in a long-settled intention as to disposition of the parents' estates. However, I have already explained why, in the circumstances of this case, the Will was not irrational, nor the change in testamentary intention remarkable, so as to arouse suspicion. And it has not been proved that the sons were involved in giving instructions for the Will. Merely sourcing a solicitor and conveying the testatrix to the solicitor's office does not of itself establish giving instructions to the solicitor, or reason to doubt that the contents of the will accord with the testator's intention.

111 Moreover, the sons were clearly not present when Mr Woolley read over and explained the mutual wills to Lily and Abraham, and they in turn read and executed them, as Mr Musrie confirmed. Absent any question of fraud, the fact that a will has been read over to or by a capable testator is ordinarily conclusive evidence of knowledge and approval of its contents [ Re Hodges, Shorter v Hodges , 705; Re Fenwick [1972] VR 646, 651-5; Gregson v Taylor [1917] P 256, 261; Public Trustee v Permanent Trustee Company Ltd; Estate of Rintoul, [41-42] ].

112 I am satisfied that Lily knew and approved, in the relevant sense, the contents of the will.

Family Provision Act

113 As Lily died on 2 November 2005 - before commencement of the (NSW) Succession Amendment (Family Provision) Act 2008, on 1 March 2009 - the FPA continues to apply to Lily's estate [(NSW) Succession Act 2006, Sch 1, cl 11(2)].

114 On an application under the Family Provision Act for provision out of the estate of a deceased person, the Court must consider, first, whether the plaintiff is an eligible person (and, if only by reason of category (c) or (d), whether there are factors warranting the making of the application); secondly, whether the plaintiff has been left with inadequate provision for his or her proper maintenance, education and advancement in life; and thirdly, if so, what if any provision (or further provision) ought to be made out of the estate for those purposes.

Eligibility

115 The daughters, being children of Lily, are plainly 'eligible persons' under section 6(b) of the Act, and have the requisite standing to claim provision out of her estate and notional estate under the Act, without any additional requirement to establish "circumstances warranting".

Inadequate provision for proper maintenance

116 As the High Court Australia has explained in Singer v Berghouse (No 2) (1994) 181 CLR 201, once eligibility is established, consideration of an application under the FPA involves two stages: the first requires a determination of the jurisdictional fact whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life; and the second, which arises only if the first is resolved affirmatively, involves a discretionary assessment as to what provision ought to be made out of the estate for the applicant. However, as the High Court also explained, similar considerations inform both stages of the process (at 209-10):

The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.

117 Because the considerations relevant to both stages overlap in this way, consideration of a family provision application often does not neatly divide into the two questions, as Callinan and Heydon JJ pointed out in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, [122].

118 The Court must not make an order for provision in favour of an eligible person out of the estate or notional estate of a deceased person unless satisfied that the provision (if any) made in favour of the eligible person by the deceased person, either during the deceased's lifetime or out of the deceased's estate, is, at the time when the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person. In this respect, adequate provision relates to the needs of the eligible person (without reference to the estate), whereas proper provision relates to all the circumstances of the case - including the wealth of the deceased, the means and deserts of the various applicants and beneficiaries, the applicant's conduct in relation to the deceased, the applicant's contribution to the deceased's estate, the applicant's physical and mental condition, and the relationship between the deceased and other persons who have legitimate claims upon the estate [FPA, s 9(2)]. This was explained by Lord Romer in the Privy Council, on appeal from New South Wales, in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, in terms which were endorsed by the High Court of Australia in Singer v Berghouse (No2) , 209 (Mason CJ, Deane and McHugh JJ)]:

A small sum may be sufficient for the "adequate" maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his "proper" maintenance. So, too, a sum may be quite insufficient for the "adequate" maintenance of a child and yet may be sufficient for his maintenance on a scale that is "proper" in all the circumstances. A father with a large family and a small fortune can often only afford to leave each of his children a sum insufficient for his "adequate" maintenance. Nevertheless, such sum cannot be described as not providing for his "proper" maintenance taking into consideration "all of the circumstances of the case"...

119 Included in "all the circumstances of the case" are the ages, capacities, means and competing claims of all potential beneficiaries, which must be weighed with all other relevant factors [ Vigolo v Bostin , [122] (Callinan and Heydon JJ)]. Where there are competing claims on the estate of a deceased person, the court must balance them, as a result of which the rights of claimants who have, on their own merits, a good claim for maintenance, may be reduced or even extinguished by competing stronger claims [ Churton v Christian (1988) 8 NSWLR 241, 256 (Priestley JA)]. Accordingly, whether the daughters have been left with inadequate provision necessitates an evaluation of the competing claims of the daughters as claimants and the sons as beneficiaries, in the light of the size of the estate.

The estate and notional estate

120 No property remains in the estate, Beach Road having been distributed, in accordance with the terms of the will, to the sons as beneficiaries. Accordingly, a family provision order can be made only if property is designated as notional estate.

121 If the Court is satisfied that an order for provision ought to be made and finds that, as a result of a distribution from the estate, property became held by a person, it may, make an order designating as notional estate such property as it may specify, being property which is held by, or on trust for, the person or the object of the trust, whether or not that property is the property distributed [FPA, s 24]. In determining whether to make a designating order, the court must take into account the importance of not disturbing "reasonable expectations" in connection with property potentially the subject of a designating order, and any possible substantial injustice arising from making or refusing to make an order for provision or any other relevant matter [FPA, s 27].

122 The only relevant property available for designation as notional estate is Beach Road. The sons have mortgaged Beach Road to apparently arms-length third parties to raise funds, at least in part for the defence of the proceedings. Those third parties have legitimate interests in and expectations in respect of the property, which could not lightly be disturbed, especially without notice to them. This provides a significant obstacle to making a designating order in respect of Beach Road. Nonetheless, I will proceed, without deciding, on the basis that Beach Road be treated as if it remained available to satisfy an order for provision.

Evelyn

123 Evelyn was born in 1953 and is now aged 58. She is married to David Tobin, and they have two adult children. The marriage is stable, and the children are independent. They own their Dover Heights home, which is worth at least $1.3 million, and an investment property at Hurstville, which is worth between $275,000 and $300,000. Their other assets comprise shares in Macquarie Bank worth $2,300 and shares in Tabcorp worth $650; bank accounts of about $130 with HSBC, $4,844 with Westpac, and $182 with SGE Credit Union; and a 1992 Holden utility worth $3,500. Evelyn has superannuation of $50,181. Together, their assets total $1,636,788. Their liabilities amount to $529,565, comprising HSBC Hurstville mortgage ($189,095), HSBC home equity loan ($223,721), HSBC overdraft (expenses account) ($97,662), HSBC credit cards ($777 and $11,729), and Coles Mastercard ($6,579). Their net asset position is therefore $1,107,223.

124 Evelyn earns $469 net per week ($24,421 per annum) as a claims clerk for MBF. Her husband David receives a superannuation pension of $538 per week. They also receive rental income of $240 per week for the Hurstville property. Thus their total weekly income is $1,247 (about $65,000 per annum). Their expenditure of about $73,000 per annum includes interest expenses of $22,922, and other expenditure of $50,125. Between April 2008 and July 2009, their bank debt has increased by $48,000 approximately.

Clara

125 Clara, who was born in 1945 and is now aged 65, is divorced, with two adult children. She lives in her own home in Randwick (having sold her former home which was next door to the Beach Road property). She suffers from profound deafness and has a consequent speech impediment, and some other health problems.

126 Her assets - comprising her Randwick home worth at least $880,000; Telstra shares worth $10,576, HSBC savings account of $820, HSBC cash management account of $272, and a 1995 Toyota Camry worth $1,000 - amount to $893,168. Her home secures an HSBC home loan of $347,343, of which $80,000 is attributable to Clara, the balance being attributable to her daughters Yvette and Samantha, in respect of which the interest is paid by Yvette; and a home equity loan of $47,675 attributable to Samantha, who services it and intends to refinance it; in addition, she owes $76 on an HSBC credit card, so that her own liabilities amount to $80,076, though her total exposure is $395,093. This exposure arises as a result of her having provided assistance to Samantha, who became bankrupt. Her net asset position is therefore $833,092 on the best scenario, and $498,075 on the worst.

127 Clara receives an aged pension of $287 per week, being $14,970 per annum. She has outgoings of $30,500 per annum, and is not currently able to service the interest in respect of her $80,000 share of the borrowings, which is covered by Yvette, who also provides other financial assistance. Although Clara has worked all her life until relatively recently, at her age it is improbable that she would ever return to remunerative employment. It is fair to say that she is exposed to loss of her home if he daughters' efforts to indemnify her in respect of so much of the home loans as benefitted them fail.

Albert

128 Albert was born on 26 March 1946 and is now almost 65 years of age. He has never married, and there does not appear to be any suggestion that he is in a close personal relationship with anyone. He has lived in the Beach Road property since about 1964. He has been, for all his lifetime in Australia, and was at the date of Lily's death, dependent on her (and Abraham while he lived) for accommodation. Save for his current 50% interest in Beach Road as tenant in common with Morris, he does not own a house.

129 In his affidavit of 18 September 2009, Albert disclosed gross assets totalling approximately $909,000 in value, comprising his inherited half interest in 88 Beach Road ($900,000), gold coins ($7,000) and superannuation ($2,000). His claimed liabilities total $220,500, comprising the mortgage debt of $300,000 secured on Beach Road - which was raised by him and Morris jointly for the purpose of funding the defence of the proceedings (of which Albert's half share is $150,000); National Australia Bank Visacard ($20,500); and a personal loan of $100,000 - also raised jointly with Morris to fund the defence of the proceedings (Albert's half share $50,000). Accordingly, his disclosed net asset position is $688,500. Without his inherited interest in Beach Road, there would be a deficiency of $211,500. If he were to retain only so much of the proceeds of Beach Road as was required to discharge the mortgage and personal loan, he would have net assets of $11,500.

130 Albert discloses as his income a disability pension of $290 per week. He ceased employment in about February 2002.

131 A sustained attack was made on Albert's financial disclosure. It was established that in 2006, in connection with applications to borrow funds for the defence of the proceedings, he claimed on several occasions, when under an obligation to tell the truth, to have an annual income of $52,000; his shameless response was "I lied". He had also then claimed to have an entitlement to subcontract fees, from sales made by his brother Morris' business; his response was that this was a proposal that did not proceed. He prevaricated as to whether he had been engaged in an import/export business (again, it would seem, with Morris), eventually saying that he recalled the business but was not engaged in it. In a 2008 finance application, a broker recorded his application as "professional sales", with an income of $75,000 - Albert said that he had no such income, this being merely a projection. In another 2008 document, he solemnly declared that he was self-employed with an annual income of $78,000 - again, he said, "I lied there, too". It seems highly likely that he told a broker that he could not claim income greater than $75,000 per annum because he had been advised that it would be adverse to his interests (in this litigation) to do so.

132 Between 1 January 2000 and 12 December 2002 he placed bets with Tabcorp to the value of $83,525, receiving dividends of $64,468. He deposited a total of about $185,000 into his Tabcorp account and withdrew about $132,000, suggesting losses of $53,000. Between 12 December 2002 and 18 November 2003, he placed bets to the value of $139,730, and received dividends of $111,000. During that period he deposited $105,914 into his Tabcorp account and withdrew $82,610. This suggests losses of about $23,000 during that period, or about $581 per week. Confronted with this, he acknowledged that it was "possible" that he had a source of income or a supply of money other than his disability pension.

133 It seems that he received a carer's pension during Lily's lifetime.

134 He controlled an account in the joint names of his parents (the 656 account), into which lump sums totalling $148,400 were deposited between 8 July 2002 and 17 October 2005. During the same period he withdrew a total of $193,770 - an average of $1,126 per week. He says that these funds were deposited by his brother Morris in Melbourne, and withdrawn by Albert in Sydney to pay Morris' associates. He denied that they were used to fund his betting, which he said was financed by credit card. M orris subsequently confirmed that the deposits into the 656 account - amounting to about $887 per week over the period 2002 to 2005 - were made by him and his family, in cash, in Melbourne, and were sourced from his business activities as a commission agent, being the proceeds of goods sent to him in Melbourne by suppliers in Sydney, on consignment for sale, which he was remitting for payment to the suppliers.

135 There is some slight evidence of ongoing commercial activity by Albert as late as September 2009, when photos taken at Beach Road reveal the presence of Diesel Spa labelling material. Morris (and perhaps Albert) had previously been engaged in the sale of Diesel Spa label clothing.

136 This material reinforces the complete unreliability of Albert as a witness. I accept that, at least at times, he has had resources which have enabled him to derive income over and above his disability pension, although his claims of income of $75,000 were in their context self-serving, in aid of finance applications.

Morris

137 Morris was born on 10 November 1947, and is now 63 years of age. He has been living in Melbourne, but currently resides in the Beach Road property. He has four children to his estranged wife, Pamela, from whom he claims to be separated. He claims to have transferred his interest in their former Caulfield home to her in 2004, in an endeavour to "save the marriage" - although this coincided with threatened litigation against him arising out of his business. In the 1980s, he had a business, Easymo, which imported watches, clocks, radios, jackets and gift items. However, it went into receivership or liquidation in 1984. S ave for his current 50% interest in Beach Road as tenant in common with Albert, he does not own a house.

138 In his affidavit of 23 September 2009, Morris discloses gross assets totalling approximately $902,000 in value, comprising his inherited half interest in 88 Beach Road ($900,000), a bank account ($100), and 300 AMP shares ($1,857). In addition, he might conceivably have a claim against Pamela under the (CTH) Family Law Act, s 79, for property settlement, or otherwise in respect of his former half-interest in the Caulfield property; this could not realistically exceed half its value of $350,000 ($175,000). His claimed liabilities total $513,000, comprising his share of the mortgage debt secured on Beach Road ($150,000); his share of the personal loan ($50,000); and unpaid school fees due to Yarneh Leibler College ($313,000). Accordingly, his disclosed net asset position is $338,957 (possibly $513,957, if one includes his potential claim against Pamela). Without his inherited interest in Beach Road, there would be a deficiency of $561,043 (at best, of $386,043). If he were to retain only so much of the proceeds of Beach Road as was required to discharge the mortgage and personal loan, he would still have a deficiency of $361,043 (best case $186,043).

139 Morris has been receiving a disability pension since 2002; it is currently $110 per week (having been reduced on account of his transfer of Caulfield to Pamela); he also receives some (insignificant) dividends from his AMP shares. He says that he does some hawking to try to survive on a day-to-day basis.

140 In explaining the deposits into the 656 account, he was very coy about the identity of his suppliers. Like Albert, in a finance application in 2006 he claimed that he had an income of $52,000.

141 Between 2002 and 2005, he and his wife incurred credit card expenditure, in respect of which they made payments totalling $222,190, mostly in cash, although ultimately, his wife paid off the remaining debt, of $20,000, borrowing on the security of the Caulfield property to do. This suggests a source of funds in addition to his pension, at least up to 2005. But there is no evidence of this continuing after 2005.

Evaluation

142 Underlying the daughters' claims were three main arguments:

(1) that all four children had a legitimate expectation of benefit under the will of their surviving parent, arising from a family culture of mutuality and co-operation in financial matters and equality; that a will that left the estate to all four children equally would have been a "moral and fair will"; and that the evidence does not disclose any good explanation - prior provision, financial matters, quality of relationships, or conduct towards Lily - for excluding the daughters from provision under the will;

(2) that Albert has no claim to accommodation out of the estate at the expense of any of the other siblings, and no special entitlement to or call on the generosity of the parents - all the more so as Beach Road will have to be sold in any event to fund costs, so that the estate may be regarded as liquid; and

(3) that the sons have failed to provide truthful and accurate information about their financial circumstances, and the Court should disregard any claim of need on their part.

143 As to the first argument, the daughters' submission overlooks that, under our system of succession, including the FPA, equality is not a starting point - it is the will that is the starting point, and it is unnecessary to justify or explain a departure from equality. The relevant principles were concisely described by McLelland J (as the later Chief Judge then was) in Re Fulop (deceased) (1987) 8 NSWLR 679:

In making these determinations, the following principles apply: first, the Court should not interfere with the dispositions in the will ... except to the extent necessary to make adequate provision for the plaintiff's proper maintenance, education and advancement in life, secondly, the expression "proper" in this context connotes a standard appropriate to all the circumstances of the case, and thirdly, the Court may take into consideration any matter (whether existing or occurring before or after the death of the deceased) which it considers relevant in the circumstances, including (a) the nature and quality of the relationship between the plaintiff and the deceased (b) the character and conduct of the plaintiff (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs (d) the size and nature of the estate of the deceased (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased ... and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.

144 In Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported) his Honour emphasised that the court's role was limited to making adequate provision for an eligible person's proper maintenance and advancement, and not with asking whether the will was fair, or why it did not deal with beneficiaries equally:

It is important to state what the Family Provision Act permits a court to do and what it does not permit a court to do. The Act recognises that Australians have freedom to leave their property by their will as they wish, with one exception. The exception is that a person must fulfil any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish.

Thus in these cases one does not ask is the will fair, one does not ask why did the testatrix not divide her property equally, one does not as a judge say how would I have made a will had I been the testatrix? What must be asked is whether the testatrix by her will failed in her moral duty to those who had a claim on her? Even if the court comes to the view that that question should be answered in the affirmative, the court still does not remake the will, but only alters it to the extent that proper and adequate provision is made to the eligible person in respect of whom the testatrix failed in her moral duty.

145 Moreover, even where a claimant, being an eligible person, shows that he or she reasonably needs more financial assistance, it does not follow that he or she has in all the circumstances been left with inadequate provision, let alone that an order for provision must be made: a full investigation of all circumstances must be undertaken to ascertain whether a wise and just testator ought to have made greater provision (or, which amounts to the same thing, that the community would expect that greater provision should have been made). This was explained by Young J in Walker v Walker , Unreported, NSWSC 17 May 1996, as follows:

... I reject the approach that all an applicant under the Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact the Act did not intend to affect the freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally.

146 As to the second argument, of all the children, only Albert was dependent on his parents until their demise. He had always been dependent on them for accommodation, and he remained so up to Lily's death. Testators are usually expected to make provision for their dependents. The scope of Albert's dependency was accommodation, and provision that enabled their only dependant to continue to reside in Beach Road, where he had always resided, was in accordance with Lily's and Abraham's moral duty, and with what the community would have expected of them. Even if the costs of litigation may defeat achievement of the purpose, by necessitating sale of Beach Road, that would not warrant expunging the provision made for a dependent.

147 As to the third argument, Mr Gormly submitted that, because the sons had not made a genuine attempt to disclose their financial circumstances, and their evidence in that respect was unreliable and untruthful, I should regard their financial circumstances as no obstacle to making whatever family provision order would otherwise be appropriate in favour of the daughters. But while I view Albert's and Morris' evidence with great suspicion, I am ultimately unable to be satisfied that they now have assets or resources of significance beyond those disclosed. Their explanations of the 656 account transactions are consistent, and not shown to be false. There is nothing to suggest that whatever additional resources might have been available to fund Morris' credit card expenditure until 2005 are still available. Albert's betting losses, while not insignificant, were not so great that they could not have been funded, as he says, by credit card. It may well be that one or both of the sons still has some additional undisclosed income, but I am unpersuaded that it is so large as to make a material difference. It was submitted that, even accepting their disclosed assets and income, a real difference between the daughters and the sons was that the daughters really cannot work, but the sons can and do. However, while Clara cannot work, Evelyn is in remunerative employment; and even if Albert and/or Morris has some additional source of income, it is not on a significant scale, and at their ages they too are disability pensioners, at the ends of their working lives.

148 In this case, in which all interested parties are adult children of the deceased, and although many other factors were adverted to, two considerations dominate all others: the first is the relative financial positions of the siblings; and the second is that one of them has always been, and remained, dependent on his parents for accommodation.

149 So far as the relative financial positions of the daughters and sons are concerned, I have summarised above the circumstances of each of them. Although neither of the daughters is particularly well-off, and while Clara is certainly exposed to risk, without the provision they received under the Will, the sons' position would be markedly inferior to both daughters. Even with the benefits taken under the Will, Morris' position remains significantly worse than that of both daughters, and Albert's is inferior to Evelyn's and approximately equivalent to Clara's. Any adjustment in favour of one or both of the daughters would leave the sons in a still weaker financial position. Comparing their financial positions, it is impossible to see how it could be said that the testator was not entitled to provide for her sons rather than her better, if only moderately, resourced daughters. To do so would have taken from those who had least, to give to those who had most.

150 So far as dependency is concerned, both Abraham and Lily, in their mutual wills, recognised, in particular, Albert's ongoing dependency. Albert was the one who had remained living with them throughout their lives.

151 A number of other considerations were addressed by the evidence and submissions. To my mind, against the foregoing two, they are of slight significance. However, I will touch on the chief of them.

152 There is controversy as to the respective contributions of the children to the acquisition of Beach Road. I accept that Morris and Albert each contributed £250 to the purchase price, and £10 per week for seven years until the mortgage was discharged in mid 1973. Evelyn, who was 12 at the time, does not claim to have contributed to the purchase price. While Clara claims to have contributed about £800, she was then a secretary, in London, who had been working for two years on a weekly income of £8 to 10, and it is improbable that she could have accumulated the funds to make so large a contribution . Neither daughter claims to have contributed to mortgage repayments, but they contributed to household expenditure while they lived there. Had I been persuaded that Clara had made such a contribution, it would have made no difference to my ultimate conclusion based on the other dominant considerations to which I have referred.

153 Although it was suggested that the parents had advanced Clara $10,000 towards the purchase price for her former home at 90 Beach Road, she denied it, and there was no direct evidence of it. However, the parents made some contribution to repayment of Clara's mortgage, and to her property settlement with her former husband, and Lily was conscious of this, as appears from her conversation with Rabbi Chriqui. Evelyn denied that the parents had contributed to her acquisition of her home in 1976. Ultimately, I do not consider that resolution of these ancient and relatively minor matters one way or the other would affect the conclusion I have reached, based on the two dominant considerations mentioned above.

154 Much evidence was directed as to the quality of the relationship between each of the children and the parents. No doubt, their relationship waxed and waned over the years. I accept that, despite occasional differences, Lily had generally good and close relationships with Evelyn, Clara and Morris. I am entirely satisfied that neither daughter could be said to be guilty of "disentitling conduct". Because the sons are not claimants, it would not matter much if they were; but there is no such suggestion in respect of Morris, and while Albert may at times have been difficult, offensive and truculent towards his mother, he was also in many ways the closest of all the children to both his parents, because of his continued residence in their home throughout the entire period they lived in Australia. The fact of decades of cohabitation, coupled with the provision made in the mutual wills, suggests that their relationship, while imperfect like most, were not such as to be seen by either Lily or Abraham as diminishing his claim. Again, I am satisfied that further resolution of issues as to the quality of these relationships would not affect the conclusion I have reached, based on the two dominant considerations mentioned above.

155 Accordingly, in this case, the dominant considerations are the relative financial position of each of the children, and the circumstance that Albert was and remained dependent on Lily (and Abraham) for accommodation throughout their lives - and was Lily's only dependent at the time of her death. While I treat Albert's and Morris' evidence with great circumspection, I am ultimately unpersuaded that they now have assets or resources so much greater than those disclosed, as to disturb a conclusion that - apart from the provision made by the Will - both the daughters were in significantly better financial positions than the sons. In my view, having regard to those dominant considerations, it cannot be said that either of the daughters has been left with inadequate provision for her proper maintenance; and even had that requirement been surmounted - as it arguably is in Clara's case - it would not have been appropriate as a matter of discretion to make an order that reduced provision for the worse-off sons in favour of the better-off daughters.

156 A family provision order should not be made. It is therefore not necessary to consider whether a designating order could or should be made.

Conclusion

157 My conclusions may be summarised as follows.

158 Since the Will was duly executed and not irrational on its face, prima facie testamentary capacity is established. No serious doubt appears as to Lily's testamentary capacity. Her physical health problems do not suggest that she had any cognitive defect. There is nothing in the contemporaneous medical records to suggest any impairment of capacity. Although no doubt under the stresses of caring for her ailing husband, she was apparently functioning well. That her will did not make provision directly for her daughters would not of itself raise a doubt as to capacity, and all the more so in the light of what Lily expressed to Rabbi Chriqui. On the whole of the evidence, insufficient doubt attends capacity to shift the evidentiary onus to the sons. And even if there were a doubt, on the whole of the evidence, any such doubt is not sufficiently substantial to prevail over the evidence that tells in favour of Lily being of sound mind, memory and understanding at the time of execution of the Will.

159 There is no direct evidence of actual coercion of Lily's will. In order to infer undue influence, I would have to be satisfied that undue influence is the probable explanation of the circumstances. While other explanations have the deficiency of inadequately explaining the sons' unwillingness to tell the truth about their role in the making of the will, the deficiencies of coercion as an explanation are more extensive. I cannot be satisfied that the probable explanation of the circumstantial evidence is coercion of Lily's will, and u ndue influence has therefore not been proved.

160 Suspicious circumstances once established dispense with the presumption of knowledge and approval that arises from due execution of a prima facie rational will, so as to cast the onus on the proponent of removing the suspicion and proving, by clear and affirmative proof, that the testator knew and approved the contents of the will. Undue influence and fraud, however, are affirmative defences, which assume that the testator knew and approved the will in the relevant sense, but assert that such knowledge and approval was improperly procured - either by fraud, or by undue influence - in respect of which the opponent bears the onus of proof. Having failed to establish undue influence, the daughters cannot by a side-wind cast the onus of proof of knowledge and approval on the sons by raising a suspicion of undue influence.

161 In the circumstances of this case, the change in testamentary intention is not of itself suspicious. It has not been proved that the sons were involved in giving instructions for the will. Sourcing a solicitor and conveying the testatrix to the solicitor's office does not of itself establish giving instructions to the solicitor, or any reason to doubt that the contents of the will accord with the testator's intention. The sons were clearly not present when Mr Woolley read over and explained the mutual wills to Lily and Abraham, and they in turn read and executed them, which is strong evidence of knowledge and approval of the contents. I am satisfied that Lily knew and approved, in the relevant sense, the contents of the will.

162 In family provision proceedings, the Court is not concerned with whether the will is fair or just or moral, or with whether there is some reason that it did not make equal provision for relevant claimants, except in the limited respect of whether the testator failed in her moral duty to an eligible person. In this case, the dominant considerations are the relative financial position of each of the children, and the circumstance that Albert was and remained dependent on Lily (and Abraham) for accommodation throughout their lives - and was Lily's only dependent at the time of her death. While I treat Albert's and Morris' evidence with great circumspection, I am ultimately unpersuaded that they now have assets or resources, so much greater than those disclosed, as to disturb a conclusion that even now, having regard to the benefits received under the Will, Morris is in a significantly inferior position to both daughters, and Albert is in a position approximately equivalent to Clara and inferior to Evelyn. Having regard to those dominant considerations, it cannot be said that either of the daughters has been left with inadequate provision for her proper maintenance; and even had that requirement been surmounted, it would not have been appropriate as a matter of discretion to make an order that reduced provision for the worse-off sons in favour of the better-off daughters. A family provision order should not be made. It is therefore not necessary to consider whether a designating order could or should be made.

163 I must therefore order that the proceedings be dismissed.

164 The parties have requested an opportunity to address the question of costs after judgment, and I shall make directions for that purpose.

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Decision last updated: 09 March 2011