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Queensland Judgments
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  •   Notable Unreported Decision

Trinder v Ciniglio

 

[2020] QSC 176

SUPREME COURT OF QUEENSLAND

CITATION:

Trinder v Ciniglio [2020] QSC 176

PARTIES:

CRAIG GRAEME TRINDER

(plaintiff)

v

JULIE ANN CINIGLIO & SHANE STUART ELLIS

(defendants)

FILE NO/S:

BS 6320 of 2018

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

16 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10, 11, 12 and 13 February 2020

JUDGE:

Brown J

ORDER:

  1. I pronounce in solemn form for the force and validity of the will of Steven Thomas Trinder dated 15 August 2016.
  2. The Plaintiff’s claim is dismissed.
  3. The parties are to provide submissions within fourteen days as to any further orders required in relation to the grant of probate, the undertakings given by the defendants and as to costs.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – KNOWLEDGE AND APPROVAL OF CONTENTS – EVIDENCE – REBUTTAL OF PRESUMPTION FROM DUE EXECUTION – where the deceased made a will in March 2016 – where the deceased made a will in August 2016 which was executed – where August Will limited distribution to his children – where the plaintiff was the executor of the March Will – where the August Will excluded the plaintiff and named separate executors – where the plaintiff contends that there was a well-grounded suspicion that the deceased did not know of and approve the contents of the August Will – where the circumstances surrounding the construction and execution of the August Will followed the deceased falling out with the plaintiff – whether will rational on its face and deceased free and capable testator – whether presumption of knowledge and approval displaced – whether the deceased had knowledge of and approved of the contents of the August Will – where August Will part of estate planning strategy – whether the August Will should stand as the last will and testament of the deceased

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where the deceased made a will in March 2016 – where August Will executed – where the deceased made a will in August 2016 which excluded persons with a natural claim over his estate – where the plaintiff was the executor of the March Will – where the plaintiff propounds the March Will – where the defendants propound the August Will – where the August Will limited the distribution to persons having a natural claim over his estate – where the plaintiff contends that the deceased did not have testamentary capacity at the time the August Will was executed – where the deceased had been diagnosed with terminal pancreatic cancer – whether will rational on its face and deceased free and capable testator – whether presumption of capacity displaced – whether the deceased had the testamentary capacity to execute the latter will – whether the March Will should be the last will and testament of the deceased if the August Will is not upheld

DEEDS – FORM AND EXECUTION – where gift to attorney – where s 87 Power of Attorney Act applies ­– whether presumption rebutted

Power of Attorney Act 1998 (Qld), s 87

Succession Act 1981 (Qld), s 10

Banks v Goodfellow (1870) LR 5 QB 549, considered

Birch v Birch [2018] QSC 289, cited

Black v Scotson [2019] QSC 272, cited

Frizzo v Frizzo [2011] QSC 107, cited

Hamill v Wright [2018] QSC 197, considered

Johnson v Buttress (1936) 56 CLR 113, considered

Kerr v Badran [2004] NSWSC 73, considered

Mullavey v Verri [2017] 1 Qd R 438; [2016] QSC 83, cited

Rowe v Sudholz [2019] QSC 306, considered

Ruskey-Fleming v Cook [2013] QSC 142, considered

Smith v Glegg [2005] 1 Qd R 561; [2004] QSC 443, cited

Tobin v Ezekiel [2012] NSWCA 285, cited

Veall v Veall [2015] VSCA 60, cited

Vernon v Watson [2002] NSWSC 600, considered

COUNSEL:

D Morgan for the plaintiff

I Erskine for the defendants

SOLICITORS:

Michael Dwyer Solicitor for the plaintiff

Cronin Miller Litigation for the defendants

Introduction

  1. [1]
    Steven Trinder (Steven) died on 23 October 2017. Prior to his death he had made two wills in close proximity to each other. The later will was executed on 15 August 2016 (August Will). Under the August Will, Julie Ciniglio (Julie), who was Steven’s long term de facto partner, and Mr Ellis,[1] the solicitor who drafted the August Will, were jointly the nominated Executors and Trustees of “Steven Thomas Trinder’s Testamentary Trust”. Steven had made an earlier will on 21 March 2016 (March Will). The March Will nominated Steven’s brother, Craig Trinder (Craig)[2] to be the executor and trustee of the “Trinder Settlement Trust”. Craig contends that Steven lacked testamentary capacity and further, that the August Will was not executed by Steven with knowledge and approval of its contents. The defendants’ counterclaim that, in the event that the Court determined Steven lacked capacity when executing the August Will, the March Will should not be upheld on the same basis. If the defendant’s counterclaim is successful, a will made on 26 October 2012 should stand as Steven’s last Will and Testament.
  2. [2]
    At the time that the August Will was executed, Steven also executed two Enduring Power’s of Attorney in respect of health (Health EPOA) and financial matters (Financial EPOA). Julie was the nominated attorney under both EPOAs. The Financial EPOA was effective immediately. Whereas, the Health EPOA did not commence until Steven had lost capacity. On 27 September 2017 Steven and Julie executed a Deed of Gift (Deed of Gift) whereby various items were gifted by Steven to Julie. Given that Julie was Steven’s attorney under the Financial EPOA, a rebuttable presumption of undue influence arises pursuant to s 87 of the Power of Attorney Act 1998 (Qld). Craig seeks to set the Deed of Gift aside on the basis that the presumption applies and is not rebutted, or that Steven did not have capacity to execute the Deed of Gift.
  3. [3]
    The issues to be determined by this Court are therefore:
    1. (a)
      Whether Steven had testamentary capacity at the time of the execution of the August Will;
    2. (b)
      Whether Steven executed the August Will with knowledge and approval of the contents of the August Will;
    3. (c)
      If the Court determines that the answer to either (a) or (b) is no, then:
      1. Whether Steven had testamentary capacity at the time of the execution of the March Will; and
      2. Whether Steven executed the March Will with knowledge and approval of the contents of the March Will;
    4. (d)
      If the Court determines that the answer to either (c) is no, whether the will of Steven made on 26 October 2012 should be upheld as his last valid will; and
    5. (e)
      With respect to the Deed of Gift, whether:
      1. Steven lacked capacity at the time of execution; or
      2. There was undue influence arising from the presumption under s 87 of the Powers of Attorney Act 1998 (Qld).
  4. [4]
    Counsel of behalf of Craig did not press the more wide ranging general relief in 3A and 3B, as I had indicated that any relief granted would have to be specific to the transaction impugned.

Evidence at Trial

  1. [5]
    Steven was diagnosed with terminal cancer on 1 September 2015. At that time, Steven had been in a de facto relationship with Julie for approximately 14 years. Julie and her daughter, Jessica, who was 10 years of age, had moved in with Steven in 2001.[3]
  2. [6]
    Steven had been married three times before. He had three children: Steven Trinder Junior (Steven Junior), Cole Trinder (Cole) and Samantha Trinder (Samantha).
  3. [7]
    At the time of Steven’s diagnosis, he was contributing to his mother’s care, as she was still alive and residing in a nursing home.
  4. [8]
    Steven had been a successful businessman, motorcycle champion and motorcycle enthusiast. He had established a company with Craig, Biomagnetic Therapy Pty Ltd (Biomagnetic Therapy). Steven and Craig were both directors and shareholders of Biomagnetic Therapy and had run the business together for a number of years. According to Craig, Steven was responsible for the finance and accounting aspect of the business and he was responsible for marketing and sales. In or around 2005, Craig and Steven decided to separate their business interests, resulting in Craig establishing Biomagnetic Pty Ltd (Biomagnetic). Craig transferred all of the assets necessary to run his business from Biomagnetic Therapy to Biomagnetic for an amount of $3.5 million, although whether that amount was paid was the subject of dispute.[4]
  5. [9]
    Steven and Craig had used the services of Christian Schween of Asset Builder Financial Services Pty Ltd since 2008 for financial advice and to buy and sell shares using the Commonwealth Bank Security Trading Portal. Mr Schween assisted Craig in entering into the United States stock market using a company incorporated in Hong Kong, Dupont Worldwide Ltd (Dupont). According to Mr. Schween, Steven loaned Craig $500,000, which Craig subsequently transferred into Dupont. As a result of the loss generated on those investments, he stated that Craig owed Steven $250,000. That had not been repaid at the time the August Will was executed.

The March Will

  1. [10]
    After Steven had been diagnosed with terminal pancreatic cancer, Craig said that he had raised with Steven whether he had a will, and Steven responded that he could not remember. Craig suggested Steven speak to Mr Schween, who then facilitated a will being prepared by instructing Mr Evans,[5] who is now deceased, on Steven’s behalf. Mr Schween continued to act as an intermediary from time to time.[6] Mr Evans never met Steven face to face and dealt with him through email. On two occasions, he telephoned Steven after having provided him with a draft will.
  2. [11]
    The email of Mr Schween to Steven dated 25 November 2015 stated:

“Hello Steven

I have locked in the estate lawyer for this coming Tuesday (Mr Evans).

I will brief him as per the discussions we had last week.

Listed below is a summary of our discussions

  1. All your personal assets are to flow into a testamentary trust inclusive of the apartment

The trust will have beneficiaries:

A: Julie (please provide surname)

The trust will provide Julie with life tenure of the apartment

Julie is to get an annual income stream from the trust of $45,000 indexed at 5% per annum

B: The trust is to meet the accommodation costs of your mother for the term of her life – estimated cost $27,000

C: Cole is to receive annual income of $13,000 indexed at 5% per

Any residual income from the trust is to be distributed to the remaining beneficiaries as follows

  1. Sue Trinder (sister)
  2. Steven (son)
  3. Samantha Trinder (daughter)
  4. Jessica (Julie’s daughter)
  5. Craig (brother)

You can also stipulate that the trust make one off lump sum payments to your grand children – say $5000 each

I have estimated that once all assets are brought to the table, there will be 1.5 to 1.7 million available for investment (not counting the apartment). I have arrived at this amount using the following figures:

  1. Superfund $544,000
  2. Bio Geared Portfolio after repayment of geared loan $564,000
  3. Boat $200,000
  4. Motor Bikes $100,000
  5. Craig – loan for US investments – estimate (final calculation to be provided by us) $250,000

Estimated total = 1.658 M

Assuming a 5% income, the trust will generate income in the range of $80,000. That will cover the 3 primary beneficiaries ie Julie, your mum and

Cole

In the event the trust does not generate this much income, capital can be employed to meet the income objectives.

The trust will meet its objectives easily once it stops paying your mums accommodation needs.

At this point, the remaining beneficiaries will receive small stipends in the range of $4000 each per annum.

Craig is to be trustee and Asset Builder will act as the investment adviser to the trust.

Please note: This is a draft proposal only and you may wish to change things as we move forward in formulating your wishes. The plain is also very dependent on the estate lawyer (Mr Evans) detailing things that can and cannot be achieved

There is going to be a legal cost in getting all of this bedded down and I estimate this to be in the range of $4500 to $6000 based on our experience with other clients

In summary, the primary objective will be to ensure that Julie is looked after for life, and that assistance is given to Cole to meet accommodation costs

Once Julie passes away, the trust is to be wound up and assets distributed to the surviving beneficiaries.” (emphasis in original)

  1. [12]
    Mr Schween had a discussion with Mr Evans on 1 December 2015. A draft will was subsequently sent to Mr Schween and Steven on 8 December 2015.[7] On 14 December 2015 Mr Schween relayed further instructions to Mr Evans, which included that Cole was to be a beneficiary only and not be provided with guaranteed income.[8] An amended draft will was sent on 16 December 2015.[9] Steven responded on 20 January 2016 stating Julie’s income should be increased from “$45k to $52K per annum plus CPI”.[10] He emailed further changes on 22 January 2016.[11] Having been sent an updated draft in early February 2016, Steven stated that he was having trouble understanding the last draft and requested that the Breaker Street apartment be left to Julie’s daughter Jessica upon Julie’s death.[12]
  2. [13]
    Mr Evans forwarded an amended will and stated:[13]

“As to the broader issue of the understanding of the last draft Will, I encourage you to focus on Part 1 … Part 2 of the Will, a copy of which you have already received, is a standard set of trust provisions which will apply to the Trinder Settlement Trust but which do not go to the specific identity of the beneficiaries, this having been dealt with in Part 1 of your Will.”

  1. [14]
    After two attempts Steven executed the March Will, which was prepared by Mr Evans.
  2. [15]
    The March Will provided for a testamentary trust to be created, named the “Trinder Settlement Trust”. Under the Trinder Settlement Trust:
    1. (a)
      Julie was to be given a life interest in the Breaker Street apartment, which she and Steven shared, which was to vest absolutely in Jessica upon her death;
    2. (b)
      Julie was to receive an annual income of $52,000 (subject to an annual increase of 5%);
    3. (c)
      The surplus income was to be distributed equally between Jessica, Steven Junior, Cole and Samantha, Susan and Craig;
    4. (d)
      His mother, Joan, was to be given sufficient funds to meet the accommodation costs for her life of the nursing home; and
    5. (e)
      Provision was made for distribution of the capital upon the death of Julie, Joan and Cole, whomever was the last to die, to Jessica, Craig, Samantha, Steven Junior, Susan and one off capital payments of $5,000 to Steven’s grandchildren.

The August Will

  1. [16]
    After the March Will was made, Steven continued to contact Mr Schween to arrange to drawdown money. On 29 March 2016 Steven complained to Mr Schween that he had no money and sought $30,000.[14]
  2. [17]
    For example, on 30 May 2016, Mr Trinder sent Mr Schween an email stating:

“Hi Chris,

I need to draw down $20000, also the Bio acc. is overdrawn so I need an [sic] $10000 to cover that.

I need this pretty well straight away.

When are you coming up? As we need to sit down and go through everything.

Steven”[15]

  1. [18]
    Relations subsequently became strained between Steven and Mr Schween and Craig. Steven had invested a sum of approximately $500,000 in Dupont in February 2014. Any income from his investment was paid directly to Dupont. According to what Mr Dimon was told in discussions with both Steven and Craig, Craig would then distribute Steven’s share of the income to him.
  2. [19]
    In or around June 2016, when Steven decided to withdraw from Dupont due to his poor health, he had lost approximately 53.6 percent of his initial investment. Mr Dimon stated that on his review of the books and records of Biomagnetic Therapy and discussions with Steven, he believes that the balance of Steven’s initial investment in Dupont, which was approximately $232,000, was paid to Craig’s bank account but he had not seen any evidence that the money was returned to Steven or Biomagnetic Therapy. According to what Mr Dimon was told by Steven, Steven believed that Mr Schween had paid Steven’s balance of the investment to Craig and that despite asking him to return the funds, Craig had refused to do so, and that had given rise to considerable tension between Steven and Craig (the Loan Dispute). Mr Schween corroborated the fact that the monies were paid to Craig, not Steven or Biomagnetic Therapy, and that the monies had not been repaid.
  3. [20]
    According to Mr Dimon, those funds have still not been repaid. He stated that in light of the Loan Dispute, Craig and Steven’s relationship began to break down and they sought to completely separate their business interests and resolution of various issues by:
    1. (a)
      Separating Craig from Biomagnetic Therapy completely;
    2. (b)
      Negotiating a compromise of the capital loan from Biomagnetic to Biomagnetic Therapy; and
    3. (c)
      Accounting to each other for the respective expenses incurred over the years.
  4. [21]
    Around the time that Steven and Craig’s relationship began to break down, Steven sought a recommendation from Mr Dimon to refer him to a local estate planning lawyer in order to organise his affairs prior to his passing.[16] Mr Dimon referred him to Mr Ellis of Mr Ellis Lawyers. Mr Dimon sent an email to Steven on 21 June 2016 confirming that he had contacted Mr Ellis and that he would be able to meet on 14 July 2016. Mr Dimon sent an email to Mr Ellis that same day based, in part, on his conversation with Steven.[17] Counsel on behalf of Craig attributes significance to two matters in the email, which Mr Dimon attributed to Steven, namely that “Steven intends to leave the bulk of estate to [Julie] and Cole” and “2 sons from previous marriage – Cole (25) and Steven Junior (45)”. The email also notes a number of matters which Mr Dimon stated were his major concerns, namely:[18]

“My major concerns are:

  1. Steve’s poor health and need to get his affairs in order. He has recently updated his will but is not confident in it;
  2. Structure, tax & control issues in the company as well as cleaning up Div7A mess (inherited mess);
  3. Deed update for SMSF, no death benefit nominations, death & pension issues;
  4. Potential claim by Steven Junior;
  5. Protecting unit for Julie and providing her with a tax effective income stream”
  1. [22]
    Mr Dimon stated that Steven had told him that he was concerned about being able to trust Craig and Mr Schween to manage his affairs in relation to his lack of confidence in the March Will. Mr Dimon also stated that Steven did not mention his daughter Samantha. Mr Dimon stated the last two issues in the email to Mr Ellis were raised by Steven. The email was never sent to Steven and was based upon his converations with Steven and his own thoughts.
  2. [23]
    On 21 June 2016 Steven was admitted to hospital due to a Fentanyl patch overdose. Dr Matos stated that was the result of Steven having been pain free and then putting himself on a Fentanyl patch when he developed abdominal pain. Dr Matos stated that in his letter of 28 June 2016 that Steven was more settled and his pain was well controlled on Oxynom.[19]
  3. [24]
    On 5 July 2016, Steven sent Mr Schween an email informing him that he wanted him to sell down the debt in Biomagnetic Therapy as he was cleaning up to get rid of it. Steven wrote that he would like a weekly report so that he could keep track of his progress and commented he would not keep paying $85,000 for no gain.[20] On 6 July 2016, Craig sent Mr Schween an email stating:[21]

“Spoke with Steven today, yes, as per his email/text to you he wants to get rid of the margin loan. However, what he really requires is a draw down/retainer each month of 15K into his personal account. Not phoning up asking for it. Autopayment [sic]…market up or down, don’t [sic] matter funds go in…

He doesn’t want worry [sic] about funds/money at all, just focus on getting better which makes perfect sense… Do the above all is fine, he can relax and not have any concerns… can this amount be achieved?”

  1. [25]
    Craig then makes comment about Steven’s margin interest from his Bio account and whether it can be drawn down from his portfolio. He further comments that Steven had decided to sell a boat which may be used to pay off $200,000 of the $240,000 outstanding on a Viridian account.[22] That same day, Craig sent an email to Steven saying he had spoken to Mr Schween at length and providing information in relation to Steven’s various accounts.[23]
  2. [26]
    On or about July 2016, Steven was observed by Jessica getting very upset and yelling at the computer, following which he rang Mr Schween. She stated that he had told Julie and her, words to the effect of:[24]

“Craig and [Mr Schween] used my money to invest for Craig and didn’t tell me, so Craig has been using my money for himself to make money for himself and putting all at risk without telling me!”

  1. [27]
    According to Jessica, in light of Steven and Craig’s relationship breakdown, she suggested that Stevenget independent legal advice about appointing a new executor, particularly given Mr Schween and Craig’s role in the March Will. It appears that either Jessica’s estimated date of July was in fact June, given Steven’s contact with Mr Dimon, or the exchange in July was the point at which Steven’s relationship with Craig brokedown. Given the chronology of emails, it appears the latter was the most likely.
  2. [28]
    On 22 July 2020, an email was sent by Steven to Mr Schween providing bank account details and stating:[25]

“As usual, the bank and you get paid, whilst the rest of us lose hundreds of thousands of dollars. The button has been pushed so let’s try and help the rest of us instead of just Craig.

You had no right to give away my funds and then try to hide it.”

  1. [29]
    I treat Jessica’s evidence with some circumspection given that she stands to gain from the August Will as a beneficiary. She was not cross-examined and her evidence is consistent with Mr Dimon’s evidence and Steven’s email. I accept her evidence.
  2. [30]
    According to Mr Schween’s evidence, money was owing to Steven by Craig. He had referred to that in the email to Mr Evans dated 25 November 2015, when he stated that there was a loan to Craig for U.S investments in the sum of some $250,000.[26] Mr Schween, in his evidence, stated that the investment had been $500,000 but the investment had lost money and reduced to $250,000. He stated that he had informed Craig that he owed Steven that money.[27] While his evidence was that it was a loan by Steven to Craig, not a loan by Steven to Dupont, his explanation was not convincing or coherent.
  3. [31]
    Mr Schween agreed that the email from Steven of 22 July 2016 appeared to be referring to the sum of $250,000.[28] He said that the suggestion that he tried to hide it was incorrect. He stated that the monies were transferred to namely Dupont’s cash account and it was repatriated to Australia, which he stated was why he informed Craig that he owed Steven $250,000. According to Mr Schween, Craig had transferred the capital to Dupont.[29] According to Mr Schween, Craig did not refuse to repay the money but said that they needed to wait until the market recovered, and as far as he knew, it was still outstanding.[30] He also stated that he had pointed out to Craig, following Steven’s death, that he owed the estate $250,000.[31] He stated that he believed the brothers had a falling out along the way. Mr Schween also confirmed that the Biomagnetic geared portfolio was a portfolio of Dupont and was an asset of Biomagnetic Therapy, not a personal asset of Steven.[32]
  4. [32]
    In his evidence, Mr Schween noted that from his drawings, Steven was a “prolific” spender and had spent some $2 million between 2008 until 2017. On average spending $180,000 per annum.[33] He argued in cross-examination that there was nothing unusual in Steven’s requests for payment in March and May 2016. I found his evidence overly critical of Steven and his ability with little justification.
  5. [33]
    I found Mr Schween to be generally honest but defensive in relation to the question of the $500,000 ‘lent’ by Steven and that he presented his evidence to cast himself and Craig in the best light. I do not accept his evidence as to Steven being financially naïve, and not an astute businessman and investor for the reasons set out below.

The 14 July Meeting

  1. [34]
    On 14 July 2016 a meeting occurred between Steven, Julie, Mr Dimon, Mr Ellis and a Ms Mercer at Mr Dimon’s offices. Instructions were taken from Steven, as well as, Julie for her Will and an Enduring Power of Attorney. That meeting lasted for some three and a half hours. According to Mr Dimon, he attended that meeting in order to provide input as to Steven’s assets, company structure, superannuation and taxation affairs. Ms Mercer worked for Mr Ellis as a graduate law clerk. She attended and had taken extensive notes during the meeting, but those notes were not a verbatim record. As a result of the meeting, Mr Ellis was given instructions to prepare testamentary and estate planning documents including for inter vivos transfers, namely:
    1. (a)
      Testamentary trusts, wills and EPOAs;
    2. (b)
      SMSF-upgrade plus estate planning;
    3. (c)
      A binding financial agreement, including a title transfer; and
    4. (d)
      A deed of variation for a family trust.
  2. [35]
    The note of instructions was signed on almost every page by both Julie and Steven and was witnessed by two witnesses at the end of the meeting.
  3. [36]
    The effect of the evidence of each of those who attended the meeting was that Steven was mostly conversing with Mr Ellis.[34] He was able to provide instructions which were clear and concise.[35] Steven provided explanations to Julie of different matters being discussed.[36] Steven told Mr Ellis that he was totally uncomfortable with the content of the March Will. He had told Mr Ellis that he had lost confidence in Craig and Mr Schween because they had lost a significant sum of Steven’s money and attempted to hide it from him, resulting in Craig owing him money. Further, that Steven and Craig’s relationship had turned sour and that they were trying to separate their various business interests. Steven also stated that he did not want Craig involved in his estate. However, Steven did not address the actual content of the March Will.
  4. [37]
    Mr Ellis discussed and took instructions from Steven in relation to his assets and liabilities, the company structure of Biomagnetic Therapy, and his shareholdings, the separation of interests between Steven and Craig, the inter-company loans, the self-managed superannuation fund, the lack of life insurance, family structure and relationships and instructions as to a proposed testamentary trust.[37] Mr Ellis gave evidence that Steven said he wanted to structure his affairs in such a way to ensure Julie received the bulk of his estate, preferably outside of his will, to ensure the estate was protected as best as possible against challenges from other persons.[38] Mr Dimon’s evidence was also that Steven had advised him that he wanted to ensure his assets were protected and his estate would go to Julie to be controlled by her.[39] That included discussions about jointly held assets and that assets would pass directly to Julie without forming part of the estate.[40] However, Steven’s shares and money were to remain in the estate. Mr Ellis advised Steven that he would need to see a specialist family lawyer for a binding financial agreement to be prepared to protect the assets being transferred into joint names. One of the issues that was also discussed was a Division 7A Income Tax Assessment Act 1997 (Cth) (ITAA) problem arising out of when Craig and Steven were both involved in Biomagnetic Therapy.
  5. [38]
    Mr Ellis had further discussions with Steven between 14 July 2016 and 15 August 2016 to take instructions. On 15 August 2016, Steven and Julie met with Mr Ellis to execute the August Will, a special directions letter, a statutory declaration, conflict permission and statement of understanding, letter of conflict pursuant to r 12 of the Australian Solicitors’ Conduct Rules, statement of understanding and personal health and financial matters, the Health EPOA and the Financial EPOA. Mr Dimon attended the meeting but left when documents were to be executed. Julie executed a will and EPOAs at the same time. The August Will provided for the creation of a discretionary testamentary trust appointing Julie and Mr Ellis as joint executors and joint trustees.
  6. [39]
    By a special directions letter, Steven directed that Julie was to enjoy the benefit Steven Thomas Trinder’s Testamentary Trust during her life. After her passing, he directed that:
    1. (a)
      Samantha and Cole each receive $25,000 upon attaining the age of 30 years and having a full time job for 12 months;
    2. (b)
      Steven Junior’s children each receive the sum of $10,000 upon turning 25 years of age; and
    3. (c)
      Jessica receive the balance after the gifts to Steven Junior’s children, Cole and Samantha.
  7. [40]
    Steven directed that the income of his trust to be distributed to Jessica annually in the most cost effective, tax effective and practical method with the guidance of Mr Ellis. Similar provisions were made for Steven’s children and Jessica if Julie did not survive Steven by 30 days. However, those provisions also provided for superannuation interests to be paid to the testamentary trust to be distributed for the sole benefit of Jessica.
  8. [41]
    Although Peter Pavusa, the solicitor to whom Mr Ellis referred Steven with respect to a binding financial agreement, had referred to in an email “they are excluding the children from the will and expect a claim to be made against the estate”, Mr Ellis in cross-examination did not accept that that was accurate, except in relation to Steven Junior. He stated that Steven’s position in relation to Steven Junior had softened from him initially seeking to exclude Steven Junior completely, by making provision for his children. Mr Ellis did not accept that Cole, Samantha and Steven Junior were effectively disinherited. Cole, Samantha and Steven Junior’s children were potential beneficiaries under the testamentary trust, with an accompanying special direction’s letter stating Steven’s wishes as to how the trustee should conduct the testamentary trust.[41] He stated Steven’s mother was also a beneficiary who could be provided for under the trust.
  9. [42]
    Clause 4.4 of the Special Directions letter stated:

“It is my wish that should my Will be contested that the Court recognise the contents of the Statutory Declaration affirmed by me and to be read in conjunction with my estate planning documents.”

  1. [43]
    In a statutory declaration, Steven set out the reasons why he had decided to deal with his estate in the way provided for in the August Will. Specifically, it addressed the reason why he had made no provision for his son Steven Junior. He referred to the lack of contact for ten years, save for two occasions. The first was where he received a text message with nasty things said about his family, and in particular Julie. The last occasion being more recent where Steven Junior had called Steven to rekindle the relationship, but given the nature of their relationship for the previous ten years, Steven stated that he was in no condition to do so. He stated he had made greater provision for Jessica because he had a close relationship with her, as he was a parental figure since she was ten years of age. He had made lesser provision for Cole because he had assisted him to move from Canada, let him live in his investment property, allowed him to work part time in his company and that he had not been employed for a year. In relation to Samantha, lesser provisions was made because he and Julie had not had contact with her for 15 to 16 years, she resides in Canada and has had problems with illicit drugs for some years. A statutory declaration was also signed titled “Conflict Permission and Statement of Understanding”.
  2. [44]
    According to Craig, the suite of documents prepared by Mr Ellis, which they describe as “aggressive and complicated transactions designed to defeat any family provision application brought by Steven Trinder Jnr”, resulted in Steven not requiring an elaborate will if in fact he was to die without any assets which fell into his estate. Mr Ellis pointed out that ultimately whether or not everything would be disposed of by the time of Steven’s passing was an unknown and shares and cash were to be left as assets for the testamentary trust. Further, Mr Ellis stated that while the will was not a very simple will, it was a simple structuring in relation to the estate and that dealing with the different entities involved is what takes the time.[42]
  3. [45]
    On 14 July at 3.30pm, Steven presented at the hospital and was admitted with dizziness and disorientation, problems with his speech and postural hypertension.[43]
  4. [46]
    On 2 August 2016, Julie emailed the Gold Coast Cancer Centre to clarify what medications Steven was taking. While Counsel for Craig referred to this as a further fact relevant to Steven’s capacity, little significance can be attached to a partner seeking to clarify their partner’s medications.
  5. [47]
    On 8 August 2016, Steven and Mr Dimon met with Mr Pavusa with a view to Mr Pavusa preparing a binding financial agreement to transfer ownership of property Steven owned in his sole name to joint names with Julie in order to ensure that the property would be owned by Julie upon his death.[44] Mr Pavusa took instructions from Steven. As a result of those instructions, Mr Pavusa completed a client information sheet and subsequently sent him a letter outlining those instructions, including identifying Steven’s assets, copied to Mr Ellis and Mr Dimon, on 11 August 2016.[45] The binding financial agreement did not proceed because the principle place of residence which Steven and Julie shared at Breaker Street was sold by them and another property bought, which was intended to be in the joint names of Julie and Steven. However, there was an error and the property was placed in Steven’s name only.[46] It is presently an asset of Steven’s testamentary trust.
  6. [48]
    The separation was largely a matter for which Mr Dimon, not Mr Ellis, had carriage for Steven. Mr Dimon also consulted with Mr Ellis after the 14 July Meeting as to how to give effect to Steven’s wishes, particularly in relation to the separation of Craig and Steven’s interest for Biomagnetic Therapy which included a proposal to leave Biomagnetic Therapy and its remaining assets (loans) intact for the foreseeable future and gradually extract all of the franking credits in a tax effective manner, and provide in Steven’s will for his personally owned shares in Biomagnetic Therapy to be left to the testamentary trust.[47]  A particular issue being dealt with was in respect of Division 7A of the ITAA on intercompany loans. In doing so, Mr Dimon was conscious that Craig needed some protection on the remaining loan owed to Biomagnetic Therapy where the loan might be called up after Steven’s passing. He therefore proposed that perhaps a shareholder agreement stating that any loan between the two companies would not be pursued unless all shareholders in Biomagnetic Therapy agreed.[48] Mr Dimon said that he had discussed the proposal with Steven.[49] He had said he devised it with Steven’s permission.[50] I accept his evidence.
  7. [49]
    On 8 August 2016, the Steven Superannuation Pty Ltd was also registered, and the documents were executed by Steven and Julie.[51]

The 15 August 2016 Meeting

  1. [50]
    On 15 August 2016, Mr Ellis met with Mr Dimon to discuss the estate planning documents prior to Steven and Julie arriving to read and execute those documents. The meeting between Mr Ellis, Steven and Julie took place for approximately 60 to 90 minutes. Steven and Julie had not wanted the documents provided to them in advance.[52] Mr Ellis stated that he went through the estate planning documents from start to finish, and that Steven and Julie advised him they understood the content and effect of the documents. The special directions letter was, in particular, read thoroughly by Steven. Mr Dimon then left the room and was not present when Steven and Julie executed the estate planning documents. Steven and Julie executed “mirror” wills and EPOAs. Ms Mercer and Ms Cavanagh witnessed the execution of the estate planning documents, save for the EPOAs, which Ms Gibson witnessed. Mr Ellis found Steven to be well aware of the effect of the documents that he was signing and in his opinion, Steven was happy with the content of them. He stated that Steven appeared to be sober, lucid and in control of his mental and physical faculties, and that he had no concerns as to his ability to provide him with instructions or to understand the content and effect of the documents he was signing. He stated that the instructions that Steven had provided to him were at all times cohesive and consistent. Mr Dimon, who was present up until the documents were being executed, found Steven was alert, and in his opinion, had a thorough understanding of the documents being signed. He would ask questions as necessary, was engaged in the discussions and his speech was clear and coherent. He did not find that Steven showed any signs of hesitation, confusion or inattention. Mr Dimon had no concerns as to Steven’s capacity, and observing nothing to suggest that he was under the influence of illicit drugs and if he was on pain medication, then its effects were not apparent.
  2. [51]
    Julie found that Steven was his humorous straight down the line self and had said the words “Jesus” when he saw the amount of documents that he had to sign.[53]
  3. [52]
    Ms Mercer considered from her observations that Steven knew and understood the document that he was executing.[54]
  4. [53]
    Ms Cavanagh observed Steven in her preliminary interactions, prior to the signing of the August Will, to be coherent and in control of his mental faculties.[55] She considered that Steven appeared to know and understand the documents that he was executing.[56] She did not recall having any concerns or suspicions that he did not comprehend what he was doing or that his capacity was diminished. Further, she found that Steven appeared at all times, coherent, confident and in control of his mental and physical faculties.[57]
  5. [54]
    Ms Gibson witnessed Steven execute four documents, namely a statutory declaration, the Health EPOA, the Financial EPOA and a revocation of existing EPOAs. She also witnessed Julie execute her own EPOAs. She stated that she did not recall having any doubts as to Steven’s capacity and if she did doubt Steven’s capacity, she would have brought it to Mr Ellis’ attention. She was present when Steven confirmed that he understood the documents he was going to sign.
  6. [55]
    Ms Mercer, Ms Cavanagh and Ms Gibson were not cross-examined. I accept their evidence.
  7. [56]
    On 15 August 2016, Steven had a blood test conducted to see if he could proceed with chemotherapy. According to Dr Matos, the report of the blood results indicated that he was not suffering any condition which would have affected him to the extent that he could not have received chemotherapy or suggest that he did not have capacity. He stated that from the blood test report, Steven appeared to be very well for somebody who was suffering from cancer.[58] In his affidavit, Dr Matos clarified that a letter he had sent to Dr Hohl dated 16 August 2016 in relation to Steven’s admission for an upper gastrointestinal bleed was not the date of admission, but rather that that occurred in or around late July or early August.[59]
  8. [57]
    After 15 August 2016, the remaining issues that needed to be resolved that had been discussed on 14 July 2016 was the separation between Craig and Steven arising from the Loan Dispute. Mr Dimon was largely responsible for that exercise.[60] According to Mr Dimon, between June 2016 and December 2016 he engaged in numerous discussions with Craig and Steven in order to attempt to negotiate a resolution. He stated that the brothers would not communicate with each other directly, such that most of his involvement was to act as a mediator. On 2 December 2016, he had a meeting with Craig to discuss a proposed shareholder’s resolution to resolve the dispute. Craig, in his affidavit, stated that he had complained to Mr Dimon that he had failed to deal with the loan from Steven, notwithstanding that he had been Steven’s accountant for ten years. Mr Dimon stated that that was incorrect, and that he had only been Steven’s accountant for four years at that time. Mr Dimon further stated that the Loan Dispute had been ongoing for many years prior to his appointment. He was not challenged in that regard in cross-examination.
  9. [58]
    On 22 December 2016, Mr Dimon had a meeting with both Craig and Steven to resolve outstanding issues in relation the Loan Dispute. He stated that Steven was actively involved in the discussions and clearly understood the implications of the matters at hand. An agreement in principle was reached, as a result of which Mr Dimon sent an email to Craig and Steven on 23 December 2016.[61] That provided for forgiveness of loans owed by Biomagnetic to Biomagnetic Therapy, acknowledgement that Biomagnetic Therapy would not seek repayment of any remaining loan amounts owing to the company from Biomagnetic without unanimous approval of all the shareholders and payment by Craig to Steven of $85,000 upon the settlement of the sale of a penthouse by Craig.[62] Mr Dimon subsequently corresponded with Steven Grant of Merthyr Law in order to receive advice as to the restructuring of Biomagnetic Therapy and for preparation of a shareholder agreement, which was ultimately not pursued. On 18 July 2017, a resolution giving effect to the agreement in principle was executed by Steven and Craig.[63] When it was put to Craig that he did not have concerns about Steven’s capacity to enter into the transaction, he stated: “I don’t know what about his capacity [sic]. I don’t think he cared.”[64] I find that response was disingenuous and that he was being evasive so as not to harm his case. There is no suggestion in any of Craig’s correspondence with Mr Dimon that he considered that there was any issue with Steven’s capacity. Indeed, in a number of emails about the repayment of the nursing home bond after their mother passed away, Craig was aking that Mr Dimon accelerate the process with Steven due to his concern that he might die before it was resolved, not as to his capacity.
  10. [59]
    According to Craig, Steven was not at the meeting with him on 22 December 2016.[65] I prefer Mr Dimon’s evidence, which is supported by an email of 22 December 2016 referring to a meeting between the three of them. An earlier meeting had taken place with Craig alone, which may have given rise to Craig being confused in that regard, although I note that he rejected that possibility. I found Craig’s evidence unconvincing in this regard.On 24 July 2017, Mr Dimon met with Steven at his office to discuss the resolution, at which time Steven indicated that Craig had not paid him the $85,000 and Steven wanted to take steps to recover the money. This was consistent with an email Steven sent to Mr Ellis and Mr Dimon on 9 May 2017 asking them to sort out the money Craig owed, as Craig had sold a penthouse (which he had previously said needed to be sold before he could pay the $85,000).[66] Mr Dimon states that he advised Steven that it would be uncommercial to pursue the debt and suggested they try and resolve it amicably. Notwithstanding the non-payment of the $85,000, Steven signed two ASIC forms to give effect to the agreement in principle, but instructed Mr Dimon to delay the lodgement of the forms until Craig had paid the $85,000.[67] Mr Dimon last met with Steven on 2 August 2017 to finalise his tax return. While Mr Dimon found Steven to be in some pain and physically unwell, Mr Dimon stated that he had no concerns as to Steven’s capacity as he appeared to understand and follow the conversation.[68]
  11. [60]
    Mr Dimon stated that all the actions subsequent to the initial meeting were consistent with and reflected Steven’s common goal of ensuring Julie would inherit the majority of his estate.[69] Mr Dimon stated that he did not observe any behaviour which would give him reason to suspect that Steven lacked capacity. In his view, he was of sound mind, could provide clear logical instructions, made decisions independently and was not under the influence of drugs or alcohol at any material time in the last two years of his life.[70]

The Deed of Gift

  1. [61]
    On 27 September 2017, the Deed of Gift was executed by Steven and Julie.
  2. [62]
    At the time of signing the Deed of Gift, Mr Ellis, Julie, Ebony Baker and Desley Harris were present.
  3. [63]
    On 22 September 2017, Julie had sent Mr Ellis an email requesting that a deed of transfer be drafted so that motorbikes and tools owned by Steven would be transferred to Julie. Julie stated that “[Mr Dimon] had suggested the deed so as not to have to worry with regard to probate issues further on.”[71] Mr Ellis had responded stating that as lawyer for both Steven and Julie, he could not act on matters if Steven had his faculties without his specific instructions, and if he did not have his faculties, he needed a letter from his general practitioner certifying that the Health EPOA was to be activated.[72]
  4. [64]
    On the day the Deed of Gift was executed, Mr Ellis stated that the document was discussed fully with Steven. Steven requested that Mr Ellis add a boat, including the boat number, which he owned to the Deed of Gift, which was the subject of a handwritten notation. The Deed of Gift was then executed. Mr Ellis stated that there was nothing to indicate that Steven did not have capacity, nor that he was under undue influence or duress.[73] Mr Ellis agreed that he was acting for both Steven and Julie, but did not take steps to get independent advice for Steven, nor to see Steven without Julie present. Mr Ellis stated that the reason he had not done so was because it was the intentions of the parties, there were no doubts in relation to capacity, or indications of any sort that there was any undue influence or duress throughout the whole period of the time that he had dealt with Steven and Julie. Mr Ellis stated that he had a very good discussion with Steven’s palliative care nurse as to Steven’s condition before the Deed of Gift was signed.[74]
  5. [65]
    Ms Black was executive assistant to Mr Ellis. She was not able to be located, nor to be called as a witness. The defendants provided an affidavit of Ms Holly Leape stating the steps that were taken in order to try and locate her. Craig did not contend any adverse inference should be drawn. As a result, I am satisfied that no adverse inference is to be drawn under the rule in Jones v Dunkle.              
  6. [66]
    Ms Harris, Steven’s palliative care nurse from the period April 2017 to October 2017, gave evidence. She was not cross-examined. In her role, she stated that she had frequent face to face visits with Steven and was also on call when support was required out of hours. She stated that she could not recall ever having concerns regarding Steven’s cognition or ability to understand what was going on around him or his decision making until around a few weeks before his death in October 2017.[75] She stated it was only shortly before his death that his cognition deteriorated to the extent that there were concerns as to his decision making ability or capacity.[76] That is consistent with Julie being advised by a doctor on 9 October 2017 to activate Steven’s Health EPOA. She stated that from her experience the medication Steven was being treated with was not sufficient to affect his cognition or capacity. She did not, from her recollection, observe that the medication had affected Steven’s capacity or cognition, and was not aware of him having being drunk or using cannabis or hashish oil when she saw him.[77] She stated that she had never observed, at any point, seeing Julie or Jessica in any way exert undue influence, pressure or otherwise attempt to influence Steven.[78]
  7. [67]
    Ms Harris stated that part of her job involved protecting patients and that if she saw that they had any issues with cognition or she observed them being exploited, abused or improperly influenced, her practice was to make notes if she had such concerns. Her notes on the file from her attendance with Steven did not reveal any such concern.[79]
  8. [68]
    Ms Harris stated that she can recall visiting Steven at his home, which he thought was in August 2017, although she could not recall the date exactly. She recalls there being a lawyer and another lady who worked with the lawyer there on that occasion and that Steven had signed a document which she believed to have been prepared by the lawyer. She stated she was not aware of the content of the document or why it was being signed, but she could say that at the time Steven appeared to her to be mentally sound, was cognitive and interacted normally as he had done throughout the period that she had been treating him.[80] Given Ms Harris recalled that a lawyer and other lady attended when she was there and Mr Ellis’ evidence is that he had a discussion with a palliative care nurse, I infer that Ms Harris was present on the day the Deed of Gift was signed.
  9. [69]
    According to Julie, Steven was his normal self and in good spirits despite his body not keeping up. He was clear and attentive in his discussions with Mr Ellis and she had no concern as to his mental state. She states that Steven had not been drinking or taking drugs prior to the meeting.[81]
  10. [70]
    On 9 October 2017, a doctor who visited Steven stated that Julie should enliven his Health EPOA. She then sent an email to Mr Ellis, informing him of that fact. Mr Ellis informed her that in order to activate Steven’s Health EPOA, she would need to obtain a formal recommendation from his doctor. On 11 October 2017, Dr Matos visited Steven at the hospital and confirmed that his Health EPOA should be activated and he issued a letter to that effect. She then telephoned Mr Ellis to inform him that the Health EPOA would be activated. Steven passed away on 23 October 2017 but neither Julie nor Mr Ellis stated that they had acted on the EPOA because they stated it was not necessary.

Legal principles – testamentary capacity/knowledge and approval

  1. [71]
    In Black v Scotson, her Honour stated the well-established position that:[82]

“[31]  Before a will can be admitted to probate, it must be shown that its maker had sufficient testamentary capacity and testamentary intention.

[32]  A testator of sound mind, memory and understanding has testamentary capacity. A testator who knows and approves of the content of his or her will has testamentary intention. It does not automatically follow that a testator with testamentary capacity has testamentary intention. However, in the absence of suspicious circumstances, proof of testamentary capacity and due execution of an instrument as a will creates a presumption that the testator knew, and approved of, the content of the will.”

  1. [72]
    The August Will was properly executed in accordance with s 10 of the Succession Act 1981 (Qld). While the burden of proof lies with the party who seeks to propound a will, both in regards to the testator having testamentary capacity and that the testator knew and approved the contents of the will, certain presumptions arise where the will has been duly executed. Here both are the subject of challenge by the plaintiff. Henry J in Mullavey v Verri & Ors,[83] adopted as the correct approach the summation of Santamaria JA in Veall v Veall at [168] – [171] as follows:[84]

“[45] The proper approach to resolution of such allegations was usefully summarised by Santamaria JA in Veall v Veall:

‘If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of ‘sound and disposing mind’.

Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.

The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will’s legitimacy.

In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator.’”

  1. [73]
    Similarly in Tobin v Ezekiel, Meagher J at reiterated the proper approach as follows:[85]

“[44]  The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a “free and capable” testator… To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing…

[45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of “sound disposing mind”… That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity…

[46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator… McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, “a circumstance must, to be accounted ‘suspicious’, be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death”. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document.

[47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will… What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction… That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator…

[48] In this context the statements prescribing “vigilance” and “careful scrutiny” and referring to the court being “affirmatively satisfied” as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters… They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw or, now, s 140(2) of the Evidence Act 1995.” (citations omitted)

  1. [74]
    The test for testamentary capacity is well known. To adopt the formulation of relevant legal principles as stated by Applegarth J in Frizzo v Frizzo,[86]:

“The classic test for testamentary capacity was enunciated in Banks v Goodfellow. The relevant principles were restated by Powell JA in Read v Carmody:

  1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;
  1. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;
  1. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;
  1. The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.2

In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties.

The Banks v Goodfellow test does not require perfect mental balance and clarity; rather, it is a question of degree. As Cockburn CJ put it in that case, “the mental power may be reduced below the ordinary standard” provided the testatrix retains “sufficient intelligence to understand and appreciate the testamentary act in its different bearings”. More recently, Kirby P (as he then was) has articulated this principle as follows:

“In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will … Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.”

In part, this reflects the fact that the Banks v Goodfellow test is always brought to bear “on existing circumstances of modern life”. Twenty-first century society is considerably more complex than that of 1870; life expectancy is much longer and the population older. The courts do not require a testatrix to know precisely the value of her individual assets, or even of certain classes of assets. That would particularly apply as one moves up the scale in terms of size and complexity of the estate.” (citations omitted)

  1. [75]
    The existence of doubt is not enough to displace the presumption. Rather, it is said that a doubt requires “a vigilant examination of the whole of the evidence which the parties place before the court”.[87] Applegarth J in Hamil v Wright went on to state that once that examination had been made, a residual doubt was not enough to defeat the claim for probate unless “it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possesses sound mind, memory and understanding at the time of its execution”.[88]
  2. [76]
    Age or illness will only displace a prima facie case of testamentary capacity if there is evidence of a deceased’s mental faculties being so affected as to make him or her unequal to the task of disposing of his or her property. That is, the decay of intelligence must have been to such an extent that the proposed testator did not appreciate the testamentary act in all its different bearings.[89]
  3. [77]
    Similarly, if a testator suffers delusions and they are of such a character as to have a direct bearing on the provisions of the will, then it is for the propounder of the will to show that the delusions did not affect the capacity to make the will which is being propounded.[90] The assessment of testamentary capacity however must be adapted to modern life. In that regard, Windeyer J in Kerr v Badran,[91] noted that in the context of knowledge of an estate, many people hand over management of share portfolios and even real estate investments to advisors, and do not necessarily have an intricate knowledge of each and every asset and their value, particularly when shares in private companies are part of the estate. Those matters, according to his Honour, need to be taken into account when the requirement of knowing “the extent” of the estate is considered. His Honour’s statement in that regard was applied in Frizzo v Frizzo.[92]
  4. [78]
    If there are suspicious circumstances which exist in relation to the making of the will, such as a party writing or preparing a will that ought to generally excite the suspicion of the Court, and require it to be vigilant in the examination of the evidence in support of the will, such that the proponents must remove the suspicion so as to show that the testators “mind” is to be “found” reflected in the will that is propounded.[93]

Contentions

  1. [79]
    Craig relies on what he describes as a number of “red flags”, which he contends establish circumstances supporting a well-grounded suspicion that Steven was not mentally competent and lacked testamentary capacity at the time when he gave instructions and executed the August Will. He further contends that the defendants have then failed to discharge the onus probandi in proving capacity.
  2. [80]
    In the Statement of Claim, Craig alleges that Steven, by reason of the progress of the pancreatic cancer and the consumption of drugs, which he alleged included chemotherapy, painkillers including opioids, cannabis, hashish and alcohol,[94] were such that Steven’s cognitive ability at the time of giving instructions and executing the August Will was compromised. He contends that he lacked the testamentary capacity to make a valid will and lacked the ability to know and approve of its contents.
  3. [81]
    A number of circumstances were relied upon by Craig as raising a suspicion, namely:
    1. (a)
      Dr Berry’s evidence that, notwithstanding she had changed her original opinion and opined that on the balance of probabilities Steven did have capacity at the time of the August Will, she stated that it was a very difficult case and she had no degree of confidence in her opinion;
    2. (b)
      Steven’s lack of confidence in Craig was said to be unfounded and irrational;
    3. (c)
      Steven’s lack of confidence in his March Will was unexplained and unfounded;
    4. (d)
      That on 21 June 2016, Steven had collapsed and was hospitalised having found to have had an overdose fentanyl;
    5. (e)
      That Steven had failed to mention his daughter Samantha to Mr Dimon when speaking of his children in June 2016;
    6. (f)
      Steven did not leave the bulk of the estate to Julie and Cole as he had indicated to Mr Dimon, which was recorded in Mr Dimon’s email to Mr Ellis on 21 June 2016;
    7. (g)
      That Steven was hospitalised on 15 July 2016 after complaining of dizziness, increased disorientation and confusion, complaining of problems with his memory and finding words which Dr Matos attributed to be related to Lyrica and the opioids he was taking;
    8. (h)
      That on 16 August 2016, he was hospitalised with large upper gastrointestinal bleed from post radiation telangiectasias in the stomach;
    9. (i)
      By April 2017, Steven was attending hospital daily for a pain relief catheter change until the full palliative care nurse commenced duties from 26 April 2017 and commence morphine injections; and
    10. (j)
      That Steven had maintained an ongoing relationship with Craig, including talking about business and commercial matters notwithstanding his lack of confidence in him.
  4. [82]
    As to knowledge and approval,[95] Craig contends that the August Will was much longer and much more complicated than the March Will, where he had had difficulty in understanding the trust provisions it contained and dealing with the length of that document. Counsel for Craig submits that the suite of documents were “aggressive and complicated transactions designed to defeat any family provision application brought by Steven Junior” with the result being that Steven did not require an elaborate will if, in fact, he was to die without any assets which fell into his estate. Further, that there was no evidence that Steven appreciated that was the effect of the August Will.
  5. [83]
    Further, it was alleged that Steven was financially naïve in the way he relied on Craig and paid advisors, such as his accountant, to advise him in respect of his financial affairs. The August Will was also alleged to have been produced in circumstances where Steven was never consulted in the absence of Julie because she either attended the same meetings as he and Mr Ellis, participated in conference calls or had unrestricted access to his emails.
  6. [84]
    Mr Ellis pointed out that ultimately, whether or not everything would be disposed of by the time of Steven passed away was an unknown.[96] Mr Ellis stated that while the August Will was not a simple will, it was a simple structuring in relation to the estate. Mr Ellis stated that dealing with the different entities involved is what takes time.[97]
  7. [85]
    The defendants contend that the executed will was rational on its face and that the evidence satisfies the prima facie onus that the August Will was made by a free and capable testator who knew and approved the contents of the Will.  It further contends that the plaintiff has failed to produce evidence sufficient to raise suspicion that Steven lacked mental capacity or did not appreciate the contents of the August Will and approve them, such that the presumptions of testamentary capacity was not displaced and the onus probandi shifts to the defendants to prove positively that Steven had testamentary capacity and signed the August Will with knowledge and approval of its contents. Medical evidence
  8. [86]
    According to Craig, the view expressed by Dr Berry that she had no degree of confidence in her opinion because it was a difficult case “is insightful itself as to the difficulty and complexity of this case and it is probably more important than any conclusion itself as it demonstrates attendant doubt about Mr Trinder’s capacity… it then shifts the onus to the defendants.”[98]
  9. [87]
    The defendants rely on the fact that Dr Berry not only changed her opinion to find that Steven on the balance of probabilities had capacity when he executed the August Will, but that in cross-examination, she agreed that was her opinion notwithstanding the matters which she said could raise doubts about his capacity. They referred the Court to the authorities[99] which suggest that the weight given to a medical opinion prepared in hindsight and on the basis of records may be insignificant in the face of evidence of witnesses of fact who witnessed the deceased at the time, particularly an experienced solicitor.
  10. [88]
    Leading up to the execution of the August Will:[100]
    1. (a)
      On 21 June 2016 Steven was admitted to hospital and it was determined that he had overdosed when using fentanyl patches, which are used as pain relief medication;
    2. (b)
      On 14 July at 3.30pm, Steven presented at the hospital and was admitted with dizziness and disorientation, problems with his speech and postural hypertension;[101] and
    3. (c)
      In late July/early August, Steven was admitted to hospital suffering gastro-intestinal bleeding.
  11. [89]
    On 15 August 2016, the same day that Steven signed the August Will, he attended the hospital for blood tests to ascertain whether he could proceed to chemotherapy.
  12. [90]
    Steven was suffering a serious terminal illness. Prior to 14 July 2016 and 15 August 2016, Steven was taking a number of prescribed medications for pain (including opioids) and in respect of his chemotherapy.
  13. [91]
    Dr Matos was Steven’s treating oncologist from October 2015 until his death on 23 October 2017. His evidence was that during his clinical consultations with Steven he had not observed any conduct which would call in to question his capacity. He also noted that when he saw Steven on 15 August 2016 in relation to a blood test, the results did not suggest he did not have capacity at the time. Rather, those results showed Steven to be very well for someone suffering from pancreatic cancer. Dr Matos stated that if he had observed any occasions where Steven had acted consistent with allegations of incapacity, he would have recorded those matters within his clinical notes. A review of Dr Matos’ clinical notes did not reveal that to be the case.[102] Dr Matos did not provide an opinion as to Steven’s testamentary capacity at the time the March Will or August Will were executed. He stated that to be able to provide a definitive opinion regarding Steven’s capacity at the time he executed either the March Will or August Will, he would have had to have been present and examined him each time the will was signed.
  14. [92]
    Dr Matos did certify that Steven lacked capacity and that his Health EPOA should be activated and issued a letter to that effect in October 2017.[103]
  15. [93]
    Dr Berry was an expert called by the plaintiff.  She was a geriatrician and had never examined Steven.  The weekend before the trial was to commence and Dr Berry was to give evidence in Court, she informed her solicitors that she had changed her opinion and that more probably than not Steven had capacity to execute the August Will.[104] While Dr Berry was clearly a geriatrician of significant standing and experience who had retired by the time of giving evidence, her change of opinion followed a further review of the medical records.[105] Further, her change of opinion followed her appreciation that she was incorrect as to the chronology of events, particularly that Steven’s admission into hospital was not as she had understood it to be when she first gave her opinion. She indicated the medical course of Steven’s illness, as documented in her letter clarified and corrected the incorrect dates in her report.[106] In particular, Dr Berry had understood that Steven had been admitted to hospital on 16 August 2016 with postural hypertension, which proved to be incorrect. She stated that the incorrect hospital admission dates had influenced her previous opinion and that the August Will was not executed the day of a hospital admission. She also noted that a cognition test had been carried out by an occupational therapist on 15 July 2016, namely an MMSE which recorded a score of 25 out of 30. Dr Berry stated that such a score indicated basic cognition was intact four weeks before the August Will was constructed (being on 15 July 2016) even though Steven’s score for short term memory was 0 out of 3. She stated that there was still a concern of borderline capacity as the MMSE does not exclude executive dysfunction.[107]
  16. [94]
    In relation to Steven’s admission of 14 July 2016 with postural hypotension, he was recorded as suffering confusion and disorientation due to Lyrica and Endone which were adjusted. She also found that in addition to the MMSE, there were other instruments in terms of his admission between 14 July 2016 and 16 July 2016, noting that he was not confused, for example, the falls risk assessment form. In her email of 7 February 2020 she also stated “The nature of delirium mentioned in the 2 Pindarra admissions prior to the will construction, is resolution so that if drugs are adjusted cognition returns to normal in some time depending on cerebral reserve. Dehydration, hypotension, drugs and anaemia are causes of delirium which may have been acting at some stages during the course of the testator’s illness but there is insufficient evidence to comment about cognitive function at the time of the construction of the will. His biochemistry and haematology surrounding the time of 15th August have no specific abnormalities which could cause delirium as mentioned in Dr Matos’s.”[108]
  17. [95]
    Dr Berry stated in her evidence that she found the records that were provided to her were in a disorganised state. Dr Berry also found that a letter dated 15 July 2016 referring to a potential overdose of Endone and Lyrica was referring to an event in May, not an admission in July.[109]
  18. [96]
    Dr Berry did not have the benefit of having seen Steven and her analysis was based on the material provided to her, although her emails still refer to difficulties in relation to accessing some records and the short time frame she had been acting under in her review.
  19. [97]
    While Dr Berry noted possibilities in relation to Steven in terms of delirium and her lack of confidence in her opinion because it was difficult to come to a firm conclusion, and that there were “numerous red flags” which raised her concern that Steven may not have had capacity to fulfil the requirements to construct the will as it stands, I am not satisfied that her lack of confidence in her opinion and the difficulties of Steven’s case raises a well-grounded suspicion of lack of capacity or a doubt as to the existence of testamentary capacity. Dr Berry was provided with records in a disorganised state and clearly had difficulty in determining the proper sequence of events and, in some cases, she found the medical information difficult to interpret. Her lack of confidence also seemed to be attributable to the fact that she had an incomplete picture of Steven’s physical condition in relation to which she said he had a “complicated course of pancreatic cancer with a number of complications”.[110] She was provided with instructions which were not supported by the evidence in this court,[111] for example, that Steven had relapsed into drinking to excess and taking cannabis with or without hashish after making the March Will.[112] She was also instructed that Steven’s views expressed on 1 July 2016 of money having been stolen from him by Mr Schween and Craig was irrational and delusional. She was not provided with the evidence of the attesting witnesses who were in the presence of Steven at the time he executed the August Will or the nurse who was the carer of Steven when he signed the September Deed of Gift, which she accepts may have possibly have influenced her opinion.
  20. [98]
    Dr Berry did not find there was any evidence of matters suggesting any lack of cognition or capacity at the time he gave instructions or executed the August Will. Insofar as Steven had previously overdosed on fentanyl patches or doses of lyrica and Endone, Dr Berry indicated that they resolve with adjustments to doses. The medical notes do not reflect any concern that Steven lacked cognition. While the utility of the MMSE is limited and in no way definitive as to capacity, Dr Berry stated that it did indicate cognition was intact even though he had difficulty with matters of short term memory, but that it could also indicate delirium related to hypotension. She subsequently clarified in evidence that Steven’s score for the MMSE where he got 25 out of 30,[113] was unlikely to be due to delirium.[114]
  21. [99]
    To the extent Dr Berry raised the possibility of Steven suffering delirium, it was more a matter of speculation. For instance, while agreeing that there was no evidence of acute delirium, she ventured that it might not have been identified by the medical practitioners at the time, given that an MMSE was done, rather than based on any evidence suggesting that to be the case.[115] She agreed that the absence of any expression of concern in the medical notes as to cognitive impairment tended to suggest an absence of such concern, particularly by the specialists involved in his care.[116] While Dr Matos did not express an opinion in relation to Steven’s capacity as at 14 July 2016 or 15 August 2016, he was treating Steven prior to and subsequent to the period in question and did not observe any matter suggesting lack of cognition or capacity. I consider that is of significant weight given Dr Berry is raising matters that were matters which she considered unanswered, which were possibilities rather than any positive evidence suggesting any lack of cognition or capacity, particularly when considered in conjunction with the evidence of lay persons who observed Steven.
  22. [100]
    As reflected in the authorities referred to by Applegarth in Rowe v Sudholz,[117] caution must be taken in relation to evidence of lack of capacity given by a medical expert after the event based on an analysis of hospital and other medical records. That has caused some judges to observe that the evidence of lay witnesses, and experienced solicitors who have met the deceased and observed them at the relevant time can be of more assistance to the Court than an expert opinion of a medical expert after the event.[118]
  23. [101]
    Given the above matters, to the extent Dr Berry expressed that there were numerous red flags and expressed a lack of confidence in her opinion because it was a very difficult case, I do not consider that it demonstrated an attendant doubt or raised suspicion about Steven’s capacity. While clearly eminent in her field and unquestionably an honest witness, I cannot attach any significant weight to those matters. I consider that Dr Berry’s views were based on the difficulties of somebody who did not see Steven at the time and the medical information that was provided was difficult to understand or incomplete, which caused a late change of her opinion and “red flags” which she was concerned with were more matters of speculation. That is particularly so when Dr Berry’s final opinion was that she considered more probably than not that he did have capacity.
  24. [102]
    In any event, when Dr Berry’s evidence must be weighed against the evidence of those who were observing Steven at the relevant times, whose evidence overwhelmingly supports the fact that he had testamentary capacity at the time of making a will.

Effect of Drugs and Alcohol

  1. [103]
    Craig pleaded that Steven was affected by drinking excessive amounts of alcohol and taking excessive prescription and illicit drugs. In the case of the Fetanyl patches, which caused him to overdose in June 2016, the medical evidence shows that that was a matter triggered by the particular circumstances giving rise to Steven’s pain at the time which was resolved and there is no evidence of an ongoing problem that impaired his cognitive capacity. Similarly, to the extent he was affected by Lyrica and Endone, the evidence shows that the amounts were adjusted and there is no evidence of an ongoing problem that impaired his cognitive capacity.
  2. [104]
    Craig’s evidence of Steven’s alcohol and drug problems and his evidence that Steven was affected by his medications and alcohol during the period when he was giving instructions for the August Will to the degree he describes were not substantiated and not supported by those who were having consistent contact with Steven, such as Dr Matos, Mr Ellis and Mr Dimon. Similarly, Ms Mercer did not observe that Steven was affected by the effects of drugs or alcohol in the meeting of July 2016, or when he executed the August Will. Ms Cavanagh gave similar evidence.
  3. [105]
    The suggestion by Craig that Steven was unaffected by drugs or alcohol when he did the March Will because he had not long before been in a rehabilitation clinic, as opposed to the time when he was engaging in the will process for the August Will, was misconceived insofar as the evidence showed Steven had been in the rehabilitation clinic in April 2015.  His evidence was unsupported by other witnesses, other than Craig and he did not observe Steven at the relevant time.  I do not give his evidence any weight. 
  4. [106]
    Julie, who was not cross-examined, stated that while Steven had the odd alcoholic drink after he had been in an alcohol rehabilitation clinic in April 2015, but that he preferred milkshakes. She further stated that he took cannabis on the odd occasion purely for medicinal purposes to assist with pain management and appetite, but that it was not a regular occurrence.[119] Her evidence was candid and not self-serving in this regard and I accept her evidence.  Cole’s reference to Steven having returned to drinking and using illicit drugs when he made the August Will was said on the basis of his sharing “his Uncle Craig’s concerns” not on any factual basis. Similarly, his evidence that the March Will was made just after Steven had undergone a rehabilitation program was also misconceived, when in fact, it occurred in April 2015. I attach no weight to his evidence.
  5. [107]
    While I approach Julie’s evidence with some level of circumspection given that she is a beneficiary under the Will, I accept her evidence that on 14 July 2016 and 15 August 2016, Steven had not been drinking or taking illicit drugs prior to the meetings. The fact that he was not affected by drugs or alcohol is consistent with the observations of the other parties who attended the meetings.
  6. [108]
    While the intake of drugs Steven was taking or excessive alcohol could have affected Steven’s capacity, an examination of the evidence does not support the suggestion that he was impaired by alcohol or drugs at the time that he was providing instructions for the August Will or when he executed the August Will or any doubt as to his capacity. 

Irrational and delusional belief

  1. [109]
    On the evidence before me, I do not find that Steven had any irrational or delusional view about Craig “ripping him off” as a result of the treatment of the balance of monies, of the sum of $500,000 invested, that was to be returned to Steven, or in his loss of confidence in Craig administering his estate.
  2. [110]
    The evidence of both Mr Schween and Mr Dimon support the fact that Craig did owe money to Steven. Steven had invested $500,000 but lost over 50 percent of it, with only approximately $250,000 remaining as a result of the market collapsing in the area in which they were trading.[120] Mr Schween also stated that the $250,000 was transferred by Craig, as capital to Dupont, and had to be repaid by Craig.[121] Craig did agree that Steven had invested money in Dupont and the investment was subsequently loss making, which resulted in Steven being owed $232,000.
  3. [111]
    Contrary to Mr Schween’s evidence, Craig described Steven’s payment of $500,000 as a payment by Biomagnetic Therapy to “Dupont Fund”.[122] An email of Mr Dimon sent to Craig and Steven referred to Craig’s acknowledgment that Steven was owed $232,000 for the return of Dupont capital invested (after losses of approximately $268,000) and, in light of Steven’s acknowledgements of contributions by Craig, that Craig agreed to pay him $85,000 upon settlement of the sale of a Penthouse.[123]
  4. [112]
    Even though Craig agreed in his affidavit that he still owed $85,000 to Steven’s estate, he then sought to deny that amount of money was owing in Court. Similarly, while Craig had stated in his affidavit that he was willing to pay the sum of $85,000, the plain fact was that he still has not done so. That was despite Mr Dimon pursuing Craig on a number of occasions to pay the money out of concern for Craig’s position, and notwithstanding that Craig had sold the penthouse, which he had stated was necessary before he could pay the money. I accept Craig did agree to pay Steven $85,000 to resolve the outstanding monies owed to Steven from the investment of $500,000, which in all likelihood, had been paid through Biomagnetic Therapy.
  5. [113]
    Further, Craig contradicted his own evidence in relation to owing the amount of $3,500,000 as a result of the separation between him and Steven in 2006 and the investment of Steven in Dupont. In his affidavit,[124] Craig referred to his causing Biomagnetic to pay Biomagnetic Therapy $3,500,000 and some competition trophies in return for its business and for good will. In oral evidence, Craig claimed that the $3,500,000 was a fictitious debt and that he had paid Steven $3,500,000 in cash and prizes to remove him from the company.[125] Notwithstanding that, Craig agreed that he had signed a resolution of 18 July 2017,[126] by which he agreed that he acknowledged that Biomagnetic Therapy would not seek the repayment of any remaining loan amounts owing to Biomagnetic Therapy from Biomagnetic or Craig without the unanimous approval of all shareholders in the company, which referred to the balance of the $3,500,000 loan.[127] I find that the likelihood is that there was an amount of $3,500,000 that Craig had agreed would be paid by Biomagnetic to Biomagnetic Therapy, which was subsequently the loan the subject of the 18 July 2017 resolution.
  6. [114]
    I did not find that Craig was a reliable or credible witness, but rather that he sought to give evidence that was self-serving and was seeking to protect and further his own position. To the extent that he gave concessions, such as in relation to the timing of Steven’s attendance at a rehabilitation clinic, he did so where documents had been attached to affidavit material showing a different position. In the case of controversial evidence, unless his evidence was corroborated by independent evidence I do not accept his evidence. In the case of Mr Schween, I found his evidence about Steven’s investment in or through Dupont and what subsequently occurred to the monies returned to be defensive and that he was seeking to put forward evidence that was most favourable to Craig.[128] I also found that he exaggerated Steven’s financial “naivety”, given his opinion did not appear to have any sound foundation when he was cross-examined about it. Steven may well have lived a lavish lifestyle exhausting his capital, but that does not suggest that he was financially inept. Steven’s spending habits are the most likely explanation for the discrepancy between Mr Schween’s estimate of the size of Steven’s estate and Mr Dimon’s retrospective estimate. It is not a matter to which I attach any significance. To the extent that there is a discrepancy between the evidence of Craig or Mr Schween, as opposed to Mr Dimon, I prefer the evidence of Mr Dimon.
  7. [115]
    While counsel for Craig pointed to the fact Mr Schween had referred to the $250,000 owed in the email to Mr Evans, as showing Steven’s angst in relation to the March Will, as if it was unfounded, the issue which appeared to cause Steven angst was a different one.  Steven’s email and discussions with Jessica and Julie suggested that his anger was because, when the $232,000 had been returned from the Dupont investment, they had been paid to Craig who invested them in Dupont, not to Steven, and that Craig had not returned the funds when asked by Steven to do so. The fact that that was the case is supported by Mr Schween’s evidence that Craig was going to repay the money, but was waiting until the market recovered. Steven also sent an email of complaint to Mr Schween.[129] As a result of the breakdown in Steven’s relationship with Craig after this issue arose, Jessica’s evidence, which I accept, was that she suggested that Steven may wish to get independent legal advice about appointing new executors. While Steven may, in some respects have been unfair in his view of Mr Schween and Craig’s actions, it cannot be characterised as irrational or delusional and, suggestive of doubt as to his capacity.

Loss of confidence in March Will

  1. [116]
    Given my findings above, I do not find that Steven’s loss of confidence in Craig to be the executor or trustee under his March Will was irrational or delusional. Counsel for Craig accepted that the Court may conclude Steven’s lack of confidence in Craig may not have been unfounded and irrational. However, Craig contends that does not explain Steven’s loss of confidence in his March Will. In particular, Craig contends that the change in the will making pattern may be said to be suspicious and that was not a matter adequately explored by Mr Ellis, which I will discuss further below.
  2. [117]
    According to Mr Ellis, Steven informed him that he felt uncomfortable with his March Will in the 14 July meeting. Although Mr Ellis did obtain the March Will, he could not recall whether it was during that meeting or sometime after. Steven told him that he had lost confidence in Mr Schween and Craig and that he was separating his business interests from Craig and that their relationship had gone sour. Mr Ellis did not, however, discuss with Steven what specific matters he felt uncomfortable about in relation to the March Will. While in some circumstances the wish to change a will in its entirety because of a fall out with the executor and trustee may be regarded as grounding suspicious circumstances in relation to a person’s capacity, the loss of confidence in Craig and Mr Schween could rationally have affected Steven’s confidence in the March Will, given they had been significantly involved in the process for the making of that will. The March Will had been prepared by a lawyer, Mr Evans who was located in Melbourne. Steven had no previous contact with Mr Evans, and had no personal contact throughout the process, save for limited telephone conversations after the provision of the draft will. Further, it was Craig who had contacted Mr Schween about organising a will for Steven. Mr Schween had not only arranged for Mr Evans to prepare the will, but had acted as an intermediary in the provision of instructions. Steven only had direct contact by email and then telephone after he had received the draft will and gave further direct instructions. However, when Steven raised in an email that had indicated he had difficulty understanding the will, he was told by Mr Evans to focus on Part 1 of the Will documents he had been provided and not the trust documents which were Part 2. While he did eventually execute the will correctly, the process was rationally one which could result in a person in Steven’s position questioning the whole of the will making process, including the final will when he had lost confidence in not only Craig but Mr Schween. I do not consider that seeking to have a new will prepared is a circumstance which raises a suspicion that Steven lacked testamentary capacity. Even if the circumstance was sufficient to ground a suspicion, a vigilant examination of the evidence surrounding Steven’s decision to engage Mr Ellis to undertake a new will dispels any such suspicion.

Discrepancies in Mr Dimon’s Email and Instructions

  1. [118]
    Craig contends that Steven’s failure to mention Samantha in his discussions with Mr Dimon, which was the subject of Mr Dimon’s email of 21 June 2016, and the fact that he had stated he intended the bulk of his estate to go to Julie and Cole in the March meeting, which did not eventuate, was unexplained and are matters which raise doubt as to his capacity.
  2. [119]
    While Craig sought to characterise the 21 June 2016 email from Mr Dimon as instructions, Mr Ellis did not take it to be anything more than background provided by Mr Dimon, such that he should have explored the disparity in instructions given. In my view, the characterisation of the email by Mr Ellis is the correct one.
  3. [120]
    While I accept that Steven did not mention Samantha to Mr Dimon, it does not, in my view, raise a doubt as to his capacity. He was not copied into the email sent by Mr Dimon. The note refers to his two sons. The conversation may well have moved on before the question of other children was raised. Further, while Samantha is Steven’s daughter, given Steven’s lack of any relationship with her, and the fact that she had resided in Canada from a young age, she may not have been in the forefront of his mind. Impaired capacity is not indicated by the mere fact a person has a poor memory.
  4. [121]
    In any event, to the extent that it raises a doubt as to Steven’s capacity, it is dispelled by subsequent events.  Mr Ellis stated that Steven discussed his three children, Steven Junior, Samantha and Cole, in the conference with him. That is supported by Ms Mercer’s note of the meeting. I do not find that the omission of Samantha by Steven in the discussion with Mr Dimon raises any suspicion as to a lack of capacity.
  5. [122]
    As to the reference to Julie and Cole receiving the bulk of his estate in Mr Dimon’s email not being a matter raised in conference with Mr Ellis, three weeks had elapsed between when Steven spoke to Mr Dimon and met with Mr Ellis. Cole had not been a beneficiary of the bulk of Steven’s estate in the March Will. Indeed, the provision of a guaranteed annual income of $13,000 had been removed and Cole was to be a mere beneficiary of the trust, to be treated in the same manner as the other beneficiaries. I do not consider that the disparity between what Steven discussed with Mr Dimon and his instructions to Mr Ellis was significant or raises a suspicion of a lack of capacity. The approach by Steven to his children is otherwise discussed below.

Understanding as to August Will and ancillary documents

  1. [123]
    The evidence of an experienced solicitor who witnessed a Will has been described in some cases as to be the most valuable evidence as to the question of testamentary capacity.[130] However, the weight to be accorded to such an opinion of an experienced solicitor depends upon the circumstances of the case. It remains the role of the Court to decide whether in fact a testator had testamentary capacity at the time he executed the Will, even though a solicitor may generally believe that the testator had testamentary capacity.[131]
  2. [124]
    It is uncontroversial that Mr Ellis did not specifically carry out the Banks v Goodfellow test for capacity when he met Steven. Craig’s counsel attacked the lack of process adopted by Mr Ellis in failing to gather and document evidence supporting Steve’s capacity. He made a concerted attack on Mr Ellis’ knowledge of estate law, his inability to recite the Bank v Goodfellows test, his failure to address Steven’s March Will, the discrepancies from Josh Dimon’s email and Steven’ s instructions at the 14 July meeting and the complexity of the estate planning documents he provided. He was further challenged for his failure to provide a statement when probate was disputed until after proceedings commenced.
  3. [125]
    However, I was satisfied that he was well aware of the requirements for a testator to have the relevant capacity. The fact that Mr Ellis could not recite the Banks v Goodfellow test was not, in my view, indicative of the fact that he was not familiar with it. His assessment that Steven’s engagement with him raised no issue of capacity is supported by the view of Mr Dimon and the evidence of Steven’s subsequent engagement with Mr Dimon, Mr Pavusa and Dr Matos.
  4. [126]
    While I found Mr Ellis sometimes became defensive in relation to some questions asked by Craig’s counsel in cross-examination, those questions were generally directed at the knowledge and execution of his professional obligations. Overall, I found him to be a generally candid witness.
  5. [127]
    While Mr Ellis was not a probate specialist, he clearly was an experienced solicitor familiar with laws relating to Wills, as well as, superannuation. He was conscious of the limits of his expertise he did not have insofar as he referred Steven to Mr Pavusa for specialist advice in relation to a binding financial agreement to facilitate the transfer of the property at Breaker Street into the joint name of Steven and Julie.
  6. [128]
    He was aware of Steven’s prognosis of terminal cancer and the fact that he was undergoing chemotherapy. As he correctly stated a physical illness such as does not, of itself, suggest any cognitive impairment suggesting a lack of capacity. Although he did not ask about his medication, he did not notice any signs that Steven has was affected by medication.
  7. [129]
    While I note that Mr Ellis agreed that it was when going through the Law Society guidelines that, in fact, was incorrect.[132] That of course accords with common sense. Many people suffer from physical ailments and illnesses which have no impact on their cognitive ability or testamentary capacity.
  8. [130]
    I do not accept Craig’s submission that Mr Ellis had assumed Steven had capacity but rather I consider he determined that Steven did not have any issues suggesting any doubt as to his capacity which warranted him carrying out further investigations The evidence supports that he and Steven were actively engaging throughout the three and a half hour meeting on 14 July covering all aspects of Steven and Julie’s estate planning and related matters. According to Ms Mercer, Steven was predominantly engaging with Mr Ellis. Mr Dimon also observed Steven to be engaged in the meeting, including to the extent that he explained some matters being discussed to Julie. Mr Ellis then spoke to Steven on a number of occasions thereafter. Mr Ellis spent a further 60 to 90 minutes with him going through the documentation which was drawn on 15 August 2016, prior to Steven executing the documents.
  9. [131]
    While Craig suggested that there are a number of red flags which he should have picked up and caused him to carry out a capacity assessment, I am not satisfied that there were any such red flags that would cause him to do so. Steven had told him why he was dissatisfied with the March Will. While it did not deal with the content of the will and the reasons for changing it, he had been provided with an explanation of why Steven wanted a new will. Steven had informed him of him the objective he wished to achieve insofar as he wanted Julie to benefit from his estate and for her to be protected from legal action because he in particular anticipated Steven Junior would make a family provision application. Mr Ellis obtained specific instructions from Steven which was reduced to a special directions letter as to why Steven’s children would only receive any benefit from an estate after Julie’s passing.
  10. [132]
    While criticism was made of Mr Ellis for his non-compliance with the Queensland Handbook for Practitioners on Legal Capacity, I am not satisfied that he was presented with any evidence which rebutted the presumption of capacity. While, with hindsight it would have been ideal for him to go through the Banks v Goodfellow test and obtain a medical report, I am satisfied that he was alert to the need to ensure that Steven had testamentary capacity and that his discussions with Steven satisfied him that he did have knowledge in general terms, of the nature, extent and value of his estate, those who may reasonably be thought to have a claim upon his estate, the basis for and nature of those claims and an ability to evaluate and discriminate between the respective strengths of the claims of such persons. He was a reasonably wealthy individual with diverse assets and investments through Biomagnetic Therapy and his use of advisers, particularly in light of his focus on enjoying life, does not suggest financial naivety, but rather sensible prioritisation. Mr Ellis’ observation of Steven having testamentary capacity and not observing any reasons to doubt that capacity was reinforced by his continued dealings with Steven for more than 12 months. His views are supported by Mr Dimon and Julie, and to some extent by Dr Matos. Dr Matos’ overall observation throughout the period he was treating Steven was that he observed nothing which called into question Steven’s capacity. Josh Dimon also continued to deal with the separation of Steven’s business interests from Craig after the Will was executed.
  11. [133]
    I have dealt with the discrepancy from Mr Dimon’s email and the instructions of 14 July 2016 above.
  12. [134]
    I do not consider that there were any indicia of impaired capacity which should have caused Mr Ellis to have gone through a more detailed process assessing Steven’s capacity.
  13. [135]
    Counsel for Craig submits that in addition to the matters identified by him in the lead up to the 14 July 2016 meeting,[133] the resulting August Will and suite of documents, which were designed to defeat any family provision application by Steven Junior, were executed without any contemporaneous note that it was explained to him or that he appreciated that, subject to a special directions letter signed by him, no beneficiary received anything from the discretionary trust which was controlled by Julie and Mr Ellis, unless the trustee decided to make a distribution or after Julie died pursuant to the special directions letter. He submits there was also no contemporaneous note evidencing that Steven knew he was making a will with no assets in it. He further contends that the documents were of greater complexity than the March Will, which Steven had difficulty understanding. Craig also submits that Cole and Samantha were children in precarious circumstances, for whom Steven ought to have contemplated and provided for, rather than effectively disinheriting his children.
  14. [136]
    The exclusion of a natural beneficiary from a will which previously included them may raise suspicions in relation to testamentary capacity.[134] In particular, Craig points to the fact that the March Will provided for the beneficiaries’ interests to be fixed in a testamentary trust, rather than being a matter of discretion. The March Will also took care of his mother and all of his children. Craig contends that the August Will effectively disinherited the children and was an elaborate will in circustancescircumstances where it was not intended there be any assets left to be fall intothe subject of the Steven Thomas Trinder Testamentary Trust. There is also no explanation of why he needed a will, let alone an elaborate one, if he was to die without any assets to fall into his estate. Craig placed particular reliance on the decision of Mullins J in Ruskey-Fleming v Cook.[135] In that case, however, there was evidence of cognitive decline and the changes in the will were instigated by the testator’s daughter, albeit then discussed with the testator by a solicitor, but for which the testator could not give any reason for the changes.
  15. [137]
    The defendants contend that the August Will was intended to have assets in it, namely shares and cash, which at the time of Steven giving instructions and the will being executed were estimated to be significant. They further state that Craig’s case incorrectly looks to the asset position at the date of Steven’s death, not the date that the will was executed, in order to determine the rationality of the bequest. Further, the defendants point out that the reason Steven made lesser provision for his children was rationally explained in the special directions letter. They therefore contend that the will is rational on its face and that the contemporaneous evidence of those observing Steven during the meetings, having discussions with him in between the July meeting and when the August Will was executed, supported the fact that he had capacity and gave instructions as a free and capable testator.
  16. [138]
    In particular, at the time of the July 2016 meeting, Craig submits that unlike the situation in respect of the March Will, where Mr Schween had provided a summary of Steven’s assets and estimated that Steven’s estate was between $1.5 and $1.7million, which did not include the real property in which he and Julie lived, Steven did not have any such schedule of his assets and there is no note suggesting that he was aware of his assets. Mr Dimon carried a retrospective exercise and estimated that there was some $2.05million in the estate in October 2017.[136] Such an exercise was not done prior to his meeting with Mr Ellis and Craig referred to evidence of Mr Dimon where he agreed that he was at the meeting of 14 July 2016 to give instruction to Mr Ellis as to Steven’s assets and liabilities and that Mr Ellis’ worksheet of assets of the estate was blank.  Mr Dimon estimated that the estate in 2012 was some $4 million and it was unlikely to have been greater than that even though he lacked information about losses on boats.  The disparity in between his estimate and Mr Schween’s does not suggest lack of knowledge as to assets., but Rather, it is due to the fact that Steven was spending capital, which is supported by his diminishing income five years before he died not but his lifestyle while maintaining his lifestyle.[137]  I accept his evidence.  
  17. [139]
    Mr Dimon and Mr Ellis both gave evidence that Steven was able to explain his assets and liabilities in the 14 July meeting even though no specific note was made to that effect. Mr Dimon also stated that while he was there to assist Steven in outlining his assets and liabilities, Steven was asked about them at the meeting.[138] That is consistent with the fact that Steven had made a will in March where his assets had been set out in the email of Mr Schween copied to Steven. The meeting of 14 July 2016 went for some three and half hours. All persons present at the meeting confirmed that Julie did not take any active part in the meeting, but Mr Dimon observed that Steven, at times, was explaining various things about his assets to her. That was consistent with her evidence that he told her that she should attend so that she could learn about his assets and different entity structures.[139] It is also consistent with the fact that Steven was well aware of the nature and extent his assets and was capable of giving instructions as to their division.
  18. [140]
    While Mr Ellis’ notes did not list the different assets within Steven’s estate, he did make notes of how assets were to be dealt with, including divesting assets of Steven to Julie or placing them in joint names while she was alive. He also made note of the assets from Steven’s business interests, particularly Biomagnetic Therapy and its estimated value, and that his shares and cash would be paid to a testamentary trust, and the money that would ultimately be repaid from the nursing home bond of which Steven paid 50 percent.
  19. [141]
    Mr Dimon’s assessment of Steven during the meeting of 14 July 2016 and 15 August 2016 was that he appeared to have a good understanding of the matter and would explain various topics or concepts to Julie such as company structures, or a superannuation fund. While, as was put to Mr Dimon by Craig’s counsel, Mr Dimon is not a solicitor experienced in administering the Banks v Goodfellow test, he is a professional who deals with clients as part of his profession and his opinion as to Steven’s presentation cannot be simply dismissed as being of no weight. He also had the advantage of having known Steven for a number of years, namely since 2012. He had provided accounting services to Steven, his related entities and for the self-managed superannuation fund. Mr Dimon’s recollection was that Steven was at all times attentive and actively involved in the discussions and that he had no reason to believe he lacked capacity. Further, there was no indication that Steven was under the influence of illicit drugs and/or alcohol.[140] He considered that Steven had effectively decided what he wished to do and needed Mr Ellis and Mr Dimon’s assistance to implement it.[141] He accepted that the content of the meeting was fairly complex as they discussed Steven’s various corporate structures and share interest, and considered how and when assets would pass and the benefits of jointly held assets.[142] That complexity reflects the various company structures and superannuation funds that Steven had in place and also the failure of Steven and Craig to address the outstanding issues from the separation of their business. I found Mr Dimon to be an honest and measured witness and accept his evidence.
  20. [142]
    Ms Mercer, who was a law graduate at the time, was in the meeting with Mr Ellis, Mr Dimon and Julie, and recalled that Steven was able to have direct conversations with Mr Ellis to explain his assets and liabilities together with corporate structures and that he had loans with his brother Craig. She considered that he was able to give definitive instructions to Mr Ellis about what he wanted in his Will. She particularly recalled a discussion about how he wanted his superannuation death benefit paid. She recalls Steven telling the meeting how Julie had been caring for him and was complimentary in that regard. Her recollection was that he was able to give instructions in his own way and did not appear concerned about instructions he was giving and that Julie sat in a passive way throughout the meeting. While her evidence is not of the level of an experienced solicitor, it is a further observation of somebody who saw Steven at the time.
  21. [143]
    Given the complexity of Steven’s financial situation with his companies, providing detailed provisions in his Will including a testamentary trust is not indicative of the fact Steven did not understand what he was being advised or that he was submitting to something contrary to what he intended. I accept that he wished to ensure that Julie received his estate without challenge and that she was to be the primary beneficiary until her passing. Providing for divestiture of assets and placing assets in joint names is a valid mechanism for implementing that strategy. A trust had been used in the March Will. While the testamentary trust in the August Will was discretionary, the fact that it was discretionary and the effect of that was further emphasised by the Special Directions letter signed by Steven, which reiterated the primacy of Julie having the benefit of the assets within the testamentary trust during his lifetime. While Steven had said to Mr Evans that he was confused by the Trust provisions in the March Will, in the case of the August Will he had the benefit of personal explanations being provided by Mr Ellis. While Steven may not have any demonstrated any prior knowledge of asset protection strategies before meeting Shane Ellis he had operated his own business successfully with Craig, was familiar with will making having made four previous wills and had self managed superannuation funds. He knew the objective he wished to achieve, namely for Julie to enjoy the benefit of his estate during her lifetime and be protected from family provision applications.
  22. [144]
    The fact that limited assets were to be paid into the testamentary trust was reflected in the notes taken at the meeting that he and Julie signed which were witnessed which stated “Everything moved out of personal estate. Only shares and money left.” In relation to the movement of assets into joint names particularly the principal place of residence which was in Steve’s name it was discussed that there needed to be a binding financial agreement. He was referred to and subsequently went to see Mr Pevasa (with Josh Dimon) who gave evidence that he had no concerns in relation to Steven’s capacity. As a result of the 14 July 2016 meeting, Julie, who was not familiar with Steven’s business dealings, gave evidence that she was aware that assets in Steven’s name were to be made the subject of a joint tenancy either by way of gift or binding financial agreement.  Her understanding was that if that occurred, Steven’s assets would automatically pass to her and not need to be administered as part of the estate.  Mr Ellis spent some 60 to 90 minutes explaining the documents to Steven and Julie on 15 August 2016. While there was no precise file note recording such an explanation, I accept Mr Ellis’s evidence that he did explain each of the documents to Steven and that Steven understood and what he was told as to the effect of the documentation even if he did not understand every clause and he approved of the strategy put in place through the documentation and the contents of his will. I do not accept the submission that the strategy proposed by Mr Ellis to ensure that Julie enjoyed the bulk of Steven’s estate and to protect his estate from a family provision application, through a suite of documents and the documents subsequently executed by him, were such that Steven could not or did not appreciate the effect of how he was distributing his estate and the limited assets that were going to be the subject of the testamentary trust.
  23. [145]
    In the present case, I do not accept the evidence of Mr Schween or Craig that Mr Dimon’s view was that Steven was an astute investor and businessman was incorrect. The evidence supports the fact that Steven was a reasonably successful businessman, particularly through Biomagnetic Therapy, for which he was responsible for the business side. The evidence also demonstrates that, on Craig’s own affidavit, Steven was more the businessman than Craig who was more involved with the marketing when they were in business together. Steven had not worked since 2006 and had sought to invest the monies he had made. Although, he lived a relatively expensive lifestyle he was drawing on capital in his last five years at least rather, than generating capital. While Mr Schween’s evidence was that he found Steven to show very little interest in his investments and only contacted him when he wished to access money or change the asset allocation of his investments, I do not find that was indicative of Steven’s lack of knowledge or capability in relation to his investments. While Mr Schween had known Steven for a considerable period of time, Mr Schween was also not aware of all of Mr Trinder’s businesses.[143]
  24. [146]
    In cross-examination, Mr Schween agreed that Mr Trinder would contact him and provide him with instructions and directions as to how he wished to have his money invested.[144] There is no doubt that Steven enjoyed the high life and on the evidence of both Mr Schween and Mr Dimon, he had spent a considerable amount of money doing so. That is not indicative of a lack of or impaired capacity or an inability to understand complex financial situations.
  25. [147]
    The fact that Steven dealt through Mr Schween with Mr Evans in having his March Will prepared and had Mr Dimon accompany him to the meeting with Mr Ellis demonstrates that he did not delve into the detail of his financial and investment situation but left it to his advisers to be across the detail. However, that does not suggest that he was not knowledgeable about the extent of his assets. The fact that he contacted Mr Schween to change the strategy of his investment demonstrates that he was aware of how the market affected his investments. Undoubtedly there were complications in respect of his assets given he and Craig had not fully separated their business interest when they parted ways in 2006. As Mr Dimon indicated, there were not only the questions of outstanding debts owing between the brothers, but also the question of Division 7A of the ITAA dividends.  Mr Dimon’s evidence was that he engaged with him about those matters after the 14 July 2016 meeting.  None of these matters are suggestive of somebody who does not have knowledge of his estate or ability to give instructions about his estate, but rather of someone who focusses on the matters of importance and of interest to him and relies on others to manage his financial affairs and to be across the detail. As noted in Kerr v Badran the use of advisors must be taken into account in considering the requirement of knowing the “extent” of the estate is to be considered.
  26. [148]
    Similarly as was noted by Applegarth J in Rowe v Sudholz,[145] the issue is not one of the ability of the testator to remember details, but rather the soundness of their ability to decide how assets are to be divided. They therefore must be aware, at least in general terms, of the nature, extent and value of their estate.
  27. [149]
    While it was submitted by Craig’s Counsel that an examination file demonstrated “that Steve was intimately involved with the documents production” a review of the file reveals that is a significant exaggeration. The file reflects that Mr Schween had a significant role in acting as Steve’s intermediary in dealing with John Evans and relaying instructions. Steven only reviewed the draft wills provided in relation to which he did provide instructions but the delay by him in responses is more likely to have been a matter of his own convenience than taking long periods to consider the drafts.
  28. [150]
    The evidence of Mr Dimon, Mr Ellis and Julie supports the proposition that Steven was taking a very active part in the meeting with Mr Ellis. It was Steven who instigated the process by asking Mr Dimon to refer him to a lawyer. Unlike what had occurred in respect of the March Will he had attended the meeting personally with Mr Ellis. Mr Ellis found Steven’s instructions to be clear and concise and his observations were that Steven had a sound mind, was lucid and coherent and did not appear at any point in time to be intoxicated or under the influence of alcohol or drugs.
  29. [151]
    As for the fact that Steven changed his Will in relation to his children and also informed Mr Ellis that he wanted to structure his affairs in a way to ensure Julie received the bulk of his estate, preferably outside of the last Will and Testament, to ensure that the estate was protected as best as possible against challenges from other persons, he had been consistent in his desire to particularly benefit Julie and her daughter Jessica, and had previously excluded his children entirely from the benefit of his will. Steven’s 2012 Will had only benefitted Julie and in the event that Julie predeceased him Jessica. David Brown, the solicitor who had acted for him in relation to the preparation of that Will and two previous Wills,[146] gave evidence that both Steven and Julie had met with him in 2012 as she was also providing instructions in relation to her Will. He stated that Steven’s instructions were clear and consistent and he did not find him in any way affected by alcohol or drugs and stated he appeared to be of sound mind, lucid and coherent.[147] In his file note, Mr Brown noted that Steven’s other children were Cole, Samantha, who he had no contact with, and Steven Junior, who did not need provision and had chosen not to have a relationship with Steven. Mr Brown noted that Steven was always consistent in his intention to provide for Julie and ensure her financial stability after his death.[148]
  30. [152]
    While Craig’s counsel submits there was no change of circumstance justifying the change in the treatment of the children who were natural beneficiaries, Steven had not been repaid the $232,000 owed by Craig and given the fact the relationship had taken a negative turn, his estate was potentially reduced from what he had thought in March.  In addition to Steven Junior, he also now distrusted Craig and described the potential for his family to be vultures. Further, they still stood to benefit under the August Will. 
  31. [153]
    Steven’s children and the reason for the provision, or lack thereof in his will, were the subject of discussions with Mr Ellis. That is evident not only from Mr Ellis and Ms Mercer’s notes,[149] but also from the special directions letter in which Steven directed the trustees of his testamentary trust that after Julie had passed away to distribute the balance of his trust on the basis of $10,000 to each surviving child of Steven Junior, $25,000 to Cole upon his attaining the age of 30 and having a fulltime job, $25,000 to his daughter Samantha upon attaining the age of 30 and having a fulltime job for 12 months and the balance to be distributed to his step-daughter Jessica. In the statutory declaration executed in August 2016, Steven set out the reasons why he had decided to deal with his estate in the way he had. In relation to Steven Junior, he stated that it was due to their relationship being a hostile one and an ongoing personal problem with Steven Junior and the conflict that the two of them had had over the previous 10 years. In relation to Jessica, he stated that he had maintained a close relationship with her and had been a parental figure of her since she was 10 years of age and she had always been supportive of him. In relation to Cole, he referred to the fact that he had assisted moving Cole from Canada to Australia three years prior, had allowed him to live in his investment property and assisted him with employment by allowing him to work as part of his company and stated that Cole had not been employed for the last year. In relation to Samantha, Steven stated that his partner Julie and, it was accepted by Mr Ellis that there has been a mistake insofar as it does not say “and I”, had not had contact with her for approximately 15 to 16 years, she resides in Canada and that she had had an ongoing personal problem and difficulties with the law. None of the matters set out were the subject of factual challenge.
  32. [154]
    Ms Mercer’s notes of the conference of 14 July 2016 noted in relation to Cole that Steven had not heard from him in seven months after paying for a cruise for him and “We need a thesaurus from Steven about Cole, Steven Junior and Samantha.” The lack of contact and relationship by Steven with his children was consistent with Craig’s affidavit where he stated, in relation to Steven’s relationship with his children, “By way of summary, my brother effectively abandoned their mothers and them when they were children.”[150]
  33. [155]
    While the treatment of Steven Junior, Cole and Samantha may be regarded as harsh, particularly given that they may ultimately end up with nothing given the divestiture of assets while Steven was alive, he had considered their claim against his estate and gave rational reasons for his decision. Given his relationship or rather lack thereof, with Steven Junior, Cole and Samantha over an extended period of time, his treatment of them cannot be characterised as irrational. In contrast, he had a close relationship with Jessica. While Cole’s position and relationship with Steven was, it appears, closer than Samantha and Steven Junior, Steven did refer to the fact that he had done things to assist Cole financially by stating he had assisted him to move to Australia and gave him support by giving him accommodation and a job.
  34. [156]
    While there was a reference in a file note of Mr Pevusa to the will being intended to disinherit the children and Counsel for Craig particularly placed weight on the fact that his will was a complicated testamentary arrangement when there were no assets to be disposed of indicating that his testamentary capacity was impaired or that he signed the August Will without understanding and approving of its contents[151] the submission is misconceived. Mr Ellis stated that insofar as the note referred to discussions between he and Mr Pevusa he had only referred to Steven Junior although Steven had subsequently softened his position by including provision for Steven Junior’s children. I accept that evidence. Further at the time the will was made it was intended that there were assets which were going to go into the trusts, namely shares and cash.
  35. [157]
    While no specific provision was made for Steven’s mother, she was a beneficiary of the testamentary trust. The fact that she was in a nursing home and that Steven and Craig had each paid half of the accommodation bond was discussed at the 14 July 2016 meeting
  36. [158]
    The above demonstrated that Steven had given consideration to all those who had a claim on his estate.
  37. [159]
    I do not consider that there are any indicia which displace a prima facie case of testamentary capacity on the basis that his mental faculties have been so affected by his medical condition or its treatment to make him unequal to the task of disposing of his property.[152] There was no medical evidence suggesting that he suffered any cognitive impairment nor as set out above do I consider that Dr Berry’s evidence was sufficient to give rise to a suspicion that Steven may not have been mentally competent or lacked capacity. The will was rational on its face. The evidence does not support the fact that it was Steven’s intention to die without assets in his estate. Steven had been in a relationship with Julie for approximately 14 years by that stage and they clearly had a strong and successful relationship, as he had with Jessica, which provides a rational explanation for affording them priority. While it is unfortunate that he did not have such a relationship with his other children, his lack of relationship explains the position he adopted in his August Will, as does the actual conflict that he had with Steven Junior and his concern about him making a challenge to the August Will. It is not a case where Steven merely conveyed the appearance of full cognitive competence. The weight of the evidence overwhelmingly supports the fact that he did have testamentary capacity and was determined to ensure that his estate was resolved in a way that was largely beyond challenge by the time of his passing.
  38. [160]
    Cases such as the present turn on the facts and circumstances surrounding the provision of instructions and execution of the will in question. The present case is quite different from Ruskey-Fleming v Cook,[153] referred to by Craig. In the present case, the regime of documents including the August Will had greater complexity than the will considered by her Honour in that case, where the solicitor responsible for taking the testator through the changes in the will when it was executed believed that he had capacity. In that case, the instructions for the changes in the will had in fact been provided by the testator’s daughter and he could give no reason for the changes which favoured the daughter. The testator had conveyed to the solicitor that the changes were what his daughter wanted. The solicitor had not prior contact with the testator prior to that one meeting. The nursing home records recorded the testator’s confusion had persisted in the period leading up to the signing of the will and on the same evening after signing the will. The changes in his will in terms of the proportion left to his daughter, as opposed to his son, had no logical explanation. The testator had not been able to give any detail of his financial worth and his MMSE,[154] three days later confirmed his confusion and disorientation. In Hamill v Wright,[155] his Honour commented that a change in a will making pattern to exclude a commonly included natural beneficiary may be said to be suspicious. Again the circumstances in that case were quite different from the present. His Honour found a lack of capacity in terms of the person in question suffering non-bizarre delusions, which caused him to severe a joint tenancy with his daughter, who had cared and supported her parents for years, in favour of the defendants who had not cared and supported him, and whom he moved in with only after he became delusional.
  39. [161]
    Steven gave consideration to his children, Steven Junior, Cole and Samantha and made them beneficiaries under the discretionary testamentary trust. Under the Special Directions letter, he stated that after Julie’s death his estate was to be distributed to his children in the manner set out and provided the reasons for the provision he had made. At the time he gave those instructions and the will was executed, it was envisaged there would be assets in the trust, at least his shares and cash. Biomagnetic Therapy had, according to Mr Dimon, a debt owing to it of some $4 million from Biomagnetic (which Craig disputes, but I prefer Mr Dimon’s evidence). It was also estimated that Biomagnetic Therapy had $500,000 worth of assets and franking credits of $1 million.[156] At that stage, Steven had other assets, albeit that it was envisaged they would be divested and placed into joint names, such as his motorbikes.[157] The position between Craig and Steven in relation to the various debts owing between them in relation to Biomagnetic Therapy and Biomagnetic was not resolved until July 2017. The Deed of Gift was not executed until September 2017.
  40. [162]
    Notwithstanding that I do not consider that the evidence establishes circumstances suggesting that there was a doubt as to Steven’s capacity either alone or in combination, I have still considered Steven’s testamentary capacity with the vigilant scrutiny required and find that:
    1. (a)
      He appreciated the testamentary act that he was undertaking as supported by the observations not only of Mr Ellis and Mr Dimon, but the attesting witnesses to his Will;
    2. (b)
      He was not affected by drugs or alcohol during the will making process such that it impaired his capacity to appreciate the task being undertaken by him and the effect of the documents which were part of the Will and his estate planning;
    3. (c)
      There is no evidence of cognitive decline or that he was cognitively impaired or that his capacity was impaired at the time of the 14 July 2016 meeting and 15 August 2016 meeting by any medication;
    4. (d)
      That he was able to understand the effect of the documents executed on 15 August 2016 which I am satisfied were discussed in the 14 July 2016 meeting and the 15 August 2016 meeting;
    5. (e)
      That he was aware in general terms of the nature of the estate evidenced by his engagement with Mr Ellis, Mr Dimon, his explanations of his assets to Julie and that he intended to transfer assets to Julie while he was alive or by placing them in joint names which was the subject of his discussions with Mr Pavusa;
    6. (f)
      He appreciated the assets intended to be the subject of the Steven Thomas Trinder’s Testamentary Trust and that Julie was to have priority and the children would only benefit upon her passing;
    7. (g)
      He considered all of those who relevantly had a claim on his estate in giving instructions for his Will;
    8. (h)
      Circumstances had changed after the March Will both insofar as he had lost confidence in Craig and Mr Schween, had not been repaid the $232,000 owing and wanted to ensure that his affairs were in order for his passing; and
    9. (i)
      While the Steven Thomas Trinder’s Testamentary Trust and the estate planning had some complexity they were prepared to fulfil his objective that Julie was to primarily benefit from his estate and be protected from claims such as family provision claims and he was capable of understanding the effect of the documentation.
  41. [163]
    To the extent that Dr Berry’s evidence, or any of the matters raised by the plaintiff, may leave residual doubt about Steven’s testamentary capacity at the relevant time, that doubt is not so great as to preclude my finding that Steven was of sufficiently sound mind, memory and understanding at the time he signed his will on 16 August 2016. A vigilant examination of the evidence as a whole does not throw doubt upon his capacity. I am satisfied to the requisite standard that he was of sound mind, memory and understanding when he executed the August Will.[158] 
  42. [164]
    I do not consider that the present evidence displaces the presumption of testamentary capacity arising from the execution of the August Will. Even if that was the case I would be satisfied on all the evidence that defendants, who propound the August Will, have established Steven had capacity both at the time he gave instructions and when he executed the August Will. He was undoubtedly a very sick man. But there is nothing to suggest that his illness nor his treatment impaired his capacity.

Knowledge and effect

  1. [165]
    Craig contends that the evidence raises suspicions about whether Steven did, in fact, know and approve of the contents of the August Will such that the Court’s vigilance should be excited and the Court would have to consider whether the August Will was signed with his knowledge and approval, rather than defendant’s being able to rely upon the presumption. Craig relies on many of the circumstances raised in relation to capacity, particularly the fact that the Steven Thomas Trinder’s Testamentary Trust was complex and elaborate when it was not intended there were any assets and its effect was to disinherit the children.
  2. [166]
    As stated above, I am satisfied on the evidence, particularly of Mr Ellis supported by Mr Dimon and Ms Mercer, that Steven understood the August Will and the effect of all of the testamentary documents that he signed on 15 August 2016. It was consistent with Steven’s instructions that he wished arrangements to be put in place to ensure that Julie received his estate through assets being placed in joint tenancies, divested directly to her, through changes made to superannuation funds and to the shareholding and directorships of companies.
  3. [167]
    Further, it was simply an incorrect proposition to say that when Steven signed the August Will, the Will was going to be of no effect because there would be no assets in his estate. Steven’s instructions were that his shares and cash would pass into the estate and testamentary trusts established thereunder. At the time the instructions were given, Mr Ellis noted that the estimated worth of Biomagnetic Therapy was $5,000,000 with assets of $500,000 and franking credits of $1,000,000.[159] I accept the evidence of both Ms Mercer and Ms Cavanagh that Steven knew he was signing the August Will. I accept Mr Ellis’ evidence that the contents of the August Will were fully explained to Steven prior to his signing and that he appreciated its contents. It must be observed that the documents were the culmination of instructions that had begun on 14 July 2016, and where Mr Ellis (and indeed Mr Dimon) had had further discussions with Steven, and with each other, and Steven had seen Mr Pavusa, all of which was consistent with the documents executed by him on 15 August 2016.
  4. [168]
    I do not consider that the presence of Julie at the 14 July 2016 and 15 August 2016 meetings raises any suspicious circumstances surrounding the provision of instructions or the will subsequently executed which affects the fact that Steven signed the will understanding and approving of his contents. Her uncontroverted evidence was she attended the meeting at Steven’s invitation to listen and took no active part in giving instructions or the preparation of his Will. She was, his partner of at least 14 years, and also gave instructions for her own will and EPOAs. All of the witnesses present at the time of instructions being given on 14 July 2016 and at the time of the execution of the August Will gave evidence that Julie was not observed as being anything other than a passive observer. That is supported by the fact that she did not attend the meeting with Mr Pavusa for the purpose of obtaining a binding financial agreement when it was intended that the Breaker Street property be transferred to Steven and Julie as joint tenants. Further the evidence supports the fact that Steven was prompted to change his will falling the dispute with Craig and Mr Schween in relation to the $250,000 debt and not at the instigation of Julie. Her daughter Jessica gave evidence she suggested he seek independent legal advice. I do not consider that her presence alone at the meetings is sufficient to raise suspicious cicrumstances, but in any event, I am satisfied that that evidence dispels any suspicious circumstances.
  5. [169]
    The defendant contrasts the making of the March Will where Steven sought to amend the draft will and to clarify various matters after he stated that he did not understand the will. That showed active engagement by Steven and, according to Craig, that when he executed the March Will he knew and approved its contents notwithstanding that the standard trust provisions do not appear to have been explained. The difficulty with that submission is that the making of the March Will was a very different circumstance. Regarding the August Will, Steven was involved from the beginning and did not give instructions via an intermediary. He and Mr Ellis discussed matters over the telephone after the initial meeting to clarify mattes leading up to the execution of the documents and then had a lengthy meeting with Mr Dimon, Ms Mercer and Mr Ellis on 15 August 2016 to have the documents explained prior to executing them, notwithstanding the documents were more complicated than what he had previously executed. While the testamentary trust was discretionary as opposed to a testamentary trust with fixed interests in the March Will, Steven signed a letter of directions to the trustees consistent with the fact it is a discretionary trust.
  6. [170]
    As to the suspicious circumstances that may suggest that Steven signed his Will without knowledge and approval of its contents, particularly in the absence of file notes showing he understood the effect of the testamentary trust and the limited assets that were within it, by the fact that Julie was present during the provision of instructions or the fact that his children were only to receive anything under the Will after Julie’s passing in circumstances where he was transferring assets out to Julie directly or into their names jointly.  I have carried out a vigilant examination of all the circumstances including the complexity of the Will, Steven’s mental acuity and sophistication, the complexity of the estate, the reduced provision for his children and the fact that an aggressive strategy was adopted to achieve the outcome of protecting Julie and his assets from claims.
  7. [171]
    The evidence presented by the defendant satisfies me that Steven appreciated the effect of what he was doing and executed it so it reflected the true intention of his Will because:
    1. (a)
      The August Will was changed at his instigation prompted by his increasing distrust of Craig and Mr Schween;
    2. (b)
      He had not discussed the approach to be adopted with the March Will with Mr Evans prior to it being drafted and had lost confidence in Craig and Mr Schween who were primarily involved;
    3. (c)
      Julie took no active part in the instructions for or preparation of the Will;
    4. (d)
      He saw Mr Pavusa consistent with the strategy discussed on 14 July 2016;
    5. (e)
      He discussed the corporate matters with Mr Dimon the day after the meeting;
    6. (f)
      Julie who was not sophisticated understood the outcome of the 14 July in relation to the transfer of assets outside of the Will;
    7. (g)
      He swore a statutory declaration accompanying the special directions letter;
    8. (h)
      He had engaged with Julie, Mr Ellis and Mr Dimon in the meetings which demonstrated the matters discussed and signed the instructions;
    9. (i)
      A testamentary trust had previously been adopted by him in the March Will;
    10. (j)
      The statutory declaration showed he had rational reasons for the treatment of his children and Jessica;
    11. (k)
      Where previous wills had excluded Steven’s children altogether;
    12. (l)
      He was a businessman used to dealing with financial issues who used advisors and had self-managed investment funds such that the complexity of the documents was not outside his experience even though he did not have knowledge of estate planning strategies prior to seeing Mr Ellis;
    13. (m)
      At the time he signed the will the testamentary trust was intended to have assets in terms of cash and shares; and
    14. (n)
      Considerable time was taken on 14 July 2016 and 15 August 2016 and in between to discuss the strategies to be adopted and the documents produced albeit files notes did not provide detailed notes of the exchanges that occurred.
  8. [172]
    I am satisfied that the August Will was executed with Steven’s knowledge and approval.  

Conclusion

  1. [173]
    I am therefore satisfied that the defendants have discharged the onus upon them in propounding the August Will and that that was the last Will and Testament of Steven.
  2. [174]
    In the circumstances I do not need to consider whether the March Will was substantively valid.

September 2017 Deed of Gift - is the presumption rebutted?

  1. [175]
    A Deed of Gift was executed by Steven in favour of Julie on 27 September 2017 gifting motorcycles, various tools and machines.[160] The circumstances leading up to the execution of the Deed of Gift are set out above.
  2. [176]
    Section 87 of the Powers of Attorney Act provides that the fact that a transaction is between a principal and an attorney under an EPOA gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence.
  3. [177]
    Julie was not exercising the power under the Financial EPOA at the time. Nevertheless, the section is enlivened given Julie was Steven’s attorney under the Financial EPOA which was operative immediately.
  4. [178]
    The presumption is a rebuttable one with the onus on the donee of the power. The donee must show that, on the balance of probabilities, that the donor knew and understood what he or she was doing and acted independently of any influence of the done.[161] One of the principal mechanisms for rebutting the presumption is to show that the donor received independent legal advice.[162] The adviser must be an independent person free from any tainted relationship for the consideration of interest which would affect the act and should put clearly before the person what are the nature and consequences of the act.[163] Mr Ellis was not an independent person.
  5. [179]
    In Smith v Glegg,[164] Phillip McMurdo J stated in relation to the statutory presumption of undue influence:[165]

“The defendant must show that this transaction “cannot be ascribed to the inequality between them which must arise from (her) stronger position” and that “the gift was the independent and well-understood act of a (woman) in a position to exercise a free judgment based on information as full as that of the donee”: Johnson v Buttress (1936) 56 CLR 113, 134-5.”

  1. [180]
    His Honour noted that to rebut the presumption, it is not necessary for the donee to show that the donor received appropriate and independent advice, although that is often how the presumption is rebutted.[166]
  2. [181]
    In Birch v Birch[167] Douglas J stated that:

“[103]  A court interferes in a case of presumed undue influence on the ground of public policy to prevent the relations which existed between the parties and the influence arising therefrom being abused. The onus lies on the donee of the power to rebut the presumption of undue influence on the balance of probabilities by showing that the plaintiff knew and understood what she was doing and that she acted independently of any influence of him.The court will look on a substantial gift ‘with a very jealous eye and very strictly examine the conduct of persons in whose favour it is made.’” (citations omitted)

  1. [182]
    The plaintiff contends that there is an absence of evidence to demonstrate that Steven was acting independently and free of influence. Craig gave evidence that he and Steven had discussed the fact that the motorbikes were to stay in the family given their family history in motorcycle sports. That was prior to the fall out with Steven.
  2. [183]
    Counsel for the defendants contend that the subject of the gift was consistent with the instructions provided to Mr Ellis on 14 July 2016 that everything apart from the shares and cash were to come out of the estate, at which time he received legal advice from Mr Ellis.[168] He further submitted that, even if Steven had received independent advice, his position would have been no different. He also submits that the evidence of Ms Harris supports the fact Steven was able to appreciate what was going on and acted independently.

Consideration

  1. [184]
    In the present case, the question for the Court is not whether the Court determines there was undue influence, but rather whether the Court is persuaded that the defendants discharged their onus to rebut the presumption of undue influence.[169]
  2. [185]
    Steven did not received independent advice in relation to the Deed of Gift. Mr Ellis could not be regarded as an independent solicitor given that he had acted for both parties. I also accept that the motorcycles were of significance to the Trinder family, which Steven would have been aware of given the family history.
  3. [186]
    Mr Ellis did rely on the fact that the parties had executed a conflict permission and statement of understanding which included a statement that:[170]

“I understand that the various roles in my estate planning are very important. After very careful consideration, I have made the appointments, even though the person/s appointed may have roles or interests in other entities which are related to the whole of my estate interest. For example, they could be an executor or trustee appointed under my Will; a trustee or director of the corporate trustee of a SMSF of which I am a member; a joint trustee or appointor/principal of any of my family trusts; a director or shareholder in any private company in which I hold an interest; or perform any and/or such roles.” (emphasis added)

  1. [187]
    In my view however that does not add any significant weight in rebutting the presumption. It is also of limited application, if any, since it does not refer specifically to the conflict with respect to an EPOA, which in my view, would be necessary to do so in order to have any significant weight in rebutting the presumption.
  2. [188]
    Matters that weigh in favour of the rebutting of the presumption are that Steven insisted that Mr Ellis make provision for the transfer of the boat and provided him with a HIN number for the boat. That was not challenged. Ms Harris’ evidence also supported the fact that Steven was, in her view, completely sound mentally, cognitive and interacting normally and she did not have any concerns about his ability to understand what was occurring around him. In particular, she stated that she had not observed at any point Julie or Ms Daniels seeking to unduly influence, pressure or otherwise attempt to influence Steven. The further factor in favour of rebutting the presumption is that the Deed of Gift was consistent with the instructions that were given on 14 July 2016, that Steven’s personal estate was to be placed into joint names or gifted to Julie and only Steven’s shares and cash were to be assets in the testamentary trust. In particular, Mr Ellis stated that the 14 July 2016 meeting, it was agreed that the most appropriate way to give effect to Steven’s wishes and instructions was to prepare a Deed of Gift in favour of Julie which would transfer those assets.
  3. [189]
    While he did not provide independent advice to Steven, Mr Ellis did confirm his instructions to Steven face to face. His observation was that Steven was not under undue pressure to execute the document and that Julie was a passive participant. That was consistent with the evidence of Ms Harris.
  4. [190]
    I accept that it is likely, given the matters discussed at the 14 July 2016 meeting and the progressive steps to implement the matters discussed, that even if Steven received legal advice, he would have done something different. In fact, the evidence suggests he would have done exactly the same thing.[171]
  5. [191]
    While I consider Mr Ellis should have taken steps to ensure that Steven had independent advice at the time of the execution of the Deed of Gift, I am satisfied that he acted freely and independently and that he would have acted in the same way had he received independent advice. I am satisfied that the presumption is rebutted.

Other documents executed on 15 August 2016

  1. [192]
    Part of the relief sought in the Amended Statement of Claim seeks declarations in relation to documents signed by Steven on 15 August 2016 apart from the August Will, 22 April 2017 and 27 September 2017 being void because Steven did not have the requisite capacity to understand the documents. The Health EPOA and Financial EPOA were executed by Steven on 15 August 2016 before independent witnesses, who were satisfied he understood the documents. It was discussed at the meeting of 14 July 2016. I am satisfied, based on the analysis above, that while the fact that there is need for some evidence of higher capacity for the purposes on the EPOA is referred to, at the time that Steven executed the EPOA he had such capacity. Based on the analysis in relation to capacity with respect to the August Will, I am satisfied that Steven did have capacity in relation to the execution of the other documents on 15 August 2016. I have dealt with the Deed of Gift executed on 27 September 2017 above. As to the documents executed on 22 April 2017, no case was opened by counsel for Craig, nor was it the subject of closing submissions. In the circumstances, I do not make any finding in relation to that matter.

Conclusion

  1. [193]
    I am satisfied that the evidence establishes the prima facie onus that the August 2016 Will was appropriately made by Steven as a free and capable testator who knew and approved the contents of the will. I am not satisfied that the Plaintiff shifted the onus probandi to show that the August Will ought not to be admitted to probate. I am satisfied that the August Will should be propounded in Solemn form of law.
  2. [194]
    I am satisfied that the presumption of undue influence in relation to the Deed of Gift has been rebutted.
  3. [195]
    The Plaintiff has not succeeded in establishing any of the relief sought in the Amended Claim and it will be dismissed.
  4. [196]
    I will hear from the parties further on the question of the grant of probate and the appropriate order in relation to the undertakings that have been provided by the defendants.
  5. [197]
    I will hear from the parties as to costs.

Orders

  1. [198]
    I order the following:
  1. I pronounce in solemn form for the force and validity of the will of Steven Thomas Trinder dated 15 August 2016.
  2. The Plaintiff’s claim is dismissed.
  3. The parties are to provide submissions within fourteen days as to any further orders required in relation to the grant of probate, the undertakings given by the defendants and as to costs.

Footnotes

[1] Julie and Mr Ellis are the defendants in this proceeding.

[2] The plaintiff in these proceedings.

[3] Although Julie had met Steven in or about 1998.

[4] TB vol 1 at 228, Affidavit of Craig Trinder at [20]; TB vol 2 at 745, Affidavit of Joshua Dimon at [22].

[5] TB vol 6 at 2591, Invoice of DTCH Lawyers.

[6] TB vol 6 at 2756, Email from Mr Schween to Steven dated 25 November 2016.

[7] TB vol 6 at 2746, DTCH Lawyers Pty Ltd File.

[8] TB vol 6 at 2740, DTCH Lawyers Pty Ltd File.

[9] TB vol 6 at 2734, DTCH Lawyers Pty Ltd File.

[10] TB vol 6 at 2733, DTCH Lawyers Pty Ltd File.

[11] TB vol 6 at 2697, DTCH Lawyers Pty Ltd File.

[12] TB vol 6 at 2656, DTCH Lawyers Pty Ltd File.

[13] TB vol 6 at 2651, DTCH Lawyers Pty Ltd File.

[14] TB vol 3 at 1132, Affidavit of Jessica Daniels at exhibit JJD-1, p 42.

[15] TB vol 3 at 1137, Affidavit of Jessica Daniels at exhibit JJD-1, p 47.

[16] TB vol 2 at 752, Affidavit of Joshua Peter Dimon at [67].

[17] TB vol 2 at 636, Affidavit of Shane Ellis, at exhibit SSE-1, p 1.

[18] TB vol 2 at 636, Affidavit of Shane Ellis, at exhibit SSE-1, p 1.

[19] TB vol 3 at 850, Affidavit of Marco Matos at exhibit MM-1, p 20.

[20] TB vol 3 at 1140, Affidavit of Jessica Daniels at exhibit JJD-1, p 50.

[21] TB vol 3 at 1142, Affidavit of Jessica Daniels at exhibit JJD-1, p 52.

[22] TB vol 3 at 1142, Affidavit of Jessica Daniels at exhibit JJD-1, p 52.

[23] TB vol 3 at 1141, Affidavit of Jessica Daniels at exhibit JJD-1, p 51.

[24] TB vol 3 at 1086, Affidavit of Jessica Daniels at [9(c)(v)].

[25] TV vol 3 at 1143, Affidavit of Jessica Daniels at exhibit JJD-1, p 53.

[26] TB vol 6 at 2756, DTCH Lawyers Pty Ltd File.

[27] T1-51/25-44.

[28] T1-59/30-36.

[29] T1-60/10-19.

[30] T1-60/26.

[31] T1-60/34-38.

[32] T1-61/1-6.

[33] T1-58/25-31.

[34] TB vol 5 at 1961, Affidavit of Victoria Mercer at [13].

[35] TB vol 2 at 620, Affidavit of Shane Ellis at [21]; TB vol 5 at 1961, Affidavit of Mercer at [15].

[36] TB vol 2 at 793, Affidavit of Joshua Dimon at [79].

[37] TB vol 2 at 493, Affidavit of Shane Ellis at [14].

[38] TB vol 2 at 492, Affidavit of Shane Ellis at [12].

[39] TB vol 2 at 752, Affidavit of Joshua Dimon at [75].

[40] TB vol 2 at 753, Affidavit of Joshua Dimon at [77] and [78].

[41] T3-34 – T3-35.

[42] T3-44/20-16; T3-43/9-17.

[43] TB vol 3 at 951, Affidavit of Marco Matos at exhibit MM-1, 121.

[44] TB vol 5 at 1976–1977, Affidavit of Peter Pavusa at [6] and [7].

[45] TB vol 5 at 2089, Affidavit of Peter Pavusa at exhibit PP-1, 110.

[46] TB vol 5 at 1977, Affidavit of Peter Pavusa at [17], p 1977; TB vol 4 at 1289, Affidavit of Julie Ciniglio at [61].

[47] For example, TB vol 2 at 791, Affidvait of Josh Dimon at exhibit JPD-1, 32.

[48] TB vol 2 at 660–661, Affidavit of Shane Ellis at exhibit SSE-3, 25–26.

[49] T2-45/45-47.

[50] T2-46/1.

[51] That was created for the purposes of appointed as trustee of the Steven Superannuation Fund (SMSF).

[52] TB vol 2 at 623, Affidavit of Shane Ellis at [44].

[53] TB vol 4 at 1287, Affidavit of Julie Ciniglio at [47].

[54] TB vol 5 at 1964, Affidavit of Victoria Mercer at [27].

[55] TB vol 5 at 1950, Affidavit of Tahli Cavanagh at [10].

[56] TB vol 5 at 1951, Affidavit of Tahli Cavanagh at [21].

[57] TB vol 5 at 1952, Affidavit of Tahli Cavanagh at [24] & [25].

[58] TB vol 3 at 829, Affidavit of Marco Matos at [24] & [25].

[59] TB vol 3 at 828, Affidavit of Marco Matos at [21] & [22].

[60] TB vol 2 at 631–632, Affidavit of Shane Ellis at [108] & [113]–[116]; TB vol 2 at 749–751, Affidavit of Joshua Dimon at [56]–[66].

[61] TB vol 2 at 750, & 783-786, Affidavit of Joshua Dimon at [61] – [62], and exhibit JPD-1, 24–27.

[62] TB vol 2 at 783, Affidavit of Joshua Dimon at exhibit JPD-1, 24.

[63] TB vol 2 at 783, Affidavit of Joshua Dimon at exhibit JPD-1, 45–46

[64] T2-24/20.

[65] T2-15/24.

[66] TB vol 2 at 734, Affidavit of Shane Ellis at exhibit SSE-2, 99.

[67] TB vol 2 at 755, Affidavit of Joshua Dimon at [99].

[68] TB vol 2 at 756, Affidavit of Joshua Dimon at [101].

[69] TB vol 2 at 756, Affidavit of Joshua Dimon at [103].

[70] TB vol 2 at 756, Affidavit of Joshua Dimon at [104].

[71] TB vol 2 at 609, Affidavit of Shane Stuart Ellis at exhibit SSE-2, 35.

[72] TB vol 2 at 724, Affidavit of Shane Stuart Ellis at exhibit SSE-2, 89.

[73] T3-52/5-14.

[74] T3-52/35-41.

[75] TB vol 5 at 1833, Affidavit of Desley Harris at [12].

[76] TB vol 5 at 1833, Affidavit of Desley Harris at [13].

[77] TB vol 5 at 1834, Affidavit of Desley Harris at [14]–[16].

[78] TB vol 5 at 1835, Affidavit of Desley Harris at [17].

[79] TB vol 5 at 1834, Affidavit of Desley Harris at [19]–[22].

[80] TB vol 5 at 1835, Affidavit of Desley Harris at [24]–[26].

[81] TB vol 4 at 1288, Affidavit of Julie Ciniglio at [49].

[82] [2019] QSC 272 at [31]–[32].

[83] [2016] QSC 83 at [45].

[84] [2015] VSCA 60 at 168-171.

[85] [2012] NSWCA 285 at [44]–[48].

[86] [2011] QSC 107, which was not set aside on appeal in this respect, [2011] QCA 308.

[87]Hamill v Wright [2018] QSC 197, [147] referring to Worth v Clasohn (1952) 86 CLR 434 at 453.

[88]Hamill v Wright [2018] QSC 197, [147] referring to Worth v Clasohn (1952) 86 CLR 434 at 453.

[89] Santow J in Pates v Craig [1995] NSWSC 87 at 4.

[90] Hamill v Wright [2018] QSC 197, [148] referring to Bull v Fulton (1942) 66 CLR 295 at 299.

[91] [2004] NSWSC 73 at [49] referred to by Mullins J in Ruskey-Fleming v Cook [2013] QSC 142.

[92] [2011] QCA 308 at [22].

[93] Vernon v Watson [2002] NSWSC 600 at [3].

[94] Said to consist of no less than one and a half bottles of vodka and a large amount of beer.

[95] Although, Craig has relied on some of the same circumstances to allege that there were circumstances giving rise to a suspicion of a lack of capacity and that Steven might not have appreciated the contents of the August Will or approved of the contents.

[96] T3-29.

[97] T3-44/20-16; T3-43/9-17.

[98] T4-23/36-40.

[99] A number of which were discussed by Applegarth J in Rowe v Sudholz [2019] QSC 306 at [192] - [195].

[100] Steven’s medical records were in evidence.

[101] TB vol 3 at 951, Affidavit of Marco Matos at exhibit MM-1, 121.

[102] They were exhibited to the Affidavit of Dr Matos as well as Julie’s affidavit.

[103] TB vol 4 at 1289, Affidavit of Julie Ciniglio at [54]–[55], TB p 1289.

[104] Exhibit 2 Email of 8 February 2020.

[105] Which she described as voluminous and having perused them “as best possible time permitting”: Exhibit 2, Email of 7 February 2020.

[106] Exhibit 2, Email of 7 February 2020.

[107] Exhibit 2, Email of 8 February 2020.

[108] Exhibit 2, Email of 7 February 2020

[109] T1-36/20-26.

[110] T1-32/1-5.

[111] Although they were the subject of instructions by Craig.

[112] Exhibit 3 Letter to Dr Berry dated 9 July 2019.

[113] Which is a test of cognition, not capacity which would require more specific testing.

[114] T1-30/25-36.

[115] T1-41/16-43.

[116] T1-42/1-19 albeit commenting that there is literature to suggest delirium is not well documented.

[117] [2019] QSC 306 at [147].

[118] See for example, Young JA in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, [89].

[119] TB vol 4 at 1287, Affidavit of Julie Ciniglio at [38] & [39].

[120] T1-51/23-26.  Mr Dimon stated the amount to be $232,000, and Mr Schween $250,000.

[121] T1-60/18-19.

[122] TB vol 1 at 229, Affidavit of Craig Trinder at [26].

[123] TB vol 2 at 783, Affidavit of Joshua Dimon at exhibit JPD-1, 24; T2-16/1-46 – T2-17/40.

[124] TB vol 1 at 228, Affidavit of Craig Trinder at [20].

[125] T2-22/28-42.

[126] TB vol 2 at 804, Affidavit of Joshua Dimon at exhibit JPD-1, 45.

[127] T2-22/21 – T2-23/14.

[128] For instance he stated the amount of $500,000 of Steven invested through Dupont was a personal loan from Steven to Craig and had nothing to do with Biomagnetic Therapy but ultimately conceded he did not know where the money came from.

[129] The actual email could not apparently be located, but TB1143 shows a similar complaint to the concern Steven stated to Jessica.

[130] Rowe v Sudholz [2019] QSC 306 at [147] per Applegarth J referring to Zorbas and Sidiropoulous (No 2) [2009] NSWCA 197 at [89].

[131] Rowe v Sudholz at [148].

[132] T3-54/30-32.

[133] Which have been mostly dealt with above.

[134] Hamil v Wright [2018] QSC 197 at [129].

[135][2013] QSC 142 at [68].

[136] TB vol 2 at 821, Affidavit of Joshua Dimon at exhibit JPD-2, 1.

[137] T2-51/5-35.

[138] T2-48/34 - T2-49/2.

[139] TB vol 4 at 1286, Affidavit of Julie Ciniglio at [36].

[140] TB vol 2 at 752–753, Affidavit of Joshua Dimon at [76].

[141] T2-42/30-36.

[142] TB vol 2 at 753, Affidavit of Joshua Dimon at [77].

[143] T1-58/1-10.

[144] T1-57/15-26.

[145] [2019] QSC 306.

[146] Prepared in 2009 and 2010.

[147] TB vol 6 at 2329, Affidavit of David Brown at [13]–[15].

[148] TB vol 6 at 2330, Affidavit of David Brown at [27].

[149] TB vol 2 at 507, Affidavit of Shane Ellis at exhibit SSE-1, 8.

[150] TB vol 1 at 198–199, Affidavit of Craig Trinder at [4].

[151] Which was raised for the first time at trial and neither pleaded nor opened.

[152] Pates v Craig [1995] NSWSC 87 at [4].

[153] [2013] QSC 142.

[154] Which as her Honour described is a blunt instrument and must be considered in conjunction with other evidence of the testator’s capacity at [65].

[155] [2018] QSC 197.

[156] TB vol 2 at 512, Affidavit of Shane Ellis at exhibit SSE-1, 13.

[157] Some of which were later the subject of a Deed of Gift.

[158] Hamill & Anor v Wright & Ors [2018] QSC 197.

[159] TB vol 2 at 512, Affidavit of Shane Ellis at exhibit SSE-1, 13.

[160] TB vol 4 at 1567, Affidavit of Julie Ciniglio at exhibit CJ-2, 274.

[161] Birch v Birch [2018] QSC 289 at [103].

[162] Johnson v Buttress (1936) 56 CLR 113 at 119-120.

[163]Birch v Birch [2018] QSC 289 at [104] referring to in Re: Coomber (1911) 1 Ch 723 at 730.

[164][2004] QSC 443; [2005] 1 Qd R 561.

[165] Smith v Glegg [2004] QSC 443 at [43].

[166] Smith v Glegg [2004] QSC 443 at [44]; see also “Snell’s Equity”, Thomson Reuters, 31st Ed at [8-30] – [8-31].

[167] [2018] QSC 289 at [103].

[168] TB vol 2 at 509, Affidavit of Shane Ellis at exhibit SSE-1. 10.

[169]Baker v Afoo [2014] QSC 46 at [100].

[170] TB vol 2 at 538, Affidavit of Shane Ellis at exhibit SSE-1, 39.

[171] Cf Birch v Birch [2018] QSC 289 at [118].

Close

Editorial Notes

  • Published Case Name:

    Trinder v Ciniglio

  • Shortened Case Name:

    Trinder v Ciniglio

  • MNC:

    [2020] QSC 176

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    16 Jun 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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