Mullavey v Verri[2016] QSC 83

SUPREME COURT OF QUEENSLAND

1. This application arises in a proceeding instituted by claim.   That claim seeks a declaration for the force and validity of one of the various wills of Walter Edward Mullavey (“the testator”), namely:
   1. his will dated 6 August 2010 with a codicil dated 11 March 2011; or alternatively
   2. his will dated 6 August 2010 without the codicil dated 11 March 2011; or alternatively
   3. his will dated 29 June 2009; or alternatively
   4. his will dated 13 May 2009.
2.               The plaintiff and first defendant were the executors named in those wills.  The first defendant renounced as executor on 15 July 2013, leaving the plaintiff as sole executor.
3. Each of the wills revoked all former wills and testamentary dispositions.  Therefore in the ordinary course, absent issues as to validity, the last in time of the above wills, with the codicil, would be admitted to probate.   In pleading all of the above testamentary instruments in the alternative for admission to probate the plaintiff did not plead any fact raising an issue as to the validity of the most recent will or the codicil. 
4. It is therefore unsurprising that in the present application the first defendant sought an order the plaintiff respondent be granted probate of the last will dated 6 August 2010 together with the codicil dated 11 March 2011.  Such an order would avoid the need for a trial of the claim.
5. In meeting the application the respondent^[1] raised an issue as to the validity of the last will and codicil (“the validity issue”).  If there is arguable substance to the issue, the claim should be allowed to proceed.
6. The application also seeks a declaration and associated orders arising from a construction issue in respect of the last will and codicil.  That issue relates to a debt arguably owed to the testator’s estate by his family company, KM & WE Mullavey Investments Co Pty Ltd (“the construction issue”).
7. Before examining the validity and construction issues to which the application gives rise it is necessary to give them some broader factual context.

Facts

8. The testator died on 22 May 2013 aged 99. His wife died four years earlier, aged 93.  The respondent, who has resided in China since 2009, was their only son.  The applicant, who lives in Mossman and succeeded the testator on the board of the Mossman Mill, was a longstanding friend of the testator.
9. The respondent and the applicant were each beneficiaries under the various wills of the testator.

The most recent will

10. In his final will, dated 6 August 2010, the testator left $100,000 to his granddaughter, Debra Jeanette Centra, his share in his company KM & WE Mullavey Investment COY Pty Ltd (“the company”) to the applicant and the residue of his estate to the respondent.^[2]
11. His will contemplated the money in the company’s two investment accounts would be shared in equally by the applicant and the respondent. The company accounts held several million dollars.  The testator’s words suggest he regarded the company’s money as his own but understood the legal reality that the money was owned by the company.  The will relevantly provided: 

“4.1I HOLD TWO National Bank Investment accounts in the name and style of KM & WE Mullavey Investment COY Pty Ltd ACN 011 017 100 (herein after referred to as ‘the company’) numbered 83-622-0740 and 57-103-5856 I direct that these two accounts are to be shared equally between my son BRYAN WALTER MULLAVEY and RONALD DOUGLAS VERRI.

4.2AS THE ACCOUNTS are held by the company I direct that my share in the company be transferred to RONALD DOUGLAS VERRI with the result that my son BRYAN WALTER MULLAVEY and RONALD DOUGLAS VERRI will each hold a one equal share in the company.

4.3I FURTHER DIRECT that RONALD DOUGLAS VERRI be appointed joint and equal director of the company.

4.4THE ACCOUNTS are then to be distributed in accordance with clause 4.1 of my Will and following the distribution of those accounts to my son BRYAN WALTER MULLAVEY and RONALD DOUGLAS VERRI in equal shares then it would be appropriate for the company to be wound up or if my son BRYAN WALTER MULLAVEY desired to continue to operate the company then it would be appropriate for RONALD DOUGLAS VERRI to transfer to my son BRYAN WALTER MULLAVEY or his nominee his shareholding in the company and for RONALD DOUGLAS VERRI to resign as director of the company.”

12. Initially the testator and his wife had held the two shares in the company.  After her death on 1 May 2009 the testator, who apparently was to have inherited his wife’s share, transferred the share directly to his son, the respondent, commenting that the respondent would eventually inherit the company anyway.  The final will signifies a clear change in that intention.

The codicil

13. The codicil of 11 March 2011 did not affect a material change to the dispositions in the final will. It merely varied the final will’s description of the company’s investment accounts to a more generic description, to cater for variations in accounts held by the company.  It relevantly provided:

“2.At paragraph 4.1 of my Will I have referred to two (2) National Bank accounts held by my family company in the name and style of KM & WE Mullavey Investments Co Pty Ltd ACN 011 017 100 (“the company”).

3. In clause 4.1 of my Will there is an account referred to as number 83-622 0740.  This account has been closed and a substitute account has been opened in its place.

4. I anticipate that the two (2) major investment accounts may change in number at some stage in the future and in order to avoid confusion I state that it is my direction that all accounts in the name of the Company are to be shared equally between my son Bryan Walter Mullavey and Ronald Douglas Verri.”

The earlier wills

14. The testator made a number of earlier wills, dated, in reverse chronological order, 10 February 2010, 29 June 2009 and 13 May 2009 (the will of 10 February 2010 was missed in the drafting of the Statement of Claim).  Each of those wills bequeathed monetary sums to Ms Centra and the applicant and the rest of the estate to the respondent.  In the oldest two wills, of 13 May and 29 June 2009, the amounts bequeathed to Ms Centra and the applicant were $25,000 each.  In the more recent will of 10 February 2010 the amount bequeathed to the applicant was increased to $50,000.
15. The final will of 6 August 2010 was more advantageous than the previous wills to Ms Centra, whose entitlement went from $25,000 to $100,000 and was much more advantageous to the applicant, whose entitlement went from $50,000 to an interest potentially worth over a million dollars. 

The dispute emerges

16. On 14 February 2014, about nine months after the testator’s death, the applicant’s solicitor wrote to the respondent’s solicitor enquiring after the progress of the administration of the estate.  The respondent’s solicitor indicated the grant of probate had not been sought due to “anticipated court proceedings”.  After filing the claim on 11 March 2014 the respondent’s solicitor wrote to the applicant’s solicitor on 15 April 2014, apparently purporting to explain why his claim propounded testamentary instruments in the alternative without identifying any issue as to their validity.  The letter said, inter alia:

“An important responsibility borne by our client as the executor is not to propound any given Will in a partisan manner, but to assist the Court to determine the last valid and effectual Will of the deceased in all of the circumstances that present.

That being said, our client might ultimately point to circumstances that combine to suggest that the deceased’s Will dated 6 August 2010 is bad for want of testamentary capacity.”

17. It was obviously unsatisfactory that material facts relevant to a want of testamentary capacity had not been pleaded and that not even the above letter identified what they were.  Despite requests by the applicant’s solicitor for clarification of the respondent’s concerns as to testamentary capacity, no clarification was forthcoming. 
18. It is therefore unsurprising that in the applicant’s eventual Defence he simply admitted the force and validity of the will dated 6 August 2010 and the codicil dated 11 March 2011 and pleaded all preceding wills were revoked by the will dated 6 August 2010 and were of no force and effect.  In turn the applicant filed the present application, seeking an order that the respondent be granted probate of the last will dated 6 August 2010 together with the codicil dated 11 March 2011. 
19. That component of the application gives rise to the validity issue.  Before considering that issue it is useful to discuss the construction issue, which arises from another component of the application.

The construction issue

Background

20. The applicant’s solicitor also made requests of the respondent’s solicitor for information about estate assets.  The respondent’s solicitor responded in part by a letter dated 16 March 2015, enclosing bank account and financial statements for the company.  The letter noted the alleged existence of an outstanding loan by the testator to the company:

“You will see from the 2012 Financial statements that as at 30 June 2012, the company was liable to the late Walter Edward Mullavey under a loan in the amount of $1,845,758.52.  We are instructed that that liability was in a similar amount at the time of Mr Walter Edward Mullavey’s death and has not yet been repaid by the company.  Any entitlement of shareholders in the company to the company’s assets will be subject to payment of this liability.

21. The materials presently filed include the above-mentioned financial statements, styled “Detailed statement of financial position as at 30 June 2012”.  It lists the above-mentioned sum under financial liabilities against the description “Secured: – Loan – W.E. Mullavey”.  Curiously, little other information relating to this loan has been filed.
22. The company’s only assets were its funds in bank accounts, totalling about $3.2M at the date of the testator’s death.  If a loan of the above mentioned size were repaid to the estate, as the respondent’s solicitors suggest, this would significantly diminish the value of the share the applicant stands to inherit under the final will and significantly increase the value of the residual estate to be inherited by the respondent.
23. That is why the present application also seeks a declaration any debt to the testator shown in the company’s books and records was never intended to be repaid or was forgiven upon the date of execution of the final will or was forgiven upon the date of the testator’s death.  This gives rise to a construction issue in respect of the way the will and codicil dealt with the disposition of the company accounts and shares. 

Discussion

24. While submissions were made as to the merits of the construction issue, it only requires determination in the event the validity issue is resolved in the applicant’s favour, either in the application or at trial, for the construction of the final will would otherwise be irrelevant.   As will be seen, I am not prepared to summarily resolve the validity issue in the applicant’s favour.  However, even if I were of a different view, I could not resolve the construction issue because of the incomplete state of the presently filed materials.
25. The position contended for by the applicant is that the will’s references to the company’s money being shared equally between the applicant and respondent included the amount of any money owed by the company to the testator.  If that is correct it is curious the will did not make direct mention of the fate of any debt, particularly given the detail descended into in specifying the relevant bank accounts.  That may be because the testator had such a familiarity with his and the company’s financial affairs and regarded them as so entwined that he reasoned the forgiving of the debt went without saying.  It might also be because there was then no debt or because there was a debt but the testator had forgotten about it, for instance because it was only a “paper debt” resulting from the tax minimisation advice of an accountant. His solicitor, Mr Bolt apparently knew nothing of the debt. 
26. These matters involve surrounding circumstances in the light of which the will may arguably be ambiguous in the sense contemplated by s 33C Succession Act 1981 (Qld). Unfortunately it is not possible to reach an informed view about such matters because very little information has been filed about the debt and its genesis.  Obviously someone, such as an accountant, prepared the detailed statement of financial position as at 30 June 2012.  That person must know something else of the debt.  So, presumably, would the respondent.  Indeed as executor of the deceased’s estate and as a shareholder, secretary and director of the company the respondent should be in a position to comprehensively inform the court about the debt and its genesis and exhibit records pertaining to it. 
27. On one view the absence of sufficient evidence to decide this component of the application should simply result in a dismissal of it. However a party resisting an application which has the practical effect of propounding a will of which the party is executor might reasonably be expected, even though not carrying the onus of proving the application, to at least play a neutral role in placing information relevant to the application before the court where that information is known to or under the control of the executor.  Further, the evidence will be relevant in and thus ought be disclosed in the proceeding by claim.  It will be relevant because the question of what if anything was affected by the words of the final will vis a vis any debt is inextricably connected to the question, relevant to validity, of whether the testator understood what he was affecting by the words of the final will.   
28. The preferable course then is to adjourn the further hearing of the application for the declaration about the debt for determination in conjunction with the determination of the claim.

The validity issue

Background

29. During 2010 and 2011 and up to his death the testator was an inpatient of the Mossman Hospital’s Aged Care Ward.  The applicant would regularly visit him there and would occasionally take the testator to visit the testator’s home, a house in Mossman.  The applicant ensured that home was maintained and clean so as to be suitable for such visits by the testator.
30. Mr Bolt knew and acted as the testator’s solicitor for 19 years before the testator’s death.   He prepared the testator’s final will and the codicil.  He was conscious of the importance of testamentary capacity given the testator’s old age and the prospect that the material dispositive change in the final will in the applicant’s favour might provoke a challenge by the respondent.  Mr Bolt’s affidavit evidences considerable care was taken by him to ensure testamentary capacity by questioning the testator and by seeking a medical opinion.  It also shows he turned his mind to and did not detect any indication of undue influence by the applicant.  Indeed he noted, as the applicant also deposes, that the applicant was surprised when the testator revealed his intention to so generously benefit the applicant.
31. Mr Bolt’s affidavit also explains the testator’s apparently rational concern to avoid confusion in the will’s description of the company bank accounts, which prompted the making of the codicil.
32. The respondent’s affidavit deposed, inter alia, that there was a significant decline in the testator’s mental capacity since he “had a turn” in about November 2009 and was admitted to Mossman Hospital.  The era of decline since 2009 to which the respondent deposed – the era when the testator resided in the Mossman Hospital aged care facility –  was an era during which the respondent was residing in China, speaking weekly to fortnightly by telephone with his father and visiting occasionally.  It is perhaps unsurprising therefore that the respondent did not depose to examples illustrating the decline in any prolonged detail.
33. The respondent deposed that after the “turn” his father would sometimes not recognise persons he knew, including the respondent, until it was explained who they were.  He also deposed to a decline in his father’s memory, noticing he would repeat past stories inaccurately or differently to how he had previously told them.  He deposed that in 2011 his father told him someone had a coffin on the back veranda of the hospital and was trying to kill him and in 2012 his father told him on the phone that people were running around the hospital with guns. 
34. The respondent’s affidavit acknowledged the applicant was a long standing and close friend of his parents.  He also deposed to some gifts of money made by the testator when alive to the applicant.  They were $50,000 on 25 February 2010, $25,000 on 20 October 2010, $10,000 on 27 January 2011, $10,000 on 28 October 2011 and $10,000 on 13 December 2011.

First hearing

35. Despite the filing of the respondent’s affidavit no amendment had been made to the statement of claim when the application was first heard on 13 November 2015.  The applicant submitted in the absence of any pleading of a fact raising an issue as to the validity of the will dated 6 August 2010 and codicil dated 11 March 2011 there ought be a grant of probate of those apparently properly executed testamentary instruments.
36. At the first hearing the respondent seemed to rely on the executor’s duty to act fairly towards all potential beneficiaries to explain the state of its pleadings.  Reliance was placed on the observation of Cairns J in In the Estate of Muirhead^[3] that an executor cannot pick and choose between the testamentary documents of which he applies for probate and must propound all.  However, his Honour was not suggesting by that observation that an executor is precluded from advancing evidence of invalidity of a testamentary document. 
37. In the Estate of Muirhead involved an executrix seeking probate of a will without its more recently executed codicil and without evidence impugning the codicil.  Cairns J criticised the approach of inviting the court to pass over a more recent and apparently valid testamentary document without evidence of invalidity.  He held the executrix’s obligation was to apply for a grant of probate in solemn form and if the executrix had “reason to believe that the codicil was not a valid testamentary document, she should adduce evidence to satisfy the court accordingly”.^[4]
38. Applying that reasoning to the proceeding here started by claim, the executor should have pleaded the material facts relevant to why the final will and codicil were not valid testamentary documents.  Indeed pursuant to r 150(1)(t)-(u) Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) he was obliged to specifically plead, if he sought to allege it, that the testator did not know and approve of the contents of the will or lacked capacity.
39. I was concerned the respondent’s approach to the litigation to that point deprived it of a pleaded foundation for an argument as to the invalidity of the testamentary instruments the subject of the application and therefore adjourned the hearing of the application to 7 December 2015.  That was to afford the respondent executor an opportunity to clarify his instructions and, if he wished to exercise it, to file an Amended Statement of Claim. 

Allegations eventually pleaded

40. When the hearing resumed on that date the respondent had not yet filed an amended pleading, however his draft Amended Statement of Claim (“DASOC”) was admitted as exhibit 1 in the application.  The DASOC became an exhibit rather than it being filed in the hearing because the DASOC perpetuated the erroneous omission of the will dated 10 February 2010, an obvious error, which, were the claim to remain live, would need to be tended to before filing.^[5]  The respondent was content that the DASOC’s paragraph 4A adequately pleaded the validity issues for the purposes of determining the application.  The applicant, being unsurprised by those issues, was content for the court to have regard to the DASOC in determining the application as if the DASOC were a filed pleading. 
41. Paragraph 4A of the DASOC pleads:

“4A.The deceased’s Will dated 6 August, 2010, and the Codicil to that Will, was, in each case, not validly made, and was not of lawful effect because:

(a)At the time the deceased purported to make his Will dated 6 August, 2010, and the Codicil to that Will, the deceased was not of sound mind, memory and understanding, in that he:

(i)was 96 years of age;

(ii)was physically and mentally infirm;

(iii)suffered from defective memory;

(iv)was at times disorientated, confused, incoherent and further, or alternatively, deluded;

(v)was unable to appreciate the nature and significance of the act of execution of the Will;

(vi)was unable to understand the nature, extent and value of the estate over which she had power of disposal;

(vii)was unable to comprehend and appreciate the identity of those who might reasonably have a claim upon his bounty, and of the nature and extent of any such claims;

(viii)was unable to evaluate and to discriminate between the respective strengths of any such claims;

(b)Further, or alternatively, at the time he purported to execute his Will dated 6 August, 2010, and the Codicil to that Will, the deceased did not know and approve the contents of the Will and Codicil.

Particulars

The deceased’s lack of knowledge and approval should be inferred from some or all of the following facts and circumstances:

(i)In the premises described in paragraph 4A(a) of the within Statement of Claim, the deceased suffered such a level of cognitive impairment at that time that he did not know or approve the contents of the Will and Codicil;

(ii)Further, or alternatively, at and about the time the deceased executed his Will dated 6 August, 2010 and the Codicil to that Will:

A.The deceased was dependent upon the First Defendant for companionship and support;

B.The First Defendant, at a time when he was the deceased’s appointed attorney under an Enduring Power of Attorney granted by the deceased, was the recipient and beneficiary of substantial gratuitous money payments or transfers by the deceased, namely the sum of $50,000.00 transferred by the deceased to the First Defendant on 25 February, 2010, the sum of $25,000.00 transferred by the deceased to the First Defendant on 20 October, 2010, and the further sum of $10,000.00 transferred by the deceased to the First Defendant on 27 January, 2011;

(iii)Further, or alternatively, the First Defendant, a substantial potential beneficiary under gifts purportedly provided for in clauses 4.1 through 4.4 of the deceased’s Will dated 6 August, 2010, was personally present when the deceased’s solicitor, Mr Bolt:

A.took instructions from the deceased as to the making and content of that Will;

B.attended upon the deceased to oversee execution of that Will; and

C.took instructions from the deceased as to the making and content of a Codicil to that Will subsequently dated 11 March, 2011.” (emphasis added)

Discussion

42. If the application for a declaration were to succeed it would involve the rejection of the pleaded allegations at 4A(a) and (b) that the final will and its codicil were not validly made because the deceased was:
    1. not of sound memory and understanding, and
    2. did not know and approve the contents of the will and codicil.
43. Such a conclusion would summarily deprive the respondent of his right to a trial of those issues.  It follows the application for a declaration should be considered by reference to the same considerations as inform an application for summary judgment.  The respondent was content to forthwith argue the declaration component of the application on that basis, on the evidence filed. 

Testamentary capacity

44. The allegation the testator was not of sound memory and understanding is essentially an allegation of lack of testamentary capacity.  The allegation the testator did not know and approve the contents goes beyond testamentary capacity, for, even if the testator was able to understand what he was doing and its effect, it is a different question whether the testator in fact did know and approve of the contents.^[6]
45. The proper approach to resolution of such allegations was usefully summarised by Santamaria JA in Veall v Veall:^[7]

“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.”

46. The final will and the codicil were rational on their face and apparently duly executed.  Does the respondent’s filed evidence suggest he has any real prospect of successfully raising a well-grounded suspicion the testator was not mentally competent?  The mere fact the testator was elderly and in aged care does not do so.  Nor do the respondent’s sparse examples in support of his assertion his father’s mental capacity declined significantly.  Indeed the only two examples for which a year of occurrence was specified occurred after the making of the final will.  Moreover the positive evidence of Mr Bolt’s measures undertaken in checking the testator was mentally competent at the time of the final will provides powerful affirmative evidence of testamentary capacity, at least as at the time of execution of the final will.  
47. The respondent placed reliance on entries in lengthy medical records as demonstrating mental frailty and enfeeblement.  However, on analysis all bar one of the cited entries were for dates materially later than the execution of the final will on 6 August 2010.  The only cited entry close to that date was for 7 August 2010, which merely records the testator was unsteady at times, tired due to getting up early for a trip to Cairns on the wrong day and had a quiet morning resting.
48. The relevant parts of the remaining entries cited are:
    1. 26.10.10 – “Patient confused and disoriented this am.  Patient didn’t know where he was and didn’t know what to do. … Patient assisted to               shower and reassurance given.”^[8]
    2. 8.11.10 – “Patient confused for most of this shift continually changing clothes, getting ready to go to work and having no idea what time of the evening.”
    3. 3.12.10 – “Patient stated he was getting dressed as he was sure he was picking up his son from China.  Reassurance given by phoning his son in China on mobile to talk to his son.  After phone call patient was settled and appeared happy.  Patient stated only 3 weeks till my son comes I spoke to him.”
    4. 20.12.10 – “Walter extremely disruptive for a few hours, accusing staff of putting poison in his food, refusing medication, using the desk phone to try and ring the police, refusing to move away from desk. …”
    5. 1.1.11 – “Upon giving patient 2000 pills, patient became upset and refused to take two of his tablets saying that I gave him the wrong tablets and that I was trying to murder him.  I grabbed three other staff members who confirmed with him they were the right tablets however patient still refused to take his tablets.  RN called his son who came in and is still with him.”
49. These entries are of no material assistance to the respondent in respect of the first will. The whole of the evidence does not suggest the respondent has any real prospect of successfully raising a well-grounded suspicion the testator was not mentally competent at the time of executing the final will.
50. The entries are of greater utility to the respondent in respect of the codicil in that they occurred before it was executed.  Of themselves such occasional instances of confusion and disorientation do not prove lack of mental capacity.  It is noteworthy other entries in that subsequent era also show implicitly lengthy lucid intervals of cogent interaction and reflection by the testator.  However the entries herald a need for caution, particularly bearing in mind Mr Bolt’s affirmative evidence as to capacity as at the time of the codicil is less substantial than his evidence as to capacity as at the time of the final will.
51. It cannot be said the respondent has no real prospect of successfully raising a well-grounded suspicion of lack of testamentary capacity as at the time of the codicil.  Nor, if the evidentiary onus were to shift back to the applicant, can it be concluded the applicant would be so likely to succeed in discharging it that there is no need for a trial to determine the validity of the codicil.  This is to say nothing of what conclusion might actually be reached at trial but it means the application for a declaration as it relates to the codicil must fail.  It is therefore unnecessary to consider the second alleged basis of invalidity in respect of the codicil.

Knowledge and approval

52. Continuing then with consideration of the final will, the above conclusion in favour of testamentary capacity at the time of executing the final will, if reached at trial, would enliven a presumption the testator knew and approved the contents of the will.  That presumption of knowledge and approval can be displaced by circumstances giving rise to a well-grounded suspicion that the testator might not have appreciated the contents of the will and approved them.  In this context knowledge and approval is said to mean 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”.^[9]
53. The features pleaded as in effect grounding the relevant suspicion, other than the lack of testamentary capacity, are the testator’s dependency on the applicant for companionship and support, the fact that some of the monetary gifts made to the applicant by the testator were made at a time when the respondent was the testator’s appointed attorney under an Enduring Power of Attorney and the fact the respondent was present when Mr Bolt took instructions about the content of the will and when Mr Bolt oversaw its execution.
54. There is a presumption of undue influence attaching to inter vivos gifts to an attorney  holding the principal’s enduring power of attorney, per s 87 Powers of Attorney Act 1998 (Qld).  However that is a diversion in the present context, which is not concerned with the status of inter vivos gifts made to the respondent.  At best the making of those gifts is relevant in demonstrating the state of the relationship as between the applicant and testator and the fact the applicant held the enduring power of attorney also informs the nature of their relationship.
55. As to the applicant’s presence when Mr Bolt took instructions about and oversaw the execution of the will, that feature ought not be confused with the much more concerning feature, present in some past cases^[10], of a legatee being the person who drafts the will.  Whether a well-grounded suspicion arises in part from such presence must be considered in light of the accompanying information about that presence.  The affidavits of Mr Bolt and the applicant both make it plain it was the testator’s solicitor Mr Bolt who engaged in the substantive dealings with the testator.  Mr Bolt was conscious of the significance of the change yet detected no indication of overbearing or influence and, rather, had the impression the applicant was embarrassed by the testator’s generosity.
56. In their own way each of the above-mentioned features raise the spectre of the applicant being able to have influenced the testator into favouring the applicant in the final will to a far greater extent than any previous will.  However I am not presently concerned with the equitable doctrine of undue influence.  To show testamentary undue influence there must be coercion,^[11] such that the testator is coerced into making a disposition the testator did not want to make.^[12]  Undue influence is not pleaded here but in any event the features pleaded fall short of raising a reasonable suspicion the testator was coerced into doing what he did not desire to do.
57. It appears the above-mentioned features are pleaded on the basis the combination of the applicant’s ability to have influenced the testator with the reality that the final will involved a radical departure from previous testamentary dispositions raises a reasonable suspicion the testator might not have known and approved of the contents of the will.
58. The part of the will’s content exciting controversy is obviously that relating to the interest in the company.  It is therefore helpful to focus on whether the testator appreciated the effect of what he was doing was to leave his half share in the company to the applicant rather than to the respondent and that in doing so he was substantially reducing what he had previously bequeathed to the respondent and substantially increasing what he had previously bequeathed to the applicant.
59. That the testator would have decided to so vary his previous testamentary dispositions to the applicant and respondent is not particularly remarkable.  From about the time of the testator’s admission to the aged care facility – a very major and personally difficult development for him in his twilight years – the respondent had lived in China.  On the other hand, during that era, the applicant still lived locally and was a more actively supportive presence in the testator’s life than the respondent.  It is not surprising that in that era the testator became inclined to be much more generous to the applicant and significantly less generous to the respondent than he had been in his previous wills.  In addition Mr Bolt noted a reference made by the testator to the respondent’s wife, suggesting he may have been reluctant to have so much of his estate effectively shared in by someone he had no connection with.
60. Importantly the change in the relative dispositions was far from an act of disowning the respondent.  Under the final will, as the testator told Mr Bolt, the respondent “was still receiving quite a substantial fortune”.
61. All of these considerations favour the applicant and support the court taking a robust approach in assessing whether a trial is really necessary to determine whether the testator knew and approved the contents of the final will.  However, the construction issue raises the question of whether the effect of what the testator was doing went beyond leaving his half share in the company to the applicant and effectively also included the forgiving of any company debt to the testator. That issue is inextricably connected with the testator’s appreciation of what he was doing in the final will.
62. The result contended for by the applicant in respect of the construction issue involves an outcome not expressly articulated by the will.  If that construction is correct it is, on the presently uninformative state of the materials about the debt, by no means obvious that the testator knew that was the effect of the will. 
63. That lack of clarity falls for consideration in respect of a testator who, while not lacking in testamentary capacity at the time of the final will, was very old and in aged care.  The presence of testamentary capacity does not equate with the testator having the same command and understanding of the detail of the company’s and his financial affairs as at the time of the final will as he once had.
64. Information relevant to the construction issue informs the assessment of whether there is a reasonable suspicion the deceased did not appreciate the effect of what he was doing in the will.  Because of the lack of such information I am unwilling to summarily conclude the respondent has no real prospect of successfully raising a well-grounded suspicion the testator did not appreciate the effect of what he was doing and thus did not know and approve the contents of the final will.  For the same reason, if the evidentiary onus were to shift back to the applicant, I am presently unable to conclude the applicant would be so likely to succeed in discharging his onus that there is no need for a trial to determine the validity of the will.
65. It follows that component of the application relating to the validity issue ought be dismissed. 

Conclusion

66. For the above reasons, that component of the application seeking the grant of probate of the final will, with or without the codicil, should be dismissed and the balance of the application should be adjourned for further hearing in conjunction with the hearing of the claim.
67. Given the conduct of this matter to date it appears unlikely that much more disclosure is required, with the exception of evidence about the debt, and the expeditious hearing of the claim can likely be accommodated by appropriate directions.
68. It will be necessary to hear the parties as to costs and as to directions calculated to expedite the hearing of the claim and balance of the application.

Order

69. My orders are:
    1. That component of the application seeking the grant of probate of the will dated 6 August 2010, with or without the codicil dated 11 March 2011, is dismissed.
    2. The balance of the application is adjourned for further hearing in conjunction with the hearing of the claim.
    3. I will hear the parties as to costs and as to directions calculated to expedite the hearing of the claim and balance of the application at 9.15am 20 April 2016 (out of town parties have leave to appear by telephone on that date).