Smith v Wessling-Smith[2017] QSC 166

SUPREME COURT OF QUEENSLAND

Introduction

1. William and Joan Smith married in 1947.  They had three sons: Ron, Ian and Gerald. At all times material to this proceeding each of the sons was married with two children.
2. William died in 1991, leaving his estate to Joan.  There is no evidence which suggests that any of their sons felt aggrieved by that outcome.
3. Gerald died of cancer in 2001, aged 51.  He left behind a widow (Rita) and their two children, Adam and Gretchen, then aged 25 and 21 respectively. 
4. Joan died in 2014 aged 99, 23 years after Williams’s death, and 13 years after Gerald’s death.  Her estate was worth not less than $2,960,000, and was comprised of personal property, cash investments, a life insurance policy, and certain real estate.
5. In her last will, dated 10 May 2013, Joan preferred Ron and Ian and their families over Gerald’s family.  She divided her personal property between Ron and his two children and Ian and his two children, gave specific bequests of $90,000 to each of Ron’s two children and Ian’s two children, and divided the remainder of her estate equally between Ron and Ian.  Joan’s will noted that Ron and his wife owed her no debts, and she specifically forgave any debts owed to her by Ian and his wife and by her “late son Gerald and his wife Rita”.
6. In 2015, Rita, Adam and Gretchen commenced this proceeding, by which they advanced a claim to one third of Joan’s estate against the first defendants (who were the two executors of Joan’s will) and the second and third defendants (who were Ron and Ian respectively).  Rita sued on her own behalf and also as the grantee of limited letters of administration of Gerald’s estate.^[1]
7. Some might think harsh Joan’s decision not to treat Gerald’s family in the same way as she treated the families of her other two sons.  On the other hand, some evidence before me suggests she may have thought it to be a fair way to even things up between her sons, given the views that she may have had as to the comparative advantage she had conferred on Gerald and his family by way of unpaid loans.^[2]  But the question whether she had any justification (or any reasonable justification) for taking the course she did is not in issue in this proceeding.  The critical question for me is whether the plaintiffs have established their entitlement to the legal and equitable relief which they claim.  
8. For the reasons which follow, I conclude that they have not.

The plaintiffs’ case

9. The plaintiffs’ case relied on three critical propositions of fact.
10. First, in 1991 within months after William’s death, a legally binding oral agreement was made between Ron, Ian and Gerald to the effect that they would not make a claim against William’s will whilst Joan was alive, but would distribute her estate equally among themselves when Joan died, irrespective of the contents of any will she made.  The plaintiffs’ pleading referred to this agreement as “the promise”.
11. Second, on 18 January 2001 (only two days before Gerald’s death), and in the presence of Rita and Gretchen, Gerald requested that his two brothers confirm “the promise”, and they did so.  The plaintiffs’ pleading referred to this event as “the home confirmation”.
12. Third, some five years after Gerald died, in about 2006, Rita, Ron and his wife, and Ian and his wife sat around a campfire one night during a weekend trip away and confirmed “the promise” to each other.  The plaintiffs’ pleading referred to this event as “the campfire confirmation”.
13. Based on establishing those three propositions of fact and also certain ancillary facts concerning Gerald, Gerald’s estate and the plaintiffs having relied on “the promise”, “the home confirmation”, and “the campfire confirmation” at various times, the plaintiffs sought to establish that the defendants were legally bound to give effect to “the promise” as confirmed. 
14. Then, consequent upon the proposed distribution of Joan’s estate in accordance with her will and, it would follow, otherwise than in accordance with “the promise”, “the home confirmation”, and “the campfire confirmation”, the plaintiffs sought the following relief:
    1. a declaration that the promise to transfer one third of Joan’s estate after her death amounted to a valid and enforceable agreement between Ron, Ian and Gerald;^[3]
    2. a declaration that “the promise”, or alternatively “the home confirmation” or “the campfire confirmation”, amounted to a valid and enforceable agreement under s 55 of the Property Law Act 1974 (Qld) between Ron, Ian and Gerald, for the benefit of the plaintiffs;^[4]
    3. a declaration that the defendants are estopped from denying the existence of a valid agreement;
    4. a declaration that Ron and Ian hold one third of the estate of Joan on trust for the plaintiffs;^[5]
    5. an order that the executors of Joan’s will do all things necessary to transfer one third of the estate to the plaintiffs; and
    6. alternatively, damages equivalent to the value of one third of Joan’s estate.
15. The entirety of the plaintiffs’ claims rested on the foundation of the three critical propositions of fact to which I have adverted.  If they established those facts, other difficulties arose on the pleadings.  But if they did not establish those facts, their claims could not succeed.
16. For the reasons which follow, the plaintiffs have not persuaded me to find that any of:
    1. “the promise”;
    2. “the home confirmation”; or
    3. “the campfire confirmation”,

occurred as alleged.

17. It follows that the plaintiffs’ claims must be dismissed.
18. I will address under separate headings below the findings which I make in respect of each of the three critical propositions.

The promise

The pleading and the opening

19. The contention in the body of the plaintiffs’ pleading was that, after William’s death, Ron, Ian and Gerald agreed that they would not make a claim against William’s will while Joan was alive, but would distribute “the estate” equally among themselves when Joan died, irrespective of the contents of any will she made.
20. During the interlocutory stage of this proceeding, the plaintiffs were asked to particularize the allegation, including by particularizing the date of the agreement, the substance of what was said (insofar as it was oral), and “the estate” to which reference was made. 
21. The particulars provided by the plaintiffs conveyed that:
    1. “the promise” was oral;
    2. it was made at Rockhampton a few months after William’s death;
    3. the substance of “the promise” was that, irrespective of the contents of Joan’s will, her estate would be distributed equally between them.
22. It is notable that the particulars did not provide any foundation for the first part of the agreement as pleaded in the body of the plaintiff’s pleading, namely that Ron, Ian and Gerald had agreed that they would not make a claim against William’s will while Joan was alive. 
23. The evidence opened by the plaintiffs’ counsel was that Rita would say that at about six or eight months after William died, Rita and Gerald had a conversation where Gerald relayed to her that an agreement had been reached between Gerald, Ron and Ian that the money would be split three ways no matter what Joan did in her will.^[6]   

The evidence addressing whether the promise was made

24. The first point to make about the evidence at trial touching upon “the promise” was that, consistently with the particulars and the opening, no evidence was elicited at trial that Ron, Ian and Gerald had agreed that they would not make a claim against William’s will while Joan was alive.  In fact there was no evidence elicited at trial that any of the brothers had any concerns that William left his estate to Joan without leaving anything to any of them.  Nor was there any evidence that in 1991 (when it is alleged that “the promise” was made) they had in mind that any of them might have any right to “make a claim against William’s will” or indeed to advance any claim at all in relation to their father’s estate, let alone that any of them had offered to forgo claims in exchange for a promise of the nature alleged.
25. At trial, the plaintiffs sought to prove the existence of the particularized conversation by eliciting evidence from Rita as to the contents of a conversation she had with Gerald in which Gerald told her about an agreement he had struck with his brothers.  Objection was taken to the admissibility of that evidence on the grounds that it was hearsay.  I heard argument on the objection but reserved my decision and admitted the testimony subject to the objection.  I will come back to the ruling which I make on that objection. For the moment, let it be assumed that the evidence was admissible for whatever it was worth.
26. Rita’s evidence in chief was to the following effect:^[7]
    1. She had a conversation with her husband Gerald about six or seven months after William’s death.
    2. Gerald told her that about a conversation he had had with his brothers a month earlier.
    3. Gerald told her:

… that he’d spoken to Ron and Ian, and – about his father’s will, and they had agreed that, whatever was going to happen in the future, they would keep it the same as what Bill intended it to be, which was split it three ways.

27. The salient features of Rita’s evidence on this topic which were elicited in cross-examination were as follows:
    1. Rita agreed that the first time she was asked to recall the conversation was perhaps in 2015, some 23 years after the event.^[8]  She rejected the suggestion that her recollection of the conversation was less than clear.^[9]
    2. However, it became clear that her evidence in chief about the timing of Gerald’s alleged conversation with his brothers was reconstruction or speculation, because it was founded on her recollection that her husband told her that he had a conversation and her recollection that her husband told her the conversation was a month after it happened, or a couple of months, or several months, or six months.^[10]
    3. Moreover, her evidence was inconsistent on the question whether her husband told her that he had reached an agreement with both of his brothers, or was merely relating something he had discussed in a telephone call with his brother Ron.^[11]
28. Ian’s evidence was that he did not have any discussion with Gerald concerning the division of William’s estate or Joan’s estate in the year that William died.^[12]  In cross-examination it was put to Ian that the three brothers agreed, at around six months after William died, that they would split the estate three ways after Joan died, but Ian said that that never happened.^[13]
29. Ron’s evidence was that at no time in the period after William’s death up to Joan’s 70^th birthday in 1995 did he have any conversation with Gerald concerning the division of the estates of Joan or William.^[14]  In cross-examination it was put to him that in the months after William’s death he and Gerald had a telephone conversation where they agreed that no matter what Joan did, he would agree to split the estate three ways, and he denied that that happened.  He also denied having such a conversation with Ian.^[15] 

Evaluation of the evidence – assuming Rita’s evidence is admissible

30. As mentioned at [24] above, there is no evidence which supports a finding of the first part of “the promise” as pleaded in the body of the plaintiff’s pleading, namely that Ron, Ian and Gerald had agreed that they would not make a claim against William’s will while Joan was alive, or that they were even cognizant of the possibility of making such claims.  I note that the defendants sought to persuade me that, even if Gerald, Ron and Ian were aware of the theoretical possibility of such claims, it is improbable that they would have made such an agreement because Gerald had no prospects of obtaining one third of William’s estate.  Given the lack of evidentiary basis for the proposition that any agreement to forego claims was made, it is unnecessary to consider that argument.
31. As to the second part of “the promise” (namely that the brothers had reached an agreement that, irrespective of the contents of Joan’s will, when she died her estate would be distributed equally between them), the contest is between:
    1. Rita’s recollection of what her husband told her about an oral agreement he had struck with his brothers; and
    2. Ron and Ian’s denial that they had any such conversation with Gerald.
32. I do not accept Rita’s evidence that she has a clear recollection of the conversation with her husband which took place some 23 years earlier.  The proposition is inherently unlikely and inconsistent with her lack of accuracy in relation to other details on which she was cross-examined.  In my view Rita’s evidence as to this conversation is not sufficiently reliable to justify a finding on the balance of probabilities that the conversation occurred as between her and Gerald in the way she related. 
33. And even if I thought that on the balance of probabilities the conversation between Rita and her husband occurred in the way she recalled it (which I am not prepared to find is a reliable conclusion to reach), I would have given greater weight to the direct denials from the two witnesses who were in a position to give direct evidence about the agreement, if it had occurred, than I would to the untested statements of conclusion^[16] which Gerald expressed to Rita.
34. There are other considerations which suggest the improbability of the version of events which Rita said Gerald relayed to her (if he did).
35. First, Rita’s evidence is that Gerald told her the brothers “had agreed that, whatever was going to happen in the future, they would keep it the same as Bill intended it to be, which was to split it three ways”.^[17]  However, both Ian and Ron swore that they did not know what was in William’s will at this time, so they could not know how “Bill intended it to be”.^[18]  It was not put to Ron and Ian in cross-examination that this evidence was incorrect and it is not inherently implausible. 
36. Second, if such an agreement had been made between the three brothers, given its alleged significance to Gerald, one would expect that at some time between 1991 and 2001 he or Rita would have raised it with Ron and Ian.  Rita agrees that neither she nor Gerald made any written reference to it.^[19]  There is no evidence demonstrating any other reference to it.
37. Third, if such an agreement had been made between the three brothers, given its alleged significance to Gerald, one would expect that he would have raised it when he was dying in 2001.  Although the plaintiffs’ pleading and their particulars suggested he did, and although Rita accepted that she must have given instructions for the particulars,^[20] according to the evidence of Rita and Gretchen both as opened and as given, no mention was made of any pre-existing agreement.^[21]
38. Fourth, it was apparent from the evidence that William and Joan had been in the habit of providing assistance to their children by lending funds to them and keeping records of the amounts of the loans made.  This had caused some ill will as between the brothers.^[22] There was no reason to think that this process of making loans would not continue once William died and whilst Joan lived.  In that context, if the brothers had intended to strike a legally binding deal in 1991 for the future, it would not have been one which simply agreed that her estate would be split three ways: it would have been one which at least adverted to the prospect of adjustment based on whatever loan situation obtained when Joan died.  Yet according to Gerald’s conversation with Rita that did not occur.  I think that is most unlikely.  Counsel for the plaintiffs suggested that Gerald’s version of events should be interpreted as assuming a three-way split subject to adjustment.  I do not find that to be persuasive. 
39. For all of these reasons, the evidence before me (on the assumption referred to in [25]) does not justify a finding that “the promise” was made.

Ruling on the admissibility of Rita’s evidence of what Gerald told her

40. Counsel for the plaintiffs sought to justify the admissibility of the statement made by Gerald to Rita on the grounds that it fell within an exception to the hearsay rule, namely that it was admissible as an oral declaration by a deceased declarant which was against the pecuniary or proprietary interest of the declarant when made.
41. Cross on Evidence states the fundamental rule in this way:

The oral or written declaration by a deceased person of a fact which the declarant knew to be against the declarant’s pecuniary or proprietary interest when the declaration was made is admissible as evidence of that fact and of all collateral matters mentioned in the declaration provided the declarant had personal knowledge of the fact and matters.^[23]

42. For the statement of a declarant to be admissible under this exception, the declarant must have known the statement to be against the declarant's interest at the time it was made.  Counsel for the plaintiffs submitted^[24] that the statement by Gerald was prima facie against his pecuniary or proprietary interests when made because:
    1. he and his brothers had contracted to bind themselves in relation to their future expectations in relation to Joan’s will, when she died at some stage in the future; and
    2. their agreement was that they would each get a third; and
    3. it was against Gerald’s interest because otherwise he might have received a different amount.
43. I reject this submission. 
44. In the first place the proposition is illogical.  The agreement was said to deal with the brothers’ expectations, which could vary up or down depending on what Joan did in the future with a will which she was free to revoke or amend at any time.  As is noted in Cross on Evidence:

A statement which may or may not turn out later to have been against interest is not admissible.^[25]

45. But second, such authority as there is tends against the plaintiffs.  A statement concerning an executory contract concluded by the declarant is not regarded as one that was against the declarant’s interest when made: see Cross on Evidence^[26] and R v The Inhabitants of Worth (1843) 4 QB 132 per Lord Denman CJ at 137; Patteson J at 138; Coleridge J at 139 and Wightman J at 140 and Ward v H S Pitt & Co [1913] 2 KB 130 per Cozens-Hardy MR, Buckley and Hamilton LLJ at 140 (reversed on other grounds in the House of Lords: Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733).
46. The statement said to have been made by Gerald to Rita as to the existence of the alleged agreement between him and his brothers could not be regarded as one that was against Gerald’s interest when made.  The exception to the hearsay rule does not apply.  I uphold the objection.
47. Counsel for the defendants submitted that it would follow from such a ruling that the following passages from the evidence should be excluded:
    1. From the evidence of Rita:
       1. transcript, p 1-85 line 40 (commencing: “We were talking before lunch about…”) to p 1-86 line 35 (ending: “Thank you”);
       2. transcript, p 2-49 line 23 (commencing: “Yeah.  I’d now like to take you to the evidence you gave yesterday concerning…”) to p 2-53 line 35 (ending: “No.  I’m not.”);
       3. transcript, p 2-54 line 25 (commencing: “Just bear with me a second, please…”) to p 2-54 line 31 (ending: “With Ron”);
    2. from the evidence of Ian: transcript, p 2-135 line 6 (commencing: “Okay.  Now, in the year that your father died…”) to p 2-135 line 15 (ending: “None. I wasn’t present, no.”); and
    3. from the evidence of Ron: transcript, p 3-96 line 19 (commencing: “Thank you.  Now at any time whilst you were in Rockhampton…”) to p 3-96 line 30 (ending: “…mother’s estates? --- No.”).
48. I agree that the passages from the evidence of Rita must be excluded.  They are the passages which comprise the evidence in chief and cross-examination in relation to the alleged conversation with Gerald.
49. I agree that the passage from the evidence of Ian must be excluded.  It is the passage which comprises the evidence in chief in relation to the alleged agreement with Gerald, negating the proposition that there was any such discussion.  The defendants’ counsel would not have asked the question if I had ruled during the trial.
50. I agree that the passage from the evidence of Ron must be excluded.  It is the passage which comprises the evidence in chief in relation to the alleged agreement with Gerald, negating the proposition that there was any such discussion.  Again, that evidence would not have been elicited if I had ruled during the trial.

Finding as to whether the promise was made

51. There is no material which supports the first part of the alleged promise, namely that Ron, Ian and Gerald had agreed that they would not make a claim against William’s will while Joan was alive. And it follows from my ruling on the admissibility of Rita’s evidence concerning the conversation she had with Gerald that there is simply nothing in the evidence which I have admitted which supports a finding as to the making of the second part of “the promise”.  The result is that I do not make a finding that “the promise” was made.
52. If I had reached a different conclusion as to the admissibility of Rita’s evidence, then it would have become material to reach a conclusion whether, on the balance of probabilities, I was persuaded to find that a few months after William’s death the three brothers reached an agreement that, irrespective of the contents of Joan’s will, her estate would be distributed equally between them.  For the reasons I have already expressed, I would not have been persuaded to reach that conclusion.
53. The result is that the plaintiffs have not persuaded me that “the promise” was made.

Two further critical evidentiary deficiencies

54. Given that I have not been persuaded “the promise” was made, it is unnecessary to consider the various other factual and legal issues which might have had to be considered if I had made such a finding. 
55. It is appropriate, however, to identify two particular important deficiencies in the evidence. 
56. If I had been prepared:
    1. to find that shortly after their father’s death, the three brothers agreed “that, whatever was going to happen in the future, they would keep it the same as what Bill intended it to be, which was split it three ways”; and
    2. to ignore the awkward way in which that agreement as evidenced was phrased^[27] and treat it as an agreement that irrespective of the contents of Joan’s will, her estate would be distributed equally between the brothers,

the question which would then have arisen is whether the evidence supported a conclusion that the brothers intended to enter into legal relations in relation to the agreement.

57. Although the defendants sought to rely on the rebuttable presumption that agreements made in a domestic or family context are not intended to have legal force, the approach which I would have taken to the question is that described by Robb J in Vosnakis v Arfaras [2015] NSWSC 625 at [149]:

I have made this finding on the basis of “an objective assessment of the state of affairs between the parties”, in the sense that I understand the plurality of the High Court intended to give to those words in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [24]. It is not necessary for me to attempt to resolve apparent differences in the authorities as to whether the effect of the High Court’s judgment was to abandon the principle that there is a rebuttable presumption of fact that arrangements or agreements made in the family are not intended to have legal force (Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; (2012) 289 ALR 237 at [12]); or whether there are circumstances in which the presumption will continue to have effect (Darmanin v Cowan [2010] NSWSC 1118 at [206], and Ashton v Pratt (No 2) [2012] NSWSC 3 at [32]). That is a task best undertaken in a case where the application of the presumption may have an effect on the outcome of the proceedings. In the present case I am satisfied on the whole of the objective evidence that the Court would not be justified in finding that the parties intended to make a legally binding contract.

58. Even if I treated Gerald’s statement to Rita as evidence that he and his brothers had a conversation which he interpreted as amounting to an agreement, what is absent is any sufficient evidence of context to support the proposition that the conversation was intended to affect their legal relations inter se.  I make the following observations:
    1. As pleaded, part of the agreement was supposed to be the brothers’ mutual promises that they would not make a claim against William’s will while Joan was alive.  If there had been evidence supporting that contention, that would have gone some way to demonstrating the relevant intention to enter into legal relations.  But there was not.  Nor was there even any evidence that the brothers were conscious of their having such rights (if they did). 
    2. And there was no evidence, for example, that an agreement was struck orally in a way which demonstrated an intention to make a serious binding legal commitment.  This absence compares unfavourably with the very different factual circumstances considered by Ann Lyons J in Kennedy & Hunt v Griffiths [2011] QSC 369, which the plaintiffs sought to rely on by way of analogy.
    3. I also accept the defendants’ submission that the simplistic nature of what is said to have been the agreement is inconsistent with the existence of an intention to enter into legal relations.  If a binding agreement had been intended, one would have expected that the brothers would have at least adverted to the need for adjustment in relation to the loan accounts for whatever situation obtained when Joan died: see [38] above.  The same applies in relation to legacies or other inter vivos gifts.
59. On the hypothesis stated in [56] above, I would have concluded that the evidence did not support a finding that the brothers intended to enter into legal relations in relation to the agreement. 
60. No formulation of the plaintiffs’ case which turns on the existence of a legally binding agreement survives the foregoing conclusions.
61. The second important deficiency in the evidence concerned that of acts of reliance on “the promise”. 
62. The plaintiffs pleaded (at [14] of the statement of claim) that “in reliance on the promise, Gerald refrained from bringing a claim for constructive trust or for provision out of William's estate (‘the claim’) prior to Gerald's death”.  There was no evidence supporting the proposition that Gerald relied on “the promise” in this way.  There was no evidence that he ever even adverted to the notion of making any such claim and no other evidence which might persuade me to make such a finding.  Save in one respect, no attempt was made during argument to identify any evidentiary basis for the contention that I should infer that Gerald must have relied on the relevant conversation with his brothers in the way alleged.
63. The plaintiffs also pleaded (at [20] of the statement of claim) that “following Gerald’s death, in reliance on the promise … the home and campfire confirmations, Gerald's estate did not make a claim on William’s and Joan’s estate.”  Presumably this was a reference to Rita, but there was no evidence supporting the proposition that either Rita, Adam or Gretchen relied on “the promise” in this way.  There was no evidence that any of them ever even adverted to the notion of making any such claim and no other evidence which might persuade me to make such a finding.  Save in one respect, no attempt was made to identify any evidentiary basis for the contention that I should infer that any of them must have relied on “the promise” in the way alleged.
64. The way in which the plaintiffs’ counsel sought to overcome the complete absence of evidence from any witness of actual reliance on anything (and the failure to seek to establish what any witness would have done if the alleged relied-upon fact had not occurred), was to ask me to draw from the fact that Rita ultimately did sue when she found out about the terms of Joan’s will, an inference that the pleaded reliance was made out. That Rita ultimately did sue is a very insecure basis to infer the reliance alleged, as it goes only to the state of mind of Rita at a particular time, but not necessarily earlier and it does not go to the state of mind of Gerald at all.   I decline to draw the inference sought based on this evidence.
65. On the hypothesis stated in [56] above, I would have concluded that the evidence did not support a finding that there had been reliance as alleged by the plaintiffs. 

The home confirmation

The pleading and the opening

66. Gerald died of cancer on 20 January 2001. 
67. The contention in the body of the plaintiffs’ pleading was that while at his home, on or about 18 January 2001:
    1. Gerald requested Ron and Ian to confirm “the promise”; and
    2. Ron and Ian confirmed “the promise” in the presence of Joan, Rita and Gretchen.
68. During the interlocutory stage of this proceeding, the plaintiffs were asked to particularise the allegation by stating the substance of what Ron and Ian said from which it is to be inferred that they confirmed “the promise”. 
69. The plaintiffs provided the following particulars:
    1. Gerald asked Ron and Ian if they would “honour their promise to split William’s and Joan’s estate three ways as agreed, and thereby provide for Gerald’s family”; and
    2. Ron and Ian in the presence of Joan agreed that they would.
70. It is notable that there is a degree of consistency between the body of the pleading and the particulars in that, as particularized, the plaintiffs had Gerald specifically mentioning the existence of a prior agreement that there would be a three-way split of William and Joan’s estate. Rita accepted that she must have given instructions for the particulars.^[28]
71. However, contrary to the case as pleaded and particularized, the case opened by the plaintiffs’ counsel was that no mention was made of any prior agreement at all, let alone that the prior agreement had been for a three-way split. 
72. The plaintiffs’ counsel said that Rita would say that:^[29]
    1. The “home confirmation” occurred between Gerald, Ron and Ian in her presence and in the presence of Gretchen, Ron’s wife Dorothy, Ian’s wife Kim, and Joan.
    2. Gerald said “I want you to promise that my kids are going to be taken care of in Mum’s will.”  Ian said “yes”.  Joan said “yes”.  But Ron did not say anything.
73. The plaintiffs’ counsel said that Gretchen would say that:^[30]
    1. The “home confirmation” occurred between Gerald, Ron and Ian in her presence and the presence of her then husband Joseph Senna.  Others may have been present.
    2. Gerald said something to the effect of, “Please make sure that my children are provided for”, and in response to that, Ron nodded and Ian responded with something along the lines of, “We will make sure they are looked after”. 
74. Although the plaintiffs’ counsel opened that Joseph Senna would be called, at the commencement of the trial he was unable to open what Mr Senna might say.  Mr Senna and Gretchen were estranged and Mr Senna was expected to give evidence in response to a subpoena.  Later, after counsel had an opportunity to speak with Mr Senna, he opened Mr Senna’s evidence in this way:
    1. He and Gretchen separated about ten years ago and presently had no contact with each other.
    2. He had a recollection of a conversation between Gerald, Ron and Ian a few days before Gerald’s death.
    3. The conversation occurred in Gerald’s bedroom in his presence and in the presence of Rita with Gretchen in an adjacent area.  He was not certain whether Ian’s wife was present. 
    4. Gerald said words along these lines:  “I’m going to die very shortly.  Can you look after my children and my family by making sure the will is split three ways.  Ron and Ian said, “Yes”.”

The evidence addressing whether the home confirmation was made

75. Partially consistently with the case as opened, but as I have already noted, inconsistently with the case as pleaded and particularized, Rita’s evidence was that Gerald said to Ron and Ian, “I just want you all to please make sure the kids are taken care of in mum’s will.”^[31] Rita said the conversation took place between Gerald, Ron and Ian in her presence and in the presence of Gretchen, Ron’s wife Dorothy, Ian’s wife Kim, and Joan.^[32]  Rita said both Ron and Ian said “yes” to Gerald.^[33]  The proposition that Ron also had assented was a departure from the case as opened.  Rita said the conversation occurred at home on Gerald’s deathbed, four or five days before he died.  This last detail was inconsistent with Gretchen’s evidence.
76. Gretchen’s evidence^[34] was that the conversation occurred about two days before her father’s death.  She said that the conversation took place between Gerald, Ron and Ian in her presence, and that her ex-husband Joseph Senna was also present.  She said Joseph was basically right beside her.^[35]  She made no mention of Rita, Ron’s wife Dorothy, Ian’s wife Kim, or Joan being present at the time of the conversation, although she was clear that Ron and his wife were both at the house when her father died and for the week before that.^[36] She said that her father was lying on the bed, she was holding his hand, and:
    1. Gerald asked his two brothers “Can you please ensure that my kids are provided for?”; and
    2. Ian said “We’ll make sure that they’re looked after” and Ron kind of nodded his head.
77. Gretchen’s ex-husband Mr Senna gave evidence in response to a subpoena to do so.  According to him, the conversation took place between Gerald, Ron and Ian in his presence.^[37]  He said Rita was there and Gretchen was crying and coming in and out of the room.  He said:

And Gerald said to Ian and Ron can you make a promise.  And they say what’s that?  When I pass away can my family be looked after?  That means everybody.  And they will go – split three way.  Now, when I was there they agreed.  And, mate, they both agreed ‑ ‑ ‑

78. Ian’s evidence was that Ron and Dorothy were not there in the week Gerald died because they had returned home to Rockhampton some weeks before he died.  He was clear as to that, but unclear as to the precise date.^[38]  The relevant passage in the cross-examination was as follows:^[39]

And I suggest to you that Gerry was in bed?   I guess he would have been.

And he put his head up and he said, to you and your brother Ron, to the two of you, “Can you promise that my family will be looked after, and that the will is split three ways.”  What do you say to that?   Whose will?  His will?

I’m saying that’s what he said?   Yeah.  Okay.  I      

I take that to be mum’s will      ?   Yeah.

meaning Joan?   Okay.  Yeah.  No.  I say it didn’t happen, because I can’t remember anything whatsoever of that, and my brother wasn’t there, for a start.  I remember that.

See      ?   Yeah.

when you say “I can’t remember”      ?   I – well, it was a fair while ago.  I honestly cannot remember it.

Yeah.  That doesn’t mean it didn’t happen, does it?   I believe it didn’t happen, but I can’t – I can’t be sure.  It – certainly I wasn’t a part of it.

---

In response to that comment by Gerry that I just told you, you said, “I will do my best to look after them and make sure the will” – meaning your mum’s will – “is split three ways”?   Didn’t happen.

All right.  Did you at least respond and say – I suggest to you that you at least responded and said yes to his request?   No.  I didn’t.

All right.  Or that you at least said      ?   I can’t even recall a conversation happening.

79. Notably that passage of cross-examination was not necessarily inconsistent with the evidence of Rita and Gretchen, because the only thing specifically denied was the three-way split proposition.  A few passages later in the cross-examination, Ian’s evidence on this question firmed up somewhat:^[40]

Okay.  We get to this point where he’s about to die in the last couple of days of his life?   Yeah.

And you’re there at various times?   Yes.

And I suggest to you that there were discussions about inheritance for his wife or his children or his family?   Not with me there wasn’t.

You, a caring and concerned brother, knowing those financial circumstances of your brother, who’s about to die      ?   Yeah.

are you telling me you’re there for the days leading up to this and you made no inquiries about what they’re going to do when he dies in terms of money?   No.  None whatsoever.  I believe that Rita had told me that she had a rather large insurance policy that was going to help them.

80. Ron and Dorothy separately denied “the home confirmation” occurred, whether at the time alleged or at all.^[41]  They said that they travelled from Rockhampton to Gerald’s house arriving just before Christmas Day 2000.^[42]  They left Gerald’s home and returned to Rockhampton well prior to the alleged “home confirmation”.^[43]  In Dorothy’s words the “straw that broke the camel’s back”^[44] and which led to an early return to Rockhampton was a dispute about their son Luke’s attempts to repair the computer in the house,^[45] although, as is common in family disputes, the early departure was due to a number of underlying tensions.^[46]  Both Dorothy and Ron swore that they did not return to Brisbane again until after Gerald died.^[47] Ron said that during the time he and Dorothy were at Gerald’s home Gerald and he did not have any discussion concerning the division of Joan’s estate.^[48]  Dorothy said that during the time she and Ron were at Gerald’s home she did not hear any conversation concerning the division of William’s or Joan’s estate.^[49]

Evaluation of the evidence

81. I think it is possible, perhaps even probable, that there was a conversation on or about 18 January 2001, a few days before Gerald’s death, at which Gerald requested Ian in the presence of some other members of the family to please make sure that his two children were provided for and Ian indicated some form of assent.  The commonality between Rita, Gretchen and Mr Senna in that regard was persuasive and I prefer that aspect of their evidence over Ian’s denial, especially given the equivocal terms in which the denial was initially expressed.  Moreover, it strikes me that it was inherently probable that that sort of thing was weighing on Gerald’s mind at the time and that it is likely he would have said something like that.  And if he did, it is very difficult to imagine his brother denying the request.
82. However I am not prepared to find that Ron and his wife Dorothy were present at the time of this request and assent.  As to this:
    1. Rita and Gretchen say that both Ron and Dorothy were present for the “home confirmation”.^[50]  Mr Senna says Ron was present but does not say Dorothy was.^[51] 
    2. However I found the evidence of Ron and Dorothy on this question to be persuasive.  Dorothy in particular was an impressive witness. 
    3. Moreover, their evidence was corroborated by the documentary evidence concerning the timing of bank deposits made in relation to the business which they ran.  Bank statements for Ron’s and Dorothy’s business cheque account^[52] supported a conclusion that they were in Brisbane only between 23 December 2000 and 1 or 2 January 2001.  Dorothy made all of the deposits shown in those bank statements.^[53]  There were no other employees of their business to make those deposits.^[54]  A suggestion that they returned to Brisbane after a deposit was made on 16 January 2001 and before the time they returned after Gerald’s death is implausible given that this would have required them to close their business again and, as Dorothy swore, if they did not have their business open, “no money”.^[55]  When they came to Brisbane for the funeral, they stayed in a motel, not at Gerald’s house.^[56]
    4. I do not accept the evidence of Rita, Gretchen and Mr Senna that Ron and Dorothy were present at the time of the conversation.  I do not consider that any of them were giving deliberately dishonest evidence, but I think that there had been a strong degree of reconstruction going on.  The fact that Mr Senna was wrong about that is a good reason to be sceptical about other aspects of his evidence.
83. But making the finding that Gerald requested Ian in the presence of some members of Gerald’s family to make sure that his two children were provided for, and that Ian indicated some form of assent, is not the same as making a finding that “the home confirmation” occurred.   The plaintiffs’ pleaded case is entirely founded on the proposition that the conversation confirmed an existing agreement for a three-way split as between the three brothers. An agreement by Ian to ensure that the children “were provided for”, does not even come close to this.  No version of the conversation had any reference to there having been an existing agreement.  Indeed, neither Rita’s nor Gretchen’s evidence supported the notion that there was any reference to a three-way split.
84. On the question of whether there was mention of and agreement on the topic of a three-way split, the competition is between Ian’s evidence that there was not, and Mr Senna’s evidence that there was.  I prefer Ian’s evidence in this regard.  I think it is unlikely, given the state of his resentment of what he perceived as Joan’s favouritism of Gerald,^[57] that Ian would have agreed to such a notion.  Mr Senna on the other hand was unduly belligerent when his recollection was challenged and I found the lengths to which he went to demonstrate that he possessed extraordinary powers of recollection sounded adversely to the view I should form as to his reliability.^[58] 

Finding as to whether the home confirmation was made

85. I am not prepared to find that “the home confirmation” occurred. 

Other critical evidentiary deficiencies

86. Given that I have not been persuaded that “the home confirmation” was made, it is unnecessary to consider the various other factual and legal issues which might have had to be considered if I had made such a finding. 
87. As I did with “the promise”, it is appropriate, however, to identify particular further important deficiencies in the evidence. 
88. First, there was no alternative case pleaded that suggested that there was a binding agreement to ensure that Gerald’s children were “provided for”, and that such an agreement would justify the claims for the relief sought in relation to a third of the estate. But even if there had been, I would not have been prepared to find the existence of an intention to enter into legal relations in relation to such an agreement.  To my mind the context and the vagueness of the proposition assented to by Ian strongly suggests the absence of any intention to assume legal (as opposed to moral) obligations.  Indeed, the extent of Ian’s resentment of Gerald at the time made it most unlikely that he would have acted in a way to convey such an intention to be legally bound.
89. No formulation of the plaintiffs’ case which turns on the existence of a legally binding agreement survives the foregoing conclusions.
90. The second important deficiency in the evidence concerned that of acts of reliance on “the home confirmation” (if, contrary to my view, it was made).  As to this:
    1. As I have earlier recorded, the plaintiffs pleaded that “following Gerald's death, in reliance on the promise … the home and campfire confirmations, Gerald’s estate did not make a claim on William’s and Joan’s estate.” 
    2. There was no evidence supporting the proposition that Rita, Adam or Gretchen actually relied on “the home confirmation” (or even that they actually relied on the agreement concerning ensuring Gerald’s children would be provided for) in this way.  There was no evidence that any of them ever even adverted to the notion of making any such claim.
    3. Save for the suggestion that I should draw an inference from Rita’s subsequent conduct in commencing this litigation (which I would not draw for reasons earlier stated), no attempt was made during argument to identify any evidentiary basis for a contention that I should infer that any of them must have relied in the way alleged.  There was, for example, no attempt to adduce evidence of what any of them would have done if the “home confirmation” (or even the agreement as to the children being provided for) had not occurred.
    4. In any event the whole reliance proposition is completely unrealistic.  William had been dead for 10 years, his estate had long been distributed to Joan, there is not the slightest hint that anyone was contemplating any claim against his estate, and Joan was still alive.
    5. For these reasons I would have concluded that the evidence did not support a finding that there had been reliance as alleged by the plaintiffs. 

The campfire confirmation

The pleading and the opening

91. The contention in the body of the plaintiffs’ pleading was that in or about 2006, Rita, Ron and his wife and Ian and his wife sat around a campfire one night during a weekend trip to Killarney and confirmed “the promise” to each other. 
92. During the interlocutory stage of this proceeding, the plaintiffs were asked to particularize the allegation by stating the substance of what Rita, Ron and Ian said from which it is to be inferred that they “confirmed the promise to each other”.
93. The particulars provided by the plaintiffs conveyed that while Rita, Ron and his wife and Ian and his wife sat around a campfire, the topic of “the promise” came up and either Ron or Ian said words to the effect that the estate would be distributed three ways as previously agreed, and the others present agreed.
94. The plaintiffs’ counsel opened the evidence in this way:^[59]
    1. The conversation occurred whilst they were on a camping trip. 
    2. Ron’s daughter Elise made a phone call saying that Joan was either in hospital or that she was sick and might need to go to hospital. 
    3. During the night the conversation turned again to distribution of estates and what Joan was going to do. 
    4. Rita remembers a conversation at which Ian and his wife Kim, Ron and his wife Dorothy, were present at which Ian said, when discussing Joan’s will, “It doesn’t matter what mum does in the will, we’ll do what dad wanted and split the money three ways”, and then people nodded and agreed as they sat around at the camp site, and Rita said, “That’s the way it’s always been”, and again the others nodded and agreed.

The evidence addressing whether the campfire confirmation was made

95. Rita’s evidence was that on the camping trip in question the group got to Killarney in the late afternoon.  She accepted that her initial recollection that it occurred in 2006 must have been wrong and that a date-stamped photograph demonstrated that it occurred in June 2010.  She said:^[60]
    1. Dorothy had received a phone call that Joan had become unwell whilst they were en route.  When they arrived at Killarney they were still discussing her health. 
    2. The discussion about Joan’s health then continued around the campfire between Ron and Dorothy, Ian and his wife Kim, and Rita.
    3. Ian said it did not really matter what happened, as they were going to split it three ways as Bill intended it to be.  Ron said yes and Rita agreed, saying that that was the way it had always been.  Ian and Ron agreed with Rita’s comment and the other two just nodded.
96. Each of Ian, Ron and Dorothy denied that “the campfire confirmation” occurred as Rita had alleged.^[61]
97. Ian’s version of events was:^[62]
    1. Everyone was sitting around a portable campfire which he had brought.
    2. He did not hear any conversation about Joan’s estate.
    3. He recalled information being passed on from Ron and Dorothy’s daughter Elise to the effect that Joan had been taken ill and was going to hospital.
    4. Rita made a remark about Joan always spoiling any occasion they had.  That remark upset him.  He ended up leaving the campfire and Ron joined him.  He was unsure as to whether they went to the motor home or to the place that Ron was staying.
98. Dorothy’s version of events was:^[63]
    1. Arrangements at the camping ground were that Ian, Kim and Rita were to sleep in Ian’s motor home.  Ron and Dorothy were to sleep in an octagonal cabin at the camping grounds.
    2. Her daughter Elise rang at some time in the evening.  She and Ron may have spoken to her and one of them relayed to the group the message from Elise that Joan had been admitted to hospital.
    3. They had moved inside the motor home because it was so cold. 
    4. Rita made a derogatory remark or remarks about Joan having a tendency to spoil things and Ian and Ron got upset.  Ian was the first to leave and then Ron left too.
    5. There was no conversation concerning William or Joan’s estates.
99. Ron’s version of events was:^[64]
    1. Everyone was sitting around a brazier at the motor home park at Killarney.
    2. He got a message from his daughter Elise that Joan had had some sort of medical emergency and passed that information on to the others.
    3. Rita made a remark about Joan ruining it for others again and made other derogatory remarks about Joan.
    4. Ian walked off and Ron later followed him.
    5. There was no conversation about Joan and inheritance from her will.

Evaluation of the evidence

100. The choice here is between Rita’s version of events and the consistent version told by each of Ian, Ron and Dorothy.  I found the latter more persuasive in relation to the events of the night concerned.  It was consistent in the material respects and no suggestion was made to them that they had colluded.  There was certainly no particular reason to regard Rita’s version as more likely than the version supported by the other witnesses. 

Finding as to whether the campfire confirmation was made

101. I am not prepared to find that “the campfire confirmation” occurred. 

Other critical evidentiary deficiencies

102. Even if I had been prepared to find that “the campfire confirmation” occurred in the way Rita related, the same evidentiary deficiencies which I have pointed out in relation to “the promise” and “the home confirmation” also existed in relation to it.  There would not have been any satisfactory basis to conclude that there was any intention to be legally bound. 
103. No formulation of the plaintiffs’ case which turns on the existence of a legally binding agreement survives the foregoing conclusions.
104. And, for reasons already elaborated upon twice, there was no basis for the reliance finding on which the plaintiffs’ case turned.

The plaintiffs’ estoppel and trust claims

105. The plaintiffs founded their argument on a proprietary estoppel based on assurances which were reasonably relied on to the detriment of the plaintiffs.
106. The views which I have expressed concerning:
     1. the plaintiffs’ failure to establish “the promise”, “the home confirmation” or “the campfire confirmation”; and
     2. other critical deficiencies concerning intention to be legally bound and, in particular, reliance,

are sufficient to justify rejection of the plaintiffs’ claims that the defendants are estopped from denying the existence of a binding legal agreement. 

107. The claim for a declaration that Ron and Ian held one third of Joan’s estate on trust for the plaintiffs was at one level misconceived, because they never received one third of Joan’s estate, so they could never hold it on trust.  Although the claim for a declaration that Ron and Ian held an interest on trust was never defined with precision, it was obvious that it depended on establishing the pleaded agreements or estoppels.  Having failed to establish those matters, the claim that Ron and Ian held some part of what they received from Joan on trust must also fail.

Conclusion

108. The plaintiffs’ claims should be dismissed.