Undue Influence and Solicitor’s Duties in Will Drafting
What is Undue Influence in Probate?
Putting it simply, undue influence in probate law is actual coercion of the mind so as to
produce an act contrary to the will of the testator.
The law relating to undue influence was summarised by Santow J in Ridge v Rowden & Anor
(10 April 1996 BC 9601342):
“13. Undue influence in probate is distinct from the equitable doctrine of undue
influence. Influence generally in the form of persuasion or moral pressure to favour a
person by will, whatever its degree, is not invalidating in probate unless it produces a
gift or will contrary to the will of the testator. In this regard, while it is true to say that
undue influence may be established by reasonable inference from the circumstances
surrounding the will’s execution, suspicion alone will not establish undue influence: In
Will of Boyd (1872) 3 VR (EM) 46. What is required to be proved is actual ‘coercion’
of the mind so as to produce an act contrary to the will of the testator…see generally
Boyce v Rossborough (1856) 6 HLC 2 at 49 (10 ER 1192 at 1211) …It is not
sufficient to establish merely that one party has the potential power unduly to
overbear the will of the testator: Wingrove v Wingrove (1885) 11 LPRD 81 at 83. This
emphasises a further difference between the equitable principle in probate, namely
that there are no presumptions of undue influence in probate: actual and effective
coercion must be proved. Thus it was said in Boyce v Rossborough (supra) at 51;
212:
But in order to set aside the will of a person of sound mind it is not sufficient
to show that the circumstances attesting its execution are consistent with the
hypothesis of its having been obtained by influence. It must be shown that
they are inconsistent with a contrary hypothesis.’
14. The onus of establishing undue influence rests upon the party alleging it at all
times: Boyse v Rossborough (supra).”
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
1.
Vasilka Janakievska (also known as "Vasa Janakievska") ("the deceased") died on 29
May 2009. At the date of her death, she was aged 87 years. The central questions
concerning the validity of the 2004 Will, were whether the deceased validly executed
the 2004 Will; whether she had testamentary capacity, and whether that Will was
produced as a consequence of undue influence. The deceased's lack of knowledge
and approval of the 2004 Will, although not alleged, initially, by way of defence to the
validity of the 2004 Will, was relied upon as a result of a further amended Defence to
Cross-Claim which was filed, in Court, without opposition, on the second last day of the
hearing.
2.
The first Plaintiff was named as one of the executors in each of the two Wills.
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3.
The deceased's estate in New South Wales, at the date of death, comprised both
movable, and immovable, property, being real estate in Rockdale ($555,000) and in
Erskineville ($565,000), shares ($571) and cash in bank ($125,496). No liabilities were
disclosed in the Plaintiffs' affidavit of executors sworn 11 July 2009. Thus, the estate,
at the date of death, had an estimated total gross value of $1,246,067.
4.
The Defendant stated that the 2004 Will was made by the deceased and that it was
"the last will and testament of the deceased which revoked all previous testamentary
instruments".
5.
The plaintiffs pleaded that the 2004 Will was not duly executed and/or valid, and have
the following particulars:
6.
"(a)
The deceased at the time was 82 years of age and senile;
(b)
At the time the deceased had been suffering from defective memory;
(c)
The deceased in December 2003 suffered a stroke that caused her to
be in poor health physically and mentally; defective memory and
incapable of understanding the nature and effect of the act of
execution of a will;
(d)
The deceased did not speak, read or write in the English language
and the document purporting to be a later will does not appear to have
been translated into the Macedonian language;
(e)
The execution of the document purporting to be a later will was
obtained by undue influence on the part of the Defendant taking
advantage of the deceased's ill health, poor memory and unfit mind to
misrepresent and pressure the deceased to the point where the
influence was such that the execution of the purported will was not of
her own volition."
The Plaintiffs' solicitors provided further particulars of undue influence:
"(a)
That the Defendant had threatened to take court action against the
deceased if she refused to transfer her property at Erskineville to him;
(b)
That the Defendant continually harassed and demanded that the
deceased transfer to him the Erskineville property;
(c)
That the Defendant instructed a solicitor as to the terms of the will of
the deceased without the deceased's authority;
(d)
That the Defendant took the deceased to a solicitor to sign the said
will;
(e)
That the Defendant instructed the solicitor in relation to the
preparation of the will without the consent, understanding and/or
knowledge of the deceased;
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7.
(f)
That the Defendant through his instructions to the solicitor caused the
solicitor to forward to the deceased a letter dated 28 October 2004
which letter it will be alleged the deceased believed to be the
commencement of proceedings by the Defendant that the Defendant
had threatened against the deceased;
(g)
The Defendant was present with the deceased and the solicitor when
the will was executed and as such no opportunity was afforded to the
deceased to seek confidential and independent legal advice in the
absence of the Defendant;
(h)
That the Defendant was aware and/or ought to have been aware that
the deceased was frail, unwell, and had difficulties with her memory
and particularly was not of sound mind."
In the further amended Defence to the Cross-Claim, the Plaintiffs relied upon the
following particulars in support of the defence of lack of knowledge and approval:
8.
"(a)
There is an absence of an appropriate translation clause in the 2004
Will.
(b)
The 2004 Will did not reflect instructions given by the Defendant.
(c)
The 2004 Will did not reflect instructions as were given by the
deceased.
(d)
To the extent the Defendant gave instructions consistent with the
deceased's state of mind, he was not authorized to do so.
(e)
The name of the deceased was spelt incorrectly in the introductory
words of the 2004 Will.
(f)
The Defendant was not authorised to give instructions as to the terms
of the 2004 Will.
(g)
The deceased did not provide instructions as to the terms of the 2004
Will.
(h)
The deceased did not authorise the Defendant to give instructions for
the 2004 Will.
(i)
The deceased did not approve the 2004 Will.
(j)
The terms of the will drafted and presented by solicitor, Dobrinka
Zlatevska, did not reflect such instructions (or the tenor of those
instructions) as may have been given to the solicitor by the deceased.
(k)
The deceased did not understand the term 'executors and trustees'
and the functions associated therewith.
(l)
The deceased did not know she was signing a Will."
They added, as particulars of lack of testamentary capacity:
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"(c)
The deceased in August 2004 suffered a stroke that caused her; to
be in poor health physically and mentally; defective memory and
incapable of understanding the nature and effect of the act of
execution of a will.
(d)
The deceased was incapable of understanding the nature and effect
of the act of execution of a will and/or lacked testamentary capacity."
and particulars of undue influence:
9.
"(i)
That the Will effected a substantial change to the deceased's longstanding testamentary intentions;
(j)
That the Defendant was involved in procuring a will that substantially
benefits him;
(k)
That the Defendant had a motive for influencing the deceased to make
a will in his favour;
(l)
That the deceased was vulnerable and submissive to domineering
behaviour;
(m)
That there were irregularities in preparing the will;
(n)
The Defendant attending the deceased's solicitor's office only days
after the deceased attended the solicitor believing the Defendant had
instituted legal proceedings against her and the Defendant making
enquiries as to the testamentary intentions of the deceased at that
time.
(o)
The differences in the nature of relationships with the deceased
between the Plaintiffs and the Defendant."
Petar Janakievski was the husband of the deceased. He died in September 1993.
Probate of his Will was granted to the deceased. The whole of his estate passed to
her.
10.
Pavle Petrovski was the nephew of the deceased.
11.
Alexander Attapallil is a solicitor who was admitted to practice in 1998. He purchased
the firm Edward Kassis & Associates. The firm acted for the deceased, in about 1994,
following the death of her husband, to obtain Probate of Petar's Will.
12.
Mr Attapallil had been the principal of the firm when the 1999 Will was prepared by a
solicitor in the firm, but had nothing to do with its preparation or execution. He did not
meet the deceased until about 2004. By that time, the firm's name had been changed
to Lexes Lawyers.
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13.
Gordana Bozinovska is a solicitor who completed the Legal Practitioners Admission
Board course in 2004 and was admitted to practice in February 2005. She is a lawyer
formerly admitted, and practising, in Macedonia. She worked with Mr Attapallil. She is
able to speak Macedonian and when the deceased attended upon Mr Attapallil, she
translated for them.
14.
Dobrinka Zlatevska is a solicitor who was admitted to practice in 1975. She made the
acquaintance of the deceased as a member of the same congregation of the
Macedonian Orthodox Church. She had seen the deceased at Church on the main
religious festivals over the years. She and the deceased were aware of one another.
They exchanged greetings and customary pleasantries. They did not visit one
another's homes. She had never acted for the deceased, in respect of any legal
matters, prior to 2004.
15.
Ms Zlatevska had been, and in 2004, was, one of the solicitors who had acted for Alek
and Katia in relation to his, or their, legal matters. In fact, Alek had retained Ms
Zlatevska's firm to act for him, at different times, from the early 1980s.
16.
She was the author of the 2004 Will and one of the attesting witnesses of the
deceased's signature on that Will. She met with the deceased and Alek on 17
December 2004, on which day the 2004 Will was executed by the deceased.
17.
The deceased and Petar arrived in Australia in about 1963, having been sponsored by
Alek. Initially, they lived in a house at Croydon Park, which Alek had purchased and
had registered in the name of Petar and his sister, Zaharia. Alek lived there with the
deceased and Petar. For some time between 1964 and 1968, the deceased and
Petar lived at a house, in Enmore, whilst they were able to save enough money to
purchase the property at Erskineville. They did this with the further assistance of funds
from Petar's share of the sale of the house in Croydon Park.
18.
In about 1974, the deceased and Petar purchased a house at Herbert Street,
Rockdale. They moved into this house, together with Pavle, and then rented out the
Erskineville house.
19.
In 1993, Petar became sick, and, in September 1993, he died. The deceased and
Petar had no children.
20.
Upon her husband's death, the deceased became the sole legal owner of the Rockdale
property and the Erskineville property.
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21.
Following her husband's death, the deceased lived, alone, in the Rockdale property.
22.
Mr Attapallil met the deceased, initially, in about September 2004, when she sought
advice regarding converting the title of the Erskineville property from Old System to
Torrens title. At that time, she had said to him words to the effect that a Torrens title is
much easier to deal with than an Old System title and that that was the modern way of
doing things.
23.
Following the making of the 2004 Will, Alek did not see the deceased again. He did
not visit the deceased, at any time, whilst she lived with Pavle, he explained, because
of the state of his relationship with Pavle's daughter. Katia last saw the deceased a
few days prior to the making of the 2004 will (on 12 December 2004), at a christening,
held in the Macedonian Church. They had lunch together and Alek and Katia drove
the deceased home.
24.
In January 2005, the deceased suffered a stroke. When she was released from
hospital, she lived, for the rest of her life, with Pavle and his wife.
25.
From the time of her discharge from the hospital, the deceased was, essentially, chair
bound and bed-ridden and required assistance with all activities of daily life, which
assistance was provided by Pavle and Loza and members of their family. Following
the stroke, the deceased lacked testamentary capacity.
The Deceased's Wills
26.
In the 1999 Will, a one-page document (with a back page), the deceased appointed the
Plaintiffs as executors. The essential terms of the Will provided:
(a)
for a revocation of all former testamentary dispositions;
(b)
a specific devise of the Rockdale property, as well as the furniture, furnishings
and contents to Elli (referred to in the Will as Elica) absolutely;
(c)
a specific devise of the Erskineville property, as well as the furniture,
furnishings and contents, to Gordana absolutely;
(d)
a bequest of the rest and residue of the estate, including the proceeds of any
life insurance policy, after the payment of debts, funeral and testamentary
expenses, to Pavle absolutely;
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(e)
in the event that any beneficiary died before the deceased leaving children,
then those children, on attaining their respective majorities, would take
equally the benefit that their parent would otherwise have taken.
27.
The Will had the following translation and attestation Clause:
"The Testatrix not being able to read or speak the English language this Will
was read over to her translated into the Macedonian language by John
Stojcevski of ... who then informed us that the Testatrix has said that she
approved of the Will. It was then signed by the Testatrix in our presence and
attested by us in the presence of her and each other"
28.
The attesting Witnesses were identified as John Stojcevski, Nicholas Pertsoulis and
Eva Harb. The back page identified solicitors, Edward Kassis & Associates, of
Rockdale.
29.
The circumstances surrounding the preparation and execution of the 1999 Will were
not in dispute.
30.
In the 2004 Will, which was a two-page document (with a back page), the deceased
revoked all former Wills and testamentary dispositions and appointed Alek and Pavle
as joint executors and trustees. She left the whole of her estate to the executors, on
trust, to pay debts, funeral and testamentary expenses, probate and estate duty, and
any other duties payable in consequence of the deceased's death, and then provided:
(a)
a specific devise of the Erskineville property, to Alek "because he helped me
out and it was my husbands (sic) wish";
(b)
a specific devise of the Rockdale property to Pavle;
(c)
a gift of the rest and residue of the estate to Alek and Pavle "who shall
survive me as tenants in common in equal shares";
(d)
if either Alek or Pavle failed to survive the deceased, then the share to which
he would have been entitled had he survived, passed to his surviving child, or
children.
31.
The Will then provided "I wish D Stanefska & Associates to be employed by my
executors as their solicitor in connection with the execution of the provisions of this Will
and any codocil (sic) to it".
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32.
The attestation Clause, in the 2004 Will, stated:
"Signed by the Testatrix as and for her last Will and testament in our
presence and attested by us in the presence of her and of each other."
33.
The attesting Witnesses were Ms Zlatevska and Ms Bogdanovski. The deceased and
each of the two attesting witnesses signed each page (except the back page).
Circumstances surrounding the preparation of and execution of the Wills
34.
Hallen AsJ was satisfied that the circumstances surrounding the preparation, and the
execution, of the 1999 Will, were as follows:
(a)
The deceased requested Elli to make an appointment to see her (the
deceased's) solicitor, who was a solicitor at the firm, Edward Kassis & Co, for
the purpose of making a Will.
(b)
After confirming the name of the deceased's solicitor, Elli organised the
appointment for, and attended with, the deceased upon Mr Pertsoulis. She
translated the instructions given by the deceased to Mr Pertsoulis. However,
the Will was not prepared and executed immediately. Mr Pertsoulis stated
that he "will need an independent witness and translator to go over the Will
again".
(c)
Elli took no further part in the making, or execution, of the 1999 Will.
(d)
Following her meeting with the solicitor, the deceased telephoned John
Stojcevski and informed him that she had given instructions for the
preparation of a Will and of Mr Pertsoulis' request for an independent witness
and translator. Mr Stojcevski agreed to attend, with the deceased, upon the
solicitor.
(e)
Mr Stojcevski did attend, with the deceased, at the offices of Edward Kassis &
Associates, on 15 April 1999. The offices were situated above the
Commonwealth Bank at Rockdale. He recollects that the 1999 Will had
already been prepared when he arrived. Mr Pertsoulis read the contents of
the Will, in English, paragraph by paragraph, and as each paragraph was
read, Mr Stojcevski translated what he had heard read from the English
language to the Macedonian language. The Will was then signed by the
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deceased and by each of the other persons whose signature appears on the
Will.
(f)
The deceased explained why she did not leave the whole of her estate to
Pavle. She confirmed that since he had told her that he would probably have
to pay "lots of taxes and you would leave everything you have to the girls
anyway", she had left part of her estate to Gordana and Elli.
35.
In relation to the surrounding circumstances for the preparation of the 2004 Will, His
Honour found:
(a)
In about October 2004, Alek went to the office of D Stanefska & Associates
and had a conversation with Ms Zlatevska.
(b)
Ms Zlatevska prepared a draft Will, which, at least in part, was based upon
what she had been told by Alek.
(c)
Ms Zlatevska caused a letter, dated 28 October 2004, addressed to the
deceased, at the Rockdale address, to be sent, which stated, in English:
"... [Y]our Will has now been prepared in accordance with your instructions and
awaits your signature.
Kindly arrange an appointment to attend our office at your early convenience
for the purpose of completing this document."
(d)
A copy of the Will that had been drafted by Ms Zlatevska was not enclosed
with the letter.
(e)
Subsequently, Elli telephoned Ms Zlatevska to discuss the contents of the
letter and the draft Will, but Ms Zlatevska informed her that she could not
speak to her, but only to the deceased, about these matters. The deceased
did not speak to her at this time.
(f)
In mid-to-late November 2004, Ms Zlatevska telephoned the deceased's
home. She spoke to Robert saying that she wished to speak with the
deceased who "has to come to my office to sign something". Robert did not
allow Ms Zlatevska to speak with the deceased on this occasion referring to
the deceased being "not a well person, old and scared", and a person who
had her own solicitor.
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(g)
Shortly after the conversation with Ms Zlatevska, Robert telephoned Ms
Zlatevska's office to ascertain what the deceased was required to sign, but he
was not able to speak with her.
(h)
A few weeks later, on 17 December 2004, the deceased executed the 2004
Will.
(i)
Alek went with the deceased to the appointment, at the offices of D Stanefska
& Associates. He remained, and was present, whilst a conversation occurred
between the deceased and Ms Zlatevska. Also present was Ms Zlatevska's
secretary, Julie. She remained present in case amendments to the Will
drafted by Ms Zlatevska were required.
(j)
The deceased and the two attesting witnesses signed the 2004 Will at the
conclusion of this conference, which was thought to have lasted at least 45
minutes.
(k)
Following the execution of the Will, Ms Zlatevska sent a memorandum of
costs for the work done to Alek and he paid the amount of those costs.
(l)
The Plaintiffs did not know of the events of 17 December 2004, until after the
death of the deceased. Whilst they were aware that a will had been prepared
by Ms Zlatevska, they were never informed, during the lifetime of the
deceased, that the deceased had executed the 2004 Will.
36.
On 3 December 2004, the deceased went, with Pavle, to Lexes Lawyers, at Rockdale.
She conferred with Mr Attapallil whilst Pavle waited for her outside his office. Ms
Bozinovska was present and she translated the conversation from the Macedonian
language into the English language, and vice versa, as Mr Attapallil did not speak
Macedonian.
37.
In the conference, the deceased referred to, and showed, Mr Attapallil, the letter dated
28 October 2004 that she had received from D Stanefska & Associates. He gave the
following evidence:
"6. I recall a few months later on 3 December 2004 I had a conference with
the late Vasa Janakievska who attended my office with her nephew Pavle
Petrovski. I took Mrs. Janakievska into my office and with the assistance of
my employed Solicitor, Gordana Bozinovska who translated in the
Macedonian Language I conferred with Mrs. Janakievska. Mrs Janakievska
said to me:
10
"I got a letter from Stanefska, she's my brother-in-law's Solicitor. She is suing
me for my house".
I said:
"Let me see".
I then read the letter which was translated by my employed Solicitor, Gordana
Bozinovska. The letter was requesting Mrs. Janakievska attend Stanefska's
offices to sign a Will that had been prepared by her. I said:
"This is not a Court document, no one is suing you, it's a letter from the
Solicitor who wants you to go to her office to sign a Will. Did you ask her to
make a Will for you?"
Mrs. Janakievska said:
"No I didn't, my brother-in-law is suing me over one of my houses. He said
that if I don't give it to him he's going to get Stanefska to take me to Court".
I said:
"Do you have a Will and do you want to change your Will?"
Mrs. Janakievska said:
"I have a Will and I've let (sic) everything to my nephew. Pavle's family, they
looked after me and they will get everything. I do not want to change any
Will".
I said:
"Your houses are yours, you can leave them to whoever you like. In some
cases people can make a claim on your Estate but if that was to happen you
should come and see me straight away. Nobody is allowed to push you to
make another Will. If he threatens you call the Police or call me".
I then escorted Mrs. Janakievska out and in the reception area Mr. Pavle
Petrovski said to me:
"Did you tell her that her house is hers and she can do what she likes with it?
can (sic) her brother-in-law take her to Court for the house?"
I said:
"As I've explained to your Aunty, her houses are hers and she can do what
she likes with them. In some cases people can claim against an Estate but if
that was to happen then you should come and see me immediately"."
38.
On about 6 December 2004, Alek and Katia attended, without an appointment, at
Lexes Lawyers. They spoke, in the Macedonian language, with Ms Bozinovska first,
as Mr Attapallil was not there. She gave the following evidence:
11
"12 .... Whilst Mr. Nasev and his Wife were waiting for Mr. Attapallil in
reception I introduced myself and spoke to Mr. And Mrs. Nasev in the
Macedonian Language.
During our discussions I became aware that Mr. Nasev and his Wife were
there to see Mr. Attapallil in relation to Mrs. Janakievska who was in the
office only a few days before. Mr. Nasev amongst other things said words to
me to the effect:
"Vasa has been ringing us constantly saying that she wanted to change her
Will and prepare a new Will leaving one of her properties to me".
I did not respond to this comment. He then said:
"I got Stanefska to prepare the Will. I don't like to deal with Stanefska
anymore. She stuffed up some work for me which cost me over $30,000.00.
She told me to make a Claim against her under her insurance but I didn't.
Although I didn't want to have anything more to do with her there was no one
else in Rockdale who I knew that spoke Macedonian and so I went to her.
She agreed to prepare the Will. She has prepared it and now wants Vasa to
come in to her office to sign the Will".
I did not make any comment or reply to what Mr. Nasev had said.
I recall Mrs. Nasev who was with him saying to me words to the effect:
"We just want this to be finalised. The other day we were having dinner with
Family and we were contacted by Police. I don't want to have any further
dealings with the Police, her or that Family anymore"."
39.
After Mr Attapallil arrived, they conferred with him. Ms Bozinovska was also present.
They showed Mr Attapallil the exemplification of Probate relating to Petar's Will, but
refused to allow him to take a copy.
40.
Mr Attapallil made a contemporaneous file note of their attendance on 6 December
2004. Its contents were instructive:
"6/12/04. Alek Nasev and Mrs Nasev came to see me. Says Vasa rings you
constantly because she can't sleep because she wants to do a new will giving
property to Alek Nasev, brother of her husband.
41.
Alek and Mrs Nasev want the will to be original as her husbands (sic), i.e., they want
one house to be given to Alex, and as he paid for it, or or give to it to the church."
42.
Professor Daniel Chan's evidence, following cross-examination, was that the deceased
had long standing hypertension that could cause amyloid angiopathy and intracerebral
haemorrhages. These changes could occur subtly, resulting in cognitive impairment,
which impairment may not have been noticed by lay persons. He accepted that on 17
December 2004, she was very depressed and physically unwell, with infections in the
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left middle ear and left eye. He said that having an eye and ear infection was likely to
affect cognitive function of an elderly person who had some cognitive impairment. If
she was a Serepax user, this would be likely to have further impaired her capacity to
understand the contents of the 2004 Will. Within 2 weeks or so, she suffered a
significant stroke. He thought that this was probably preceded by a brain bleed, 1 or 2
days before the stroke.
43.
Professor Chan also accepted there was no evidence that the deceased's mental
capacity was actually clearly tested on 17 December 2004. When asked about her
being "very depressed" on 17 December 2004, he answered that "a person who is very
depressed can actually present with cognitive impairment that is sometimes very
difficult to separate out from acute confusion or delirium ...". He thought that on that
day, "there probably was acute delirium happening" but that another diagnosis might
be that "she could be very depressed with all the stressors happening around her".
44.
Professor Chan's evidence, overall, raised, sufficiently, that the deceased had some
cognitive impairment that is relevant to the determination of the question whether she
had testamentary capacity.
45.
Pavle gave evidence that, in the last three months of 2004, the deceased appeared
extremely stressed, nervous and anxious. He described this as being "put under
pressure".
Solicitor's Duties in Will-Making
46.
Because it played a major part in the submissions, ht e Court said something about the
duties of a solicitor who takes instructions for and who has a will executed.
47.
In Jarman on Wills , 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is
said:
"Few of the duties which devolve upon a solicitor, more imperatively call for
the exercise of a sound, discriminating, and well-informed judgment, than that
of taking instructions for wills."
48.
In Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported),
Santow J, made some general comments regarding circumstances where a legal
practitioner receives instructions from an established client to prepare a will on behalf
of another person, where that client is to be principal, or major, beneficiary under the
proposed will and, in particular, where the client instigates that will. His Honour said:
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"There do not appear to be rules of professional conduct specifically
governing the first situation. Thus r 22 of the Professional Conduct and
Practice Rules deals with situations where a solicitor receives instructions to
prepare a will in which that solicitor or an associate of that solicitor is to
receive a substantial benefit. Whatever 'associate' may mean, it probably
falls short of including a conventional solicitor/client relationship. Reg 28 of
the old Legal Profession Regulation 1987 is to a similar effect. That does not,
however, mean that no ethical considerations arise in such circumstance.
The essence of a solicitor's fiduciary obligations to a client is the unfettered
service of that client's interests. This will require the solicitor to avoid acting
for more than one party to a transaction where there is a likelihood of a real
conflict of interest between the parties. As Wootten J stated in Thompson v
Mikrelsen (Supreme Court of NSW, 3 October 1974, unreported), in the
analogous context of conveyancing transactions: 'The reasonable
expectations of a client instructing a solicitor [is] that the solicitor will be in a
position to approach the matter concerned with nothing [in mind] but the
protection of his client's interests against [those] of another party. [The client]
should not have to depend on a person who had conflicting allegiances and
who may be tempted either consciously or unconsciously to favour the other
client, or simply to seek a resolution of the matter in a way which is least
embarrassing to himself.'
The same considerations may arise in the context of preparation of wills. It is
clear that a conflict of interest may arise between the interests of an intended
principal beneficiary seeking to procure a will in his, or her, favour and the
interests of the testator. The testator should be assisted by his legal or her
legal adviser only in making a valid will. This means, inter alia, that the
natural objects of the testator's bounty must be capable of being appreciated,
by the testator, even though the testator may choose to exercise that capacity
so as to omit such objects or disfavour them. In such circumstances, the
legal practitioner would be expected to give advice to the intended testator on
a number of matters. Some of these may be potentially contrary to the
interests of the proposed beneficiary. The legal practitioner should take such
steps as are reasonably practicable to enable that practitioner to give proper
consideration to any matters going to the validity of the proposed will and then
should advise and act in conformity with that consideration. Such a conflict
will especially arise where there is a reason to fear lack of testamentary
capacity on the part of the testator by reason such as fragility, illness or
advanced age. Further, in such context, the solicitor could not prudently rely
on the informed consent of both clients to act in such a transaction where
their interests conflict, there being doubts about the capacity of the testator to
give such informed consent...
There is an additional consideration, not dependent on the question of conflict
of interest. That is, the duty of the solicitor taking instructions from an
obviously enfeebled testator, where capacity is potentially in doubt, to take
particular care to gain reasonable assurance as to the testamentary capacity
of the testator. It is clearly undesirable to attempt to lay down precise and
14
specific rules as to what that necessarily entails for every case. Such rules
may lead to a perfunctory, mechanical checklist approach. What should be
done in each case will depend on the apparent state of the testator at the time
and other relevant surrounding circumstances. Any suggestion that
someone, potentially interested, has instigated the will, whether or not a client
of the will draftsperson, should particularly place the solicitor concerned, on
the alert. At the least, a solicitor should ask the kind of questions designed to
probe the testator's understanding of the basic matters which connote
testamentary capacity... For this purpose, and subject to the earlier caveat
concerning checklists, the advice concerning the taking of instructions
contained in Mason & Handler's "Wills, Probate and Administration Service
NSW (Butterworths) [at 10,019] is a useful guide:
'[10,019] TAKING OF INSTRUCTIONS - ISSUES OF TESTAMENTARY
CAPACITY
If any doubts do rise as to the testator's capacity the following procedures on
the taking of instructions will assist significantly in the avoidance of potential
problems for the estate as well as for the solicitor in the discharge of his
duties:
(i)
The solicitor who is to draw the will should attend on the testator
personally and fully question the testator to determine capacity - the
questions should be directed to ascertain whether the testator
understands that he is making a will and its effects, the extent of the
property of which he is disposing and the claims to which he ought to
give effect;
(ii)
One or more persons should be present, selected by the solicitor
having regard to their calibre as witnesses if required to testify
whether the issue of capacity is raised. Where possible, one of the
witnesses should be a medical practitioner, preferably the doctor who
has been treating the testator and is familiar with him, who should in
making a thorough examination of the testator's condition, question
him in detail and advise the solicitor as to the capacity and
understanding of the testator. The presence of other persons at this
time would require the testator's consent;
(iii)
A detailed written record should be made by the solicitor, the results of
the examination recorded by the medical practitioner and notes made
by those present.
If after careful consideration of all the circumstances the solicitor is not
satisfied that the testator does not have testamentary capacity he should
proceed and prepare the will. It is a good general practice for the solicitor
who took instructions to draw the will and be present on execution and this
practice should not be departed from in these circumstances. On execution,
the attesting witnesses should, where possible, come from those persons
(including the solicitor) referred to above who were present at the time of
15
instructions and, again, as at every stage, detailed notes of the events and
discussions taken.'
If those questions and the answers to them, leave the solicitor in real doubt as
to what should be done, other steps may be desirable. This may include
obtaining a more thorough medical appraisal or, if the testator declines,
considering whether the will can be properly drawn, should assurance on
testamentary capacity fail to satisfy the test just quoted."
49.
In Nicholson v Knaggs , Vickery J, at [664], recommended a "considered and
appropriately structured interview with the testatrix" and emphasized that "in order to
establish knowledge and approval of a will by a testator, more is required than 'merely
establishing that the testator executed it in the presence of a witness after it had been
read to, or by, him' (at [387])".
50.
Hallen AsJ agreed with this approach.
The Court was satisfied that Alek, alone, had given the initial instructions to Ms
Zlatevska, which were used by her to prepare most of the draft Will, and that he had
done so prior to 28 October 2004, and was not satisfied that he had been asked to do
so, then, by the deceased. There had been no evidence, given by Alek, as to any
conversation he had with the deceased, in which she had requested him to give
instructions to Ms Zlatevska to prepare a will, whether in the form of the 2004 Will or
otherwise.
51.
The letter dated 28 October 2004, forwarded to the deceased, by D Stanefska &
Associates, made clear that instructions for a will had been provided to her, and that a
draft had been prepared in accordance with those instructions. Alek could not identify
any other person who could have provided instructions to Ms Zlatevska at that time.
52.
Importantly, Ms Zlatevska, herself, gave evidence of such a conversation with Alek.
She says:
"...
In approximately October 2004 Mr Nasev came to my office. He said words
to the effect:
"I am the brother of Petar Janakievski who is now deceased. Petar and his
wife Vasilka had the same wills. Vasilka made a new will after Petar died but
now wants to go back to what they originally had. She wants to change her
will. It is worrying her that she has not left me anything. She told me what
she wants in her new will."
16
53.
There then followed some discussion which I cannot particularly recall regarding an
earlier will that the deceased had made."
54.
Ms Zlatevska also states that she "prepared a draft will based upon what Mr Nasev told
me". That draft must have been prepared at, or about, the time of the letter dated 28
October 2004, as it is referred to in that letter.
55.
It was clear that any instructions for the 2004 Will given to Ms Zlatevska were given by
Alek and by nobody else. The deceased did not request him to give any instructions to
Ms Zlatevska.
56.
Importantly, Alek's evidence on this topic was inconsistent with the evidence of Dr
Mihajlov:
“In this period subsequent to her husband's death, Mrs. Janakievska would
often discuss with me her personal affairs including a constant and regular
reference to her husband's brother pressuring her to give property she owned
to him. She would often say to me words to the effect:
"My brother-in-law is pushing me to give him one of my houses. He keeps
telling me that because Petar and I didn't have kids one of the houses should
go to him and the other one I could do whatever I liked with and give it to my
side of the family. He keeps saying that he will take me to Court and will take
my property off me"."
57.
Alek's evidence was also inconsistent with Pavle's evidence, which the judge accepted
regarding a conversation that he had with Alek about going to a lawyer "to organize for
the old lady to transfer the houses, Rockdale to you and Erskineville to me".
58.
It was also inconsistent with Robert's evidence that he had overheard Alek suggesting
to the deceased that she sell the Erskineville property and give him the proceeds of
sale, so that she could apply for the pension.
59.
Another aspect of Alek's evidence which the Court did not accept relates to his alleged
lack of concern about whether the deceased would leave the Erskineville property to
him. It seems clear, from all of the evidence, that he was very concerned to receive
this property. His efforts to achieve this included repeated requests, to the deceased,
a conversation with Pavle about ensuring this result, giving instructions to a solicitor to
prepare a Will, and as will be seen, taking the deceased to have that Will executed. In
my view, he was determined not to let the matter rest, which he did, only after the
execution of the 2004 Will.
17
60.
Alek's evidence about the circumstances in which he came to go with the deceased to
the office of Ms Zlatevska on 17 December 2004: He said that he was sitting in
Rockdale drinking coffee, when John Sturevski approached him and said that the
deceased was looking for him. He went to find the deceased, which he did, at the local
Chemist shop, and she said that she had come to Rockdale to pick up some medicines
and that she would "like him to come with me to see Dobrinka". The clear thrust of his
evidence was that this was an unplanned, and a somewhat spontaneous, meeting with
the deceased, and that he had accompanied her to the offices of the solicitor, at her
request.
61.
This was inconsistent with Ms Zlatevska's evidence, which is to the effect that an
appointment had been made for the deceased to attend the offices of D Stanefska &
Associates at 1:00 p.m. on 17 December 2004 (as disclosed on the page of her diary
for that date). She thought that Alek had made the appointment.
62.
Alek's apparent lack of interest about what had occurred at the conference on 17
December 2004, also provided a curious feature of his evidence, in this regard:
"18. I accompanied Vasilka to the offices of D. Stanefska and Associates. I
think we arrived sometime mid morning. Dobrinka sat in one chair, the
secretary sat or stood next to Dobrinka, Vasilka sat on one chair and I sat on
the other. I did not take part in the conversation. I considered it was a matter
for Vasilka. I sat silently and did not pay attention to what was being
discussed. I do recall that Dobrinka asked a number of questions in
Macedonian and I do recall that at one stage a document was produced by
either Dobrinka or the secretary."
63.
The fact that he is unable to give any evidence about what was discussed in the
conference on 17 December 2004 did not assist his case.
64.
This led the Court to find:
(a)
The deceased did not give instructions to Alek to have a will prepared for her;
(b)
The deceased did not give any instructions to Alek about the terms of any
Will;
(c)
The deceased did not request Alek to convey any instructions to Ms
Zlatevska, which instructions were included in the 2004 Will;
18
(d)
Alek's instructions for the preparation of a Will were given without the
knowledge or approval of the deceased;
(e)
Alek did not give any instructions to the solicitor as to some parts of the 2004
Will, namely the substitute beneficiary clause and the clause relating to the
deceased's wish to have D Stanefska & Associates act;
(f)
The deceased did not request Alek to accompany her to the office of the
solicitors on 17 December 2004;
(g)
It was Alek who made the appointment with the solicitor at 1:00 p.m. on 17
December 2004 and he took the deceased to the office of the solicitors on
that date;
(h)
Alek was very keen to have the deceased leave the Erskineville property to
him and to ensure that a Will was prepared that would achieve this;
(i)
Alek had many conversations with the deceased in which he requested her to
leave the Erskineville property to him and the Rockdale property to Pavle;
(j)
Once the 2004 Will was executed by the deceased, Alek and Katia did not
ever see her again.
(k)
In the will-making process, he consistently put his own interests ahead of the
deceased's.
65.
Ms Zlatevska did not give any evidence of any usual, or regular, practice in relation to
the way in which she took instructions, drafted, or had the wills she had drafted,
executed. Nor did she give any evidence of a practice in relation to questioning an
elderly person prior to a will being executed, by for example, asking questions that
would elicit general, or other, knowledge. She was not asked any questions about her
knowledge, in 2004, of Banks v Goodfellow (1870) LR 5 QB 549 and the Court did not
know whether she had "the Banks v Goodfellow tests at the front of her mind" (Hutley's
Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]). She
gave no evidence of having taken any special precautions when seeing the deceased
on 17 December 2004.
66.
She did refer to discussing "the usual sort of pleasantries" and "common courtesies"
with the deceased. How long this lasted is not clear. In any event, other than
19
enquiring about her state of health, Ms Zlatevska did not state, with specificity, what
had been discussed, or how the deceased responded to any questions asked. Whilst
she may have met the deceased in Church, this was not a case in which instructions
for a contested will were taken by a solicitor who was very familiar with the deceased.
67.
Ms Zlatevska did not say that what she spoke with the deceased about was designed
to test the deceased's cognitive powers, or was otherwise for the purpose of
ascertaining her testamentary capacity. She did not say that the deceased's
responses led her to form the view that she ultimately expressed. One might have
expected the evidence of the solicitor relying upon such pleasantries or courtesies, if
relied upon to determine capacity, to be more expansive about what had been said.
68.
Ms Zlatevska gave her oral evidence reasonably confidently and clearly. She stated
that she considered herself experienced and competent in drafting wills. She also
gave evidence that she had drafted many wills for people whose first language was not
English. From the mid to late 1990s, she had commenced to draft wills for clients of
her firm, and that she had drafted about 50 wills per year.
69.
The contemporaneous documents that formed the contents of her will file, which had
been the subject of a subpoena to produce, were sparse. The documents produced
were a draft Will (in the form that was subsequently signed by the deceased) which
had been prepared following the instructions given to her by Alek, a copy of the letter
dated 28 October 2004 that she had written, and caused to be sent to the deceased,
one file note (consisting of two pages, the contents of which I shall set out in full), a
copy of one page of a practice diary that revealed that her conference with the
deceased, at which conference the 2004 Will was executed, was to occur at 1:00 p.m.
on 17 December 2004, and a letter to the Registrar of this court under cover of which
the copy of the diary page was enclosed.
70.
There was no file note of the instructions given to her by Alek in October 2004. This
was despite Ms Zlatevska acknowledging that it was "good practice" to create a file
note in the context of taking instructions for, and the execution of, a will.
71.
On this topic, Ms Zlatevska's evidence was that the initial instructions came from Alek
to her about what the deceased wanted in her will. And as Ms Zlatevska read the will
to the deceased, she did not disagree with its contents.
72.
There was nothing in Ms Zlatevska's affidavit that fleshed out any enquiries she made
of Alek, or the deceased, to demonstrate how Alek had helped the deceased out, or
20
what her husband's wish had been. She said that the deceased said "He helped us
initially and then later helped with the purchases. He helped with the paperwork." No
investigation of the extent, context, or the time when these matters occurred, appears
to have taken place.
73.
The deceased said "she wasn't feeling right about having changed the will that she had
made with her husband". Ms Zlatevska made no enquiry to confirm whether "Petar
and his wife, Vasilka, had the same wills". (There was no evidence at the hearing of
any will that the deceased had made with her husband, or that the deceased and her
husband had ever had mirror wills.)
74.
In relation to the deceased's "husband's wish", Ms Zlatevska acknowledges having
seen the exemplification of Probate of Petar's Will on a date after she prepared the
draft of the 2004 Will (inferred after 9 November 2004, which is the date the
exemplification bears) but before 17 December 2004, the date on which the 2004 Will
was executed. Despite Clause 3(ii), which had been inserted on instructions from
Alek, she did not pay close attention to the terms of Petar's Will, which, did not make a
specific devise of the Erskineville property to Alek or of the Rockdale property to Pavle.
75.
What is said to be the contemporaneous file note of the events that occurred on 17
December 2004, which is in Ms Zlatevska's handwriting, is in the following form:
"FILE NOTE: 1.00PM 17 DECEMBER 2004
Conference Mrs Vasilka Janakievska and Alek.
Confirmed her telephone instructions, showed me her medicare card.
Does not receive pension. Signed Will
Discussed Will want us (sic) place in safe custody
Do not write to her home or give anything to anyone."
76.
The most curious feature about the file note is that Ms Zlatevska accepted that she had
never had any telephone conversation with the deceased, and that the reference
"Confirmed her telephone instructions" should not have been written in it.
77.
Mr Dubedat's evidence was that the words "Confirmed her telephone instructions"
were written at a later time than the words "or anything". She admitted that it was
probable that the words had not been written on the file note on the date it bears, as
she was well aware, then, that she did not have any telephone conversation with the
21
deceased. She was unable to explain when, or the circumstances in which, the words
were written on the file note. She could not explain, otherwise, how those words came
to be written by her in the file note. She agreed that it would be unsafe to rely on the
accuracy at least of that part of the file note.
78.
Ms Zlatevska also acknowledged that she had known for some time that the file note
was inaccurate, at least to the extent that it referred to confirming the deceased's
telephone instructions. She was unable to explain why, despite having sworn an
affidavit as recently as 29 September 2011, in which affidavit she specifically dealt with
aspects of the file note, she had not corrected this error.
79.
Importantly, the file note lacks almost all of the details that Ms Zlatevska was able to
include in her affidavit sworn on 11 May 2010, that is almost five and a half years after
the event and in her evidence in the witness box, almost seven years after the event.
The file note does not even include a statement to the effect that she translated the
contents of the 2004 Will to the deceased. (I note also, in this regard, that the 2004
Will does not include any similar statement as appeared in the 1999 Will to the effect
that the Will had been translated to the deceased before it had been executed by her.)
80.
The only reference to the deceased's knowledge of her assets in the file note relates to
the deceased not receiving a pension. Yet, Ms Zlatevska's affidavit refers to the
deceased informing her that she had two properties, one in Erskineville and one in
Rockdale (that she lived in) and money in the bank. I think it is more probable that
Alek had provided this information to her.
81.
There was no evidence, in the affidavit, of any enquiry as to the value of either property
or how much money was in the bank.
82.
There was nothing about persons who had a claim on the bounty of the deceased in
the file note. In her affidavit, however, Ms Zlatevska was able to state that the
deceased, in answer to the question "Are there other people whom you might wish to
benefit", nominated only Pavle, "... because he has been my life, I want him to have
the same share" as Alek. Later, the deceased had said that Alek "deserved something
because he is my late husband's brother".
83.
There was no mention of any of Pavle's daughters, two of whom had been
beneficiaries named in the 1999 Will.
22
84.
The letter dated 28 October 2004 was written in English. Ms Zlatevska took no steps,
prior to sending that letter, to ascertain whether the deceased could, in fact, read
English. More significantly, it referred to "your instructions" when, clearly, as
acknowledged by her, the only instructions that she had received about the contents of
the draft Will had been given to her by Alek. It was not until 17 December 2004, that
she even spoke with the deceased about a will.
85.
Ms Zlatevska gave evidence that she was aware that the deceased had made a will
with another solicitor. Robert's evidence about his telephone conversation with Ms
Zlatevska also informed her about the deceased's age and state of health at some
time before 17 December 2004. Alek, too, informed Ms Zlatevska that the deceased
had a solicitor who could look after her, had not identified the solicitor but had told her
where that solicitor's practice was. At the meeting with the deceased, Ms Zlatevska
says that she was told by the deceased that she had another will that she had
prepared with another solicitor.
86.
Ms Zlatevska took no steps to ascertain whether what she had been told was correct
prior to, or even at, her meeting with the deceased. She made no attempt to ascertain
the identity of the deceased's solicitor or to obtain a copy of any prior will that the
deceased had made. She did not even ask when the prior will had been made. She
did not seek to ascertain the identity of the executors named in that will. When she
asked the deceased to identify the beneficiaries named in that will, the deceased was
"sketchy with details". Whether any beneficiary had a continuing claim upon the
bounty of the deceased was not explored.
87.
Ms Zlatevska said that the deceased had said that she would like Alek "to come in".
She does not say that she provided any explanation to the deceased of the reasons
why, in the circumstances, he should not. She also said "I spoke to them in
Macedonian".
88.
Ms Zlatevska said that the deceased had told her that Alek had not been provided for
in her prior will. She said that the deceased's "only concern seemed to be that she had
left Mr Nasev out of something, his entitlement". Again, at this point, she did not
suggest to either the deceased, or to Alek, that even though the deceased might have
wanted him with her during the discussions, he should wait outside so that she could
confer with the deceased alone.
23
89.
Ms Zlatevska did not reasonably investigate the nature of any prior wills of the
deceased and/or the reasons why the deceased wished to change her Will. Speaking
with Mr Attapallil might have presented a different picture and provided her with more
information upon which she could obtain instructions from the deceased.
90.
She took no steps to ascertain whether the deceased was suffering from any medical
condition that might affect her capacity. Her conversation on this topic appears to have
been limited to the enquiry "How are you" as part of the "general pleasantries". Ms
Zlatevska did not enquire whether the deceased was under the care of any particular
doctor, when she had last seen a doctor, or whether she was taking any medication.
She acknowledged that the deceased was "elderly".
91.
In discussing the contents of the Will with the deceased, Ms Zlatevska appears to have
been satisfied with asking the deceased whether that was what she wanted (after
reading out the clause) and with the deceased nodding, or indicating affirmatively. She
gave oral evidence that the deceased, apart from nodding, only said "that's right" in
relation to the remainder clause, if anything happened to Alek or Pavle.
92.
Ms Zlatevska agreed that the deceased never stated to her expressly that she wished
the Erskineville property to go to Alek; or that the deceased had said she wished to
appoint executors, or that she wished to appoint Alek and Pavle as the executors and
trustees. Yet, she said that the deceased enquired about "trustees" but could not
recollect the exact question asked. In any event, the answer Ms Zlatevska provided
did not explain the nature of the role of executors or trustees, but simply identified that
the person appointed "had no power to change things during your lifetime".
93.
The answer to this question suggesteds, that even at her interview with Ms Zlatevska,
the deceased had a concern about things being altered during her lifetime.
94.
Ms Zlatevska gave no evidence of having discussed the Clause in the 2004 Will
expressing the wish that her firm be employed by the executors "as their solicitors in
connection with the execution of the provisions of the Will or any codicil (sic) to it" with,
or indeed having obtained such instructions, from the deceased.
95.
In relation to the substitute beneficiary Clause, there had been no evidence of
instructions by the deceased for such a clause. However Ms Zlatevska says that when
it was read to the deceased, the deceased said "That is right, I do not want anyone
else to take".
24
96.
Ms Zlatevska gaves no evidence about making enquiry as to whether either Alek or
Pavle had any children who might benefit in the circumstances contemplated by that
clause, and if each did, how many children there were.
97.
The reason why the deceased said that the Will should be kept by Ms Zlatevska in safe
custody, that "private and confidential" and that phrase should be written on it, and that
it should not be sent or given to anybody, was not the subject of her affidavit evidence.
When asked, she stated that "many in our community are very secretive".
98.
Hallen AsJ said: Even if all of the clauses of the 2004 Will were translated to the
deceased, there is no unyielding rule of law that all other enquiry is to be ignored. All
the above aspects are matters in relation to the circumstances under which the 2004
Will was prepared and executed, that assume importance.
99.
There were many aspects of Ms Zlatevska's conduct in relation to the 2004 Will that
were open to criticism. Although she displayed no visible partiality when giving her
evidence, she must have appreciated that the claims being made in these proceedings
would, if upheld, be likely to reflect upon her firm's professional competence.
100. His Honour formed the view that she was attempting to portray a far greater level of
care than was demonstrated by the objective facts. Importantly, she took initial
instructions from a third party, who was otherwise a client of hers, about the
deceased's will; she did not investigate matters that, objectively, required investigation,
or at least detailed consideration; she permitted the person from whom she had taken
initial instructions and to whom reference had been made by others as someone who
was causing a problem for the deceased (to the extent that there had been Police
involvement), to remain in the conference whilst she discussed the terms of the 2004
Will with the deceased; she included a Clause in the 2004 Will that does not appear to
have been discussed; she relied upon "nodding" by the deceased and does not appear
to have asked any questions to establish the deceased's understanding of the terms of
the 2004 Will.
101. The circumstances should have inspired a more prudent professional approach by the
solicitor. She seems to have been completely unaware of the risks that she was
running, not only in conferring with the deceased at a meeting attended by a
beneficiary who, initially, had given her instructions, but also a beneficiary who had
been the subject of a complaint to the Police, and a beneficiary who was also her
client.
25
102. There was no explanation why she forwarded the memorandum of costs (a copy of
which was never produced despite service of a subpoena to produce documents, one
of which was the memorandum of costs) to Alek, rather than to the deceased, or why
Alek paid the amount claimed in it.
103. There is no suggestion in the evidence that the deceased asked Ms Zlatevska to take
this course, or that she had even discussed such a course with Alek or the deceased.
104. Hallen AsJ was satisfied that her affidavit evidence was the product of unconscious
reconstruction on her part, based on the 2004 Will as executed, as to the process
whereby she had obtained the deceased's instructions.
Undue Influence
105. Undue influence in probate is to be distinguished from the equitable doctrine of undue
influence. In order to render a will void, there must be influence which can justly be
described by the court to have caused the execution of a testamentary document
pretending to express the deceased's mind, but which really does not express her, or
his, mind, but something else which she, or he, did not really mean: Boyse v
Rossborough (1857) 6 HL Cas 2; 10 ER 1192, at page 1205; Craig v Lamoureux
[1920] AC 349 at 357.
106. In probate, "persuasion, or influence, or importunity is not sufficient unless it amounts
to coercion, that is, unless the testator is prevented by the persuasion, influence, or
importunity from exercising free will". (See: "Wills and Intestacy in Australia and New
Zealand", Hardingham, Neave and Ford (2nd Ed).)
107. Perhaps, in light of submissions made in this case, what was said by Sir John Nicholl
in Williams, formerly Cook v Goude (1828) 1 Hag Ecc 577 (at 581) is relevant:
"The influence to vitiate an act must amount to force and coercion destroying free agency - it
must not be the influence of affection and attachment - it must not be the mere desire of
gratifying the wishes of another, for that would be a very strong ground in support of a
testamentary act. Further, there must be proof that the act was obtained by this coercion by importunity which could not be resisted: that it was done merely for the sake of peace, so
that the motive was tantamount to force and fear."
108. In relation to the degree of coercion required, Hannen P stated in Wingrove v Wingrove
(1885) LR 11 PD 81 at p 82-83, in a passage quoted in Winter v Crichton (1991) 23
NSWLR 116 at 122:
26
"The coercion may, of course, be of different kinds, it may be in the grossest
forms such as actual confinement or violence, or a person in the last days or
hours of life may have become so weak and feeble, that a very little pressure
will be sufficient to bring about the desired result, and it may even be that the
mere talking to him at that stage of illness and pressing something upon him
may so fatigue the brain that the sick person may be induced, for quietness
sake, to do anything. This would equally be coercion though not actual
violence."
109. Coercion is pressure that overpowers the volition of the deceased. It is to be
distinguished from mere persuasion, appeals to ties of affection or pity for future
destitution, all of which are legitimate. Pressure which causes the deceased to
succumb for the sake of a quiet life, if carried to an extent that overbears her or his free
judgment, discretion or wishes, is enough to amount to coercion in this sense: see, for
example, Miller v Jones [1999] NSWCA 467; Edwards v Edwards [2007] WTLR 1387
at [47].
110. Where the Plaintiffs allege undue influence, the onus of proof lies upon them to prove
the allegation. They must prove it on the balance of probabilities. However, an
allegation of undue influence is a serious one, and it is necessary to remember s 140
of the Evidence Act 1995 which says that a Court may take account of the gravity of
the matters alleged when deciding if a case has been proved.
111. Vickery J explained in Nicholson v Knaggs [at 130]:
"An allegation of testamentary undue influence is a serious matter with
potentially significant consequences for the expression of the will of a testator
and for the testamentary dispositions made under it. Further, the exercise of
undue influence in a testamentary context may also be regarded as an
inherently unlikely event in the circumstances of most cases. Expectant
beneficiaries do not ordinarily put pressure on elderly testators in an
endeavour to change their minds against their will. Bearing these matters in
mind, in the assessment of the evidence which has been marshalled in
support of the allegation made in this case, and in arriving at the ultimate
conclusion, I adopt and apply the approach of Dixon J in Briginshaw v
Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty
Ltd ."
112. Following this reference to Nicholson v Knaggs , Brereton J in Tobin v Ezekiel; Estate
of Lily Ezekiel [2011] NSWSC 81, at [43], added:
"That said, undue influence need not be proved by direct evidence: the
question must be decided upon all the circumstances of the case [ Callaghan
v Myers (1880) 1 NSWLR 351 - a case which, incidentally, refutes the
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contention, frequently heard in probate circles, that the defence has never
succeeded in New South Wales]. In the context of civil proceedings, it is of
course not necessary that the circumstances admit of no rational hypothesis
inconsistent with undue influence; but undue influence must more probably
than not be the true explanation. This accords with well-established authority:
in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357):
As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC
2 (at 49) was decided, in order to set aside the will of a person of sound mind,
it is not sufficient to show that the circumstances attending its execution are
consistent with the hypothesis of its having been attained by undue influence.
It must be shown that they are inconsistent with a contrary hypothesis."
113. As the Plaintiffs' case was said not to be a circumstantial one, direct evidence of the
exercise of undue influence by Alek was relied upon. In such a case, the question to
be answered by the court is whether the will of the deceased was overborne, to the
requisite degree, by the conduct of the influencer, proved by direct evidence: Nicholson
v Knaggs at [116].
114. In looking at the question of undue influence, one must bear in mind the circumstances
of the individual deceased. What may not constitute undue influence in the case of a
person with a strong will and ordinary fortitude, may constitute undue influence in the
case of a more susceptible individual.
115. The starting point is that the burden of proving testamentary capacity lies on Alek, who
seeks to uphold the 2004 Will. Due execution of the 2004 Will was established. There
was no dispute, then, that the Plaintiffs had discharged any evidentiary onus, and that
the evidence, as a whole, raised doubts as to the deceased's testamentary capacity. It
was conceded that Alek had to affirmatively establish that the deceased had
testamentary capacity. The question argued was whether he had discharged that
burden.
116. There was no evidence, by any witness, that he, or she, actually heard Alek making a
threat to take the deceased to Court if she did not leave him the Erskineville property.
In this respect, it is the deceased who conveyed what he said to her to a number of
different people. She may, or may not, have been confused about what he had said.
The Judge said at [309] – [304]:
“Whilst I have some grave concerns that he may have done so, I cannot be
satisfied, on the balance of probabilities, on such a serious matter, that Alek,
in fact, threatened the deceased with court action if she did not make a will in
the terms he was advocating.
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However, even if he did not expressly threaten the deceased with court
action, his requests, which in my view, were in the nature of demands,
between September and December 2004, that she make a will in which there
would be a gift of the Erskineville property to him, lead me to the view that it
was his pressure which caused the deceased to succumb, for the sake of a
quiet life, and, therefore, her free judgment, discretion and wishes were
overborne.
The physical and mental strength of the deceased are relevant factors in
determining how much pressure is necessary in order to overbear the will. I
am satisfied that there was importunity that the deceased could not resist on
or about 17 December 2004, and that she made the 2004 Will merely for the
sake of peace. It was the product of his consistent, and repetitive, action that
had commenced some time before but had become more pronounced from at
least September 2004. During this period, his conduct was not merely an
appeal to her sentiment or affection.
I am satisfied that because of his belief that he was entitled to the Erskineville
property, Alek exerted pressure upon the deceased to make the 2004 Will
which she did, the terms of which Will were contrary to the wishes she had
expressed a few weeks earlier. What he did amounted to coercion. As a
result, the deceased's mind was, in effect, a mere channel through which
what Alek wanted, operated.
I am satisfied, as Sir James Wilde put it in Hall v Hall at 482, that the
deceased was not led but driven; and that the 2004 Will was not the offspring
of her own volition, but the record of Alek's.
Accordingly, I am satisfied that the Plaintiffs have established undue
influence.”
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