The Estate of Colleen McCullough

1. [1]

   These proceedings concern the estate of the late Dr Colleen McCullough (“Colleen”), who died on 29 January 2015 at the age of 77 on Norfolk Island where she had lived for many years.

2. [2]

   Colleen was a writer of considerable fame having written, amongst other books, The Thorn Birds.

3. [3]

   Colleen was survived by her husband and the Defendant in these proceedings, Mr Cedric Ion Newton Robinson (“Ric”), whom she had married in 1984. There were no children of the marriage but Ric had two children from a previous marriage. Colleen had no other living relatives.

4. [4]

   The Plaintiff in these proceedings, Ms Selwa Anthony, was a long-time friend of Colleen and is one of two named executors in a will of Colleen’s dated 12 July 2014 by which she bequeathed her entire estate to the University of Oklahoma Foundation Inc. (“the Foundation”). Colleen had received an honourary doctorate from the University of Oklahoma and had lectured there at some stage. The other executor of that will, Mr Joseph John Merlino, renounced probate. I shall refer to this will as “the Oklahoma Will”.

5. [5]

   Mr K. Morrissey (with Ms M. Bridgett) appears for the Plaintiff. Mr D. Murr SC (with Mr D. Ash) appears for Ric.

6. [6]

   Ric contends that the Oklahoma Will is not the last will and testament of Colleen, relying primarily on what I will refer to as “the Exhibit 5 Will” and, alternatively, what has been referred to as “Exhibit 6”, both of which I shall describe in more detail below. Thrown into the mix is a further document which bears the date of witnessing as 14 January 2015 and consists of a handwritten question and answer, a mark or signature said to be Colleen’s and bearing the signatures of two witnesses. The Plaintiff calls this document “the codicil”. Ric disputes that it is a codicil or that it has the effect for which the Plaintiff contends. I shall refer to this document by its exhibit reference, namely, “Exhibit D”.

7. [7]

   This case is not concerned with the question of whether, if the Oklahoma Will is found to be the last will of Colleen, Ric is entitled to provision out of her estate. The parties were agreed that that question would need to be ventilated in separate proceedings if the Court determined that the Oklahoma Will is the last will and testament of Colleen.

8. [8]

   In her case, the Plaintiff relies on the following affidavits:

9. [9]

   In his case, Ric relies on the following affidavits:

10. [10]

    I will endeavour in this paragraph, and the following few paragraphs, to set out what is not in dispute between the parties:

    1. (1)

       Colleen and Ric were married in 1984.

    2. (2)

       They lived on Norfolk Island together but, in 2005, Colleen spent several years in Sydney undergoing treatment for macular degeneration with Ric commuting regularly to Sydney from Norfolk Island because Colleen could not fly by reason of the medical treatment she was receiving for her condition.

    3. (3)

       In 2005 both Colleen and Ric executed wills in similar form leaving his and her estate, respectively, to the other. The University of Oklahoma was a beneficiary of part of Colleen’s estate in Colleen’s will if Ric predeceased her. Ric’s evidence was that there had been similar mutual wills for many years before that: see CB2-16, paragraph 9.

    4. (4)

       In 2007, codicils of a limited nature in identical terms were made by Colleen and Ric.

    5. (5)

       By 2010, Colleen was residing full time on Norfolk Island (CB2-17). I shall use the Court Book reference from here on to refer to each of Exhibit A1 (CB1) and Exhibit A2 (CB2).

    6. (6)

       In February 2014 Colleen and Ric engaged Ms Nicola Wright, who was known as “Nikki”, as a carer for Colleen (9am – 5pm during weekdays). Ms Wright has a nursing background in New Zealand and was living on Norfolk Island at the time.

    7. (7)

       On 24 June 2014, Ms Wright contacted Ms Piria Coleman. Ms Coleman was, at the time, in practice as a solicitor on Norfolk Island. Ms Coleman then had a conversation with Colleen in which Colleen told her about her relationship with Ric and that she wanted to find out about getting a divorce, making a new will and revoking a power of attorney given to Ric. Colleen also asked Ms Coleman whether she should contact the police, to which Ms Coleman replied in the affirmative having discussed the issue with Ms Wright.

    8. (8)

       On 24 June 2014, Colleen did call the police to the property in which she and Ric lived and owned (known as “Out Yenna”) and she told Ric that she had done so and that he should leave Out Yenna. She said to Ric in Ms Wright’s presence: “I have called the police because I am afraid of you” (CB2-17, paragraph 18). Ric says that he was amazed by what Colleen had said to him as he had never done anything to put her in fear but he thought it best to move out until the problem was resolved. It was Ms Wright who actually called the police on behalf of Colleen.

    9. (9)

       Ric left Out Yenna on 24 June 2014 and went to live with his son, Wade, a few kilometres away.

    10. (10)

        On 26 June 2014, Ms Coleman met with Colleen and obtained more detailed instructions. They arranged to meet in Sydney at the Hilton Hotel. Colleen was heading to Sydney for a consultation with her eye specialist and Ms Coleman was travelling to Sydney for other purposes. Colleen told Ms Coleman that, as far as she was concerned, she and Ric had legally separated on 24 June 2014: CB1-90, paragraph 21.

    11. (11)

        Colleen travelled to Sydney on 7 July 2014 accompanied by Ms Helen Jackson, a Norfolk Island resident, who acted as her carer and Mr Lewis Quintal, an electrician and also a Norfolk Island resident, who was able to lift Colleen when required and assist Ms Jackson with caring for Colleen.

    12. (12)

        Colleen and Ms Coleman met at the Hilton Hotel on 8 July 2014. Colleen instructed her to prepare a will, leaving her entire estate to the Foundation, saying (at CB1-91, paragraph 30):

    13. (13)

        Ms Coleman prepared a will in the terms instructed and she also prepared a document headed “Attestation” and obtained a document headed “Bequest letter” addressed to the Foundation which she completed for Colleen. She was provided with an original medical certificate dated 2 July 2014 from Dr. W. Metcalfe (CB1-182).

    14. (14)

        On 12 July 2014 Colleen executed the Oklahoma Will (Exhibit C), signed the Attestation (Exhibit F) and signed the completed Bequest letter (Exhibit E). The Attestation was in the following form:

    15. (15)

        On Ms Coleman’s evidence Colleen initialled the page of the Oklahoma Will bequeathing her estate to the Foundation (“the dispositive page”), but neither Ms Jackson nor Mr Quintal initialled or signed that page on 12 July 2014 nor the page setting out executor powers, “the powers page”.

    16. (16)

        Shortly after 14 July 2014, Ms Coleman prepared or organised the preparation of a revocation of Colleen’s New South Wales power of attorney in favour of Ric. That revocation was signed by Colleen on 27 July 2014 and was witnessed by Ms Alison Drayton, a solicitor who was a friend of Ms Coleman with whom she had previously worked and who happened to be visiting Norfolk Island on that date.

    17. (17)

        On 14 July 2014 Colleen returned to Norfolk Island, together with Mr Quintal and Ms Jackson.

    18. (18)

        On 16 July 2014, Colleen and Ric met at Out Yenna with Mrs Quintal present at Ric’s request. Ric says this followed a call from Mr Quintal’s wife, Mrs Karen Quintal, to him. According to Ric, he and Colleen had the following conversation:

    19. (19)

        On or about 17 July 2014, Ric returned to Out Yenna.

    20. (20)

        On 21 July 2014, Colleen informed Ms Coleman that she and Ric had reconciled which Ms Coleman noted in a letter to Colleen of 5 August 2014 (see Exhibit B).

    21. (21)

        On 21 October 2014, Ms Coleman visited Out Yenna and met with Colleen. That she saw Ric as well on that date is not disputed but the extent of her meeting with Ric is disputed.

    22. (22)

        Between 21 and 24 October 2014, Ms Coleman prepared a new dispositive page in the same font and nature as the dispositive page of the Oklahoma Will but removing the Foundation as the sole beneficiary and replacing it with Ric.

    23. (23)

        On 21 October 2014, Ms Wright sent to Ms Coleman a draft letter dictated by Colleen (see CB1-410-413) which followed on from Colleen’s discussions with Ms Coleman. In its second paragraph, that letter contains the words, “living beyond our means”, and I shall refer to it as “the LBOM Letter”.

    24. (24)

        On 24 October 2014, Ms Coleman attended at Out Yenna with the new dispositive page and the other pages of the Oklahoma Will. Ms Coleman’s evidence is that, on that day, Colleen placed her signature on a dispositive page described as “PC-16” (and which became Exhibit 5) and her initials on a substantively identical dispositive page described as “PC-15” (and which became Exhibit 6). Ric says that Colleen signed her name on Exhibit 5 on 17 January 2015. He does not know when Colleen initialled Exhibit 6, but accepts that Exhibit 6 may well have been initialled by Colleen on 24 October 2014.

    25. (25)

        There is no dispute that the end of Colleen’s signature ran slightly off Exhibit 5 and on to two documents that were placed underneath, being the powers page and the execution page from the Oklahoma Will.

    26. (26)

        On 25 October 2014, Ms Coleman wrote a letter to Colleen in which she said (at CB1-414):

    27. (27)

        An invoice for the work was enclosed (consistent with that letter), together with a covering email and sent to Ms Wright on 25 October 2014 (CB1-409) which stated:

    28. (28)

        The invoice referred to above contained the following description of work completed (at CB1-200):

    29. (29)

        From 14 December 2014 to 17 January 2015, Ms Jackson was employed as a carer for Colleen on those days during the week when Ms Wright was not available. Whether she was working at Out Yenna in October 2014, as Ms Coleman asserts, is disputed.

    30. (30)

        On 9 January 2015, Ms Coleman visited Out Yenna meeting Colleen in the company of Ric. There is no dispute that there was a discussion concerning wills and I shall return to the detail of that meeting. Ric said the meeting was on 8 January 2015, but nothing turns on that discrepancy.

    31. (31)

        Between 9 and 14 January 2015 emails passed between Ric and Ms Coleman, and between Mr John Brown (Ric’s solicitor) and Ms Coleman. Those emails contain the following text:

    32. (32)

        Exhibit D has the following content:

    33. (33)

        On 14 January 2015 Dr Robert Challender, a Norfolk Island general practitioner who was based at or affiliated with Norfolk Island Hospital and had previously seen Colleen on several occasions, visited Colleen at Out Yenna at the request of Mr Brown. He wrote a medical certificate (CB2-70-71) which was in the following terms:

    34. (34)

        On 17 January 2015, Ms Coleman visited Out Yenna and met with Colleen. This is another occasion, the events of which are much in dispute, with Ric asserting that Colleen signed Exhibit 5 on that day and Ms Coleman denying that she did. It was accepted, however, that Ms Valerie Martinez attended on that day and that Colleen was asked to execute a power of attorney in favour of Ms Martinez to enable Ms Martinez to sell on behalf of Colleen some Norfolk Island properties that Colleen owned. Ms Coleman and Ms Wright gave evidence that Colleen was unable to sign the document due to her physical incapacity and that a metal stamp containing Colleen’s signature was applied by Ms Wright instead which, according to Ms Coleman, Colleen was not even able to initial: CB1-128, paragraph 91. A copy of that document is at CB1-237. The ‘signature’ is witnessed by Ms Wright and Ms Jackson, and they both declared in that document that they believed that Colleen was “of sound mind and understands the impact of the document.”

    35. (35)

        In the afternoon of 17 January 2015, Ric and Ms Coleman had a telephone conversation as Ric was taking Colleen to hospital. In the course of that conversation Colleen said, in a voice loud enough for Ms Coleman to hear (and yelled on Ms Coleman’s evidence: T116), “Give him what he wants” or “Just give the will to Ric” (Ric’s evidence, see CB2-20, paragraph 38).

    36. (36)

        Ms Coleman, on the afternoon of 17 January 2015, rang Mr Quintal and arranged to meet him at the BBQ area at Emery Beach. She says she brought with her Exhibit 5 and another document, being the powers page from the Oklahoma Will (see CB1-130, paragraph 102), and she asked Mr Quintal to “witness” Colleen’s signature on those documents. Mr Quintal applied his initials on Exhibit 5. Ms Coleman says that Mr Quintal did not know what the documents were when he “witnessed” either of Colleen’s signatures: CB1-104, paragraph 121, and CB1-105, paragraph 123. Mr Quintal agrees with that but says that Ms Coleman said to him on the phone when making the arrangement to meet at Emery Beach (CB2-254, paragraph 5):

    37. (37)

        In the evening of 17 January 2015, Colleen was admitted to Norfolk Island Hospital and remained there until her death.

    38. (38)

        On 18 January 2015, Ms Coleman provided Ric with an envelope which Ric then took to Mr Brown where it was opened. There was a dispute about what was said by Ms Coleman to Ric when she arranged to deliver the envelope to Ric.

    39. (39)

        In the envelope was a stapled document containing:

    40. (40)

        Also in the envelope was the medical certificate from Dr Challender (on Ric’s evidence) or the medical certificate from Dr Metcalfe dated 2 July 2014 (Ms Coleman’s evidence): see CB1-105, paragraph 132.

    41. (41)

        On 18 January 2015, Ms Coleman wrote an email to Ms Drayton in which she said:

    42. (42)

        On that same day, Ms Coleman wrote an email to Ric (CB2-73) saying:

    43. (43)

        On 29 January 2015, Colleen died at Norfolk Island Hospital. The cause of death was stated to be renal failure and diabetes.

    44. (44)

        On 6 February 2015, Ric sent an email to the Plaintiff attaching a copy of the Exhibit 5 Will which he had been given by Ms Coleman. He also gave a copy of the same document to Mr Merlino.

    45. (45)

        On 11 February 2015 Ms Meredith Paton, the solicitor on record in these proceedings for the Plaintiff but who also at one point in the history of this litigation acted for the Foundation, wrote to Ms Coleman asking her for the original will and Ms Coleman’s files. Ms Paton also wrote to Mr Brown (see Exhibit 2) asking him to deliver to Ms Coleman what Ms Paton described as “the Original Will held by him”, which Mr Brown did. Ms Coleman had also emailed Mr Brown referring to arrangements to enable her to collect “the security packet that I handed to Ric Robinson on Sunday 18 January 2015”: CB1-262.

    46. (46)

        Ms Coleman, having obtained back from Mr Brown the Exhibit 5 Will that she had delivered to Ric on 18 January 2015 using the powers page and the execution page, reassembled what had been the Oklahoma Will. She then delivered the reassembled Oklahoma Will to Ms Paton on 25 February 2015 together with (what she says) her file in the matter, including Exhibit 5 and Exhibit 6.

    47. (47)

        On 1 June 2015, a Statement of Claim with the Foundation as Plaintiff was filed in this Court. By that Statement of Claim, the Foundation sought probate of the Oklahoma Will. The Statement of Claim also contained the following paragraphs:

    48. (48)

        When the Plaintiff resumed her role as executor of the Oklahoma Will, a fresh Statement of Claim was filed and it made no reference to the Exhibit 5 Will (or Exhibit 6).

    49. (49)

        As at the date of Colleen’s death Colleen left some assets in New South Wales, namely, some artwork, cloth and an edited manuscript for one of Colleen’s books, said to be worth $18,000 (see CB1-418 and CB1-58), and there is agreement between the parties that these assets provide this Court with jurisdiction to grant probate or letters of administration in respect of any of the wills that are in contest in this case.

11. [11]

    Another matter on which there is no dispute is the ill health of Colleen. As at mid-2014 Colleen suffered from diabetes, osteoporosis, she had very poor eyesight (as a result of macular degeneration) and had renal failure. She had had, sometime before mid-2014, a stroke, or several strokes, and suffered from depression. On 14 January 2015, Dr Challender described her in a letter to the District Nurse (see Exhibit Q) as:

12. [12]

    As I have noted Dr Challender’s certificate of 14 January 2015 stated (at CB2-204), inter alia, that:

13. [13]

    Dr Challender said that, during his visit on 14 January 2015, Colleen seemed much more subdued than she had been when he last saw her (in December 2014) and that she spoke quietly: see T456.45-457.13 and T458.9-12.

14. [14]

    There is another medical record – Exhibit 9. It records consultations of Colleen with Mr Tony Gallagher, a mental health counsellor connected with Norfolk Island Hospital, dated 30 December 2014, 6 January 2015 and 13 January 2015. I shall set out the notes in full because not only are they relevant to Colleen’s ability to communicate, but also because they contain other material of potential relevance to the competing contentions advanced in this case:

15. [15]

    I should note too that:

16. [16]

    Mr Morrissey made it clear that it is no part of the Plaintiff’s case that Colleen did not on 17 January 2015 meet the requirements for testamentary capacity as established in Banks v Goodfellow (1870) LR 5 QB 549 (or inferentially at any earlier time either): see T527.1. It follows that there is no dispute that Colleen had the capacity to understand the nature of the act of making a will and its effects, an understanding of the extent of the property the subject of any will made by her and the capacity to comprehend the moral claims of potential beneficiaries: see Carr v Homersham [2018] NSWCA 65 at [5] per Basten JA (with whom Leeming JA concurred at [128]).

17. [17]

    Other matters which were not in dispute were:

    1. (1)

       The fact that, apart from three three-year terms in the Norfolk Island Legislative Assembly, Ric has not been employed or worked in any business. He received, in effect, $500 or $600 per week for his needs out of the joint account held by Colleen and himself. Colleen was, in all practical terms, the breadwinner of the household.

    2. (2)

       The fact that Ric had taken a mistress in 2010, which continued until 17 July 2014 when he moved back in with Colleen. That Colleen had become aware of this relationship before June 2014 is clear (see CB1-305, paragraph 5), but when he told Colleen about it is in dispute.

    3. (3)

       That, as at June 2014, Colleen and Ric’s finances were in a poor state, at least in terms of liquidity.

18. [18]

    The contentions of the Plaintiff, as set out in the Plaintiff’s closing submissions (“PCS”) and Mr Morrissey’s oral submissions, have these elements:

    1. (1)

       The Oklahoma Will is a valid will.

    2. (2)

       The Oklahoma Will is the last will and testament because neither Exhibit 5 nor Exhibit 6 have been shown to have been signed (or initialled) by Colleen with testamentary effect.

    3. (3)

       Exhibit 5 and Exhibit 6 were just “failed attempts” at a will by Colleen and should not be viewed as representing Colleen’s testamentary wishes. There is, grafted onto this, a number of contentions of the Plaintiff concerning Ms Coleman and her conduct:

    4. (4)

       There are suspicious circumstances, or circumstances of undue influence, namely:

    5. (5)

       That if there was an Exhibit 5 Will (or if Exhibit 6 is a testamentary document) then that will or testamentary document was revoked by Exhibit D which, it is asserted, is a codicil within the meaning of s 15 of the Wills Act 2012 (Norfolk Island) (“the Wills Act”).

19. [19]

    It should be noted that, contrary to [18(3)(g)] above, Ric does not deny that Exhibit 6 was signed or initialled by Colleen on 24 October 2014. It is Exhibit 5 that he says he saw Colleen sign on 17 January 2015.

20. [20]

    It should also be noted that, in relation to [18(4)], the Defence to Cross-Claim filed by the Plaintiff asserted pressure and ill health issues in January 2015, not October 2014, and it was not amended after the Amended Defence and Cross-Claim were filed by Ric: see [25] below. The matters referred to in the Defence to Amended Cross-Claim (filed on 10 April 2017) refer to many matters, namely, that as at January 2015 Colleen was housebound and isolated apart from Ric and her carers, she depended on Ric for assistance with daily living activities between 5pm and 9am weekdays and weekends, she was in ill health, including the effects of advanced diabetes, fatigue, blurred vision, thirst and dehydration, she had severe vision impairment, was bedridden or chair bound, she was unable to make or receive phone calls and was not fully ambulatory. The Defence to Amended Cross-Claim also alleges that:

21. [21]

    Ric disputes the Plaintiff’s assertions, and his case is that:

    1. (1)

       in October 2014 and or in January 2015 Colleen, with the involvement of her solicitor (Ms Coleman), gave instructions to Ms Coleman to prepare a will removing the Foundation as the sole beneficiary and leaving her entire estate to Ric which Ms Coleman did and which will Colleen did sign or initial in respect of Exhibit 6 on 24 October 2014, and in respect of Exhibit 5 on 17 January 2015 or 24 October 2014, as an expression of her testamentary intention;

    2. (2)

       there is no evidence of coercion or pressure by Ric on Colleen and that Ms Coleman’s claim that she had dual instructions from Colleen, or that she did what she did in order to protect Colleen and or keep her safe, is not supported and should not be accepted;

    3. (3)

       Exhibit D does not and cannot constitute a codicil with any effect under s 15 of the Wills Act; and

    4. (4)

       even if Exhibit D did constitute a codicil, it was revoked by the Exhibit 5 Will made on 17 January 2015.

22. [22]

    It will be apparent from what is recorded above as the matters which are not factually in dispute that this is a most unusual case. As for what is factually in dispute, there is not only a significant divergence of accounts as to what was said and done but there are many contradictions, or apparent contradictions in varying degrees, in what has been presented to support the parties’ respective positions. If the track of the truth in this matter is to be found, it is narrow and poorly lit.

23. [23]

    There are items of evidence which seem to have been ignored or treated as less significant than they might appear to be. Thus for example, in the PCS at paragraph 24(h), there is the contention that Ms Jackson was not even present on 17 January 2015 at Out Yenna (and therefore could not have witnessed Colleen sign Exhibit 5 on that day) yet the power of attorney said by Ms Coleman to have been executed (after a fashion) by Colleen on 17 January 2015 bears Ms Jackson’s signature as a witness on that date. Ms Wright says that the only will of which she was aware of was the Oklahoma Will yet she was the recipient of Ms Coleman’s email of 25 October 2014 and attached letter with invoice of 25 October 2014 from Ms Coleman to Colleen and she read aloud to Colleen letters addressed to her: see CB1-443, paragraph 11. Ms Coleman said something in a phone call to Ms Paton on 11 February 2015 that led Ms Paton to write the “original Will” is with Ric: see Exhibit T (Exhibit T being a typescript of Exhibits R and S). That note was tendered by the Plaintiff only long after Ms Coleman had concluded her evidence. It is consistent with the letter Ms Paton wrote to Mr Brown (see Exhibit 2). Diary notes of Ms Coleman for 21 and 24 October 2014 and the letter and email of 25 October 2014, which I have set out above at [10(26)] and [10(27)], were not produced to the Defendant until two days before the hearing. Ric said that Ms Coleman’s assertion that he had given Ms Coleman copies of the 2005 wills in mid-October 2014 was “a fabrication”, but Ms Coleman’s notes record that he did give her those wills and that she expressed the view that she could not utilise them: see CB1-415. Ms Jackson, who in her affidavits had given clear evidence about matters relevant to the date and manner of witnessing the Oklahoma Will and the Exhibit 5 Will, seemed to have lost all memory of those matters during cross-examination; even in respect of 17 January 2015, the last day that she worked for Colleen (see T408 and T438.48-439.1).

24. [24]

    Ric asserts that Colleen had testamentary capacity (an assertion that, as I have noted, is accepted by the Plaintiff) and was able, albeit with difficulty, to sign Exhibit 5 on 17 January 2015 and did so on that day (an assertion strongly refuted by the Plaintiff) and that, based on Ms Coleman’s evidence, Colleen initialled Exhibit 6 on 24 October 2014 (an assertion accepted by the Plaintiff, but with the rider that it was merely “an attempt”).

25. [25]

    I have set out the issues as they emerged from the hearing, but I need to make reference to several important changes that occurred immediately before or at the hearing. During the weekend before the hearing was due to start the Plaintiff’s solicitor (Ms Paton) wrote to Ric’s solicitor providing him with the letter dated 25 October 2014 (set out at [10(26)] above), the email of the same date (set out at [10(27)] above) and the diary notes of Ms Coleman, all of which she had had in her possession since February 2015 and which had not been annexed to any of Ms Coleman’s previously filed affidavits. Ms Paton, in her affidavit of 22 May 2018, deposed to the fact that she could not recall having seen the letter and or email and two diary notes before and accepted that they had not been produced under a Notice to Produce issued by Ric’s solicitors. As a result of the late production of that letter, Ric sought leave to amend his Defence to rely on Exhibit 6 (and Exhibit 5 as a testamentary disposition made on 24 October 2014 and, alternatively, on 17 January 2015) which leave was not opposed. Until then, Ric’s case relied upon the Exhibit 5 Will as a will made in January 2015. The Plaintiff then sought leave to assert that the Exhibit 5 Will and or Exhibit 6 (if valid) were revoked by Exhibit D. The Second Further Amended Statement of Claim, the Further Amended Cross-Claim, the Defence to the Second Further Amended Statement of Claim and an Amended Reply were filed in Court on 23 May 2018.

26. [26]

    A second matter of significance is that, in his case, Ric had challenged the validity of the Oklahoma Will and asserted that, if the Exhibit 5 Will was not a valid will, the Oklahoma Will was not a valid will either and that Colleen’s 2005 will (the authenticity of which was never in doubt) was Colleen’s last will and testament. One of Ric’s contentions about the Oklahoma Will was that it appeared to be a composite document and it also, on his expert’s evidence, contained initials of Colleen on the dispositive page that were forged. Once Ms Coleman explained how she had assembled, disassembled and reassembled the Oklahoma Will and the Exhibit 5 Will, expert opinion concerning its history had reduced significance and Ric accepted at the hearing that the Oklahoma Will was a valid will expressing Colleen’s testamentary intentions as at 12 July 2014.

27. [27]

    It will be apparent that the position of the Foundation was different to that of the Plaintiff since the Foundation, whilst accepting the existence of the Exhibit 5 Will (described as the October Will), asserted that it had been obtained by undue influence over Colleen by Ric. The Plaintiff’s position is that, first, there never was any will or testamentary instrument created later than the Oklahoma Will and, second, that if there was it was obtained as a result of coercion or in suspicious circumstances. There seems to be a significant tension between a case which asserts that whatever was done by Ms Coleman was merely a pretence designed to fool Ric and one which says that Colleen meant to make a new will but was coerced by Ric to do so.

28. [28]

    I turn now to describe the broad factual matters that are in dispute:

    1. (1)

       Whether Ms Coleman did receive instructions from Colleen on 21 October 2014 to prepare the Exhibit 5 Will.

    2. (2)

       Whether Colleen initialled Exhibit 6 and signed Exhibit 5 on 24 October 2014 intending those documents to have testamentary effect.

    3. (3)

       Whether Colleen, in January 2015, gave instructions to Ms Coleman that she wanted Ric to have her entire estate and signed Exhibit 5 on 17 January 2015 intending that document to have testamentary effect.

    4. (4)

       The precise circumstances of the signing by Colleen of Exhibit 5.

    5. (5)

       Whether Ms Jackson initialled Exhibit 5 as a witness to Colleen’s signature on 17 January 2015 (as Ric asserts) or on 24 October 2014 (as Ms Coleman asserts).

    6. (6)

       Whether Ms Coleman understood her instructions from Colleen in January 2015 to be that she was to prepare the Exhibit 5 Will and give it to Ric or not. This issue links to several layers of conflict in the evidence, tied to both the Exhibit 5 Will and Exhibit 6.

    7. (7)

       The state of Colleen’s marriage to Ric as at October 2014 and January 2015. The relevance of this is that the Plaintiff’s case is that it should be concluded that the state of their relationship was so dire that Colleen would not have wished to leave Ric any part of her estate and includes the question of whether Ric was, in October 2014 and January 2015 by means of coercion or abuse or similar conduct, effecting control over her so as to deprive her of her volition.

Credibility of Witnesses

1. [29]

   I will deal first with the credibility of the witnesses in this case.

2. [30]

   Ms Drayton was not required for cross-examination and there is no reason to doubt the veracity of her evidence, which related to Colleen’s execution on 24 July 2014 of the revocation of the Norfolk Island power of attorney previously granted to Ric by Colleen and the fact that Colleen wanted to complete that document before Ric returned home.

3. [31]

   Ms Anthony gave evidence:

4. [32]

   It was made clear that Ms Anthony is running this case with the support of the Foundation (see, for example, T419.32-36). This is unsurprising since it is the sole beneficiary of the Oklahoma Will. Ms Anthony clearly regarded Colleen as her friend and not Ric (see CB1-68, paragraph 81), but she denied that she had any ill will towards him (see T40.15-45). Even allowing for some animosity towards Ric, the evidence (set out above) is consistent with other evidence and the fact of the Oklahoma Will and I accept it.

5. [33]

   There is, however, a question going to Ms Anthony’s conduct after Colleen died which has a bearing on the question of costs. I think Ms Anthony made it clear that she regarded her role as protecting and supporting the Oklahoma Will because she believed they were Colleen’s last wishes. Whether that view was mistaken or wrong is not really a question of credit, even more so having regard to the fact that she has at all times been represented by a solicitor, Ms Paton, by whom she has been guided. I shall say more about this issue in the context of the costs issue.

6. [34]

   Ms Coleman was admitted as a solicitor in New South Wales in May 2007. She practised as a solicitor on Norfolk Island from 2011 until 2014. She has practised in Victoria as a barrister from 2015 and retains a practising certificate in that state. She has practised as a barrister in New South Wales for some of that time, but says that she no longer holds a practising certificate in New South Wales. She has, she said, also performed work as an extra in legal shows: T52.6 and T52.46. She knew of Colleen but did not know her personally until she was contacted by Ms Wright in June 2014.

7. [35]

   There are many aspects of Ms Coleman’s evidence which impact upon her credibility. First, there are the following points:

   1. (1)

      She made assertions to justify her conduct which could not be sustained; for example, that there was pressure from an unrelenting number of emails from Ric’s solicitor, Mr Brown (see CB1-127, paragraph 79), when the chain of correspondence shows that, of 14 emails over a three-day period, six were from her and, of the remainder, two were answering specific questions of hers and two asked, “Is there anything further that you need?”: see Exhibit 1. She admitted (at T135.10) that what she had said in her affidavit was a gross exaggeration.

   2. (2)

      She asserted that Ric had been evasive in giving her the medical certificate from Dr Challender. Cross-examination revealed that this was not an honest account: see T147.27-150.21. The account did not make sense because the medical certificate was very helpful to Ric and not at all something that he needed to hold back or be evasive or reluctant about. It is somewhat revealing that the only part of the certificate that Ms Coleman reproduced in her affidavit (see CB1-103, paragraphs 108-109) was the rather unusual last sentence – if that is all the medical certificate had said, one could understand why Ric might have been evasive. Ms Coleman said that she could not understand the contents of the certificate but, after extensive cross-examination, she admitted that it was, apart from the last sentence, clear: see T138.27-142.25.

   3. (3)

      She frequently failed to answer the questions asked of her: T59.42-48, T71.23-72, T77.37-49, T82.15, T93.46-94.4, T99.49, T101.45-102.29, T104.30-40, T107.16-31, T109.16-25, T111.24-113.49, T136.10, T137.20, T142.34-35, T144.43-45, T163.39-46, T167.13-17.

   4. (4)

      She described Colleen’s statement to her of “Fuck Oklahoma”, noted in her diary note of 9 January 2015 (see CB1-202) but not mentioned in the body of her affidavit, as having been said “deliriously” but her attempted justification for that description was unconvincing. She then proffered information in the witness box as an explanation for why Colleen said that: see T106-108. Ms Coleman said she was not sure if that was a reference to the Oklahoma Will but seemed to accept it was consistent with the contents of Exhibit 5 and Exhibit 6: T107.50-108.6. That statement by Colleen, made in the context of a discussion about wills, was potentially one of considerable importance in a case in which the Plaintiff asserts that Colleen had no wish to change her will back to giving her estate to Ric rather than to the Foundation.

   5. (5)

      She said that the letter of 25 October 2014 to Colleen would normally go to Mrs Quintal (T68.36) but she had in fact sent it to Ms Wright.

   6. (6)

      She sent an email to Ms Drayton that, on its face, was entirely inconsistent with her claim that the Exhibit 5 Will she had given to Ric was merely a decoy and, in cross-examination, she provided no meaningful explanation about this: see T252.49-258.5.

   7. (7)

      The attempt to suggest that, in late October 2014, Colleen was exhibiting what appeared to be bruising and was neglected because Ms Wright was in New Zealand was seriously undermined by the fact that Ms Wright was not in New Zealand in October 2014 and was, in fact, working as Colleen’s carer during that time. Ric gave unchallenged evidence that Colleen had a condition causing discolouration of the skin: T360.42. Ms Coleman’s affidavit was clearly intended to give support to her claim that Colleen “did not appear to have the testamentary capacity or volition” (see CB1-99, paragraph 80) on 21 and 24 October 2014 and support for her claim that Ms Jackson was working at Out Yenna at that time and, hence, signed Exhibit 5 as witness on that date. Ms Coleman said (at T64.20) that she regarded the bruising as from anaemia, or a blood condition or a fall and that Colleen appeared to be neglected at that time. Ms Coleman agreed (at T73.39) that Colleen’s condition in October 2014 was nowhere near as bad as it was in January 2015. As I have already noted, lack of testamentary capacity at any time is not now asserted by the Plaintiff.

   8. (8)

      She referred in her affidavits to conduct by Ric in the most general but negative terms but was unable in cross-examination to provide any concrete examples of what he had said or done to her observation to warrant the description: T97.35-41, T105.35, T127-128, T130, T135, T147. One example of this is that, to her observation, “Ric’s approach was one of sustained control and coercion” (CB1-108, paragraph 145) and another, “Col was being put through a process” (and see T92-94), but in support of which assertion she could provide no examples: see also, in particular, T103-105, T146.40-31, T162.40-163.6. Another example of this kind of evidence by Ms Coleman, but relating to the period prior to the Oklahoma Will, is found at CB1-95, paragraph 51, where she says, rather cryptically, that Colleen said to her “in a rhetorical way on a number of occasions… [Ric] controls me psychologically”.

   9. (9)

      The cross-examination of Ms Coleman at T95-T100 focusses on her correspondence with Ric on 9 and 10 January 2015 and her failure in her email to refute his comment in his email: “You have told me that Col's will leaves her estate to me”, and is another example of the problems with Ms Coleman’s evidence.

8. [36]

   There are these critical aspects of Ms Coleman’s evidence:

   1. (1)

      That Colleen did not really give her instructions to change her will by revoking the Oklahoma Will and giving her estate to Ric or, alternatively, that she had received dual instructions from Colleen.

   2. (2)

      That when Colleen placed her mark on Exhibit 5 and Exhibit 6 (both on 24 October 2014), these were just “failed attempts” and Ms Coleman treated them as such. These documents were designed to placate Ric and keep Colleen “safe”. Ms Coleman described the draft documents (of Exhibit 5 and Exhibit 6) as ‘a piece of paper’ (T36.35) but then agreed it was a new will (T56.48).

   3. (3)

      Ms Coleman described herself as performing a stop-gap function: see CB1-99, paragraph 81.

   4. (4)

      That, although she put together the Exhibit 5 Will on 17 or 18 January 2015, there was no will at all and she was doing what she was doing to placate and appease Ric so that Colleen (Ms Wright and herself, see CB1-131, paragraph 112) would be ‘safe’ and she never regarded that document as Colleen’s will.

   5. (5)

      That Colleen did not sign Exhibit 5 on 17 January 2015 and that she had no discussions with Colleen about executing a new will on that date; and, indeed, Ms Coleman had not gone to Out Yenna for any other purpose than the execution of the power of attorney in favour of Ms Martinez.

   6. (6)

      That when she reacquired custody of the Exhibit 5 Will in February 2015 she took parts of it and linked them up with parts of what had been the Oklahoma Will that, on her evidence, she had always treated as Colleen’s last will.

9. [37]

   Ms Coleman was confronted with a number of documents and actions which contradicted her version of events:

   1. (1)

      Her letter of 25 October 2014 to Colleen (CB1-414).

   2. (2)

      Her invoice of 25 October 2014 to Colleen (CB1-200-201).

   3. (3)

      Her emails to Mr Brown and Ric.

   4. (4)

      Her emails of 18 January 2015 to Ric and Ms Drayton to which I have previously referred.

   5. (5)

      The fact that she had Ms Jackson and Mr Quintal witness (or purport to witness) the signature of Colleen on Exhibit 5.

10. [38]

    Ms Coleman annexed diary notes to her second affidavit for 9, 16 and 17 January 2015. She did not annex notes for 21 and 24 October 2014 until her affidavit of 22 January 2018, which notes she described as “contemporaneous”: see CB1-408, paragraph 14. Ms Coleman agreed that the notes for 16 and 17 January 2015 were not made on the dates which they bear and were quite possibly prepared at the same time. The date that she prepared them was not identified by her. There are parts of the notes for 21 and 24 October 2014 which, if contemporaneously made, support her version of events, namely, that Ric showed her the 2005 wills on 21 October 2014, that Ric was present at both conferences with Colleen on 21 and 24 October 2014, that Ms Coleman did not see Colleen alone, that Ric was present and that on 21 October 2014 she felt she needed to “appease” him. The note for the 21 October 2014 contained the words, “Wants same executors so that no suggestion of coercion”. It is not clear from the note who said this but, in her email of 9 January 2015 (at [10(31)(b)] above), Ms Coleman said the same thing and in her affidavit (CB1-97, paragraph 66) she said that she suggested that the executors be Ms Anthony and Mr Merlino. The note of 21 October 2014 (CB1-415) has the following at the end:

11. [39]

    Ms Coleman’s note of 21 October 2014 does not make any reference to discussion about a letter or estate planning, matters which are mentioned in the invoice of 25 October 2014. Ms Coleman’s note of 24 October 2014 does not state that Colleen signed or initialled any document or attempted to do so. The note does not record that Ms Jackson witnessed Colleen’s signature. Without more the notes would suggest that nothing was signed or attempted to be signed by Colleen on 24 October 2014, yet Ms Coleman’s evidence is that both Exhibit 5 and Exhibit 6 were signed or initialled and that Ms Jackson witnessed Colleen’s signature on Exhibit 5 on 24 October 2014. The notes of 21 and 24 October 2014 do not indicate that Colleen did not say much, or was virtually mute or non-communicative, in contrast to Ms Coleman’s affidavit (at CB1-97, paragraph 68, although see paragraph 66 which describes Ric and Colleen appearing to express a joint wish that Ric be the sole beneficiary of Colleen’s will and Ric expressing a desire to also be its executor which Colleen supported). Ms Coleman said in cross-examination that Colleen spoke very little: see T63.25.

12. [40]

    There are two diary notes of 9 January 2015 with a fair degree of overlap. The notes are somewhat contradictory because they record that Colleen and Ric were “lovey-dovey”, that Colleen told Ms Coleman, “Fuck Oklahoma”, and that Colleen instructed her to give Ric “what he wants” – but the notes also state that Ms Coleman could not get “clear instructions from Col”. A note of 9 January 2015 records that Ms Coleman said that she would need a medical certificate as to the capacity of Colleen before she could be involved in preparing ‘mirror wills’ (also known as ‘mutual wills’), which seemed to be the matter under discussion. A note of 9 January 2015 also records a query of Ms Coleman, “threatened?”, and records Col as “mute”: CB1-207.

13. [41]

    Ms Coleman gave as the explanation for her letter to Colleen of 25 October 2014 the need to make Ric think that there was a will. She said that she believed that, although the letter was addressed to Colleen, it would be seen by Ric. The letter to Colleen was in fact sent to Ms Wright, whom Ms Coleman knew to be very close to Colleen, by the email set out at [10(26)] above. It was not suggested to Ric in cross-examination that he had ever seen or been made aware of that letter, and Mrs Quintal was not asked about it either.

14. [42]

    Ms Coleman’s explanation for wanting Ms Jackson to sign the new dispositive page was “to satisfy Ric” (T176.16-19), and for her keeping the “failed attempts” was because they were a demonstration of the deterioration in Colleen’s capacity to write her name. Ms Coleman said she regarded them as “important documents” (T176.20). I note that, on Ms Coleman’s evidence, there was a total of three or four attempts by Colleen to sign her name on 24 October 2014 but only Exhibit 5 and Exhibit 6 were annexed to her affidavit or produced to the Court and I infer that there were no others.

15. [43]

    Ms Coleman did not provide any plausible explanation as to why she had:

16. [44]

    I did not find Ms Coleman’s explanation for the detailed letter of 25 October 2014 to Colleen and the contents of the invoice and email to Ms Wright convincing, but it becomes even less so when coupled with her email to Ms Drayton and the cross-examination of Ms Coleman concerning this.

17. [45]

    Ms Coleman seemed to assert that she did not want to be involved in the will making exercise any further, although she had said that she thought in January 2015 that Mr Brown was going to sort out the mutual wills (T154.25) which would have meant that Colleen would have been in the hands of a solicitor who was clearly acting for Ric and Ms Coleman had told Ric that his solicitor could not act for Colleen. Her email to Ric and to Mr Brown seems to exhibit cooperation with them and not resistance to the process or abandonment of her client.

18. [46]

    Ms Coleman claims that Ms Jackson was working at Out Yenna as a carer on Friday, 24 October 2014, because Ms Wright was away in New Zealand. In her affidavit, Ms Jackson denied that she was working at Out Yenna on that date – she said she was employed by Colleen from 24 June 2014 to 17 July 2014 and from 14 December 2014 to 17 January 2015: see CB2-230. In her oral testimony, Ms Jackson was extremely vague but thought she was not working at Out Yenna in October 2014: see [74] below. Ms Wright agreed that she (Ms Wright) was working at Out Yenna during weekdays in October 2014 and Exhibit 3 establishes that she was. Ms Coleman agreed that Ms Jackson would not have been working at Out Yenna if Ms Wright was there: T88.35-37.

19. [47]

    Ms Coleman gave several explanations for her actions, including that:

20. [48]

    Ms Coleman’s evidence that she had become aware between August 2014 and January 2015 that Colleen was in an abusive relationship with Ric was not based on any observations of her own of Ric’s conduct but was based on, what she said, were observations of Colleen’s condition on 21 October 2014, to which I have referred (at [35(7)] above), and what she says she had learnt from letters typed by Ms Wright and given to her, she says, by Ms Wright in January 2015 (see CB1-108, paragraph 44, T113 set out below, and at T163.33-37). I shall set out later in these reasons an important segment of cross-examination relating to that but there was no evidence that Ric did anything to make Ms Coleman fear for her own safety or that of Ms Wright, as she asserted in her affidavit was the case (see CB1-131, paragraph 112, and see cross-examination at T146.40-147.39). Nor do either Ms Coleman or Ms Wright give any evidence of any observation by them of conduct of that nature by Ric directed toward Colleen. Ms Coleman’s assertion of a belief that Colleen had died before her time, in effect, because of the constant pressure exerted upon her by Ric (see CB1-105, paragraph 131) is an extraordinarily strong statement for someone who claimed that she had no hostility towards Ric (see T70.19). Further, the suggestion that any issue concerning the will is what brought on Colleen’s early death is inconsistent with the medical evidence generally: see Exhibit O. Ms Wright’s evidence (at CB1-350, paragraph 45), if accepted, points to Colleen’s loss of appetite for life before January 2015 which is when the issue of a new will was next raised after October 2014.

21. [49]

    At paragraph 146 of her first affidavit (at CB1-108), Ms Coleman said:

22. [50]

    There is no file note of Ms Coleman in relation to that instruction. It is a very unusual ‘instruction’ and the further strange thing about it is that, on Ms Coleman’s evidence, it was first said at a time after Colleen had made a new will in Sydney leaving Ric nothing and where no replacement will was in contemplation. Cross-examination of Ms Coleman demonstrated that “Don’t give him what I want” and that her instructions were to discontinue (T62.10-29) were not words used by Colleen but, rather, were Ms Coleman’s claimed ‘take’ in contrast to what Colleen had actually said to her: see T114-117.7 (reproduced below), and see also T106-108 and T112-114.

23. [51]

    Ms Coleman did not include, in any of her first four affidavits, the letter of 25 October 2014 to Colleen and covering email (sent to Ms Wright) although she did include the invoice of 25 October 2014: see CB1-200.

24. [52]

    Ms Coleman did not give a full account in her affidavits of the critical conversations with Colleen; for example, as I have mentioned, her note that Colleen said “Fuck Oklahoma” (see CB1-202), although attached to her affidavit, was not referred to in the body of her affidavit. When she was asked about this in cross-examination, she said that Colleen had said this “deliriously” and then when cross-examined further she said that Colleen had expressed irritation, at some unspecified time, at the University of Oklahoma for reasons connected with its unwillingness to accept freight charges for Colleen’s papers. She also did not explain the context of the comment, “What we are doing is for your benefit”, on 21 October 2014. She does not give evidence of a conversation with Ric on 17 or 18 January 2015 in which she explained to Ric why she was giving him the envelope on 18 January 2015 or describing to him what it was she was giving him.

25. [53]

    Ms Coleman says (at CB1-247, paragraph 50):

26. [54]

    Mr Morrissey, in dealing with the evidence of Ms Coleman, said in closing submissions (at T486.28-45):

27. [55]

    Mr Morrissey conceded that there were aspects of Ms Coleman’s evidence “that may never be explained” (T503.34), but submitted that Ms Coleman should be accepted on “the important things”: see T503.34; see also T487.10 and T506.5.

28. [56]

    Mr Morrissey’s submissions accept, I think, that Ms Coleman’s evidence is highly problematic.

29. [57]

    I set out some fairly extensive segments of the cross-examination of Ms Coleman relating to her discussions with Colleen and Ric because of their importance to the critical issues in this case and to Ms Coleman’s credibility:

30. [58]

    Ms Coleman admits to a course of conduct that is entirely inconsistent with what is required of a practising solicitor, namely:

31. [59]

    Ms Coleman initially would not agree that, on her evidence, the invoice was false because it refers to a will having been executed and she claims that no will had been executed, rather, she described it as “inaccurate”: T82.15-46.

32. [60]

    If I accepted Ms Coleman’s evidence, I would have to find that:

33. [61]

    In considering Ms Coleman’s credit it might be said that, given that she has made some rather damning admissions about her behaviour, this provides a basis for accepting her account as truthful. I take this possibility into account but I think there is another explanation which is that if Ms Coleman prepared the Exhibit 5 Will, acting on the instructions of Colleen, and delivered that will to Ric because that was what she thought at the time Colleen wanted her to do, to have then received the Exhibit 5 Will back from Mr Brown in February 2015 and to have then recreated the (by then) revoked Oklahoma Will, was a most serious breach of her obligations to Colleen as her solicitor. To admit to deceiving Ric (and that is what her version of events entails) is less serious than seeking to set at nought the outcome that, on Ric’s case, Colleen had indicated she wanted. Thus all of Ms Coleman’s evidence designed to support the proposition that Colleen did not really want to sign (in October 2014), or was coerced by Ric in October 2014 and January 2015, or that she had a duality of instructions from Colleen, or that she suffered from the insufferable pressure of emails from Mr Brown, or pressure from Ric (or even fear of Ric) for her own safety and that of Ms Wright, may be seen as an attempt to justify conduct of an even more egregious kind than that to which she admits.

34. [62]

    I do not accept that Ms Coleman’s evidence should be accepted as truthful because she makes significant admissions of inappropriate conduct, and having regard to the matters which I have identified and the evidence to which I refer later in these reasons, I am not persuaded that the findings identified in [60] above should be made.

35. [63]

    There is evidence which points to a quite significant involvement of Ms Wright in the developments at Out Yenna in the last year of Colleen’s life:

36. [64]

    There are a number of aspects of Ms Wright’s evidence which cause me to have significant doubts as to her veracity:

    1. (1)

       Ms Wright gave evidence in her first affidavit concerning Exhibit D. She said (at CB1-307):

    2. (2)

       Ms Wright recounted (at CB1-306, paragraph 10) that Mrs Quintal had rung her in a distressed state as a result of actions of Ric at the Norfolk Island Administration. Mrs Quintal denied that she worked in the land titles section or anywhere near it – she denied having heard of any such incident and she denied having spoken to Ms Wright about it and, as I indicate below, I have no reason to doubt Mrs Quintal’s veracity.

    3. (3)

       Ms Wright testified that when Dr Challender came to Out Yenna he was not able to rouse Colleen from her sleep, that he did not speak to Colleen at all and then said, “I’ll just record how she was last time that I saw her”.

    4. (4)

       Ms Wright’s evidence is that Colleen only spoke to her twice about her will; once, when she came back from Sydney and, second, when she mentioned that Mr Brown was drafting mutual wills: see CB1-443, paragraphs 14-16 (which I note occurred on or after 10 January 2015). I set out the cross-examination of Ms Wright at T201.9-202.4:

    5. (5)

       She claimed that she only ever knew about “the will made in Sydney” (T196.6). That seems unlikely given her evidence dealing with the 25 October 2014 letter to Colleen in her affidavit of 24 May 2018: see CB1-443, paragraph 11, that she read aloud to Colleen letters addressed to Colleen. She gave no evidence of any discussion with Colleen about that letter and invoice, or even a comment by Colleen about it, or about Colleen’s meeting with Ms Coleman to discuss a new will.

    6. (6)

       Mr Murr put to Ms Wright that her evidence concerning Mrs Quintal was a fabrication because she perceived that Colleen had been very badly treated by Ric. At first, her non-responsive answer was that she had never made that comment but when the question was repeated she agreed she did hold that perception: T190.16-21. I note too that (at T198.35-199.6), in the context of cross-examination directed to an attack on her partisanship and her assertion that she had no interest in whether “Ric loses or wins”, she would not answer whether she felt Colleen was “seriously wronged” by Ric.

    7. (7)

       In her first affidavit (CB1-307, paragraph 21), Ms Wright recounts a conversation with Ric on 17 January 2015 in which Ric asks her, “Are they doing the will first?”, to which she replies, “No, they’re doing the power of attorney first”, and that this made Ric “very angry”. In her second affidavit (CB1-351, paragraph 50), Ms Wright gave a different version of the conversation:

    8. (8)

       In her second affidavit (CB1-346, paragraph 28), Ms Wright said that she had made two copies of each of the letters that she typed for Colleen and gave Colleen a copy and had taken the other copy home which she retained until she sent them all to Ms Paton after Colleen’s death. Ms Coleman, however, said that Ms Wright had given a set of the letters to her on 16 January 2015. This does not include the LBOM Letter, with which I will deal below.

    9. (9)

       There were a number of matters referred to in Ms Wright’s second affidavit of which no mention had been made in her first, such as her assertion that she had heard Ric ask Colleen many times on 17 January 2015 about making a will to which Colleen had not responded: see CB1-352, paragraph 52.

    10. (10)

        Ms Wright did not mention in her first affidavit that she had put Colleen to bed upstairs to rest, but in her second affidavit (at CB1-352, paragraph 55) she said she had done so.

37. [65]

    Ms Wright gave no evidence of having seen or heard Ric behave unpleasantly to Colleen, either before or after June 2014, but she gave an account of a conversation with Colleen in January 2015 (at CB1-307, paragraph 19) that seems designed to permit her to state Ms Wright’s own uncharitable thoughts in response to apparently pleasant behaviour by Ric in January 2015:

38. [66]

    Another example of this type of assertion is found at paragraph 6 of her first affidavit (CB1-305), where she explains her concerns about questions relating to the administration of drugs to Colleen. She then says that her fears were shared by the hospital and that a toxicology test was ordered. There is no evidence of a toxicology report having been ordered as a result of these concerns and I think this was designed to imply that Ric had been or might have been overmedicating Colleen. That that was the implicit suggestion is reinforced by Ms Coleman’s evidence that she and Ms Wright had, on 17 January 2015, discussed their concerns about Ric “overmedicating Colleen: see [113(13)] below. There is no support for the contention that Colleen was overmedicated, let alone by Ric.

39. [67]

    Ms Wright deposes to Colleen having told her that she feared Ric. The letters which Ms Wright typed do not reflect this and I think Ms Wright implicitly recognised this because she says (at paragraph 8), in referring to the letters, “Much of her fear became anger”. In her third affidavit, she tells us that, as at 14 January 2015, “Col was still feeling unhappy about her relationship with Ric. Even though Ric moved back into the house after he left in June or July 2014, she was not happy with the relationship”: see CB1-444, paragraph 19. Not one example of what Colleen said to Ms Wright about the relationship with Ric in the period after July 2014 is given. I have already referred to what appears to one source of the ‘fear’ in June 2014, namely, that which came from a report by Ms Wright to Colleen: see [63(k)] above and [82] below.

40. [68]

    To the extent that Ms Wright’s evidence implies that relations between Colleen and Ric had not improved by October 2014 and beyond from the position in June and or July 2014, it is not supported by any note of Ms Coleman or the doctors or the mental health counsellor of what Colleen, as opposed to the caregiver (most likely Ms Wright), had told them. It is contradicted by Mrs Quintal’s evidence as well.

41. [69]

    In other circumstances, the evidence of a nurse or carer with no benefit to be obtained by either of two (or three) contested wills would be important evidence in assessing where the truth lies. I am, however, not able to accept Ms Wright as a truthful non-partisan witness whose evidence can be accepted without corroboration. Ms Jackson is another carer whose evidence cannot be safely relied on without independent corroboration, although for different reasons: see [74] below.

42. [70]

    In his affidavits and in cross-examination, Ric made concessions about matters such as his financial dependence on Colleen, that he had taken a mistress in 2010, that the financial circumstances in which he and Colleen found themselves in June 2014 were poor (T299.34, T302.41 and T307.38-40), that he had raised with Colleen the need for $60,000 to pay outstanding bills, that Colleen was concerned about having the funds to pay for a carer and that Colleen was ailing: T308-309. He admitted that his relationship with Colleen as at June 2014 was in “a terrible state”. He admitted that he was in part responsible for the liquidity problems which he and Colleen faced, but he would not accept he was the sole or major cause of those financial woes. Cross-examination did not establish that he was. He also said, and it was not challenged, that he had borrowed money from his family to assist his and Colleen’s finances: T294.47. He denied that he ever got angry about money: see CB2-107, paragraph 12. He denied that on his return to Out Yenna in mid-July 2014 he was simply “a part time paid carer for [his] wife”: T301.46.

43. [71]

    Whilst overall the cross-examination did not establish that he was clearly untruthful or dishonest, there were a number of matters relevant to Ric’s credit which I will detail:

    1. (1)

       On 24 June 2014, when police told Ric that Colleen had alleged that he had raised his hand, shouted at her and that he had become increasingly aggressive, he responded saying, according to the police note, that she was mentally unwell. He repeated that in cross-examination but admitted that, although Colleen had been diagnosed with depression, he was not aware of any diagnosis supporting a claim that she was not of sound mind: T347.45. The conversation with Colleen (referred to at [10(18)] above) has Colleen admitting that she had been ‘sick’.

    2. (2)

       Ric’s evidence as to when he learnt of the Oklahoma Will and when he learnt of the Exhibit 5 Will is confusing and inconsistent. He seems to say (at T356.50-357) that he found out about the Oklahoma Will on 21 October 2014 when Ms Wright told him that, but he then said (at T368) that he did not know that Colleen “had already attempted to change it back”. The only evidence he gives that Ms Coleman told him about the Exhibit 5 Will is, “What we are doing is for your benefit”, on 21 October 2014 but he said he did not know what she meant by that statement: T362.2-10.

    3. (3)

       Ric said that he did not attend the conferences of 21 and 24 October 2014 that Ms Coleman held with Colleen (except when he found Colleen with Ms Coleman and Ms Wright and had the discussion referred to in [71(2)] above), but Ms Coleman’s assertion that he did attend on 21 and 24 October 2014 is corroborated to a significant degree by her diary notes. If Ms Coleman’s diary note of 24 October 2014 did make clear that Exhibit 5 and Exhibit 6 were signed or initialled by Colleen at that conference, and if her note of 21 October 2014 did make reference to the proposal for a letter relating to financial arrangements, this would have more significance but they do not.

    4. (4)

       Ric gave no evidence of any discussions he had with Colleen either in October 2014 or January 2015 about changing her will or the reasons for it.

    5. (5)

       Ric asserted in cross-examination (for the first time) that Ms Wright controlled Colleen’s finances after a few months in the job: T293.47. There is no support for that claim on the evidence presented and Mrs Quintal, who would have been able to support it and who was called in Ric’s case, gave no evidence of that.

    6. (6)

       Ric said that Colleen’s health had deteriorated between October 2014 and January 2015 “marginally” (at T306) but said later that there was a big difference: T362.35.

    7. (7)

       Given the tone of Colleen’s comments to Ms Coleman recorded in Ms Coleman’s notes and Colleen’s email to her friend, Ric’s evidence that Colleen encouraged him to take a mistress and socialise with them seems rather unlikely.

    8. (8)

       Ric asserted in cross-examination (for the first time) that Ms Wright came out on 17 January 2015, a Saturday (she worked on weekdays only), to help Colleen “and put pressure on Colleen.”

    9. (9)

       Ric said that he was not “too worried” about whether Col had another will: T365.45–366.5. I found that somewhat implausible, particularly since in January 2015 (at least) the idea of mutual wills with an agreement not to change those wills was ventilated by him.

    10. (10)

        Ric said that he had not given Ms Coleman copies of the 2005 wills until January 2015, but Ms Coleman’s diary note shows that he gave or showed her a copy of those wills on 21 October 2014.

    11. (11)

        Ric said that Ms Coleman had not visited Out Yenna on 16 January 2015, but Ms Coleman’s notes show that she did. The diary note, however, records the conference as being with Colleen and with Ms Martinez in attendance and Ms Coleman says Ric was not present: see CB1-127, paragraph 81. That, however, undermines Ms Coleman’s contention that she could never see Colleen without Ric.

    12. (12)

        Ric was asked about having made a “large financial donation” to Mr Brown in the middle of 2014 and he said he did not recall making any payment: T300.21-34. The following day, he said that a loan had been made by Colleen of $500,000 to Mr Brown in connection with the Norfolk Island Airline: T358-359. It is true that the question asked by Mr Morrissey the day before was about a donation in the middle of 2014 and so it did not direct his mind to the right era and his 2005 will refers to a loan, but it is such a large amount that he could have been expected to acknowledge that he was aware of the amount to which Mr Morrissey was referring.

44. [72]

    For these reasons, I am not able to treat Ric as a wholly reliable witness and I need to treat his evidence with caution. He, unlike all of the other witnesses, will derive a significant benefit if he is successful in these proceedings.

45. [73]

    The matters identified in [71(2)] - [71(4)] and [71(10)] above could have considerable significance in relation to the issue of the allegation of coercion but the potential consequence of those matters was not explored in cross-examination of Ric.

46. [74]

    Ms Jackson had given evidence in her affidavits, helpful to Ric’s case, that:

47. [75]

    Mr and Mrs Quintal were cross-examined. They presented as entirely honest witnesses doing their best to recall the matters about which they gave evidence. Mrs Quintal was described by Colleen as “an honest and trustworthy person” who had been reliable for a very long time: CB1-98. Mr Morrissey submitted that I should not accept Mrs Quintal’s evidence about the relationship between Colleen and Ric having returned to “fine” or “quite good” by late October 2014 (see T339.13-21), but Mrs Quintal was not shown to have said anything else in her affidavit or oral testimony that was false or incorrect. I accept her evidence and that of Mr Quintal.

48. [76]

    Dr Challender appeared to be a forthright witness. He was not cross-examined on his conclusion that Colleen had mental capacity and that she was not under anyone’s influence as at 14 January 2015, and the basis upon which he reached these conclusions was not the subject of scrutiny or challenge other than on the question of whether he had been able to speak with Colleen at the time of his visit to Out Yenna. He strongly refuted the suggestion (made by Ms Wright) that he had not been able to rouse Colleen or speak to her at all but he did not provide any content as to what questions he asked on 14 January 2015 (other than of a strictly medical nature) and what answers she provided to found his assessment. He accepted that his assessment was based not only of what he had seen on the visit on that day but also on his consultations a few weeks prior. He also accepted that he may have said something to indicate that his assessment of Colleen’s mental state would link back to those earlier consultations.

49. [77]

    I accept Dr Challender’s evidence that he was able to speak with Colleen for about 20 minutes on 14 January 2015 and that having regard to Colleen’s consultations with him, both on that day and in the relatively short period before that, he formed the view that, although she was seriously ill, she was mentally competent and able to freely make her own decisions about matters concerning her estate. Mr Gallagher’s notes do not suggest that, as at 13 January 2015, he held any different view to Dr Challender and those notes are consistent with Colleen being able to communicate her wishes.

50. [78]

    The only evidence of substance in respect of the issues remaining at trial which Ms Paton gave related to what she had received or been told by Ms Coleman. The attack launched by Mr Murr in cross-examination was directed to her failure to ensure that the Plaintiff acted in accordance with her duties, and I shall say more about this in the context of the costs issue.

Ric’s Relationship with Colleen

1. [79]

   There is no dispute that, on 24 June 2014, Colleen told the Australian Federal Police on Norfolk Island that Ric had “previously entered her bedroom, shouted at her and raised his hand at her”, although she also said that Ric had never been physically violent towards her but he had become “increasingly aggressive”. Colleen said that Ric and his mistress had “previously entered her bedroom where they both verbally abused her”. The note also records that Ric told the police that Colleen’s mental state was such that she was no longer able to make sound decisions and that, if she needed to travel to Sydney for medical treatment to try to save what is left of her eyesight, he would not be taking her: see Exhibit K. Colleen did state that she was not asserting criminal behaviour on Ric’s part. Ric denied that his son, Wade, was present during Colleen’s interview by the police. Since Ric was asked to wait outside, it is highly unlikely that the police would have permitted Wade to remain and Exhibit R does not record Wade as present. Ric said that his conclusion about her mental state, to which I have referred in [71(1)] above, arose from the fact that he had never threatened her or hurt her and yet she was making assertions of that nature. The significance of the issue of whether Wade was present was that Ms Wright asserted that Colleen had told her that she has not been able to speak to police in private: see CB1-306, paragraph 11. It has not been made clear by Ms Coleman or Ms Wright what could have been said to the police that Colleen is not recorded as saying.

2. [80]

   Ms Coleman annexed to her affidavit her notes of her conversation with Colleen on 24 June 2014 before the decision was made by Colleen, with Ms Coleman’s and Ms Wright’s encouragement (see T58.24 and CB1-142), to call the police. I note that, although Colleen told Ms Coleman that Ric was “volatile/bad tempered” (see CB1-133) and he had threatened her (CB1-132 and CB1-142), there was no report in the notes of 24 June 2014 (CB1-132-141 and CB1-142) of Ric’s hand being raised or Ric and his mistress abusing Colleen in her bedroom, nor was there any description of the threat or any previous indication of when the claimed conduct had occurred.

3. [81]

   I note also that when Colleen told the police on 24 June 2014 about their financial woes, she said that she had not taken an interest in her financial situation and that they were a result of her husband spending money on whatever he chooses “and their past decisions of lending money to people they later realised they shouldn’t have”: see Exhibit K.

4. [82]

   There appears to be two significant triggers for the issues of June 2014. The first is the issue of finances, with Ric wanting or demanding that Colleen put $60,000 into their joint account to meet debts and expenses: see Exhibit B and CB2-106, paragraph 10(3). The second issue relates to Ric’s mistress. Colleen told Ms Coleman that Ric “had the temerity to bring his girlfriend” to Out Yenna (CB1-154) and she wrote in an email to a friend on 24 June 2014 that she had reached the conclusion that Ric’s mistress “wants the money as well as the man”: CB1-447. Colleen did express, in an email of 24 June 2014, that she had fears for her safety (see CB1-447) but the reports of Ric being in “a murderous mood” in that email appear, very likely, to have come from Ms Wright: see CB1-306, paragraph 10, and see CB1-142 which records that is what Ms Wright told Ms Coleman. As I have noted the reports from Ms Wright said to have come from Mrs Quintal were not shown to have any basis and Mrs Quintal, whose evidence I accept, denied having given such a report to Ms Wright.

5. [83]

   There was evidence that Colleen herself could be “cranky and impatient” (T93.42) and difficult and demanding (see Ms Coleman’s affidavit at CB1-90, paragraph 22, and see T150.32 and CB1-1-138 for either Colleen’s own admission (or Ms Wright’s comment) that she was not an easy woman and that, by June 2014, Ric had had enough: CB1-138). The relevance of this is only that, whatever Ric’s failings, it cannot be assumed that all of the blame for marital discord should be placed on him.

6. [84]

   It was put to Ric that it was his profligacy which was the main contributing factor to the state of their finances. Ric did not accept that he was the main cause, saying that he and Colleen were both to blame. There were examples of expenditures which tended to confirm that – a loan to Mr Brown or donation of $500,000 in 2004 in an attempt to save the Norfolk Island Airline (of which only $100,000 had been repaid), financial support by Colleen for her former driver’s two daughters’ education at a Sydney private school, an expensive repair of the roof at Out Yenna, the installation of a lift for Colleen and upkeep of a swimming pool that no one apparently used. There were also significant medical expenses, including extensive paid care. Mrs Quintal, the bookkeeper for sixteen years, was ideally placed to provide support (if it was correct) for the Plaintiff’s contention that it was Ric who was solely or largely responsible for their lack of funds (see T333.16-19) but cross-examination of her was not really directed to that point. In an email that Mrs Quintal sent of 10 July 2014, she commented that she “did try to reduce their spending over the years but could only do as I was told” (Exhibit H). Mrs Quintal confirmed that Colleen had opened a bank account in her sole name in early 2014: T337.18-35. Cross-examination of Ric did not establish that he was solely or largely responsible for the financial crisis, although I accept that Colleen’s letters make it clear that she held the view that he was responsible and that he had spent far too much for his own, and his son’s, benefit in a context where she was the real breadwinner.

7. [85]

   There are a number of unsigned letters addressed to Ric which Ms Wright says Colleen dictated to her and she typed in June and July 2014 – one of them is dated 29 July 2014: see CB1 – 311-338. None of these letters were sent or given to Ric and Ms Wright’s evidence is that Ric was never meant to see them, raising the question of why Colleen was dictating them at all. Ms Wright at first deposed to the fact that Colleen gave Ms Coleman Colleen’s copies of the letters (see CB1-346, paragraph 28) but Ms Coleman said that Ms Wright gave her the letters on 16 January 2015 (except for one which I refer to in [87] below: see CB1-108. These letters, whilst very critical and uncomplimentary of Ric, do not contain any allegations of threats of or actual physical abuse by Ric. The letters emphasise the perilous financial position to which Colleen believed they had arrived and Colleen’s belief that Ric was responsible for that situation and that he has been too indulgent of his son, Wade, and they also contain the notion that support from Ric would increase the prospect of another bestseller. The letters appear to have provided Colleen with a means to vent her anger and irritations at a time when she was clearly upset and angry with him over a number of issues.

8. [86]

   There is one letter which Colleen typed herself and signed (Exhibit N). It is not dated but refers to Colleen as being 77 years of age, so it must have been written on or after 1 June 2014. It focusses on the steps that Colleen believed must be taken to conserve funds “in order to have enough for my hospital costs and my own welfare”. It is not suggested that it was actually given to Ric. Once again, it is critical of Ric.

9. [87]

   There is another letter (at CB1-311-314), the LBOM Letter, which Ms Wright says was dictated by Colleen and typed by Ms Wright on 21 October 2014, and Mr Morrissey relies on the following parts of it:

10. [88]

    It appears that Ms Coleman had discussed the idea for a letter to be sent to Ric with Colleen on 21 October 2014 (see [10(28)] and T65.10-67.15), and that Ms Wright sent to Ms Coleman on that date a draft letter which she said Colleen was considering. Both parties claimed that the letter to which I have referred in [87] above supported their case. Mr Morrissey contended that the passages cited showed that Colleen’s sentiments there expressed are inconsistent with her making a will three days later in Ric’s favour. Mr Murr contended that the passage relied on by him referring to ensuring an improvement in her financial position to help him was consistent only with an intention to leave her estate to Ric. If he was to obtain no benefit from her will, it would not affect him if she died without any net assets. No one suggests that the draft was ever finalised, signed or given to Ric.

11. [89]

    One aspect that neither side referred to is the fact that the letter makes no reference to Colleen’s conference with Ms Coleman which had occurred that day, and which is said by Ms Coleman to have given rise to the letter.

12. [90]

    The LBOM Letter was not dealt with in the first three of Ms Coleman’s affidavits, but it was dealt with in her affidavit of 22 May 2018 (the first day of the hearing). Ms Coleman says (see CB1-406) that the LBOM Letter (Exhibit B to that affidavit) was received as an attachment to an email from Ms Wright on 21 October 2014. The email is annexed to Ms Coleman’s affidavit as Exhibit C and says:

13. [91]

    Ms Coleman says of the LBOM Letter (at paragraph 6):

14. [92]

    Ms Wright, in her affidavit of 24 May 2018, says:

15. [93]

    The LBOM Letter, however, is not a letter typed by Colleen and it was not typed on 21 October 2014. That it was not typed on 21 October 2014 is demonstrated by Ms Wright’s own evidence in her second affidavit, in which she annexes the LBOM Letter as Annexure A and, in paragraph 27 of that affidavit (CB1-346), she describes it as a letter dictated by Colleen in June 2014. Nor does she say in that affidavit that she sent the LBOM Letter to Ms Coleman on 21 October 2014, but rather says (at CB1-346, paragraph 28) that it was one of the letters she sent to Ms Paton after Colleen’s death.

16. [94]

    Ms Wright gave no content of the background to her statement, “Col is sleeping on it”, and she does not in her email tell Ms Coleman that the LBOM Letter, if that is what she did in fact send, is a letter dictated by Colleen in June 2014. The letter that Ms Wright says Colleen was typing was not sent by Ms Wright to Ms Coleman and there is nothing to indicate which letter it was and what has happened to it. Nor does Ms Wright indicate what Colleen said to her after she had ‘slept’ on the LBOM Letter.

17. [95]

    The inconsistency and implications of this evidence and its potential relevance to the credit of Ms Coleman and Ms Wright was not explored in cross-examination, perhaps because of the very late arrival of the affidavits to which I have referred and or because it was not appreciated that the LBOM Letter is the same letter as the one attached to Ms Wright’s second affidavit as a letter dictated by Colleen in June 2014. What is clear, however, is that the LBOM Letter was dictated in June 2014 and was not the letter that Colleen was typing on 21 October 2014.

18. [96]

    It follows that Mr Morrissey’s submission in [88] above, and his submission that Mrs Quintal’s evidence about the state of Colleen and Ric’s relationship in October 2014 should not be accepted because of the LBOM Letter, cannot be sustained.

19. [97]

    The draft letters, taken globally, exhibit a significant degree of anger towards, and irritation with, Ric which does raise doubts as to the likelihood that Colleen would leave her estate to Ric in October 2014, but all of them were written in June or July 2014 (around the time of, or shortly after, their separation) and cannot be taken as a reflection of Colleen’s attitude to Ric in late October 2014.

20. [98]

    I take into account the letters and termination, albeit short-lived, of the relationship in June and or July 2014, which termination is obviously an indication of a fracturing of their relationship, but there are, however, other matters which need to be taken into account, namely:

    1. (1)

       On 21 July 2014, Colleen told Ms Coleman that she and Ric had reconciled. I accept that part, at least, of the motivation for Colleen’s request in mid-July 2014 that Ric return and the reconciliation was connected to her need for care.

    2. (2)

       That reconciliation might have been seen as surprising having regard to the events of June and early July 2014 and the tone of the letters, even towards the end of July 2014.

    3. (3)

       Whatever her attitude to Ric, it did not prevent Colleen wanting him to come back to live with her and care for her and it suggests that she was not fearful of him.

    4. (4)

       She took steps, with Ms Coleman’s assistance, in late June and or early July 2014 to prevent Ric from spending money without her agreement and she had actively become involved in managing her financial affairs, in contrast to the position prior to the separation.

    5. (5)

       Mrs Quintal’s evidence was that, in mid-July 2014 when Ric returned, things were still difficult and she had thought it unlikely that they would live “happily ever after” (T336.45) but she said, however, that by October 2014 things had basically returned to ‘normal’ (T335.2) and were fine as far as she could tell (see T339.17), and later, when further cross-examined, “were quite good” (T340.45). Mr Murr conceded in submissions that the state of relations between Ric and Colleen was far from ideal but the improvement of which Mrs Quintal spoke is consistent with a reversion by Colleen to Ric being Colleen’s beneficiary whatever irritation and anger she had previously felt towards him over his lack of attachment to and even perceived antipathy towards her, his having taken a mistress (or perhaps his bringing the mistress to Out Yenna) and what she regarded as his complete lack of financial responsibility.

    6. (6)

       No concrete example was given by any witness of her observation of violent, aggressive or abusive behaviour (physical or verbal) by Ric towards Colleen.

    7. (7)

       Ric said that he had broken off his relationship with his mistress in early August 2014 and there is evidence that he had told Colleen that he had done so: CB1-307, paragraph 14. There was no evidence that that was untrue or that he resumed that prior relationship or commenced any new relationship.

    8. (8)

       Mr Quintal remarked to Ms Coleman on 17 January 2015, “It’s always been up and down in their relationship”: CB1-105, paragraph 125.

    9. (9)

       Ric was providing extensive care for Colleen on the occasions that neither Ms Wright or Ms Jackson were present (i.e. after hours and during weekends) to the point of exhaustion, although he was receiving an allowance from Colleen.

    10. (10)

        On 25 October 2014 Ms Coleman herself wrote of instructions received that were consistent with a harmonious approach to estate planning going forward, and she also told Ms Paton on 11 February 2015 that there was a “off/on hot/cold relationship” (which I infer was a reference to the relationship between Colleen and Ric): see Exhibit R and Exhibit T.

    11. (11)

        On 24 November 2014, Mr Gallagher recorded Colleen as regarding her macular degeneration as the primary cause of her depression: see [15(b)] above.

    12. (12)

        In January 2015 Mr Gallagher noted that Colleen’s expressed “anguish” concerning Ric was that he was “not a talker” (and she also said that he was jealous of Ms Wright), not that Ric was mistreating or uncaring of Colleen or that their relationship was in crisis again.

    13. (13)

        It also needs to be borne in mind that Colleen and Ric had been married for over 30 years and that, even though there had already been signs of financial irresponsibility by Ric in Colleen’s eyes in or by 2005 (see the Plaintiff’s affidavit CB1-64, paragraph 50), he was still the object of her bounty until mid-2014. The Oklahoma Will was a radical departure from the situation that had existed up until then.

21. [99]

    The matters referred to in [98] above lead me to conclude that whatever the imperfections in their marriage, the tensions between them over financial matters, Colleen’s concerns over Ric’s spending over the years and Ric’s affair, the situation by October 2014, and beyond, had improved from that in June 2014 and was not so acrimonious as to necessarily preclude as a possibility that Colleen would decide to reinstate Ric, her husband of more than 30 years, as the sole beneficiary of her estate.

The Events of 21 and 24 October 2014

1. [100]

   Ms Coleman says that, on 21 October 2014, she received a telephone call from Ric asking her to visit Out Yenna and when she arrived she found Colleen in the sunroom in her wheelchair. She says that Ric handed her an envelope containing the 2005 mutual wills and codicils. She then says (CB1-97, paragraphs 66-67):

2. [101]

   In her affidavit, Ms Coleman (at CB1-97-98, paragraphs 68-71) seeks to explain her concerns and doubts about Colleen’s real intentions:

3. [102]

   Ms Coleman says (at CB1-98, paragraph 73) that she returned to Out Yenna on 24 October 2014:

4. [103]

   Ms Coleman (at CB1-98-99, paragraphs 74–79) describes the signing by Colleen of the Exhibit 5 Will in the presence of Ric and the witnessing by Ms Jackson, although Ms Coleman deposes that Colleen was not really signing but making an “attempt” on two occasions (Exhibit 6 and then Exhibit 5) and Ms Jackson was not “formally” witnessing “Col’s attempt to sign it”. She says that Ms Jackson also initialled the powers page (which bore, she says, Colleen’s “small and neat initial CMcC” (see CB1-99, paragraph 79).

5. [104]

   Ms Coleman says that she then left Out Yenna after the conference without the new will ever having been executed. She says that:

6. [105]

   Ms Coleman then says (at CB1-99):

7. [106]

   Ric’s version of events of 21 October 2014 is quite different. He says that on 21 October 2014 he walked into the house (at Out Yenna) and found Colleen there with Ms Coleman and Ms Wright and said, “What are you all up to?”, and Colleen said, “I am talking to my lawyer and our conversation is a private one”. Ms Coleman then said (at CB2-18, paragraph 22):

8. [107]

   Ms Coleman agreed that, on 21 October 2014, she had said to Ric words to the effect of, “What we are doing is for your benefit”: see T99.14.

9. [108]

   Ms Wright, in her three affidavits, gave no evidence of what occurred in October 2014. The claim by Ms Coleman that Ms Wright was not at Out Yenna but in New Zealand in late October 2014 was undermined by the combined effect of Exhibit 3 (time sheets at Out Yenna for Ms Wright during October 2014), Ms Wright’s and Ms Jackson’s evidence and the emails that passed between Ms Wright and Ms Coleman between 21 and 24 October 2014. I have already commented on Ms Coleman’s attempt to present Colleen as neglected due to Ms Wright’s absence.

10. [109]

    Cross-examination of Ms Coleman underscored the fact that the ‘concerns’, allegations of pressure and references to ambience could not be substantiated by any credible detailed evidence. Rather Ms Coleman, in her evidence, appeared to be channelling the draft letters dictated by Colleen which Ms Wright had given her in mid-January 2015 and what Ms Wright was telling her some time after October 2014 (see T112.5-37) and her awareness in June and or July 2014 that Colleen had wanted something quite different: see, for example, T67.16-17.

11. [110]

    That Colleen placed her initials on Exhibit 6 on 24 October 2014 is not in contest between the parties. It is Ms Coleman’s evidence that she did although, as I have noted, she says that Exhibit 5 was also signed and witnessed by Ms Jackson on that date. I have referred to Ms Coleman’s evidence that both the signature and initials were “failed attempts” by Colleen. The following matters support Ric’s case that Colleen did initial Exhibit 6 (at least) on 24 October 2014 as a representation of her testamentary wishes:

    1. (1)

       Ms Coleman took instructions from Colleen (either with or without Ric present the whole time) which Ms Coleman understood required her to prepare a new will and which Ms Coleman thought could be achieved by inserting a dispositive page, giving Colleen’s estate to Ric and removing the Oklahoma Will dispositive page: see T55.11-57.13, and particularly T56.28-47.

    2. (2)

       Ms Coleman had a conversation with Ric in Colleen’s presence in which she said to Ric that what she and Colleen were discussing was for Ric’s benefit.

    3. (3)

       Ms Coleman wrote to Colleen saying that the updated will on 24 October 2014 was in accordance with Colleen’s instructions in the context of improved domestic harmony.

    4. (4)

       Ms Coleman told Colleen in the same letter that she would place the new will in a security packet.

    5. (5)

       Ms Coleman charged Colleen for the work described in the invoice dated 25 October 2014 that matched work described in [110(1)] and [110(2)] above.

    6. (6)

       The contents of the invoice, previously set out at [10(28)] above, which included a reference to the execution of the will.

    7. (7)

       It seems unlikely that Ms Coleman would retain Exhibit 5 and Exhibit 6 if they were “failed attempts” at making a testamentary disposition.

    8. (8)

       The letter and invoice of 25 October 2014 were sent to Ms Wright under cover of an email, in which Ms Coleman said that:

    9. (9)

       Ms Coleman’s evidence, particularly having regard to cross-examination, did not establish that what on their face were instructions given by Ric on behalf of Colleen in her presence to Ms Coleman were not Colleen’s ‘real’ instructions. By her answers at T57.8-18 and T58.41-48, she seems to assert that it was the way that Colleen initialled Exhibit 6 and signed Exhibit 5 that led her to conclude that Colleen did not want to proceed with the Exhibit 5 Will.

    10. (10)

        Ms Coleman had been made aware by 21 July 2014 that Colleen and Ric had reconciled: see Exhibit T70-71. Ms Coleman sought, in her answers in cross-examination, to gainsay what she had been told (see T71-72) but there was no evidence that she could point to of any departure by Ric from the house after his return on 17 July 2014 or any evidence that, by October 2014, there had been a return to the low point of June 2014, either in Colleen’s mind from anything said to Ms Coleman or in fact.

    11. (11)

        Ms Coleman’s claim that Ric would not let her see Colleen alone, with the implication that Ric would not agree (see CB1-98, paragraph 73 and CB1-126, paragraph 68), is not established since:

    12. (12)

        I think it is of significance that, in Ms Coleman’s first affidavit, she did not deal with the 25 October 2014 letter and diary notes of 21 and 24 October 2014. If it were true that the 25 October 2014 letter and invoice were not really intended to reflect the truth of what had occurred but designed to protect Colleen, it is surprising that she did not recount in that affidavit all that she says she did in her endeavour to protect Colleen. Nor has she explained how the proposed letter (which she received as the LBOM Letter) fitted into the plan.

    13. (13)

        As I have noted Ms Wright’s affidavits say nothing about the October 2014 meetings (even though Ric says she was present when Ms Coleman said, “What we are doing is for your benefit”) and nothing about any discussions with Ms Coleman or Colleen about a new will, the LBOM Letter or the letter Ms Wright described Colleen as typing. That absence of evidence is significant in the context of a case in which it is asserted that Colleen did not really want to make a new will or sign Exhibit 5: see [167(9)] in relation to Ms Wright’s description of herself.

12. [111]

    Leaving aside the question of the date of signing, the following matters (and the matters relating to the state of the relationship between Colleen and Ric) are supportive of Ric’s claim that Exhibit 5 and 6 are a reflection of Colleen’s testamentary intentions:

    1. (1)

       Ms Coleman took the trouble to have Ms Jackson witness Colleen’s signature on Exhibit 5, although Ms Coleman says that Ms Jackson only came into the room after Colleen had signed. She also obtained Mr Quintal’s initials as a purported witness of Colleen’s signature. Further, she had Mr Quintal also initial Colleen’s initials on the powers page taken from the Oklahoma Will. She did not ask Mr Quintal to witness Colleen’s initials on the dispositive page of the Oklahoma Will (and she did not have Ms Jackson do so either).

    2. (2)

       Ms Coleman put together the will that she gave to Ric on 18 January 2015. In doing so, she included the execution page of the Oklahoma Will. That is, she gave him a critical part of the will that she asserts remained the valid will of Colleen made on 12 July 2014 as at 18 January 2015. That was a page she could not recreate if it had been destroyed by Ric. She also says she included the original medical certificate of Dr Metcalfe – that is another document that it would have been important for her to keep if she thought the Oklahoma Will was still in effect.

    3. (3)

       She wrote to Ms Drayton in the terms I have set out at [10(41)] and to Ric at [10(42)] above. In my view, those emails are consistent only with the belief that Ric would be the person seeking probate or letters of administration in connection with Colleen’s will. Ms Coleman had absolutely no reason to be deceiving or tricking Ms Drayton about work she might receive in the future and Ms Coleman did not assert that she had said what she said to Ms Drayton for such a purpose.

    4. (4)

       She told Ms Paton on 11 February 2015 (according to Ms Paton’s file note tendered after Ms Wright had given evidence) that the “original Will” was with Ric: see Exhibits R and T. If she had thought at that point that the original will was the Oklahoma Will, I think it is likely that she would have said part of it was with Ric and part held by her.

    5. (5)

       She must, I infer, have provided Ms Paton after Colleen’s death with information that led Ms Paton to believe that Colleen made a will in October 2014, albeit one that was open to attack on the grounds identified in the Foundation’s Statement of Claim: see [10(47)] above.

    6. (6)

       Ms Coleman’s assertion, set out at [105] above, about her discomfort is not only inconsistent with the letter and email of 25 October 2014 but it is inconsistent with her apparent willingness to engage with Ric and Mr Brown in January 2015 and with Ms Drayton.

    7. (7)

       Ms Coleman’s evidence at T92-93 and T112, and her evidence at T116.27 – 117.10 (set out earlier), support the contention that Ms Coleman understood that Colleen wanted her to provide the Exhibit 5 Will to Ric and that the “placate Ric” version did not emanate from Colleen.

13. [112]

    Irrespective of whether Exhibit 5 was signed by Colleen on 24 October 2014 (as the Plaintiff contends) or 17 January 2015 (as Ric contends), there is no dispute that it is Colleen’s signature and that Ms Coleman and Ric saw her sign it on the day that Colleen signed it.

The Events of 9 - 18 January 2015

1. [113]

   I have already referred to much of the detail during this period. I will now set out the key aspects of Ms Coleman’s affidavit evidence in respect of this period which are in dispute:

   1. (1)

      On 9 January 2015, Ms Coleman says that she received a call from Mrs Karen Quintal asking her to urgently make contact with Ric which she did. Ms Coleman says that Ric said to her:

   2. (2)

      She says that she attended a conference at which both Ric and Colleen were present (and no carer was present) and says that she told Ric that he would have to obtain independent legal advice and that a medical assessment of Colleen’s testamentary capacity would be necessary (CB1–100, paragraph 83).

   3. (3)

      She says that, to her observation, Colleen’s health had deteriorated to such an extent “that the prospect of a fresh will was seriously out of the question” (CB1–100 paragraph 84).

   4. (4)

      I have already referred to the email exchange between Ms Coleman and Ric and between Ms Coleman and Mr Brown. The purpose behind Ms Coleman’s correspondence is in dispute.

   5. (5)

      On 16 January 2015, Ms Coleman says she attended at Out Yenna in respect of a power of attorney that Colleen wanted Ms Val Martinez to be granted. Ms Wright was present and handed Ms Coleman a bundle of letters that had been addressed to Ric some long time before but not delivered (CB1–101, paragraph 89). Ms Coleman does not say that Ms Wright handed her Exhibit D and nor does Ms Wright, although on Ms Wright’s evidence it had been initialled by Colleen three days earlier.

   6. (6)

      On 17 January 2015 (which was a Saturday), Ms Coleman attended at Out Yenna with the draft power of attorney for Ms Martinez.

   7. (7)

      Ms Wright, who usually only worked weekdays, was present as well. Ms Coleman says Ms Wright was present “to assist Col to execute the power of attorney.”

   8. (8)

      Ms Coleman says that she again discussed with Colleen the power of attorney and “Col acknowledged it was what she wanted by nodding her head” (CB1–101, paragraph 92).

   9. (9)

      Ms Coleman says that “Ric was anxious about getting the mutual wills executed” (CB1-101, paragraph 93) but, on Ms Coleman’s evidence, no will was signed by Colleen on that day – only the power of attorney and, in respect of that, she says (at CB1-102, paragraphs 98-99):

   10. (10)

       Ms Coleman denies that Colleen signed any document other than the power of attorney in favour of Ms Martinez in the manner set out above. She denies that on that day Ms Jackson witnessed any signature of Colleen’s and she denied that she said to Ric that she would “get Lew Quintal to initial it also.”

   11. (11)

       Ms Coleman says (at CB1-103 paragraph 106) that she said to Ric words to the following effect:

   12. (12)

       Ms Coleman then says (at CB1-103, paragraphs 108-109):

   13. (13)

       Ms Coleman says that, after she left Out Yenna, she received a telephone call from Ms Wright who was at Ms Martinez’s house. In relation to that conversation, she says:

2. [114]

   In relation to [113(13)], I have earlier referred to the fact that Ms Coleman sought, in her evidence, to promote the theory that Colleen was not being well looked after by Ms Jackson in October 2014. In fact, as I have already noted, Ms Wright was the carer in that period (see Exhibit 3) although, in Ms Coleman’s version of her conversation with Ms Wright (see CB1-103), Ms Wright did not point that out to Ms Coleman.

3. [115]

   Ms Coleman says that she and Ms Wright left Out Yenna together on 17 January 2015 and that Colleen “appeared agitated and exhausted”: CB1-251, paragraph 82. She did not say that Ms Wright had put Colleen to bed.

4. [116]

   Ms Wright says in her first affidavit that, on 17 January 2015, Ric “rushed up to [her] in an absolute panic” and asked, “Are they doing the will first?”, to which she replied, “No, they’re doing the power of attorney first”, which she says made Ric “very angry” (see CB1-307). She says that she heard and saw nothing in connection with any will signing and that Colleen was fatigued and hungry (CB1-307). She said that at hospital Colleen was found to be hydrated, but Exhibit O does not establish that was so. In a later affidavit, she said she put Colleen to bed before she left Out Yenna on 17 January 2015 (see CB1-352, paragraph 55, but only in her second affidavit: cf CB1-308, paragraphs 22-23 of her first affidavit) and she also recounted the conversation with Ric in different terms (as I have previously noted).

5. [117]

   Ric’s version of the events of these days (omitting the matters previously recounted) is:

   1. (1)

      On 8 January 2015, Ms Coleman came to Out Yenna and Ric believes that was at Colleen’s request. Colleen said to Ms Coleman in his presence that she wanted to make a new will. Colleen said:

   2. (2)

      Ric asked Mr Brown to draft new wills for Colleen and himself, as well as an agreement “that neither of us will change them” (CB2-19, paragraph 29).

   3. (3)

      In his email of 10 January 2015, Ric wrote that he agreed with Ms Coleman that it would be wise to have a doctor assess Colleen and he arranged for Dr Challender to attend Out Yenna on 14 January 2015.

   4. (4)

      On 17 January 2015, Ms Coleman came to Out Yenna. Ric says Ms Jackson was there at the time. He says Ms Coleman asked him if he had obtained a medical certificate for Colleen and that he handed it to Ms Coleman (CB2-110, paragraph 27(1)) and that Ms Coleman asked him to leave the room whilst she spoke “privately” to Colleen and that he did leave the room (CB2-20, paragraph 34).

   5. (5)

      He then says (at CB2-20, paragraph 35):

   6. (6)

      Ric says that, on 18 January 2015, Ms Coleman rang him and said:

6. [118]

   Ms Coleman denied this account. In relation to [117(6)], Ms Coleman denied that she had said what Ric claims she did. However, Mr Morrissey accepted that Ms Coleman had used the words ascribed to her by Ric: see T524.5.

7. [119]

   There are a number of questions that arise surrounding the evidence of both Ms Coleman and Ric as to what occurred during the period between 9 and 18 January 2015:

   1. (1)

      It seems as though Ric thought that there already was a will giving him the entire estate but by which he was not made the executor. What he was given on 18 January 2015 was the Exhibit 5 Will which did not appoint him as executor. Mr Murr described this as “an unresolved puzzle”: T525.20.

   2. (2)

      If Ms Coleman was not organising a new will on 17 January 2015, why did she ask to see a fresh medical certificate on that day as she says (and Ric agrees) she did?

   3. (3)

      Ms Coleman sought in her first affidavit to impugn the certificate from Dr Challender, quoting only the last paragraph of it and saying that she found it (at CB1-103, paragraph 109):

   4. (4)

      Ms Coleman claimed that she had stapled the cover sheet and three pages that she gave to Ric on 18 January 2015 to lessen Ric’s suspicions about Colleen’s instructions.

   5. (5)

      Why did Ms Coleman approach Mr Quintal only on 17 January 2015? On her evidence, Colleen had placed her signature on Exhibit 5, and or her initials on Exhibit 6, on 24 October 2014 and Ms Jackson had witnessed it on 24 October 2014.

   6. (6)

      The form of Exhibit 5 and Exhibit 6 are different. One has printed lines and descriptors of the persons signing, which appears consistent with Ric’s claim that Exhibit 5 and Exhibit 6 were not signed or initialled on the same day. Ms Coleman, however, gave an explanation for why one copy has the descriptors: see CB1-124, paragraph 61.

   7. (7)

      Ms Jackson was present at Out Yenna on 17 January 2015 and her signature appears on Exhibit 5 and also on the power of attorney dated 17 January 2015. It is Ms Coleman’s evidence that Ms Jackson signed on 24 October 2014 and there is no corroboration that Ms Jackson was working at Out Yenna on 24 October 2014. Ms Coleman’s evidence that Ms Wright was in New Zealand in late October 2014 is not correct.

   8. (8)

      If there was to be no will signed on 17 January 2015, why did Ms Wright respond to Ric’s question, “Are they doing the will first?”, by saying, “No, they’re doing the power of attorney first”.

   9. (9)

      How was it that Ms Coleman felt she could obtain instructions from Colleen about the power of attorney but not about the will as she claims, and why did Ms Coleman not say in her emails to Ric and Mr Brown that the prospect of fresh wills was “out of the question”: see [113(3)] above.

8. [120]

   I think it is likely that the conversation in which Colleen instructed Ms Coleman to give Ric the will (on Ric’s case) or to give Ric “what he wants” (on Ms Coleman’s case) was not the same conversation about delivery of the documents to Ric. She had not at that stage seen Mr Quintal. Ric’s version that the conversation about delivery of the will occurred shortly before Ms Coleman arrived at Out Yenna is more likely because Ms Coleman was indicating a time for delivery on the day that she did in fact deliver the envelope. If Ms Coleman did say that she would give Ric “the will which Colleen signed yesterday”, it would put that beyond doubt.

9. [121]

   I have made reference to Exhibit D bearing the date 14 January 2015 and the evidence which Ms Wright gave concerning it. Exhibit D is a curious document, and not only because of the change in the content of what Colleen is supposed to have said leading to its formation:

   1. (1)

      On Ms Wright’s evidence, it was signed on 14 January 2015, the same day that she says Dr Challender could not rouse Colleen.

   2. (2)

      On Ms Wright’s and Ms Coleman’s evidence Colleen, three days later, was so weak she could not sign the power of attorney (see CB1-102, paragraph 98) or even, says Ms Coleman, initial it (see CB1-128, paragraph 91) but on Ms Wright’s evidence, on 14 January 2015, Colleen placed a “fairly emphatic mark”, as described by Mr Morrissey (at T499.38), on Exhibit D and with the obviously frail signature on Exhibit 5 signed in October 2014, on Ms Coleman’s evidence. Ms Wright attested to Colleen’s signature on that date but Ms Hayes, whose signature as witness also appears, did not give evidence although available to the Plaintiff: see T204.20-25.

   3. (3)

      Exhibit D refers to “a will you drafted in private with your solicitor Piria Coleman”. This is ambiguous in itself (as Mr Morrissey conceded: see T12.2) and it does not refer to a will signed by Colleen, but only to one drafted in private with Ms Coleman.

   4. (4)

      If “the will you drafted in private with your solicitor” means the Oklahoma Will, Exhibit D presents a conundrum. If Colleen had not made a will revoking the Oklahoma Will, she did not need to make any declaration of her intention that it, rather than another will, should be regarded as what she wanted. If she had made a will in October 2014, this undermines the Plaintiff’s case that there was no will made in October 2014. On the other hand, why would Colleen need to state on 14 January 2015 that the Exhibit 5 Will, the latest in time, was the one she wanted unless, as is at least a possibility, she did not want to remove the Plaintiff and Mr Merlino as executors?

   5. (5)

      Ms Wright does not state that she gave Exhibit D to Ms Coleman at any time, nor in her affidavit did she refer to any conversation with Ms Coleman about Exhibit D. It seems that Ms Wright kept Exhibit D to herself and sent it to Ms Paton in August 2015. It is extraordinary that Ms Wright would go to the trouble of preparing Exhibit D and having Colleen’s mark witnessed and not provide it to Ms Coleman, Colleen’s solicitor, on either of Ms Coleman’s subsequent visits (on 16 and 17 January 2015). This is even more surprising, having regard to Ms Coleman’s evidence that Ms Wright handed over to her Colleen’s unsigned letters on 16 January 2015. I asked Ms Wright about whether she had told Ms Coleman about it (at T202.5-10) and her answer was entirely vague:

10. [122]

    Mr Murr took the position that Exhibit D supported Ric’s case because his case is that Colleen did make a will ‘in private’ in October 2014 and that Ms Wright, when she later asserted that Colleen had said to her that she wanted the will in Sydney to be the will, was fabricating that answer. He did not otherwise challenge the authenticity of the document. Mr Morrissey relied on Exhibit D as a codicil (an issue I shall deal with separately below) but also as evidence of Colleen’s intentions, since on the basis of Ms Wright’s second version of the conversation, Colleen was confirming that the Oklahoma Will represented her wishes. On the basis of the first conversation, and as recorded in the document, it was opaque, as Mr Morrissey conceded at T11.50-12.4. Having regard to its form and my rejection of Ms Wright’s evidence about what was said by or to Colleen, I find it difficult to place any confidence in Exhibit D as a document that supports either side’s version of events. I shall deal with the codicil issue separately, later in these reasons.

11. [123]

    In relation to the Exhibit 5 Will, as advanced by Ric, there are the following matters in support:

    1. (1)

       Ric’s evidence that he saw Colleen sign it on 17 January 2015.

    2. (2)

       The fact that, in her affidavit, Ms Jackson said that she witnessed Colleen’s signature on 17 January 2015. For reasons I have explained earlier, I put little weight on that evidence on its own.

    3. (3)

       Notwithstanding my concern about Ms Jackson’s evidence, there is clear evidence that she was present at Out Yenna on 17 January 2015 because:

    4. (4)

       On 17 January 2015, Ms Coleman did take Exhibit 5 (with another page of what became the will given to Ric on 18 January 2015) to Mr Quintal. Her denial that she had said to Ric that she would have Mr Quintal witness Colleen’s signature is at odds with the fact that that is exactly what she, on her own evidence, did do.

    5. (5)

       Ms Coleman delivered the Exhibit 5 Will to Ric on 18 January 2015.

    6. (6)

       The emails from Ms Coleman to Ric and Mr Brown between 9 and 17 January 2015 are cooperative and friendly. Whilst the email of 9 January 2015 (see [10(31)(b)] above) did raise an issue about the power of attorney and the identity of the executors, it did not raise any other concern. The email of 10 January 2015 referred to Colleen’s fairly “recent instructions” but cross-examination demonstrated that she did not have any recent instructions from Colleen, inconsistent with a new will.

    7. (7)

       On 17 January 2015, Ms Coleman asked Ric for (and obtained from him) a medical certificate. Ms Coleman said that she asked for it in connection with the proposed mutual wills in contemplation that then she could obtain instructions from Colleen. The request for the medical certificate on 17 January 2015 supports the proposition that Ms Coleman was intending to do something that day, subject to receipt of a more recent medical certificate than Dr Metcalfe’s certificate of 2 July 2014. She had raised the need for such a medical certificate in her conference on 9 January 2015: see CB1-202.

    8. (8)

       Ms Wright says (in her first affidavit) that, on 17 January 2015 at Out Yenna, she said to Ric, “No, they are doing the power of attorney first”, in answer to his question about the will. That response implies that Ms Wright was aware that there was to be a signing of a will and she could only have known the order of things from Ms Coleman. That problem seems to have been recognised by Ms Wright because, in her second affidavit (see CB1-351, paragraph 50), she deposes to a different version of the conversation with Ric in which “first” has been excised.

    9. (9)

       Ms Coleman’s evidence is that wills were simply not on the agenda and were not discussed at Out Yenna on 17 January 2015 yet on the undisputed evidence she asked for the medical certificate, rang and met with Mr Quintal on that date, rang Ric in the afternoon and delivered the will to Ric on 18 January 2015.

    10. (10)

        According to Ric, Ms Coleman said to Ric on 18 January 2015 (CB2-20-21):

    11. (11)

        Ms Coleman does not give a version of what occurred at Out Yenna on 17 January 2015 or of what was said on either 17 or 18 January 2015 that would explain her phoning Mr Quintal on 17 January 2015, visiting him that day and then dropping off a will the following day such as saying to Ric, for example, “I have the will signed by Colleen in October and I have now had Lew witness it.”

    12. (12)

        It is Ms Coleman’s evidence that Colleen was just too weak on 17 January to sign anything and the incident with the power of attorney is given as an example of that (CB1-104) but we have, on Ms Coleman’s evidence, Colleen shouting out "Give him what he wants” so loud that Ms Coleman perceived it as almost a shriek through the phone even though she was speaking with Ric. She described this as Col “finding her voice”.

12. [124]

    In support of the contention of the Plaintiff that Exhibit 5 was signed by Colleen on 24 October 2014 are the following matters:

    1. (1)

       Ms Coleman’s evidence.

    2. (2)

       The evidence of Ms Wright and Ms Coleman that Colleen could not sign the power of attorney in her own hand on 17 January 2015.

    3. (3)

       That it would have made sense to have Colleen sign Exhibit 5 in October 2014 when Ms Coleman first prepared it, at the same time as Exhibit 6.

    4. (4)

       Ms Wright’s belated evidence that she had put Colleen to bed before she left Out Yenna, and both her and Ms Coleman’s evidence that Colleen was just too weak and or agitated to do anything like sign a will.

    5. (5)

       Ms Coleman says she left Out Yenna shortly after Ms Wright and Ms Martinez had left and Ms Wright says in her second affidavit that she and Ms Martinez made their way to Ms Martinez’s house and that Ms Coleman joined them then a few minutes later, leaving only a very narrow opportunity for Colleen to have signed Exhibit 5.

    6. (6)

       That Ms Coleman’s letter, email and invoice of 25 October 2014 say that she had prepared a will for Colleen then and that the will so prepared had been executed, which fits Exhibit 5 more than Exhibit 6.

    7. (7)

       That Exhibit 5 and Exhibit 6 are identical in content so there was no need to create a new document.

    8. (8)

       Ms Coleman’s diary notes, taken alone, support Ms Coleman’s claim that nothing was signed by Colleen on either day (including the power of attorney).

13. [125]

    Another question which arises is this: if Colleen had in fact (contrary to Ms Coleman’s evidence) made a will in October 2014, why would she need to make another will in January 2015 that is in identical terms to Exhibit 6 made in October 2014? One possible answer is that Ms Coleman wanted to have a more formal document with a signature, rather than initials, and to have Colleen’s signature witnessed.

14. [126]

    One other matter relates to the power of attorney. It could be said that it did not make sense for Colleen to give Ms Martinez the power of attorney, rather than Ric, if she had (or was going to) bequeath her entire estate to him. The answer, however, is that Ms Coleman had recommended that Colleen appoint someone other than Ric and, given Colleen’s concerns about Ric’s approach to money and her concern to ensure that there would be sufficient funds to meet her health and care costs, I think it made sense that, whilst she was alive, she maintained independence of Ric in relation to real estate owned by her.

Findings Regarding October 2014 and January 2015

1. [127]

   I have set out the competing contentions as to the date Exhibit 5 was signed and the questions surrounding the issue. There are a number of matters which I regard as of particular importance and they are these:

   1. (1)

      Ms Coleman and Ms Wright gave evidence that was unchallenged that Colleen was unable to sign the power of attorney on 17 January 2015 and hence Ms Wright applied Colleen’s stamp. Ms Jackson is shown as having witnessed the purported execution of the power of attorney on 17 January 2015 but gave no evidence about it at all, either in her affidavits or orally. Ric says nothing about having observed the signing of the power of attorney. If Colleen could not summon the strength to sign the power of attorney on 17 January 2015 (the day she went to hospital), whilst not impossible, it seems unlikely that she could sign Exhibit 5 a short while later.

   2. (2)

      I have discussed Ms Coleman’s evidence as to her two meetings with Colleen on 21 and 24 October 2014 and her claim that Ms Wright was in New Zealand. Whilst it follows that, because Ms Wright was in fact working at Out Yenna, Ms Jackson was not working there, it does not follow that Ms Jackson was not present at Out Yenna. Ms Jackson never addressed the question of whether she had been asked to attend Out Yenna to witness Colleen’s signature on 24 October 2014 and it may not have suited anybody’s case to so assert, although paragraph 56 of Ms Coleman’s second affidavit (CB1-123, paragraph 56) is consistent with Ric having arranged it. Ric did not respond to that affidavit of Ms Coleman, which was served after his latest affidavit filed of 12 November 2016, and it was not put to him that he had arranged for Ms Jackson to be present.

   3. (3)

      One incontrovertible fact is that the mutual wills prepared by Mr Brown (and which Ms Coleman had asked him to convert into a word document) were not signed by Colleen or Ric on 17 January 2015. This links back to the question of why Ms Coleman would ask Colleen to sign Exhibit 5 on 17 January 2015 given that it did not meet Ric’s requirements and given that she already had Exhibit 6 initialled by Colleen in her possession.

   4. (4)

      I have identified the issues of credibility of Ms Coleman and Ms Wright as witnesses, but I have also made reference to the difficulties with Ric and Ms Jackson.

   5. (5)

      Some of the matters tending to support execution on 17 January 2015 (i.e. [123(4)] – [123(8)] above) are supportive of an intention on the part of Ms Coleman that there would be an execution of the mutual wills on that day but not inconsistent with there being in fact, as matters transpired, no execution of Exhibit 5 on that date.

   6. (6)

      The letter and invoice of Ms Coleman sent to Colleen is supportive of a document appropriately organised and validly executed on 24 October 2014, as is Ms Paton’s note of what Ms Coleman told her in their conversation.

2. [128]

   There is then, in relation to the date of execution of Exhibit 5, a welter of contradictory evidence which is productive of much uncertainty. No conclusion sits coherently with the established and agreed facts and could only be drawn if I had strong confidence in the veracity of one or more of the key witnesses which, for reasons I have identified, I do not.

3. [129]

   The onus of establishing that Exhibit 5 was executed on 17 January 2015 rests on Ric. Whilst there is material which supports his claim that it was, I am not satisfied on the balance of probabilities that it was signed on that date.

4. [130]

   Since I am not persuaded that Exhibit 5 was signed on 17 January 2015, it follows, having regard to the fact that there is no dispute that Exhibit 6 was initialled on 24 October 2014, the letter invoice and email of Ms Coleman of 25 October 2014 and the way in which the case was fought, that Exhibit 5 was signed on 24 October 2014.

5. [131]

   I find as a fact, therefore, that Exhibit 5 and Exhibit 6 were signed on 24 October 2014. The fact that Exhibit 6 was initialled and Exhibit 5 was signed at the same time has not been adequately explained. One possibility is that Ms Coleman thought initially that it might be better to have only Colleen’s initials on the dispositive page to match the Oklahoma Will dispositive page.

6. [132]

   The events of 17 and 18 January 2015 are still important, even if Exhibit 5 was signed on 24 October 2014. The following matters are established:

   1. (1)

      On 17 January 2015, Ms Coleman asked Ric for a medical certificate and Ric gave her Dr Challender’s certificate.

   2. (2)

      On 17 January 2015 Ms Coleman rang Ric after she had left Out Yenna and as Ric was about to take Colleen to hospital and, in the course of the conversation, she heard from Colleen.

   3. (3)

      On 17 January 2015, Ms Coleman rang Mr Quintal and arranged to meet him and have him add his initials to Exhibit 5.

   4. (4)

      That on 17 or 18 January 2015, she put together the Exhibit 5 Will.

   5. (5)

      That she arranged to deliver the Exhibit 5 Will to Ric (either in the afternoon of 17 January 2015, on her evidence, or on 18 January 2015, on Ric’s evidence).

   6. (6)

      That Ric then took to Mr Brown’s office the envelope Ms Coleman had given him which contained the Exhibit 5 Will where it was opened.

7. [133]

   Ms Coleman deposed (at CB1-104, paragraph 114):

8. [134]

   Ms Coleman does not, on her evidence, tell Ric what the package of documents was, however (at paragraph 126), Ms Coleman tells us that she handed to Ric the sealed package which “contained a series of documents Col requested I provide to Ric.”

9. [135]

   The importance of this is that Ms Coleman, in effect, says she is ringing Ric to arrange the delivery of the Exhibit 5 Will and yet her last conversation with Ric on her evidence prior to that was at Out Yenna earlier that day when she told him that there could be no signing of mutual wills on that day.

10. [136]

    There is no explanation by Ms Coleman of how she came to be ringing Ric to make arrangement for the delivery of the package and the impetus for that call could not have been the shouted command from Colleen during the call. Ms Coleman’s version of the instruction she received from Colleen on 17 January 2015 is identical to the instructions she says she received from Colleen on 9 January 2015. Ric’s version of what Colleen said to Ms Coleman on 17 January 2015 is that Colleen said, “Give Ric the will’ which, whilst similar, is not the same. Given that Ric had wanted a new will with himself as executor, and given that what Ms Coleman provided was the Exhibit 5 Will, I think Ric’s version is more likely correct.

11. [137]

    Whichever version is correct, the inference I draw from what occurred is that Ms Coleman must have understood that her instructions were to give Ric the Exhibit 5 Will and that she decided to complete the witnessing of Exhibit 5 by having Mr Quintal initial Exhibit 5. I think that would explain why she told Ric (on Ric’s evidence) that she would have Lew witness Exhibit 5.

12. [138]

    Ms Coleman’s visit to Mr Quintal was, she says (at CB1-104, paragraph 119):

    1. (1)

       The reference to “dual instructions” carries the clear implication that Ms Coleman understood that Colleen had given her instructions to prepare a will leaving her entire estate to Ric (and her admission concerning that, although framed principally as conveyed to her by Ric, is found at T55-58 and T92-93 and in her first affidavit at CB1-66) and what she said in the transcript (T116.5-117) set out above.

    2. (2)

       The reference to “dual instructions” and a “deeper layer of instructions”, particularly when coupled with the oral evidence, provides a possible explanation for Ms Coleman’s behaviour. Ms Coleman had received instructions from Colleen in July 2014 which fully supported the Oklahoma Will and the accompanying documents upon which instructions Ms Coleman had duly acted. If she later received instructions which reversed what had been achieved in July 2014, she may have come to feel that Colleen was unwise or Ric not deserving enough for Colleen’s change of heart or both. The conflict on this analysis was one, not of instructions, but between what Ms Coleman understood Colleen wanted and what she, Ms Coleman, thought or came to think (before or even after 18 January 2015) was appropriate, namely, the retention of the Foundation as the beneficiary of Colleen’s estate. It is possible that, in this thinking, she was influenced by Ms Wright who supplied her (on 16 January 2015) with the letters (other than the LBOM Letter) dictated by Colleen in June and July 2014 and with whom Ms Coleman conferred on 16 and 17 January 2015: see T112.45-113.37 set out above. This links to Ms Coleman’s assertion that (as Mr Morrissey put it) she saw herself as Colleen’s protector.

    3. (3)

       Ms Coleman (and Ms Wright), it would seem, became embroiled in a turbulent domestic environment caused, or exacerbated by, Colleen and Ric’s financial difficulties and Colleen’s physical deterioration. Ms Wright (at T150, paragraphs 28-36) and Ms Coleman (at T190.16-21) both admitted to a negative view concerning Ric. It is not unheard of that a relative or close friend of a married person holds strong views about the spouse’s unsuitability and the viability of the marriage which views, even if made known, are not accepted or acted upon by the married person.

13. [139]

    Of course, “the Exhibit 5 Will” was an anomaly – it comprised of a powers page and execution page from the Oklahoma Will, Exhibit 5 and a new cover sheet, which Ms Coleman had prepared, and, on Ms Coleman’s evidence, she also provided to Ric (with the Exhibit 5 Will) the original medical certificate from Dr Metcalfe of 2 July 2014. The impression that the Exhibit 5 Will would give to the outside world was that it had been executed on 12 July 2014. From that evidence, and reinforced by the correspondence from Ms Coleman to Colleen on 25 October 2014, I infer that Ms Coleman must have thought that she could replace the Oklahoma dispositive page with Exhibit 5 and that this would still be a valid ‘will’. Mr Brown must have thought so too because he caused a notice to be published in respect of the Exhibit 5 Will in the Norfolk Island Gazette on 20 February 2015: see CB1-114.

Testamentary Intention, Form and Volition

1. [140]

   It is clear that Exhibit 5 and Exhibit 6 are not wills that comply with the formal requirements of s 6 of the Act. The first question, therefore, is whether either document meets the requirements of s 8 of the Act (see [18(3)(h)] above). The Plaintiff did not contend that the presence of initials on Exhibit 6 (rather than a full signature) would render it invalid as a testamentary document and such a contention would have been inconsistent with authority. In Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535, Powell J (as his Honour then was) said at p 540:

2. [141]

   In Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 at [56], Powell JA (with whom Priestley JA and Stein JA agreed) set out the questions relating to documents of this kind for the purposes of s 8 of the Act:

3. [142]

   The PCS also rely, at paragraph 11(h)(3), on Stojic v Stojic [2018] NSWCA 28 for the proposition that the Court must be satisfied that the testator knew and approved of the contents of the will.

4. [143]

   In Oreski v Ikac [2008] WASCA 220, the Western Australia Court of Appeal (per Newnes AJA, with whom Martin CJ and McLure JA agreed) commented on the equivalent section in Western Australia (held to be materially the same as s 8 of the Act) and said:

5. [144]

   The PCS made reference to Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, which is a case where the handwritten document in question had not been signed by the deceased and had the appearance of a draft will under consideration.

6. [145]

   In my view, the answers to the three questions identified in Hatsatouris (supra) are that:

7. [146]

   In coming to this view, I take into account Ms Coleman’s evidence at CB1-97, paragraph 66-67, at T55-63 and, in particular, T55.47-56.47, the matters referred to at [110] and [111] and the aspects of Ms Coleman’s credibility to which I have referred earlier in these reasons, I am satisfied that the documents were prepared on the instructions of Colleen given to Ms Coleman as her solicitor to prepare a new will revoking the bequest to the Foundation and leaving her entire estate to Ric, even if they were conveyed on Ms Coleman’s evidence principally, but not solely, by Ric in the presence of Colleen and with her approval.

8. [147]

   Ms Coleman did not say that she had not read or made clear to Colleen the contents of the document she was providing to her to sign, a matter very much within her knowledge if it were true and likely to be advanced in a case in which it is said by Ms Coleman that Colleen did not have any testamentary intention. Indeed, the Plaintiff’s claim that Ric coerced Colleen into signing the document bequeathing her estate to him is inconsistent with such a contention. I do not accept the Plaintiff’s contentions (in PCS, paragraph 11) that Colleen did not provide Ms Coleman with instructions to make a new will. I find that Colleen did sign Exhibit 5 and initial Exhibit 6 and that she was aware of their very plain and straightforward terms, and I reject the assertion in the PCS that Colleen was not able to sign those documents.

9. [148]

   It is Ms Coleman’s evidence that her own perception was that Colleen did not really want to execute the document. I am unable to accept Ms Coleman’s evidence that she believed that Colleen did not want to sign the document which Ms Coleman had prepared on Colleen’s instructions, given the matters to which I have referred above, or her evidence that she had to take steps to ‘protect’ Colleen and that is why she went ahead with the execution of the documents and had Ms Jackson witness Colleen’s signature. I do not accept that by signing with a weak hand Colleen was “abandoning” the testamentary document which Ms Coleman had prepared for her.

10. [149]

    The PCS sought to contend, as a quite discrete matter, that because Ric witnessed the execution of Exhibit 5 he was precluded from obtaining a benefit under it. There was no pleading to the effect that Ric’s presence would invalidate the bequest and the point was abandoned in oral submissions (see T538.45). In any event, Ric did not sign either document as a witness.

11. [150]

    The cases upon which the Plaintiff relies are quite different to the situation here. In Oreski (supra), the appellant claimed that a typed document in the form of a will said to have been found in the back of the deceased’s vehicle was that of the deceased but it was not established to be a document that represented the testator’s intentions; not only was it not signed, there was no evidence that it was prepared by the deceased or on the instructions of the deceased and there was forensic evidence that the typewriter on which the document had been typed was not that of the deceased and not another typewriter identified by the appellant as a possibility with no other typewriter connected with the deceased identified as the source. Nor is there really any similarity with the ‘trial run’ cases, of which Lindsay (supra) is an example.

12. [151]

    The suggestion in the PCS, at paragraph 8(ii)(1)-(2), that Colleen knew what was required to make a valid will is not established because she was “a highly intelligent woman” or had typed a will in 2005 but, in any event, in 2014 and 2015 she had a qualified lawyer preparing documentation for her and she would not have had any reason to think that Ms Coleman did not know the correct way to effect her intentions.

13. [152]

    At PCS, paragraph 8(l), it is asserted that for the Oklahoma Will there was an Attestation document and a Bequest letter but there are no such documents in relation to Exhibit 5 and Exhibit 6 as a matter pointing to a lack of finality with Exhibit 5 and Exhibit 6. The point is misconceived because there could be no call for such documents in circumstances where Colleen was leaving her estate to her husband.

14. [153]

    Mr Morrissey, in the PCS and his oral submissions, submitted that the absence of any evidence from Mr Brown was of significance in relation to the issue of what occurred on 17 and 18 January 2015 (T506.26). Apart from the fact that Mr Brown was acting for Ric in this litigation presenting a difficulty (that Mr Morrissey had himself raised in relation to Ms Paton during the hearing), it is difficult to see what evidence Mr Brown could have given that was not privileged yet admissible concerning Ric’s visit to him on 18 January 2015. There was no dispute that Mr Brown had been asked by Ms Paton to hand over to Ms Coleman what Ric had been told by Ms Coleman was the will and which was given to Ric on 18 January 2015, and that he had done so. The only matter on which Mr Brown might have given evidence was as to what was in the security packet handed to him by Ric on 18 January 2015. In that regard, there was no dispute that what Ric handed over was what Ms Coleman had given him. The only matter in doubt was whether the medical certificate that was handed over by Ms Coleman was that of Dr Metcalfe of 2 July 2014 or that of Dr Challender of 14 January 2015.

15. [154]

    I set out a passage of the PCS (at 8(f)):

16. [155]

    This submission asserts that the Court should not accept that Colleen’s signature (or initials) amounted to an indication of Colleen’s testamentary wishes because:

    1. (1)

       Ms Coleman did not see Colleen privately; and

    2. (2)

       Ms Coleman was so concerned about Colleen that she wrote the letter of 25 October 2014 to protect Colleen, writing that she had prepared a new will when she (on her evidence) had not.

17. [156]

    I am unable to accept these contentions because:

    1. (1)

       I am not persuaded that, on the balance of probabilities, Ric was present the entire time on 21 and 24 October 2014 and that Ms Coleman had no opportunity to see Colleen alone.

    2. (2)

       even if Ric was present the entire time on 21 and 24 October 2014 his presence does not, on its own, amount to a bar to the validity of the will. His presence would be relevant in the consideration of whether Colleen’s free will was overborne but Ms Coleman gave no evidence of Ric pressuring Colleen to sign on either date. Indeed she said that, at the conference on 21 October 2014, Colleen and Ric were “affectionate with each other” (T57.45) and that Ric was, on 24 October 2014, very attentive to Colleen.

    3. (3)

       I do not accept that Ms Coleman’s letter and invoice of 25 October 2014 contained the falsehoods which Ms Coleman asserts they contain, or that what she did was done to protect Colleen or keep her safe.

    4. (4)

       the “no chance to speak to Colleen alone” contention seems to amount to a claim of Colleen’s will being overborne on 21 and 24 October 2014. There is no clear evidence of that occurring and a few indications contrary to it, namely, the apparent discussion on 21 October 2014 between Colleen and Ms Coleman about a proposed letter to be sent to Ric, presumably setting clear ground rules for Ric’s expenditure to ensure adequate funds for their needs, and, in particular, Colleen’s care costs and I accept Mr Murr’s submission that it is unlikely that Ric would have been present during that discussion and Ms Coleman’s notes do not establish that he was. There were later very firm instructions given by Colleen on 17 January 2015 to give Ric the will which Ms Coleman took to mean the Exhibit 5 Will that she had prepared previously. If Ms Coleman believed on either occasion that Colleen did not want her will changed, or had a doubt about Colleen’s wishes or volition, she had not just the option, but the duty, to refuse to do anything further to promote a new will.

    5. (5)

       Ms Coleman’s understanding expressed in the letter of 25 October 2014 was that there was in place a “harmonious” approach to estate planning.

18. [157]

    I accept that Colleen’s health was very poor in October 2014, but it was not so poor as to affect her mental capacity or her ability to make a will. Even in January 2015 when she was seriously ill she was able to give Ms Coleman instructions to prepare a power of attorney, to confer with Ms Coleman and, on 17 January 2015, to shout at Ms Coleman to give the will to Ric.

19. [158]

    I am unable to accept Ms Coleman’s evidence that she only did what she did, or wrote what she did, to placate Ric and protect Colleen for reasons to which I have earlier referred. In this connection, I have already noted that she sent the letter and invoice to Ms Wright on 25 October 2014 and there is no evidence that Ric would have seen the letter. Not only does Ms Coleman not say that she said to Ms Wright, “make sure that Ric sees this letter” or “tell Ric that everything is now in order concerning Colleen’s will”, but, more significantly, she does not assert that she discussed with Ms Wright letting Colleen know that she had only done what she had done to make Colleen safe. She sent an email to Ms Wright in which she said nothing about the “protect Colleen” plan, nor did she at that point provide a copy of the Exhibit 5 Will to Ric. The cross-examination established that Ms Coleman really did not have instructions from Colleen to pretend anything.

20. [159]

    The PCS (at pp 11-16) set out a number of passages from Ms Coleman’s affidavits, although no transcript references to Ms Coleman’s cross-examination are mentioned. I have had regard to each of those paragraphs (one of which contains Ms Coleman’s assertion that Colleen lacked testamentary capacity, which is not even advanced by the Plaintiff) and I have explained why I am not able to accept her evidence on the matters advanced in those paragraphs.

21. [160]

    I have found as a fact that Colleen signed Exhibit 5 and initialled Exhibit 6, believing each of those documents to produce the result that she thereby revoked the Oklahoma Will, bequeathing her entire estate to Ric. Whether she did so because she genuinely felt that her previous action, in depriving Ric of the benefit of her estate, had been too harsh or because Ric had ingratiated himself back into her favour or because she believed that this would ensure that Ric stayed committed to caring for her is not clear. In Nock v Austin (1918) 25 CLR 519 at 527, Isaacs J said:

22. [161]

    As the passage just cited makes plain, the Court is not called upon to assess whether Colleen’s decision to reinstate her husband as sole beneficiary was a wise one or justified in all the circumstances but none of the possible reasons I have mentioned are irrational and each would, alone or together, support a return to the position that had pertained from at least 2005 to 2014, namely, that Ric would obtain Colleen’s entire estate.

23. [162]

    What the Court is called on to answer, however, is whether it has been established that, in giving the instructions she did give and in signing Exhibit 5 and Exhibit 6, she did sign (having, as I have found, testamentary effect), these actions were a result not of her own volition but because she was coerced to do so as a result of undue influence of Ric. Coercion in this context, clearly, can mean coercion by means other than physical violence or abuse but, as Wingrove (infra) establishes, persuasion by arguments or contentions accepted by a testator is not sufficient. I have referred to the dramatic events of June 2014 and the countervailing material in respect of the domestic relationship. Although the Plaintiff sought to present through Ms Coleman a case of actual coercion, not only of Colleen but of herself, there is no direct evidence of coercion, physical or non-physical, towards Colleen or Ms Coleman in relation to the execution of Exhibit 5 and Exhibit 6 and so the question therefore becomes, is there sufficient material presented to support the inference that Colleen was not acting of her own free will – that is a circumstantial case.

24. [163]

    On the issue of volition, in Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121-122 (referred to in the Defendant’s earlier outline of submissions), Powell J (as his Honour then was) cited passages from the address to the jury in Wingrove v Wingrove (1885) 11 PD 81 at 82-83 by Sir James Hannen P to the effect that, to set aside a will on the basis of undue influence, the party seeking to do so must establish that what brought about the will was force or coercion destroying free agency, saying to the jury:

25. [164]

    In this context, the question of onus becomes significant because there are matters which could be relevant to a circumstantial case, such as Ric’s presence at the conference with Ms Coleman, Colleen’s ill health and vulnerability and the fact that Ric was providing care to her for significant periods of time. Mr Murr referred in his outline of submissions to Winter (supra) on the issue of onus and returned to this theme in his oral submissions (at T518). In that case, Powell J, relying on Wingrove, Boyse, Parfitt (supra) and other authorities, held that the onus lies on the party who asserts undue influence to establish that the will of the testator was overborne. His Honour also said at p 122D:

26. [165]

    The Plaintiff did not challenge the correctness of Winter (supra), and those cases upon which the conclusion is based, or contend that the principle was not applicable in this case.

27. [166]

    Mr Murr described the onus as an “extremely high bar” (which Mr Morrissey I think accepted: see T518.11 and the absence of any submissions in reply on that point) and he contended that the Plaintiff had fallen “so far short of what would be required for that extremely entire serious issue in the case”.

28. [167]

    In my view, the Plaintiff has failed to discharge the onus on this point. I say that not only because the Plaintiff’s circumstantial case on coercion in the PCS seems to place much weight on motive, opportunity and suspicion but also because:

    1. (1)

       it is agreed that Colleen was not mentally impaired in October 2014 or at all;

    2. (2)

       the Plaintiff’s claim that she was neglected in October 2014 was not made out;

    3. (3)

       Ms Coleman gave no evidence of her discussion with Colleen concerning the LBOM Letter referred to in her invoice;

    4. (4)

       Ms Coleman did not provide an explanation for why she rang Ric on 17 January 2015 and, therefore, the context in which she was given the instruction that she was given;

    5. (5)

       I have referred to the absence of cross-examination of Ric in relation to the matters identified in [73] above but, even more generally, there was no attempt in cross-examination to explore or challenge his denials (CB2-106-108, paragraphs 10, 12, 15-16);

    6. (6)

       Colleen was represented by her solicitor and the documents were drawn by her solicitor and not Ric;

    7. (7)

       even on Ms Coleman’s evidence, it is clear that Ric arranged for Colleen to see her and did not endeavour to procure Colleen’s execution of a will without her having representation in October 2014 or January 2015;

    8. (8)

       Ms Coleman gave no details of her conversation with Colleen about the LBOM Letter; and

    9. (9)

       Ms Wright, who described herself not only as Colleen’s nurse and carer but also “her personal assistant, secretary and confidant” (see CB1-442, paragraph 7), gave no evidence of anything said to her by Colleen concerning the events of 21-24 October 2014 generally and no evidence of what discussions, if any, she had with Colleen about the LBOM Letter or the letter that Colleen was typing. The absence of evidence from Ms Wright on these topics in a case in which it is asserted that Colleen’s will was overborne when she signed Exhibit 5 and initialled Exhibit 6, and gave instructions for a will in those terms, is very significant.

29. [168]

    It follows, therefore, that the Plaintiff has not established that Colleen was coerced by Ric into signing Exhibit 5.

30. [169]

    The PCS, at paragraph 11(h), addresses the issue of ‘suspicious circumstances’. As is pointed out in the PCS, the degree of suspicion “will vary with the circumstances” and it is “simply a question of circumstances giving rise to a suspicion that the testator may not have known of and approved the contents of his will”: see Burns v Burns [2016] EWCA Civ 37 at [52] per McCombe LJ (with whom Longmore LJ and Treacy LJ concurred). One of the matters asserted is that Ric was pushing for a new will and wanted to be the sole beneficiary of that new will. In this regard, the PCS makes reference to Nock (supra). In that case, a will was prepared for the deceased by Mr Austin and Mr Morgan which will gave a large portion of the estate to them. Mr Austin was a solicitor. The deceased was survived by a wife and an adopted son who challenged the validity of the will on various grounds. The trial judge gave full consideration to the suspicious circumstances and, with the necessary “vigilance and jealousy”, was “judicially satisfied that the paper propounded” did “express the true will of the deceased” (see 524D-J, per Barton J and Gavan Duffy J) and the appeal was rejected. The third member of the Court, Isaacs J, agreed that the appeal should be dismissed and in his judgment he set out some propositions of law which he described (at 528) as “not doubtful” and which I shall recite (omitting footnotes):

31. [170]

    The following proposition is put in the PCS, at paragraph 11(9):

32. [171]

    Also whilst I accept that Ric (and Mr Brown on his behalf) was keen to see a will which gave Colleen’s estate to Ric, appointed him as executor and to obtain Colleen’s agreement that she not change her will to disinherit him, I do not accept that, as seems to be suggested in the PCS, by speaking to Ms Coleman and corresponding with Ms Coleman, he or Mr Brown was pressuring Ms Coleman to do something inconsistent with her instructions. On Ms Coleman’s evidence, she did not do anything inconsistent with her instructions on 17 or 18 January 2015. The Plaintiff’s case is that not only did Ric coerce Colleen, but that he coerced Ms Coleman as well. It is Ms Coleman who, in her email of 9 January 2015, tells Ric that for him to be made executor would run the risk of him being seen as coercive: see [10(31)(b)] above. Not only, as I have already said, is there no evidence from Ms Coleman that Ric pressured Colleen to sign Exhibit 5 or Exhibit 6 but there is also no evidence that Ric pressured or coerced Ms Coleman to do anything either. There is evidence from Ms Wright which, if accepted, would support the claim that Ric was, in January 2015, pressuring Colleen to make a will appointing him executor but, leaving to one side the question of Ms Wright’s credibility, Colleen, in any event, did not execute a will making Ric executor in January 2015 or, on my earlier conclusion, Exhibit 5. If Ric did raise mutual wills in October 2014 as Ms Coleman asserts, he left it until January 2015 to pursue his appointment as executor. That was a quite legitimate concern given that he understood that he was to receive the estate and he could not see a good reason for him not to be appointed executor.

33. [172]

    Unlike the situation in Nock, Ric did not prepare the document which Colleen signed. It was prepared by Ms Coleman, Colleen’s own solicitor. Thus, that asserted basis for finding suspicious circumstances in the present case is not made out. Not only was it prepared by Ms Coleman, but one thing that is clear is that it was Ms Coleman alone who developed the idea of changing the dispositive page in October 2014 and created the Exhibit 5 Will (then or in January 2015) and gave it to Ric. The second point, however, is that although the Plaintiff does not contend that Colleen did not have capacity, and although Colleen did sign Exhibit 5 and initial Exhibit 6, and although Exhibit 5 and Exhibit 6 were prepared by Ms Coleman, I think that the circumstances are such as to require detailed consideration of the evidence presented to reach a conclusion as to whether Colleen did know and approve of the contents of the documents and intend them to have testamentary effect and whether it has been established that Colleen’s instructions and actions were a result of a lack of volition because of Ric’s conduct. That is what I have endeavoured to do and I will admit to it being no easy task, given the unusual circumstances of the case and the contradictory and confusing evidence.

Is Exhibit D Effective to Revoke any Previous Will?

1. [173]

   The Defendant’s closing submissions (“DCS”) contended that Exhibit D was not a ‘codicil’ as the Plaintiff contends. Section 15 of the Wills Act, which the Plaintiff relies on and which Ric accepts is the relevant legislative provision, is in the following terms:

2. [174]

   There was agreement between the parties that the Wills Act governed this issue.

3. [175]

   The DCS accept that Exhibit D bears Colleen’s mark and that the document bears the date 14 January 2015, although they do not expressly accept the Plaintiff’s contention that Colleen signed it or that she signed it on that date. Since the Plaintiff was propounding Exhibit D as having effect as a codicil and had access to Ms Hayes (T204.20-26), Ric contends that her failure to call Ms Hayes leads to the conclusion that Ms Hayes could not assist the Plaintiff’s case: Jones v Dunkel (1959) 101 CLR 298, a submission I accept. The Defendants contend that the requirements of s 6 are not met because Colleen’s signature was not placed on Exhibit D with the intention of executing it as her will but, rather, with her answering “yes” to the question it posed, namely, did she want another document to be her will?

4. [176]

   For reasons which I have earlier expressed I have difficulties accepting Exhibit D as a true and clear expression of Colleen’s wishes but I shall, for the purposes of considering this issue, proceed on the basis that the will to which it is referring is the Oklahoma Will. Exhibit D was drafted by Ms Wright who says she did not know that Colleen had made another will after the Oklahoma Will. Exhibit D is not framed as an intention to revive a revoked will.

5. [177]

   Mr Morrissey did not make any submissions in response to the DCS dealing with the codicil issue. By the DCS, Ric submits that the Norfolk Island legislation simply does not provide for a document that informally revives a revoked will. The DCS refer to In the Estate of Horne (1920) 20 SR 531 at 533 (per Harvey J) for the proposition that there must appear, “within the four corners of the codicil”, an intention to revive an earlier revoked will. This accords with the very clear and strong rule that whoever asserts that some subsequent instrument precludes an earlier testamentary document from its effect must “show that the intention to revoke is as clear and free from doubt as the original intention to give”: see In Re Resch’s Will Trusts [1969] 1 AC 514 at 547 per Lord Wilberforce.

6. [178]

   In Horne, Harvey J was able to deduce that intention because the document said, “I appoint Joseph Edward Bradbury executor trustee instead of Charles Page”. There is nothing of that kind here. In my view Exhibit D is not a codicil at all and I think the document cannot be constituted as a testamentary instruction that the Oklahoma Will be revived, but rather as an indication that Colleen wanted a will that she had made to be treated as her will.

7. [179]

   The Plaintiff relies on s 8 of the Wills Act to support the contention that Exhibit D is nevertheless a codicil. To comply with s 8, which provides for dispensing with the requirements of formal execution, alteration and revocation of a will, there are requirements which must be met. It is not immediately apparent that the section applies to a codicil at all, but s 8(1)(a) does refer to a document that purports to state the testamentary intentions of a deceased. Section 8(2) specifies the documents to which s 8 applies (there is no specified operative part but I shall assume that the heading supplies the answer to that – it that the Court can dispense with the formal requirements). Those documents are:

8. [180]

   Of the above, (a) cannot apply because Colleen could not have intended Exhibit D to be her will. Similarly, (b) cannot apply because there is no alteration of a will. In relation to (c), there is no express revocation of a will contained in Exhibit D – but rather a statement that a will signed at an earlier time is to be the will she intends to be her will. It might be said that Exhibit D is intended implicitly to revoke an existing will, but the document itself does not do so. In my view it is s 15 of the Wills Act which deals with the revival of revoked wills and, if its conditions are not met, I do not think that there is scope for some additional implicit revocation which does not meet the criteria laid down by s 15.

Conclusion

1. [181]

   It follows that Ric has established that Colleen initialled Exhibit 6 and signed Exhibit 5, albeit on 24 October 2014, intending those documents to replace the dispositive page of the Oklahoma Will and also that Exhibit D is not effective as a codicil reviving the revoked Oklahoma Will.

Costs

1. [182]

   Ms Morrissey submitted that, should the Plaintiff be successful in obtaining a grant of probate of the Oklahoma Will, both the Plaintiff’s costs and Ric’s costs should be paid out of the estate. The Plaintiff contended that if she was unsuccessful her costs should be borne by the estate on the basis of Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, a decision of Powell J (as his Honour then was). Mr Murr made clear that his client would not accept that the Plaintiff’s costs should be paid out of the estate if Ric was successful in these proceedings.

2. [183]

   The estate, by all accounts, is not extensive (approximately $2.1 million on the Plaintiff’s estimate, but not including future royalties or valuables: T509.50-510.2, and before costs are deducted). I was given to understand by the parties on the first day of the hearing that the costs of both sides, even at that stage, were equally extensive: see T17.36-18.1.

3. [184]

   In Re Hodges (at 709E), Powell J noted that in probate litigation the usual rule of “costs follow the event” has been the subject of two recognised exceptions:

4. [185]

   These two exceptions have been recently considered in Walker v Harwood [2017] NSWCA 228 at [52]-[53] per Macfarlan JA (with whom Payne JA agreed at [78]) and to which the DCS makes reference.

5. [186]

   The DCS made the following points:

   1. (1)

      The usual costs order in civil litigation is that costs follow the event with the consequence that the unsuccessful party is ordered to pay the successful party’s costs.

   2. (2)

      The Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) apply to probate actions as they do to other types of proceedings: Walker (supra) at [52] per Macfarlan JA (with whom Payne JA at [78] agreed).

   3. (3)

      There are two exceptions recognised in probate proceedings. First, where it can be said that the testator was the cause of the litigation and, second, where circumstances led reasonably to an investigation. In the former case, the Court may order that the unsuccessful parties’ costs be borne by the estate. If the second situation applies, the costs will be left to be borne by those who respectively incurred them: Walker at [53]-[54] and [78].

6. [187]

   By the DCS, Ric contends that neither exception applies and he seeks an order not only that the Plaintiff pay his costs but that she do so on the indemnity basis. The DCS contend that:

   1. (1)

      the first exception does not apply because there can be no finding that Colleen brought about this litigation; rather, it is submitted that Ms Coleman “was on a frolic of her own, not attributable to Colleen in any way” (DCS, paragraph 4.6);

   2. (2)

      Colleen’s mental state was an issue in the case does not mean that the exception applies: Walker;

   3. (3)

      the second exception does not apply because the Plaintiff’s solicitor, Ms Paton, has had carriage of the matter since February 2015; first, on behalf of the Foundation and, then, on behalf of the Plaintiff. Ric contends that, acting reasonably, Ms Paton must have appreciated that there was at least one competing instrument prior to June 2015 when she signed and filed a Statement of Claim acknowledging the Oklahoma Will’s existence;

   4. (4)

      the Plaintiff’s solicitor, acting reasonably, would have recognised that the Oklahoma Will was not an apparently regular executed will;

   5. (5)

      there is a public interest in deterring persons “who take adversarial positions at the expense of their overriding duty to the Court”;

   6. (6)

      the Plaintiff has not acted bona fide or reasonably;

   7. (7)

      the onus is on the party asserting that one or the other of the two probate exceptions should apply: see Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips (No 3) [2017] NSWSC 409 at [22] per Kunc J; and

   8. (8)

      the Plaintiff has retained a qualified practitioner for the litigation and “if the practitioner’s conduct has resulted in the party making less than reasonable investigations or disclosure, the exceptions cannot apply”.

7. [188]

   In support of the claim for indemnity costs, the DCS assert that until the eve of the hearing the Defendant had been provided no explanation as to how the Oklahoma Will had come into existence. The need for such an explanation was clear from February 2015 and, in any event, from the time that the expert report for Ric was served. The Amended Defence pleaded that the Oklahoma Will was a composite document. An explanation for why it was so was only provided, it was said, on 18 May 2018. The letter of 25 October 2014 and email to Ms Wright, which Ms Coleman had apparently provided to Ms Paton in February 2015 as part of her file, was not made known to Ric until 19 May 2018 notwithstanding the service of a Notice to Produce issued on behalf of Ric to the Plaintiff well before that which required their production.

8. [189]

   In relation to [187(2)], Colleen’s mental state was not an issue in the case. However, her emotional state was an issue in the case.

9. [190]

   In relation to [187(3)], I accept that the Plaintiff’s solicitor must have been aware that there was at least one other competing will or testamentary document from a very early stage. The Foundation’s Statement of Claim puts that beyond doubt.

10. [191]

    Whilst I think it is distinctly possible that, had all the details concerning the Oklahoma Will been made known earlier, costs would have been reduced but that is not attributable to the Plaintiff or her solicitor. I am not persuaded that had the documents produced a few days before the hearing been produced in a timely fashion (as they most certainly should have been) that it would have had any appreciable impact on the course of the hearing.

11. [192]

    The Plaintiff instructed her solicitor (and Counsel) to seek to maintain the Oklahoma Will and, on the evidence of Ms Coleman, there was a basis for so doing. The Plaintiff did take an adversarial position but I do not accept that she breached a duty to the Court because she did not conclude that Ms Coleman’s evidence should be rejected.

12. [193]

    The problem with the DCS on costs is that they do not take into account the fact that the Plaintiff and her solicitor were provided with a version of events by Ms Coleman which, if accepted, not only supported the validity of the Oklahoma Will but also would, or at least could, support the conclusion that no later testamentary document was brought into existence or was effective.

13. [194]

    The evidence of Ms Coleman, the solicitor who had prepared all three documents in question, provided reasons why only the first (i.e. the Oklahoma Will) was the valid will of Colleen of which Probate would be granted. I do not think that the cross-examination of the Plaintiff or Ms Paton demonstrated that they had done anything which they should not have done relevant to the question of costs. It would have been very difficult for the Plaintiff to decide to reject Ms Coleman’s version of events and accept, therefore, that Colleen’s wishes were reflected in Exhibit 5 and or Exhibit 6. Thus I am of the view that the circumstances, as they presented themselves to the Plaintiff and those advising her, led reasonably to the need for an investigation as to whether the Oklahoma Will was valid and whether it was the last will of Colleen. The consequence of that conclusion would be that the costs of each party should be borne by each of them, and that there would be no order that the Plaintiff pay Ric’s costs on an indemnity basis or otherwise.

14. [195]

    I have given consideration to whether the first exception is made out and whether, if it is, the costs of both the Plaintiff and Ric should be borne by the estate. I do not think that it can be said that Colleen has been the cause of this litigation. She made a will in July 2014 bequeathing her entire estate to the Foundation as she was fully entitled to do. On the findings I have made, she, by October 2014, had changed her mind and decided to give her estate to Ric for reasons known only to her but not shown to be irrational and, more importantly, not as a result of any delusion, mental illness or incompetence as Carr (supra) makes clear would be required. Again, she was fully entitled to do so.

15. [196]

    The need for this litigation has been caused by Ms Coleman and for two reasons. The first is that she failed to prepare a fresh will in the usual fashion and instead decided that she could substitute one dispositive page for another. The second is that she propounded a version of events by which she sought to justify, in effect, her disassembling of the “will” prepared by her and provided to Ric on her client’s instructions and the reassembling of the Oklahoma Will. That is conduct which, on my findings, was not consistent with the instructions she had received from Colleen and her own actions on 24 and 25 October 2014 and in January 2015. It is this second respect, particularly, which has led to the extensive and unfortunate litigation in this matter. I am not persuaded that the first exception to the normal costs rule has been made out and it follows that the order which should be made is that each party should bear his or her own costs.

Orders

1. [197]

   I will provide the parties with an opportunity to bring in short minutes of order reflecting the outcome in this case consequent upon these reasons.