ADMINISTRATION & PROBATE - Wills and codicils - Testamentary capacity - Elderly person with dementia - Change of bequests from previous wills - Whether testatrix capable of evaluating claims on her bounty - Evidence of cognitive impairment - Failure to know or approve contents of codicils - Suspicious circumstances - Application allowed - Robertson v Smith

2 The plaintiff was the deceased's doctor ('GP') from the mid-1990s until the time of her death. The plaintiff and Mr Robert Ian Collins were the deceased's medical attorneys pursuant to an enduring power of attorney and executors to her estate.[1] Crucially, the deceased suffered from Lewy body dementia towards the end of her life, which substantially impaired her cognitive functioning.

3 The question before the Court is whether the deceased had testamentary capacity at the time that she made each of the five codicils. The veracity of the will is not in doubt. For the reasons that follow, I am of the view that the deceased had testamentary capacity at the time that she made the first, second and third codicils, but not the fourth and fifth codicils.

4 A somewhat unusual feature of this proceeding involved the appointment of an independent contradictor to represent the unrepresented beneficiaries of the deceased's estate (save for Mr Collins).[2] I will return to this later in these reasons.

5 The deceased was born on 22 February 1912 and died on 1 July 2013. She was married twice, first to Mr Nicholas Sulyma, and then to Mr Ostap Matiasz. Although she had no biological children of her own, Mr Matiasz had two children from a previous marriage. Mr Matiasz died on 9 March 2007 and it seems his two children died later in that same year.

6 At the time the deceased made her last will and each of the five codicils to that will, she was a widow.

7 The plaintiff, as I have said, was the deceased's GP from the mid-1990s until the time of her death. He has known her since childhood. Other important persons in her old age were: a neighbour, Mrs Patricia Taylor; her friend and gardener, Mr Collins; and Mr Collins' then domestic partner, Mr Peter Finney.

8 The deceased made her last will on 19 May 2007. The will was prepared by Mr Collins. In summary, the deceased left:

(a) $1,000 to the Ukrainian Catholic Cathedral, North Melbourne;

(b) $1,000 to the Ukrainian Church and Life newspaper, Melbourne;

(c) $1,000 to the Free Thought (Ukraine) newspaper, Sydney;

(d) any 'keepsake' that the plaintiff wished from the deceased's home;

(e) $2,000 to each of the plaintiff's three sons, 'in memory of her long friendship with their grandmother, Marusha Jakubowycz';

(i) 60 per cent, equally, between her stepchildren (Ms Lidia Popadyncz and Mr Eugen Matiasz) provided that, from this proportion of the estate, the executors erected and paid for a headstone for the parents of Mr Matiasz, in Ukraine, in the names of Mykola and Anna Matiasz; and

(ii) 40 per cent, essentially equally, between her nephews and nieces (Oksana, Nick, Stephan, Zenovia and Orest).

9 On 8 January 2010, the deceased made the first codicil to the will. It was prepared by Mr Collins. Relevantly, it provided that if any of the beneficiaries named in the will predeceased her, that disposition was to go to their children or, if there were no children, to their estate. The deceased also wanted a trust fund of $20,000 for Mr Ivan Danchevskyi, a great nephew, to provide for his ongoing livelihood when he finished his seminary training. According to Mr Collins, the motivation for the first codicil was the death of Mr Matiasz's children in late 2007, shortly after the will had been made.

10 On 10 December 2011, the deceased made the second codicil. It was prepared by Mr Collins. It left $5,000 to Mr Miraslov Sulyma (the deceased's first husband's brother) and a further $5,000 to 'Iryna' (the deceased's first husband's sister).

11 On 6 March 2012, the deceased made the third codicil. It too was prepared by Mr Collins. It left a bequest of $10,000 to the trustees of the Ukrainian Catholic Eparchy of St Peter and Paul, North Melbourne, for the sole use of the parish of that church. The plaintiff was unaware that the third codicil had been made, whereas he was aware that the first and second codicils had been made.

12 On 30 November 2012, the deceased made the fourth codicil. Once again, it was prepared by Mr Collins, despite the fact that he stood materially to gain from it. It made a further gift of $40,000 to Mr Petrasz (her nephew) and $100,000 to Mr Collins. As with the third codicil, the plaintiff was unaware that the fourth codicil had been made.

13 On 25 March 2013, the deceased made the fifth codicil. As with the fourth codicil, it was prepared by Mr Collins, despite the fact that he stood materially to gain from it. It made a further gift of $40,000 to Nicholas Petrasz and $250,000 to Mr Collins. As with the third and fourth codicils, the plaintiff was unaware that the fifth codicil had been made.

14 On 16 December 2013, Mr Collins applied for a grant of probate of the will and codicils with leave reserved to the plaintiff to come in and prove.[3] This application was never finally determined.

15 The plaintiff has now applied for leave to prove the will and codicils in solemn form. The plaintiff is of the opinion, based on his knowledge and medical treatment of the deceased at relevant times, that she had testamentary capacity at the time that she made the will, as well as the first, second and third codicils, but not at the time that she made the fourth and fifth codicils.

16 The present value of the deceased's estate is approximately $650,000 (being the balance of the deceased's Commonwealth Bank accounts). This is yet to be collected in as there is no grant of representation.

17 On 12 August 2016, at a directions hearing before McMillan J, the Court ordered the appointment of an independent contradictor to represent the interests of the unpresented beneficiaries of the deceased's estate (other than Mr Collins). The plaintiff agreed to this course of action. By order dated 16 August 2016, Ms Ursula Stanisich of Counsel was appointed as independent contradictor; by order dated 10 October 2016, Ms Suzanne Lyttleton was appointed as solicitor instructing Ms Stanisich.

18 Mr Collins was represented by counsel at the directions hearing on 12 August 2016. Mr Collins' counsel informed the Court that, while he did not intend to be represented at trial, he would be a witness for the plaintiff. Although no order was made to this effect, this was confirmed by email dated 10 October 2016 from McMillan J's associate to Ms Lyttleton.

19 By email dated 24 November 2016 the independent contradictor advised the Court that she and Ms Lyttleton were concerned that they faced a conflict of interest in acting for the unpresented beneficiaries (other than Mr Collins) due to their varying interests. A directions hearing was held on 10 February 2017 to ventilate these concerns. Regrettably, no orders were made following that hearing and the original orders were never formally amended. Nevertheless, the submissions of Ms Stanisich indicate that McMillan J held that the independent contradictor's role was to assist the Court and not to act in the interest of any particular beneficiary or party. I agree that this was the correct approach to be taken.

20 In any event, regardless of the lack of orders, it was maintained at all times that the independent contradictor was not representing the interests of Mr Collins. Ms Stanisich, in accordance with her role, crossexamined all witnesses, including the plaintiff, and made submissions to the Court without taking a position based on the stance of a particular beneficiary or party. Her submissions were formulated with the aim of providing the Court with an objective view of the evidence.

21 It was submitted by counsel for the plaintiff - and I agree - that, since there can be 'little doubt about the actual validity of the Will dated 19 May 2007', the Court should 'work backwards' through the codicils, that is, starting with the fifth codicil, moving to the fourth, the third and so on. This approach has the dual advantage of being both logical and practicable.

22 As such, the questions to be answered with respect to each codicil are the same, namely:

(i) did the deceased have testamentary capacity;[4] and

(ii) did she know and approve of its contents?[5]

If the answer to either of those questions is no, the Court must pronounce against that codicil.

23 Any determination on these issues will be binding on not only the parties to this proceeding but also any person whose interests are affected by this proceeding and who could have made themselves a party by intervening.[6]

24 Proof of testamentary capacity requires the Court to be satisfied that, at the relevant time, the testator:

(a) understood the effect of making the will (or codicil);

(b) was aware of the general nature and value of their estate;

(c) was aware of those who would have a natural claim to their estate; and

(d) was able to evaluate and discriminate between such claims.[7]

The relevant time is the time at which the will or codicil was executed.[8]

25 This is significant given that the ability of a testator to make his or her will may fluctuate. As Santamaria JA recently observed in Veall:

A testator who is aged and infirm may suffer from dementia or some other form of impairment. But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval.[9]

A testator need not have perfect mental balance and clarity in order to have testamentary capacity.[10] Rather, testamentary capacity requires the testator be of sound mind, memory and understanding.

26 The classic exposition appears in the judgment of Cockburn CJ in Banks v Goodfellow:

It is essential to the exercise of (testamentary) power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[11]

Australian courts have regularly endorsed this formulation.[12]

27 What is relevant is the testator's capacity to 'remember, reflect and reason'; the first as to the relevant property and those who have claims upon it; the second as to the relative weight of their claims; and the third so that 'he can judge, having regard to his assets, how far, if at all he should give effect to them'.[13] In each case, it is not necessary that the testator has actually remembered, reflected and reasoned, only that he or she has the capacity to do so. Further, the test does not require the possession of these faculties to the highest degree, only to a sufficient degree. Indeed, even where a testator is of unsound mind, it may be possible to show that the will was made in a lucid interval.[14]

28 In relation to the need to understand the nature of the act and its effects, what is required is an understanding of engagement in a testamentary act. In other words, a testator must be aware in general terms of the nature, extent and value of the estate over which he or she has a disposing power.

29 Old age and infirmity does not, by and of itself, establish want of capacity.[15] Nor does extreme ill health,[16] including the onset of dementia,[17] although these may require the propounder of the will to provide evidence of testamentary capacity. Medical evidence as to whether a person has testamentary capacity may be useful, but the question is ultimately a practical one, to be determined by considering all the facts of the case.[18] As Lindsay J put it, in Estate Sue, the

essential question, in deciding whether a particular document should be admitted to probate, is whether, on the whole of the evidence, the Court is satisfied that the document was the last will of a free and capable testator. That decision can be, and ordinarily is, made with the benefit of evidence extrinsic to the document itself, including evidence as to the provenance of the document.[19]

The important point is that the test is a legal rather than a medical one. [20]

30 Finally, as to the standard of proof, the relevant principles were set out by Ormiston JA in Kantor:

where the Court has to be satisfied affirmatively on the capacity of the testatrix to make a valid will ... the standard of proof therefore remains the same, that is, upon the balance of probabilities, but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence. If that process results in the Court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will, then a grant of probate should be made.[21]

31 If the Court is satisfied that the testator possessed testamentary capacity at the relevant time, it must then ask whether he or she knew and approved the contents of the will (or codicil).[22]

32 Where there is proven capacity and a duly executed will, knowledge and approval will be assumed.[23] However, where suspicious circumstances surround the making or execution of a will the assumption does not arise, in which case the propounder must remove the suspicion by proving affirmatively that the testator knew and approved of the contents of the document.[24] In other words, the effect of suspicious circumstances is to cast the onus on the propounder to 'demonstrate, over and above proof of the formal validity of the will, what has been called "the righteousness of the transaction"; and a court of probate is bound to refuse a grant if not satisfied that the onus has been discharged.'[25]

33 Suspicious circumstances are proven facts surrounding the preparation or execution of the will, 'not of mere assertion or allegation of forgery, but of a well-grounded suspicion engendered in the mind of the court acting judicially'.[26]

34 Factors to consider in determining whether suspicious circumstances exist include:

(i) the circumstances surrounding the preparation of the document;

(ii) the extent of any physical and mental impairment of the purported testator; and

(iii) whether the purported will makes rational sense.[27]

One specific circumstance that will excite a court's 'anxious suspicion' is where a will is 'prepared or obtained by persons having a benefit under it'.[28]

35 In short, circumstances deemed to be suspicious will be those that somehow bear upon the question of whether the testator knew and approved the contents of the will, whereas those that do not will not. Axiomatically, circumstances not in existence at the time of execution will be unlikely to do so, and so will be irrelevant.[29]

36 The circumstances which create the suspicion should be considered as a whole rather than individually.

37 As mentioned previously, the plaintiff was the deceased's GP from the 1990s, having known her since childhood. Exhibited to the plaintiff's affidavit dated 24 March 2016, amongst other things, are his medical notes for the deceased from 24 June 1996 through 1 July 2013.

38 On 8 March 2007, the deceased was assessed by an aged care assessment team for residential care. The plaintiff's evidence was that the aged care assessment noted no problem with the deceased's cognitive behaviour and psychological aspects other than occasional short term memory problems.[30]

39 The plaintiff deposed that he conducted an annual health check on the deceased on 28 May 2007.[31] Even though her husband had only recently died (on 9 March 2007), and she was missing him a lot, she was able to answer the plaintiff's questions and scored 13 out of 18 on a mental status test. The plaintiff explained that the only reason she did not do better on the test was because she could not spell or write in English. His main concern at this time, given the deceased's advanced age, was to place her in community care.

40 The plaintiff conducted a further annual check on the deceased on 27 May 2008 and gave evidence that there was little change in her circumstances from the previous check.[32]

41 On 19 September 2007 the deceased went to the Box Hill Hospital emergency department after suffering a fall at home. A letter from the hospital dated 19 September 2007 noted her to be alert and oriented.[33]

42 The plaintiff's evidence was that he saw a draft of the will - that Mr Collins showed to him - and that he discussed its contents with both the deceased and Mr Collins. He deposed that he had no concerns about the deceased making the will. Further, even though he could not recall discussing the gift of $5,000 to Mr Collins in the will, he would not have regarded it as concerning.

43 The plaintiff deposed that the deceased, in or about May 2007, suffered from several physical conditions as well as short term memory loss. He said she was finding it increasingly hard at home because her vision was deteriorating. He agreed that she would have struggled to understand the will unless it was read out to her.

44 The plaintiff's evidence was that on 16 April 2007 the deceased told him that she wanted to fulfil her late husband's wish - even though she did not fully agree with it - of leaving 60 per cent of the estate to her husband's family and 40 per cent to her family. The deceased also told him she was happy for Mr Collins to prepare the will instead of a solicitor.

45 Mr Finney was a witness to the will. His evidence was that the deceased read the will in English. He did not observe anything to make him think the deceased was having difficulty understanding what was happening. He expressed confidence in her mental abilities. The other witness to the will was Mrs Taylor, the deceased's neighbour and close friend.

46 Mr Collins' evidence was that he read the will out to the deceased twice and that she was 'as sharp as a tack'. He said the deceased could read English but only at a basic level.

47 In sum, when the deceased made her will in May 2007, neither the plaintiff, Mr Finney nor Mr Collins were concerned about her mental state or cognitive abilities.

48 The plaintiff's evidence was that, in or about January 2010, there was nothing in the deceased's life which caused him concern in relation to her mental state or cognitive abilities.

49 The plaintiff was aware that the deceased was making the first codicil and had discussed it with her. He said she used to cogitate about her will and about people whom she might have forgotten. He agreed that by 18 May 2009 her short term memory was becoming worse and that she was suffering from a range of physical conditions.

50 The deceased was on antidepressants from early 2008. The plaintiff deposed that the deceased spoke to him about the first codicil and, in particular, her wish that her great nephew, Mr Danchevskyi, have some financial support when he finished his seminary training. The plaintiff opined that the deceased had testamentary capacity at the time that she made the first codicil.[34]

51 Mr Finney's evidence was that he asked the deceased, before she signed the first codicil, if she knew what she was signing and its import. He said she was and that she wanted her great nephew to be looked after. Mr Finney was not worried that the deceased might not know what she was doing. He said he observed no change in the way she operated between 2007 and 2010.

52 Mr Collins gave evidence that he read the first codicil to the deceased twice. He deposed that she gave him instructions to prepare the document after her great nephew's visit to Australia.

53 Once again, when the deceased made the first codicil in January 2010, neither the plaintiff, Mr Finney nor Mr Collins had any concerns about her mental state or cognitive abilities.

54 The plaintiff's evidence was that he had no concerns about the making of the second codicil dated 10 December 2011.

55 He recalled the deceased saying that she had overlooked her first husband's brother and sister and wanted to give them small gifts. He said there was nothing in his medical records from that time which would have given him any concern about the deceased's mental state or cognitive abilities.

56 The deceased had by now moved into the Martin Luther Home. According to the plaintiff, this was mainly due to physical reasons, chiefly her frailty and loss of vision. Meanwhile, Mr Collins, who used to live two houses away, had moved away and Mrs Taylor, who lived opposite, was no longer able to assist by bringing meals to the deceased.

57 The plaintiff agreed that by mid-2010 the deceased's behaviour was consistent with early signs of dementia. He recalled that she was totally reliant on Mrs Taylor before moving to the Martin Luther Home.

58 In cross-examination, the plaintiff was taken to the Box Hill Hospital (Wantirna Health) discharge summary dated 1 January 2011. The summary included a cognitive assessment which noted:

Cognitive impairment - Maria remained showing cognitive impairment. Her standard MMSE was 17/30. She was seen by a neuropsychologist and a diagnosis of dementia with Lewey bodies was made.[35]

59 The plaintiff was also referred to an entry in the Progress Notes of the Martin Luther Home dated 2 December 2011. The entry records that on 2 December 2011 Barbara Harris (divisional therapist) spoke to the deceased about her terminal wishes. That entry reads as follows:

She [the deceased] is concerned about her health and would like to get her affairs in order before she dies. She asked me to contact Robert Collins her POA to arrange a meeting to discuss amendments to her will. She has asked that I, or another staff member, be present at the meeting to assist in explaining the amendments and to ensure they are followed through. I spoke to Robert today and discussed Maria's health status and the proposed amendments. He said he has already discussed these with Maria and adjustments have/are being made. He is away for the weekend and expects to visit on Sunday night. Maria also asked me to contact Fr. Peter Struck from her church to organise a visit. He is currently in Adelaide and will not be back until Sunday. I have told Maria that I will try to contact him again on Monday.[36]

60 Mr Finney's evidence was that he asked the deceased before she signed the second codicil whether she knew what she was signing and that it would alter her will. He said the deceased read the document before signing it. He opined that, since moving into the Martin Luther Home, the deceased had resumed eating properly, took her medication and had a more positive outlook on life.

61 Mr Finney deposed that the deceased did not make any reference to the will or first codicil when signing the second codicil.

62 Mr Collins gave evidence that he read the second codicil to the deceased and showed her the will and first codicil. He did not, however, read the will and first codicil to her.

63 By now, the deceased had been in the Martin Luther Home for 15 months. The effect of the third codicil, as noted earlier in these reasons, was to increase the legacy to her Ukrainian church in North Melbourne.

64 Andrea Huser, a lifestyle therapist at the Martin Luther Home, was a witness to the third codicil. Ms Huser said she did not see the deceased read the document and that there were no discussions about it at the point of execution. Nor could she recall anyone explaining the document to the deceased.

65 Ms Huser said she was comforted by the fact that the plaintiff was present at the time she witnessed the third codicil. The plaintiff, however, denied being present at the signing of the third codicil. Ms Huser opined that she would have had reservations about witnessing the codicil but for the fact that the plaintiff was present (even though she had no real concern about the deceased's mental capacity). She recalled that Mr Collins was also there at the time she witnessed the document.

66 Although Ms Huser gave her evidence in a straightforward and credible manner, I suspect she is mistaken as to the plaintiff being present when she witnessed the third codicil.

67 The plaintiff gave evidence that by February 2012 the deceased was cognitively impaired with significantly short-term memory loss. He was nevertheless unconcerned by the third codicil. He said the deceased was extremely grateful to Father Struk, the parish priest, who visited her regularly.

68 Mr Collins also witnessed the third codicil. He said Mrs Taylor asked him to go and see the deceased at the Martin Luther Home. His evidence was that the deceased instructed him to increase the gift to the Ukrainian church from $1000 to $10,000. He typed up the third codicil and presented it to the deceased on 6 March 2012. He went on his own and took the original document with him. He recalled that one of the people who witnessed the document was a nurse working at the home. He said he took copies of the will and codicils with him so that the deceased would know what she was doing and in case of anything 'silly or ambiguous'. He read the document to the deceased and may have done so again at the time Ms Huser witnessed it.

69 Mr Collins deposed that the deceased was confused as to why she was at the Martin Luther Home and believed she would soon be going home. Yet she always remembered their conversations and events from her past. He said they spoke about things that he was doing, such as gardening, pruning and so on.

70 Mr Collins' evidence was that the deceased told him she wanted to give some money to her nephew. Her nephew was suffering from Parkinson's disease and diabetes; he was in and out of hospital and having a lot of medical appointments. Mr Collins said the deceased told him she did not want all of the money to go to her deceased husband's family.

71 Mr Collins deposed that he had no input into the amounts provided for in the fourth codicil. He said he saw the deceased shortly before 30 November 2012 and asked her why she wanted to alter her will. She replied that she wanted to double the amount for her nephew and to give him, Mr Collins, 'just over double' that amount. In other words, she wanted to increase her nephew's bequest to $80,000, and to bequeath a similar amount to Mr Collins.

72 Mr Collins informed her that he did not need any money. Nevertheless, he went home and typed up the document, leaving blank the amounts to be gifted to the deceased's nephew and to himself.

73 Mr Collins said that on 30 November 2012 he returned to the Martin Luther Home with the document. Mrs Taylor was present. He argued with the deceased about the amounts to be left to her nephew and himself. He had not yet filled in the blank spaces on the document. He was, as he put it, 'between a rock and a hard place' because the deceased and Mrs Taylor were 'strong women' who both treated him like a son.

74 Mr Collins agreed, when it was put to him, that the handwritten figures on the codicil were in his hand. He stated that he had read the document to the deceased twice before she had signed it and he and Mrs Taylor had witnessed it.

75 The plaintiff's evidence in relation to the fourth codicil was that the deceased no longer had testamentary capacity. He opined that by 30 November 2012 the deceased's mental state was 'significantly impaired'. He based this view, apart from his own observations, on two cognitive assessments (the 'psychogeriatric assessment scale' and 'mini-mentals') and the fact that Box Hill Hospital had diagnosed her with Lewy body dementia.

76 The plaintiff went on to explain that the psychogeriatric assessment scale is a multi-factorial assessment which looks at both short and long term memory.

77 Mr Maxwell Willmott, a witness to the fifth codicil, gave oral evidence. I note that Mr Willmott has no financial or personal interest in the outcome of the proceeding.

78 Mr Willmott's evidence was that the deceased was handed a copy of the fifth codicil and signed it without reading it. She did not ask any questions and nor were any explanations proffered. Nothing was said when the document was put before her and the will and previous codicils were not mentioned.

79 Mr Willmott's involvement came about as his wife was related to Mrs Taylor. Mrs Taylor, who was by then unable to drive, asked Mr Willmott to take her to see the deceased. She indicated that this was so that they could get some papers signed. Mr Willmott was not privy to the contents of the papers. He described the deceased as 'frail' and 'elderly', with 'eyesight [that] was very poor', but who was 'quite with it'. He explained that by 'quite with it' he meant that she was able to speak with them and was 'ok mentally ... she was aware ... that we were there and who we were'.

80 The plaintiff's evidence was that, by the time the deceased signed the fourth and fifth codicils, she did not have the capacity to put the will and the codicils together, that is, she could not calculate how each codicil affected pre-existing beneficiaries. As he put it, 'I'm sure that by the fourth and fifth she had no idea'.

81 The plaintiff deposed that by this stage the deceased's memory was impaired and she needed assistance with daily living. He said she was fortunate because she was 'happily demented' rather than unpleasant and aggressive. He was asked if there was anything in his medical notes to indicate whether the deceased had the ability to make a will at this time. He responded that she would have had 'no ability'.

82 Mr Collins' evidence was that Mrs Taylor visited the deceased around the time of the latter's birthday. Mr Taylor then informed him that the deceased wished to once more increase her bequest to her nephew and to himself. She told him the deceased was concerned because her nephew might have to go 'into a home'.

83 Mr Collins saw the deceased several weeks later. She told him she wanted to give her nephew a further $40,000 and himself an extra $250,000. He said he reminded her that this would amount to a total gift of $350,000, plus the $5,000 from her original will, which was over half of her money.

84 Mr Collins deposed that he did not feel comfortable with what was happening. He said he went home and discussed it with Mr Finney and Mrs Taylor. He declined to make the codicil for approximately one month. Mrs Taylor then asked him to prepare the document. He eventually did so but refused to take it to Martin Luther Home. Instead, he gave the document to Mrs Taylor, explaining that she and the deceased would need to get it signed without him.

85 He confirmed, however, that he typed in the amounts of $40,000 for Nick Petrasz and $250,000 for himself. And he agreed, when asked, that he never read the document to the deceased.

86 The plaintiff submitted that this Court can be comfortably satisfied that, at the time she made the will and the first three codicils, the deceased had testamentary capacity and knew and approved the contents of those documents.

87 The plaintiff submitted, based on his knowledge of the deceased as her GP and an old family friend, that he had no concerns about her ability to make those documents. He submitted that the first and second codicils are consistent with amendments made to a will where circumstances change. Further, even though the plaintiff did not know about the third codicil, he submitted that it was consistent with her character and, in particular, her gratitude towards her church.

88 The plaintiff submitted that Mr Finney's evidence in relation to the first and second codicils was consistent with these documents having been made at a time when the deceased had testamentary capacity.

89 In relation to the fourth and five codicils, however, the plaintiff submitted that the deceased no longer had testamentary capacity. He submitted that his evidence stood in marked contrasted with Mr Collins' view that the deceased was 'sharp as a tack'. He submitted that the fourth and five codicils affected a significant change in the deceased's testamentary dispositions in that she was dramatically increasing two minor legacies which had stood for almost six years. The effect of the codicils, he submitted was not by way of substitution but cumulation. In other words, her nephew's bequest was to increase from $5,000 to $85,000, while that of Mr Collins would increase from $5,000 to $355,000.

90 The plaintiff submitted that the fifth codicil is fundamentally flawed because it was never read to, or by, the deceased. The plaintiff relied on the evidence of Mr Willmott in support of this proposition. He also pointed to Mr Collins' evidence as corroborating that of Mr Willmott.

91 The plaintiff submitted that, on the evidence before the Court, the deceased could not have known and approved of the contents of the fifth codicil.

92 The plaintiff referred to an affidavit of due execution sworn by Mrs Taylor on 16 December 2013.[37] He submitted that, as this evidence was not able to be tested due to Mrs Taylor's death on 19 June 2017, the Court should prefer Mr Willmott's evidence.

93 The plaintiff submitted that the Court should be anxious about suspicious circumstances given that Mr Collins prepared two codicils in which his legacies were substantially increased. He submitted that the Court could not be satisfied that the deceased knew of and approved the amounts involved and, in particular, the fact that Mr Collins was accumulating his legacies from $5,000 to $355,000.

94 Lastly, even if the Court found that the deceased possessed testamentary capacity when the fourth or fifth codicils were made, the plaintiff submitted that the fifth codicil must fail as the deceased did not read it or have it read to her.

95 The contradictor submitted that the fourth and fifth codicils could not be probated as the Court could not be satisfied as to the deceased's testamentary capacity or knowledge and approval.

96 The contradictor noted that the fifth codicil was not read out or explained to the deceased. The contradictor also noted that, in relation to the fourth and fifth codicils, the deceased:

(i) was of advanced age, approximately 100-101 years, at the time she signed them;

(ii) was living in a dementia ward of a nursing home; and

(iii) had a range of health problems including significant vision impairment.

97 The contradictor submitted that it was suspicious that Mr Collins had prepared the fourth and fifth codicils given that he was to receive significant benefit from them. This was particularly so given the significant increase in the size of the legacy from the previous testamentary documents and the deceased's ability to understand how this would impact on other beneficiaries.

98 In relation to the third codicil the contradictor submitted that the deceased may not have had testamentary capacity at the time. It emphasised that the deceased was close to 100 years old, living in a nursing home in a dementia ward, and had a range of health issues leaving her frail and vulnerable. It pointed to the evidence of Ms Huser, who witnessed the third codicil, but did not see the deceased read the document and could not recall anyone explaining it to her.

99 The contradictor also noted that, while the deceased had discussed her will and the first and second codicils with the plaintiff, he was unaware of the third codicil. And, although the third codicil did not alter the will to the extent that the fourth and fifth codicils did, the contradictor submitted that it was nevertheless problematic in that the Court could not be satisfied as to testamentary capacity. The contradictor submitted that the deceased had by this time been diagnosed with Lewy body dementia.

100 The contradictor further submitted that, even though the deceased may have had testamentary capacity at the time she made the third codicil, the evidence does not rise so high as to support the conclusion that she knew and approved of its contents.

101 In relation to the will and the first and second codicils the contradictor submitted that the plaintiff was the deceased's GP and had been satisfied of her testamentary capacity. The contradictor observed that, although these documents were prepared by Mr Collins, his interest in the estate was then relatively small (being only $5,000).

102 The contradictor submitted that Mr Finney's evidence regarding the making of these documents was conclusive.

103 I am satisfied that at the time the deceased made the fourth and fifth codicils she did not have testamentary capacity. By the time she signed the fourth codicil, on 30 November 2012, the deceased had been diagnosed with Lewy body dementia.

104 The plaintiff was the deceased's GP and saw her regularly while she was at Martin Luther Home. The plaintiff's medical notes prior to and after the signing of the fourth codicil indicate that the deceased was in slow decline. On 29 December 2012, a month after the deceased signed the fourth codicil, the plaintiff's records note that she was in her 'usual pleasantly confused state'.

105 The deceased was of advanced age by the time of the fourth codicil and she was living in a dementia ward at the Martin Luther Home.

106 I am not satisfied that the deceased had knowledge or gave her approval for the fourth or fifth codicils.

107 Mr Collins prepared both codicils and stands to receive a significant benefit from them. This is sufficient to arouse the suspicion of this Court. In such circumstances the onus is on the propounder of the will to prove knowledge and approval of those codicils on the balance of probabilities.

108 Moreover, there are other factors, including the deceased's dementia, her slow decline, her deteriorating vision and other physical conditions. I am not satisfied that the deceased had the testamentary capacity to understand how the fourth and fifth codicils would impact on other beneficiaries' shares. And, in relation to the fifth codicil, there is no evidence that it was ever read by, or to, the deceased.

109 In relation to the third codicil, I accept that there are concerns as to the deceased's capacity when it was signed, by which time she was living at Martin Luther Home. The cognitive assessment performed in February 2012 suggests she had some impairment. The plaintiff also gave evidence that she was in slow decline. She had by this time been diagnosed with Lewy body dementia.

110 Then there is the fact that the deceased never discussed the third codicil with the plaintiff (as compared with the will and the first and second codicils). Ms Huser, a witnesses to the third codicil, deposed that she did not see the deceased read the document or have it explained to her.

111 However, I note that the plaintiff was untroubled by the third codicil, which effected an increase in the deceased's bequest to her Ukrainian church. I note also that Mr Collins deposed that he read the third codicil to the deceased. And, since Mr Collins was forthright in admitting to the Court that he never read the fifth codicil to the deceased, I accept that he read the third codicil to her.

112 Considering all the circumstances, but especially the plaintiff's evidence that she was grateful to the church towards the end of her life, I am satisfied that the deceased had testamentary capacity and knew and approved of the contents of the third codicil.

113 Further, I am satisfied that the deceased had testamentary capacity and knew and approved of the contents of the will dated 19 May 2007, and the first and second codicils.

114 Three witnesses, namely the plaintiff, Mr Finney and Mr Collins, deposed that the deceased read the will and understood it. They also gave evidence as to her mental ability and cognitive capacity at the time. The plaintiff discussed the will, as well as the first and second codicils, with the deceased. Mr Collins said he read all three documents to the deceased. Mr Finney opined that the deceased understood and approved the contents of the will and the first and second codicils.

115 In conclusion, I am of the view that the deceased possessed testamentary capacity and knew and approved the contents of the will, along with the first, second and third codicils. The fourth and fifth codicils, however, must be pronounced against.

116 I will ask the parties to prepare a proper form of order and will hear them on how the costs of this proceeding should be dealt with.

[1] An executor named in a will has an absolute right to proof in solemn form: Re Levy (deceased) [1953] VicLawRp 87; [1953] VLR 652, 657.

[2] Orders of McMillan J dated 16 August 2016 and 10 October 2016 respectively.

[4] See generally Nicholson v Knaggs [2009] VSC 64 [95]-[100] (Vickery J) ('Nicholson'); Timbury v Coffee (1941) 66 CLR 227, 283 (Dixon J) ('Timbury').

[5] See generally Nicholson [2009] VSC 64 [151]-[155]; Veall v Veall (2015) 46 VR 123 [169]-[179} (Santamaria JA, Beach and Kyrou JJA agreeing) ('Veall').

[6] Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153, 158-159 (Kitto J, Menzies & Windeyer JJ agreeing). See also Fry v Georges [2009] VSC 220 (Mandie J); Re Sanders [2016] VSC 694 (McMillan J).

[7] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 566-7 (Knox CJ and Starke J) ('Bailey'); Kantor v Vosahlo [2004] VSCA 235 [37] (Buchanan and Phillips JJA, Ormiston JA agreeing) ('Kantor').

[8] Veall (2015) 46 VR 123, 174 [167].

[9] (2015) 46 VR 123, 174 [167] (citations omitted).

[10] Estate of Griffiths (deceased); Easter v Griffiths (1995) 217 ALR 284, 289-290 (Gleeson CJ) ('Griffiths').

[11] (1870) LR 5 QB 549, 565.

[12] Timbury [1941] HCA 22; (1941) 66 CLR 277; Brokenshire v The Equity Trustees Executors & Agency Co Ltd [1998] VSC 183; (1998) 8 VR 659, 662 [7]-[8] (Smith J); Flynn v Roccisano [2004] VSC 346 (Teague J).

[13] King v Hudson [2009] NSWSC 1013 [51] (Ward J) (citations omitted).

[14] Kantor [2004] VSCA 235 [67]-[73] (Buchanan and Phillips JJA). There the solicitor who drafted the will, who was a long-term friend of the testator, gave evidence that it was made during a lucid interval.

[15] Bailey [1924] HCA 21; (1924) 34 CLR 558, 570 (Isaacs J, Gavan Duffy and Rich JJ agreeing); Vukotic v Vukotic [2013] VSC 718 [18] (McMillan J).

[16] In the estate of Kelli Maree Rushton [2015] ACTSC 342 [43]-[45] (Mossop AsJ).

[17] Tavendale v Hargreaves [2013] NZHC 2374 (where, although the testator suffered from mild to moderate dementia when signing the will, the evidence revealed that she was lucid at the time and understood what she was doing); In the Will of Ruth Barlow, Deceased [2014] QSC 7 [71]-[73] (Byrne SJA).

[18] Boughton v Knight (1873) LR 3 P & D 64, 67 (Hannen J).

[19] [2016] NSWSC 721 [100] (citations omitted).

[20] Romascu v Manolache [2011] NSWSC 1362 [200] quoting from Key v Key [2010] EWHC 408 [98].

[21] [2004] VSCA 235 [22].

[22] Hastelo v Stobie (1865) LR 1 P & D 64, 68-9 (Wilde J).

[23] Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528 (Isaacs J) ('Nock'); Re Fenwick (deceased) [1972] VicRp 75; [1972] VR 646, 651 (Menhennitt J).

[24] Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480, 482, 485 (Parke B); Nock [1918] HCA 73; (1918) 25 CLR 519, 528 (Isaacs J); McKinnon v Voigt [1998] 3 VR 543, 556 (Tadgell JA, Phillips JA agreeing) ('McKinnon').

[25] Robertson v Smith [1998] 4 VR 165, 173 (Tadgell JA, Phillips and Kenny JJA agreeing) ('Robertson').

[26] McKinnon [1998] 3 VR 543, 551.

[27] Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 [259]; Romascu v Manolache [2011] NSWSC 1362 [205].

[28] McKinnon [1998] 3 VR 543, 552.

[29] Robertson [1998] 4 VR 165, 173-174.

[30] Plaintiff's affidavit dated 9 June 2016 [5], Exhibit IJ-1 aged care assessment reported dated 14 March 2007

[34] Plaintiff's affidavit, 24 March 2016 [16].

[35] Plaintiff's affidavit dated 24 March 2016, Exhibit IJ-6.

[36] Exhibit 1, CB 216.

[37] Exhibit [1845] EngR 344; 1, CB 44.