Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56 | Case summary

Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56 | Case summary | Zoe

[4]

Procedural Background

These proceedings concern the estate of the late Melville Gooley (the deceased) who died 23 December 2017. The deceased's daughters, Aleta Gooley and Melinda Foley (the plaintiffs), by way of summons dated 9 July 2018, seek a Grant of Probate of the will of the deceased made on 18 July 2014 (2014 Will) or in the alternative the latest in time of six earlier wills made by the deceased after a will made on 15 June 2012. The deceased's son, Brett Gooley (the defendant), by way of cross claim, seeks a Grant of Probate of the will of the deceased made on 1 February 2010 or in the alternative the will of the deceased made on 15 June 2012. The dispute rests nearly entirely on whether the deceased had the testamentary capacity at the time in which the relevant wills were made.
The matter first came before me in the expedition list on 31 May 2019. I was informed at that time that the grandson of the deceased, Charlton, had commenced family provision proceedings on 20 December 2018. Charlton was aged 11 and suffers from severe autism spectrum disorder. He is currently under the care of his older siblings and has significant and urgent financial and care-based needs. The family provision proceedings could not be decided until these proceedings have concluded. I therefore made orders expediting the matter.
The matter was initially listed for five days from 18-22 November 2019 then a further five days from the 2-6 March 2020 for the completing of evidence and final submissions. I heard an additional day of evidence on 18 December 2019. Further dates were set aside in case they were required, namely 12 and 13 March and 16-20 March 2020. Towards the end of 2019 I suggested that the parties attempt to mediate. That was initially opposed by the plaintiffs but a mediation was eventually scheduled for 24 February 2020.
However on 21 February 2020 I was informed that the plaintiffs had terminated their entire legal team, solicitors and counsel, and that it was unlikely the hearing could proceed on the scheduled dates. The plaintiffs brought an application to adjourn the balance of the hearing on 26 February 2020 which I granted.
Prior to the matter recommencing the defendant brought what I would call satellite proceedings against the plaintiffs, seeking an order under s 73 of the Probate and Administration Act 1898 (NSW) appointing an administrator pendente lite in respect of all of the assets of the deceased estate and other relief, which were heard by Williams J (see Gooley v Gooley [2020] NSWSC 798; Gooley v Gooley (No 2) [2020] NSWSC 1018).
The matter recommenced before me on 24 August 2020 and in the end ran for a total of 17 days.

[8]

Significant Events and the Circumstances Surrounding the Making of the Wills

Both sides provided comprehensive chronologies cross referenced to contemporaneous documents, including hospital notes and reports, notes kept by the deceased's private in home carers (the Private Care Notes), as well as letters, emails and faxes sent by the deceased, the parties to these proceedings and the deceased's treating practitioners. The defendant also provided a comprehensive annexure to his closing submissions titled "The Facts" which sets out the background to the proceedings in narrative form. The plaintiffs provided an additional schedule of notes from hospital records and bundles and schedules concerning handwritten notes made by the deceased.
The events identified in these chronologies and schedules, including that the various records and notes were made, are largely uncontroversial (save for the various submissions made in the defendant's "The Facts" annexure). However the significance of what was recorded must be considered in the context of the opinions of the expert witnesses and the other evidence (see below). Due to the importance of scrutinising the deceased's medical condition and circumstances surrounding the execution of each will I have, unashamedly reproduced much of what was included in the parties' chronologies below and find the following facts. The chronology is necessarily long given the number of wills the deceased made. Some of the events set out below may appear in isolation of little consequence, but I have included them so as to provide as comprehensive a picture as may be obtained from the contemporaneous materials.
In 1990 the deceased suffered several transient ischaemic attacks. On 24 August a CT scan was conducted, with no abnormality apparent. However several days later he experienced dizzy spells and weakness down the left arm.
In April 1992 Dr Barrett formed the view that the deceased suffered atrial fibrillation with a controlled ventricular response, moderate to severe mitral stenosis and mild to moderate regurgitation with rigid valve mechanism.
On 16 August 1993 the deceased made a handwritten note which was recorded in the defendant's medical notes: "I do not hold Brett responsible for my stroke if I don't (sic) continue with my warfarin. Recommencing 17/8/93 [signed]".
On 26 April 1994 Dr J D Woolridge, cardiologist, sent the defendant a letter suggesting that the deceased be put on a "low dose Warfarin".
A CT scan report of 16 April 1998 in relation to the deceased stated, "There is minor patchy periventricular deep white matter hypodensity, particularly around the frontal and occipital horns. This is consistent with chronic small vessel ischaemic disease."
On 22 April 1998 Dr Paul Salmon, radiologist, sent the defendant a letter reporting on a Cerebral Digital Subtraction Angiography examination of the deceased. It identified, "Mild stenosis immediately distal to the origin of the right subclavian artery. Minimal Stenosis in the right internal carotid origin but no other abnormality."
On 24 April 1998 Dr Woolridge sent a letter to the defendant reporting on a referral of the deceased following a dizzy spell and two blackouts. Dr Woolridge said, "He is clearly manifesting vestibular symptoms… He has been slightly deaf over the right ear for some time."
The deceased made a will dated 19 April 2001.
On 2 May 2003 the defendant by letter assigned and guaranteed payment to the deceased of $408,146.68 in exchange for advancing $300,000.
On 25 May 2004 the defendant accepted an appointment as attorney for the deceased under an Enduring Power of Attorney.
On 1 June 2004 the deceased sent the defendant a letter in which he thanked the defendant and his wife for attempting to relocate him but declined on the basis that "the one thing I have really wanted for at least 25 years is to walk along North Cronulla beach every day 'time' my greatest enemy has helped to elude me this dream."
On 29 July 2004 a cardiologist, Dr Smith, sent a letter to the defendant reporting on a review of the deceased's cardiac status. It said: In 1990 he presented with a TIA and was found to be in arterial fibrillation and in fact has been on Warfarin ever since which has been very successful at preventing recurrences of TIA…. Thus in assessing him, he has rheumatic heart disease with moderate mixed mitral valve disease and mild aortic stenosis, he is in chronic atrial fibrillation which no doubt will be a long term problem for him. In this regard I have told him that the Warfarin is [sic] vital…
The deceased made a will dated 11 October 2005.
On 6 February 2006 the defendant wrote a letter to the deceased regarding an assertion made by the deceased that the defendant had not repaid all funds loaned to him: However, it isn't the money you seem to be running a vendetta on the belief that you think I look advantage of you. Well, despite your beliefs you are in error …as you have been with some repaid as evidenced by traces... I am more than happy to drop in Mon or Wed early to PM to explain / prove / elaborate
On 22 February 2006 the deceased executed a Deed of Revocation of General and Enduring Power of Attorney: By instrument dated 18 May 2004 I appointed Brett Raymond Gooley of 357 Victoria Place Drummoyne New South Wales Australia as my attorney… I wish to revoke the power of attorney immediately.
A St George Bank cheque stub for the amount of $100,000 was made out to Goold Enterprises Pty Ltd on 10 April 2006.
On 16 August 2006 the deceased made a handwritten notation on the defendant's 2 May 2003 letter: Dear Brett, The total amount to be paid to me 8-12-05 from Gribbles was $408146.68. You have paid $400,000-00. The balance $8146-68. Is required to 299 Woolooware Rd. Thank You, Dad
The defendant made his own handwritten note on the letter dated 30 September 2006: "Paid KB 30/9/06 #000932 Goold Enterprises".
A St George Bank cheque stub was made out to Goold Enterprises for the amount of $8,146.68 for "outstanding interest (MWG)" and dated 30 September 2006.
On 11 January 2007 the deceased sent a fax to the defendant: Dear Brett It was not until December 2005 that I realised that you were taking advantage of me, your father. … You were handed a list of money loaned to you from 1991. Since then all you do is make excuses… I think it is time you commenced paying your debt or do I have to retract my statement, "about suing (sic)"
On 7 June 2007 the deceased sent a fax to the defendant: My Son Brett ….. Listening to other peoples questions has educated me with knowledge that I am not the only parent with a child reluctant to pay their borrowings. Small satisfaction when one thought they could trust their family.
On 1 August 2007 the defendant wrote a letter to the deceased: Your comments about my sisters just further confirms for me how little you know me. Besides if you're so concerned about them getting their inheritance why not give it to them now, that way you won't have to worry … I until now put your behaviour down to aging & cognitive decline which affects 85% of people after the age of 80 (delirium/dementia). I stood the embarrassment of your solicitor's letter requesting I acknowledge my sacking as your legal guardian & enduring power of attorney etc. the dumping in the street outside my house your birthday present, you demanding the return to your house of redundant windsurfers, water skies, box trailer etc and the total disengagement or even acknowledging the existence of my children now 11, 7 & 3.5. Innocent victims of your rage. If it was all directed at me one could tolerate it but when you involve the obvious innocent not even your age will excuse you. God, I hope I never age like you.
The deceased made a will dated 9 August 2007. It appears that he may also have made a will dated 30 June 2008.
On 1 June 2008 the deceased and Aleta executed a deed regarding Dama Enterprises Pty Ltd which states: A. DAMA ENTERPRISES PTY LTD (A.C.N: 000 604 071) ('the Company) is at today's date, the owner of the properties herein listed: 31 December 2007- Land Tax Value a) 7 President Avenue Caringbah $756,667.00 b) 35 Burraneer Bay Road Cronulla $966,667.00 c) 25 Marlo Road Cronulla $706,667.00 d) 335 Rocky Point Road Sans Souci $765,000.00 e) 75 Station Road Auburn $700,000.00 f) 76 Dartbrook Road Auburn $699,997.00 g) 9 Gibbons Street Auburn $534,667.00 TOTAL $5,129,665.00 B. The Testator, by way of his Will dated 30 June 2008 has agreed to provide the Beneficiary her inheritance by way of a testamentary gift of the Testator's remaining shares in the Company. … D. As the Testator has made adequate provision for the Beneficiary in his Will dated 30 June 2008 ('Testators Will') the said Testator and Beneficiary have now agreed to enter into this Deed. … 3. The Beneficiary understands that the intention of the Testator have been clearly carried out in his Will and the benefit of the above properties has been made and accepted by the Beneficiary as being a fair share of the Testators estate that the Beneficiary may have claim to. 4. By entering into this agreement, the Beneficiary agrees that they will not, make a claim upon the Estate of the Testator for any benefit, of any kind, additional to that which has been provided in the said Will." …
And on 10 July 2008 the deceased and Melinda executed a deed in similar terms but in relation to Goold Enterprises Pty Ltd.
In 2009 (date unknown) the defendant sent the deceased a fax: I herein enclose specialist cardiology reports on yourself which you believed you never had, had or never attended. Is it not conceivable that the things I have said to you were the truth and that you merely forgot…
On 11 February 2009 Aleta signed an Appointment of Enduring Guardian.
On 16 January 2010 the deceased sent the defendant a fax: My Dear Son I understand you have been contacted by people worried about my whereabouts. I had Xmas lunch at Janine's place. Aleta and Patrick were there also. They were all advised I was going north for a trip. Enclosed is a fax from Aleta re: coming Xmas. They are so jealous of each other. Apologies for any time or worry it has caused you. Happy new year 2010
The deceased made a will dated 1 February 2010. As I have noted, the defendant's primary case is that probate ought to be granted of this will. It is the last will of the deceased's that was prepared by a solicitor other than Mr White. It divides the estate roughly equally between the deceased's surviving children and the defendant is the named executor.
On 3 February 2010 the defendant responded to the deceased's 16 January fax: Dear Dad, … It saddens me that you are still not cognisant of why they may be jealous and the family is perhaps dysfunctional. I on numerous occasions both oral and written have suggested to you that open dialogue with all present was the way rather than secretive one on one interludes which only leads to mistrust for those concerned… I can forgive your attitude towards me but I will never forgive your treatment of my children who in anyone's terms including yours were innocents….
On 7 February 2010 the deceased sent another fax to the defendant detailing attempts he had made to see his grandchildren. He then stated, "I have since received some invitations to attend functions at school, but have declined. You are right the children are innocents."
On 19 November 2010 Mr Colley stated in a memo addressed to the deceased: As you are aware, the Company Annual Statement has for many years held on error, stating that Breda Pty Ltd is the ultimate holding company. This is impossible…consequently we need to make an adjustment which I ask you to sign….
On 25 November 2010 Mr Colley made another memo regarding various companies: If "Errors" were made when lodging a Company Annual return (Such as an error being made in quoting the wrong person as being a shareholder) that error does NOT make the error now TRUE… Changes come from Decisions and actions of the Company - NOT from simply recording some incorrect fact with ASIC
On 26 November 2010 a Dr Eugene Loh sent a letter to Dr Barrett setting out the deceased's request for a low dose of warfarin.
On 27 November 2010 the deceased sent the defendant a fax stating, "Should I die you had better keep Motasea P/L she (Janine) cannot handle money."
In early 2011 the relationship between the defendant and the deceased appears to have been quite harmonious. In February 2011 the deceased wrote to the defendant providing him with instructions to access several of his personal and company bank accounts.
On 15 May 2011 John C Colley & Co sent the deceased a letter setting out Mr Colley's advice and recommendations regarding a restructure which included: Over many decades you have built up a big and profitable asset base and operated through a series of Companies and trusts'… For more than the last decade you have had quite a definite plan as to what Assets you have wanted to pass to each of your children. The current group of Companies and Trusts does NOT facilitate this. I predict great trouble and great cost if something is not done to redress the situation…. I have to respond to a comment you made that 'if Company statutory records cannot be found, that will be the end of it. I see such as being the start of it, the potential triggering of enormous Legal fees, possible Stamp Duties, possible Capital Gains Tax and without other certainties being able to be proven potential catastrophic Tax consequences. This is a complicated situation, but my recommendations will serve to solve almost all of them. I can understand you possibly being unsure of the course of action you should take. If so, I implore you to discuss it with others, ……I implore you in the strongest terms to accept my advice and put this plan into action.
On the first page of the letter there is a handwritten annotation by the deceased: "Brett This is from Colley. It may help your knowledge. I will not be changing anything. Besides I do not have the cash. Dad".
On 19 May 2011 Mr Colley sent a further letter to the deceased: Additional CONFIDENTIAL advice and recommendations regarding restructure This letter is intended to be blunt comment on the whole situation and something that you may wish to keep on file or perhaps you may consider it prudent to destroy it after fully considering its contents…. ….. In addition, Interest paid on Mortgages always seem to be paid excessively by some entities and not nearly enough by others…I smooth the wrinkles…to do otherwise would almost certainly see the Tax Office raising a flag due to the unusual Interest Claim. This massaging of the Financial Statements has been a real concern of mine in the event of your demise.
On 20 May 2011 Mr Colley sent a memo to the deceased acknowledging receipt of a fax from the deceased and continuing, "So far, have not had the opportunity to give it any more than a cursory glance. My first impression is that you are still trying to create a reality again 'shuffling the deck chairs'".
On 22 May 2011 Mr Colley wrote again to the deceased: If you do not take my advice, I fear it will be very costly in many ways. I have read the ATO Letter. The BRG Trust GST Registration should never have been cancelled. However, it may not matter if the Gross Rents are Less than $75,000 and if the Trust is not receiving Rents from Commercial Properties. (as you are aware, GST is chargeable on Commercial properties only and GST can only be claimed on expenses directly related to such Commercial Properties). There is not even just one positive reason to keep the current structure of Companies, particularly Breda Pty Ltd.
On 16 August 2011 the deceased sent the defendant a fax regarding the deceased's "whole of life" policy with a handwritten note: "Dear Brett, For you to collect on my Demise Dad".
In October 2011 the deceased wrote to the National Australia Bank (NAB) noting that the defendant would be the sole signatory of a new account with NAB in the name of Breda Pty Ltd.
On 26 April 2012 the deceased sent the defendant a fax: Dear Brett, The BRG Trust Land tax Paid this February was $108,814.40. Should the Trust Continue or call a Halt. Check the site at 106 Parrawerra Road, Taren Pt. The proposition is the BRG Trust owns the block of dirt, … when it is finalised in about 12 months Rent will then commence. It is supposed to be a Melbourne Hardware wholesaler. The worst that can happen, I suppose, is to be left with vacant block of dirt, & perhaps a half built building. Hope your operation has healed & you are feeling better now. Best wishes, Dad
Sometime it seems around the end of April 2012 Mr White received a handwritten note from the deceased stating "Gary, I trust you can decipher the writing… Please do in ### legal terms. Each of my children have been given gift of real estate…" The deceased attached a handwritten will. In it he noted, "I have already distributed the majority of my daughters' inheritance". In this judgment "##" is used to indicate sections of handwritten notes which are indecipherable.
Mr White prepared a new will and on 9 May 2012 faxed it to the deceased with a two page letter containing some further questions for him in relation to the will. On 11 May 2012 the deceased sent Mr White a fax consisting of a handwritten page headed, "Your Questions Re Will", and a copy of Mr White's 9 May letter on which he had made handwritten comments.
On 12 May 2012 the deceased sent Mr White a fax containing a further suggestion for amendment to the will, "is it possible at my demise to give 127 Elouera Rd. to my granddaughter Tahnee Carroll. She is residing in a flat there now". The deceased made further handwritten amendments on the draft will which he sent to Mr White on 6 June 2012 and 14 June 2012.
The deceased executed a will on 15 June 2012. This is the will the defendant propounds in the alternative to the 1 February 2010 will. The main differences between this will and the 1 February 2010 will are: 1. The inclusion of some of the deceased's grandchildren as beneficiaries (Tahnee and Tyrone, Janine's children, and Riordan and Grayson, Melinda's children, aged respectively at that time, 23, 20, 18 and 16); 2. The residual estate which had formerly been split between the deceased's four surviving children equally was given entirely to the defendant; 3. A property at 299 Woolooware Road and ownership of Naladon Pty Ltd were not mentioned but had been dealt with in the 1 February 2010 will; and 4. Jamell Technical Publications Pty Ltd was added and allocated to the defendant (although it was a trustee and did not own any assets in its own right).
There is a copy of this will in evidence with the word "REVOKED" written across the second page.
On 18 June 2012 Mr Colley sent a letter to the deceased enclosing ASIC Form 361, Registered Agent Ceasing to Act, for each of the companies:

Barton Press Pty Ltd
Breda Pty Ltd
Castetag Pty Ltd
Jamell Technical Publications Pty Ltd
Motasea Pty Ltd
Naladon Pty Ltd
Neufreund Money Management Pty Ltd
Ramon Publications Pty Ltd

In the letter Mr Colley said: I have advised you of certain implications before, but please allow me to repeat myself and advise again. Lodging a form with ASIC does not create a legal act, it simply records certain actions that the Directors have taken or events that have occurred that must be advised to ASIC and which require outside the control of the Director/s. Actions that require advice to the ASIC, usually are for decisions made by the Company or the Director/s and such decisions are backed up by meeting minutes evidencing such decisions. … Please do not make hasty decisions without talking to me to get some idea of implication. I would love to offer you simplistic solutions to achieve your wishes, but there are none that are simple and completely without cost that I can see, and I feel confident that such do not exist. We can minimise the cost if we are careful and do not take what might seem like simple actions and trigger some crippling debt obligations.
A Discharge Referral note dated 10 July 2012 records that the deceased was admitted to Kareena Hospital on 26 June 2012 until 3 July 2012 for drainage of a facial abscess and removal of a tooth. A Nursing Discharge Summary/ Transfer Form dated 3 July 2012 also records that the deceased was admitted on 26 June 2012 due to a tooth infection.
On 27 June 2012 Mr Colley sent a letter to the deceased: Please let me assure you that I am fully aware that you do not want to leave problems for your children into the future. In fact that is a subject that constantly presents itself to me and is at the forefront of my mind whenever I work on yours or your daughters matters
A Progress/Clinical Note dated 29 June 2012 records that the deceased "told staff that he doesn't want daughter Janine to visit".
Emergency Documentation notes from Sutherland Hospital dated 6 July 2012 record: Patient presents C/O confusion last few days. Patient quite aggressive, accompanied by three family members, very resistant to any intervention…. patient is very rude and confuses and refusing all treatments and want to go home…seen by doctor thinks he has gi bleed hb 79.
A Discharge Referral Baseline document dated 6 July 2012 records that the deceased required a CT Scan for "acute confusion" and CXC for "confusion".
In a Progress/Clinical Note dated 7 July 2012 nursing staff recorded at 21:00, "Difficult Pt. Believes he was kidnapped by his children and forced here." Another note recorded at 09:40 states, "Pt uncooperative with ##".
A Progress/Clinical Note recorded on 8 July 2012 at 10:40 states, "Pt is resistive to care - Pt refusing to have bloods taken despite being informed of the importance of having these done". Further at 13:00, "Pt refusing monitoring…patient seem orientated to time and place but is making sporadic accusations re hospital and then talking about people outside". A later entry states, "patient remain agitated and aggressive at times can be confused and vague at times inappropriate re conversations".
The Progress/Clinical Notes from 9 July 2012 include a doctor's note: Pt verbally aggressive. Pt wishes to d/c against medical advice. Informed of findings of gastroscopy - informed of risk of death w/o 72 hours of [PPI?] - pt declining another 24 hours of [PPI] Pt still wishes to d/c after the meal

The answer to the question, "Changes to memory, concentration, thinking, decision-making?", was checked "yes".
The answer to the question, "Is the patient oriented to Time, Place, Person?", was checked "no".
The answer to the question, "Are there evidence of previous episodes of delirium/ confusion/wandering?" was checked "yes" and the word "confusion" is circled.

Further in the part relating to "Mental State" the answer to the question, "Is the patient disorientated? (i.e. lacking awareness, being mistaken about time, place or person)", was checked "yes".
On 12 September 2012 the deceased underwent a CT scan. The CT Brain Final Report of that date recorded that a cerebral CT scan had revealed evidence of a recent right frontal lobe infarct: There's a new region of hypo density in the subcortical and deep white matter of the right frontal lobe which was not present previously… It is thought to represent an infarct which has occurred since the previous study.
Sutherland Hospital Progress Notes dated 13 September 2012 state, "Pt alert and vague".
The deceased was transferred to Kareena Private Hospital on the afternoon of 13 September 2012. Kareena Private Hospital Notes dated 13 September 2012 note, "NB Cerebral CT Scan… frontal lobe, other belat. Chronic Δ". A nursing note also records, "PT displaying signs of confusion".
On 14 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 18:30 that "Pt at times becoming irritable and verbally abusive".
On 15 September 2012 Dr Dedousis recorded in the Kareena Private Hospital Notes: Pt well known to me Social Issues Discussion re: Eventual home. Need to talk w/ family re: their favourite rehab place.
On 15 September 2015 a note was made in the Kareena Private Hospital Notes recording dizziness.
On 16 September 2012 there was a chain of emails sent between Melinda and Mr White, copying in Aleta and Mr Colley. Melinda set up a meeting to be held at Kareena Private Hospital on 19 September 2012 with Aleta, Mr Colley and Mr White for the signing of papers which appear to be powers of attorney and a transfer and contract.
On 17 September 2012 a note was made in the Kareena Private Hospital Notes: "Pt full care with ADLs… Pt occasionally confused." A nursing note made on the same date states, "Alert, confused @ times… both legs still erythematous… visited by daughters".
Also on 17 September 2012 the defendant made his first application to the Guardianship Tribunal. The health related factors said to affect the deceased's decision making capacity at that time included: delirium resulting in reduced mental capacity, atrial fibrillation, cerebral small vessel ischemia, rheumatic heart disease with mural thrombus in the past causing transient ischaemic attacks.
The application was to have the deceased discharged to the defendant's care for one to two months at Drummoyne. The reason being that while the deceased was under the care of Aleta and Melinda he had seven hospital admissions between June and September 2012 with his return home lasting only four days before he had a fall fracturing his hip.
On 18 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 14:00 that the deceased was "confused/cooperative… visited by daughter", and at 21:00, "pt confused this shift, pt becomes easily agitated and worked up".

Was admitted to St George Private Hospital in August with a degree of heart failure related to his rheumatic mitral valve stenosis;
Went to President Private Hospital for a period of rehabilitation and went home; and
Was subsequently admitted to Sutherland Hospital with cellulitis and was transferred to Kareena.

On 19 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 12:00 that "Pt showered full assistance… Pt at times inappropriate". Discharge planning notes made at 14:10 said: Met w/ daughter Aleta to discuss concerns and options for care. Spoke also with Mr Gooley to understand his requests. Family met also with CEO. Dr Smith contacted - certainly not ready for discharge - will need lots of planning and services in place before consider discharge
The following note was also made: "Pt confused ++ tonight, kept saying want to go home".
On 19 September 2012 a Kareena Private Hospital Clinical Plan of Care document was completed. The deceased's cognitive status was checked as "not intact" (having been intact on 13-18 September).
On 20 September 2012 a nurse recorded in the Kareena Private Hospital Notes at 00:45, "Pt confused". At 14:25 a nurse recorded, "on and off confusion but sensible when established rapport. Patient do not want to go home in his son's place as he stated". At 21:30, "PT slightly confused this shift". And 22:45, "…rashes present on all body… itching too. Patient and other staffs stated this started 3 days ago. Bruises on back. Patient is on antibiotics". And at 22:45, "Patient was very anxious…".
On 21 September 2012 a Kareena Private Hospital Medical Ward Occupational Therapy Assessment was completed. It appears to set out what assistance the deceased would need if he was to be discharged. It was completed by M Zammit. Next to the question heading, "cognition/emotional status (mood, orientation, memory, planning etc)", the answer given was "confused".
Also on 21 September 2012 an occupational note was made in the Kareena Private Hospital Notes at 15:10 stating, "PT's cognition unpredictable i.e. unable to follow 3 step commands at times". An earlier nursing note recorded at 14:30 states, "Pt showered full assistance".
On 22 September 2012 a note was made in the Kareena Private Hospital Notes at 04:00 that the deceased was "Mild confused earlier this shift… itchy, moisturising cream applied all body… Still confused". Dr Dedousis noted later that the deceased was "alert" and "orientated".
Also on 22 September 2012 there was an email chain between Mr Colley and Melinda which included a letter from Mr Colley to Melinda and Aleta explaining why an account was issued to them rather than the deceased. It set out that Mr White considered that Melinda and Aleta may have been entitled to reimbursement: My assumption as to the reasoning is that if the person subject to control by the Guardianship Documents is, perhaps, not mentally capable, the whole purpose of such a document, then there would be some question over the correctness of rendering such person with such costs.
Melinda said in an email to Mr Colley: Mr Colley, As per telephone conversation you had with Aleta this afternoon. I have forwarded you this email with attachments from Gary White. It involves a lot of searches and work in relation to all of our fathers companies and properties. For the record I am presently attending to the day to day running of my father's companies whilst he is in hospital, and trying to prepare tax returns for 2012 without remuneration. This takes a considerable amount of time. I would estimate at least 2.5 hours every day whilst in hospital.

Dr Jeanette Stewart would not be visiting his father; "that would not be taking place in this hospital";
Mr Gooley does not want to be examined by any other Drs;
Mr Gooley does not want to see Dr Gooley.

His note also records that he asked if this advice could be confirmed with his father and that Ms Uhlmann attempted to do so but reported back that both of his sisters were with the deceased and it was therefore inappropriate to ask.
A note made at 14:30 on the same date records that the deceased was "alert and orientated." A social work assessment was conducted with Aleta present at 15:30. It notes that the deceased had been diagnosed as being competent in making his own decisions at the time "as per Dr Dedousis". It also records: informed by Dr Dedousis that patients son Dr Gooley has submitted an application to the Guardianship Tribunal - hearing scheduled for 17/10/12. Also noted entry in patients file from Calvary CEO that PT does not wish for his son to visit him whilst it Calvary. … He reported… All contact for d/c planning purposes to go by his two daughters Aleta/Melinda. PT clearly stated he did not want S/OT to contact his dtr Janine regarding his care…
On 3 October 2012 Dr Dedousis sent a letter to Jill Forrester, Guardianship Tribunal Officer, in relation to the deceased's care situation. He stated that the deceased's delirium had settled as his cellulitis settled. There was no mention of confusion: There are no issues with regards to delirium, infection and his cardiac failure is currently stable. From the clinical perspective my opinion as a Geriatrician is that Mr Melville William Gooley is able, from the cognitive perspective, to make appropriate decisions with regards to finances, medical and residential care. I do not believe [power of attorney and enduring guardianship] needs to be enacted as Mr Melville William Gooley is able to make his own decisions regards to his financial medical decisions. … I am quite concerned and upset having heard about this guardianship application by Dr Gooley with regards to his father by a distressed phone call from a family member last Friday night. At no stage has Dr Gooley spoken with me, tried to contact me directly or warn me about his concerns which would lead to a guardianship application. There has been one letter received by my office dated 24 September 2012 requesting a medical report on his father's condition and in discussion with Mr Melville Gooley I have been instructed not to divulge any clinical information and have written back to Dr Gooley stating this. I am somewhat perplexed as to why the guardianship hearing is going ahead.…
Also on 3 October 2012 the defendant sent a letter to the Guardianship Tribunal seeking orders for a neuropsychiatric assessment of his father.
On 4 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes that the deceased was "alert and orientated" at 07:00 but "alert and confused, c/o diarrhoea overnight" at 15:45.
On 5 October 2012 a nursing note was made in the Calvary Health Care Sydney Progress/Clinical Notes stating: Dr Gooley not to be allowed into hospital Mr White is PTs lawyer Pt to stay as inpt while guardianship tribunal hearing taking place
On 8 October 2012 a social work note was made in the Calvary Health Care Sydney Progress/Clinical Notes: Discussed bed move with the pt and dtrs advised pt that his son was allegedly cited on ward today. Pt confirmed he does not wish his son to visit him in Calvary. Explained to pt that it would be beneficial to move his room to be closer to NSG station where staff can monitor visitors - patient and daughters agreeable to same

Is the patient confused? (I.e. unable to make purposeful decisions, disorganised thinking and/or memory impairment)
Is the patient disorientated? (i.e. lacking awareness, being mistaken about time, place or person)
Is the patient agitated? (i.e. fearful affect, frequent movement and/or anxious).

A document titled Calvary Health Care Sydney Patient Handover Care Plan - SGSHHS which was completed over the period 20 January 2015 to 19 March 2015 records the deceased's medical history as including dementia. Almost every entry states that his MMSE score was 23/30 and that due to "legal issues" the folders of his medical notes were to be kept locked up.
A Calvary Health Care Rehabilitation Unit Patient Referral form of 20 January 2015 notes a past medical history of dementia and that the deceased's cognitive status was "alert". A Calvary Health Care Sydney Rehabilitation Physiotherapy Initial Assessment document of the same date also notes a medical history of dementia and the deceased is noted to have required assistance with ADL's and personal care in the form of 24 hour private nursing care. A Calvary Health Care Sydney Rehabilitation OT Initial Assessment also completed on 20 January 2015 records a past history of dementia and states that Melinda was attending to his financial management. His carers were said to be responsible for cooking meals, shopping, cleaning, laundry, medication and community access.
Calvary Health Care Sydney Progress/Clinical Notes made on 20 January 2015 record, the deceased "had post-op delirium but now settling… pt has expressed wish regarding some relative is NOT allowed to visit him in hospital". His background is noted to have included "Dementia- Known to Dr Dedousis". Medications included PRN Risperidone (antipsychotic). The deceased was described as oriented to place and person but not to time.
A nursing note was made at 15:15 in the following terms: Patient is a pleasant 89 year old man with a history of Dementia…. Family have ongoing conflict resulting in a legal dispute. Pts notes are to be kept locked in treatment room. Restricted visiting to pt - only carers and some family members to visit. Daughter Aleta has POA.
Calvary Health Care Sydney Progress/Clinical Notes made on 21 January 2015 record: [Nursing note at 03:40] Patient buzzed at 2300 and at midnight asking whether it was time to get up shower and have breakfast. Orientated to time and place on both occasions. … [Nursing note at 06:50] Patient has been awake since 0400 pressing the buzzer to ask for time and asking if he could get out of bed for breakfast. … patient alert, can be vague and very anxious and needed a lot of re- assurances and prompting with ADLs. Patient very outspoken with what he feels and wants. … [Dr Dedousis note] slow but steady progress. Delirium settling. … [Physiotherapy note] patient well, vague at times.
An Admissions and Discharge Risk Assessment document completed on 21 January 2015 records that the deceased's mental state was confused and disorientated. The check box beside the words, "Changes to memory, concentration, thinking, decision making" is marked "yes".
Also on 21 January 2015 Dr Dedousis sent a letter to Teece Hodgson & Ward stating that the deceased was suffering from a delirium: Prior to his presentation to hospital Mr Gooley had been in quite reasonable health…and was able to make appropriate decisions with regards to all his financial, legal and medical matters. Unfortunately now, with the recent admission and consequent delirium, Mr Gooley is no longer able to make appropriate decisions with regards to his residential, medical or financial issues. I am aware that he does have a Power of Attorney and Enduring Guardian and these should be invoked immediately. His two Guardians, in the form of his two daughters mentioned in the appropriate paperwork, should now be responsible with regards to all his affairs. I especially mention this in view of his impending appointment with the Guardianship Tribunal. I would appreciate if all these legal and financial matters are dealt with, with the aid of his Guardians while Mr Gooley, who is not able to give more appropriate instructions in these matters, is left to slowly recuperate.

Is the patient confused? (i.e. unable to make purposeful decisions, disorganised thinking and/or memory impairment)
Is the patient disorientated? (i.e. lacking awareness, being mistaken about time, place or person)
Is the patient agitated? (i.e. fearful affect, frequent movement and/or anxious).

Sutherland Hospital Emergency Documentation dated 19 May 2016 includes an initial speech pathology assessment and records the deceased had a medical history of "mild cognitive impairment" known to Dr Dedousis. Progress notes also record that the deceased was oriented to place and person but not to time.
A document titled Sutherland Hospital and Community Health Service Southcare-Community Referral Fax Form dated 15 August 2016 records that the deceased had "dementia".
A Private Care Note made on 11 October 2016 states, "Dr Dedousis was please[d] with Bill's general well-being but it was apparent he thought Bill's dementia was worse and that he was slowing down".
On 11 October 2016 Dr Dedousis sent a letter to Dr Barrett: The cognitive and mobility issues continuing to be a problem in the home environment but he has 24 hour care who keep a very close eye on him. He has had no recent falls, he uses a roller frame for mobility. He can be difficult, sometimes, to manage from the behavioural perspective but does not require the use of neuroleptics or calming agents.
Private Care Notes made on 5 January 2017 state, "Bill slept till 4:00 then he was keep calling for getting up, requested him to wait, its too early, he was gone back to sleep…".
On 13 January 2017, "Bill started to calling up from 4:15, wanting to get up for shower. Keep requested him that its too early. Finally got him up at 6:00…".
On 16 January 2017, "Awoke 0200 saying he needs to go to the bank and speak to the manager. Bill accepted when told the time, back to sleep".
On 17 January 2017, "Bill slept well, awoke 0300, drink of water…".
On 18 January 2017, "Awake at 4:30am - tell him time - He gone back to sleep until 6:20am".
On 19 January 2017: Bill slept well till 3:10, Bill called 3:30am wanting to get up, the reason for calling was fire in the building and…is giving free parking spots, Bill wanting get one and join queue at council office. Keep telling him about time…but he was keep calling, sleep between 4:00 to 4:45 then he wanting to get up. 5:50 got him up…
On 22 January 2017: Called at 1:41, requested him to go back to sleep, he slept, called at 4:50, Bill desperate to getting up, sticking at one point, just wanting to get up, I asked him if he wanting to sit on chair and watch T.V he can do that, but he deny, he wanting to get shower, 5:30 he gone back to bed…
On 26 January 2017, "Bill awake at 4:30am - said time to him - He said he will go back to sleep - drank a few sips of water…".
On 27 January 2017: Bill slept well till 3:00am, He called wanting to passed urine, told him that catheter is attached he can't do it, he slept back, called in 10 min again, I got him up, bottle given he stood for 10 min, nothing done, he realised that catheter attached. He went back to bed, called again for water, drank few sips of water, gone back to sleep, called again complaining about hearing aids, no hearing aids in his ears, he checked himself, then he agreed with me. Slept till 5am. Called again to checked time. Calling every 10min…

A Kareena Private Hospital Medical/Ezi Access Admission Form;
A Resuscitation Plan;
An Ambulance Electronic Medical Record (which also records that the deceased was confused); and
A Patient Handover Care Plan from Sutherland Hospital.

A note made in the Sutherland Hospital Progress/Clinical Notes at 16:15 on 11 December 2017 records the deceased's background as including "dementia".
A Sutherland Hospital Falls Risk Assessment and Management Plan records that the deceased was "confused, disoriented or depressed" on 11, 12 and 19 December 2017.
An Ontario Modified Stratify (Sydney Scoring) Falls Risk Screen document dated 12 December 2017 indicates the deceased was again confused, disorientated and agitated on that date.
As I have noted, the deceased passed away on 23 December 2017.
On 27 December 2017 Dr Betty McDowell (thought to be Dr Dedousis's intern: T.502/1-15) completed a form recording the deceased's causes of death. It records "dementia" as a significant condition contributing to the death but not related to the disease, injury or condition causing it and states that the approximate duration between onset and death was "years".
A death certificate dated 2 February 2018 records dementia as a cause of the deceased's death. As to its duration, the certificate indicates the deceased had "dementia, years". A handwritten amendment on the certificate indicates "2" years.
A handwritten note (of an unknown author) dated 6 February 2018 states: Aleta Gooley [her phone no] 23/12/17 Father deceased Melville William Death certificate Cause of death paperwork form to be more specific [Details of telephone number of Dr Chris Dedousis] [Details of Debie Marshall at Olsens Funerals]
A further note on the same page dated 7 February 2018 states: Discussed with Dr Dedousis 7/2/18. Advised that 21.2 Dementia could be changed to 3 years. Amended DC sent to via fax Olsens 7/2/18. 4.05pm - Dr Dedousis confirms 21.2 change to 2 years as per last mini mental in 215. N Bennie 7/2/18.
A NSW Registry of Births, Deaths and Marriages form was completed by a Debbie Marshall from Olsens Funerals on 7 February 2018 to "correct" the information relating to the cause of death on the deceased's death certificate. It includes: Event to be corrected: Death Existing information: 'Cause of death and duration - Dementia, Years' Correct information: 'Cause of death and duration of illness - Dementia, 2 years'
Notably the handwritten "2" is very dark and appears to have been changed from a different number.
On 14 February 2018 the NSW Registry of Births, Deaths and Marriages sent a letter to Olsens Funerals: Re: Amendment request to the death of registration of: Melville William Gooley Dear Debbie I am writing about your request for an amendment to the above certificate. In order for the Registry to proceed with your request we require the following: → an amended and original (not faxed, photocopied or emailed) medical certificate of cause of death to be rewritten by Dr Betty McDowell. Please ensure that Dr McDowell signs the amended certificate and dated the actual day instead of the old date 27/12/2017. The word 'amended' must be written at the top right hand corner. We cannot accept the old medical certificate of cause of death with any whiteout used or the original details crossed out with the new details written over it.

[9]

Legal Principles

The test for testamentary capacity was famously set out in the decision of Banks v Goodfellow (1870) LR 5 QB 549 ("Banks v Goodfellow") at 565: It is essential to the exercise of such a 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.
The first thing to note about Banks v Goodfellow is that this was an appeal from a jury trial where the only two issues before the court were whether the trial judge had misdirected the jury or whether the verdict was against the evidence and the weight of the evidence.
The Court recorded the question the trial judge (Brett J as his lordship then was) posed for the jury as (at 554): whether on 2 of December 1863, or on 27 of December 1863, or on both, the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions and free from delusions as would enable him to have a will of his own in the disposition of his property, and act upon it.
Unexceptionably the trial judge also directed the jury to take a balanced view of the facts. The jury after 25 minutes deliberation returned a verdict of a "good and valid will".
The survey of the factual material and any real detail of the judge's directions on appeal are relatively briefly dealt with.
The Court refers to two "medical men" who treated the deceased at various points. One from the end of 1856 to the end of 1862 and the other from September 1863 it seems until his death in 1865. Both gave opposing views as to the mental soundness of the deceased. The nature and extent of their evidence is only further elaborated upon in the contemporaneous newspaper reports of the time such as the Cumberland Pacquet, as outlined in Martyn Frost's book on the trial, A Victorian Tragedy: The Extraordinary Case of Banks v Goodfellow (Wildy, Simmonds & Hill Publishing, 2018). It is to be observed that neither was an expert at least in the modern sense of that term. Instead the absence of expert evidence is replaced by the Chief Justice using a good deal so it seems of judicial notice of "the mystery of human intelligence" and "the pathology of mental disease" (at 560) and "monomania" (at 561).
The alleged misdirection was said to be (554): that the learned judge, in leaving to the jury the question whether at the time of making the will the testator was free from delusions, did not proceed to tell them that though the delusions, under which the testator had undoubtedly before laboured, might not have been present to his mind at the time of making the will, yet, if they were latent in his mind, so that, if the subject had been touched upon, the delusions would have recurred, he was of unsound mind and therefore incapable of making a will.
The Court noted that the jury verdict was consistent with them finding that there were no delusions "present to his consciousness not, that they were eradicated from his mind" and that "if the question had been specifically put to them whether the delusions still remained latent in the testator's mind and his mind was to the extent of these delusions unsound, they would have found in the affirmative" (555).
Therefore the Court posed the question whether partial unsoundness of mind not affecting the "general faculties" of the testator or the particular testamentary disposition would be sufficient to deprive a person of testamentary capacity (556). The Court then observed that such a question had never before arisen however there were cases in the Privy Council and the Court of Probate suggestive in statements obiter that any degree of unsoundness however slight and unconnected with the particular disposition would suffice to render the disposition invalid.
The Court made clear that even if "mental disease" existed, provided it did not interfere with the capacity to make a rational disposal of property, a will should be regarded as valid, and although drawing a factual distinction between mental disease in the sense of psychosis as opposed to dementia or a lack of intelligence, again a capacity to make a valid will is retained if the testator "fully" comprehends the testamentary act "about to be done" (at 566).
The Court also commented that testamentary capacity should not be denied speculatively on the basis of unsoundness "which has failed to display itself" and which may exist in a latent and undiscovered form (at 570). And if the "delusion has not affected the general faculties of the mind and can have no effect upon the will," the will should be upheld (p 570). If there is no evidence of a connection and hence influence between the "delusion" and the disposition under the will then the delusion is not to be seen as incompatible with testamentary capacity.
This position now seems well established. For example in Croft v Sanders [2019] NSWCA 303 ('Croft v Sanders'), White JA (Bathurst CJ and Gleeson JA agreeing) upheld the trial judge's findings concerning the validity of the testator's will, noting (at [128]): The lay evidence confirmed the contemporaneous medical evidence that Mr Croft's underlying dementia did not deprive him of testamentary capacity. It also demonstrated that more probably than not his hallucinatory or delusional beliefs about his daughters were episodic rather than continuous. Had he held such beliefs when he gave instructions to Mr Miller for his will it is likely that he would have expressed them when they discussed the provision he proposed for his daughters other than Anna. The lay evidence discharged the respondents' onus of establishing that the hallucinatory or delusional beliefs that Mr Croft expressed from time to time did not affect his testamentary dispositions. (my emphasis)
Banks v Goodfellow has otherwise been considered extensively in Australia and New South Wales.
In Carr v Homersham (2018) 97 NSWLR 328 Basten JA considered (at [5]-[6]): Testamentary capacity is not a statutory concept but is derived from the caselaw, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely: (a) the capacity to understand the nature of the act of making a will and its effects; (b) understanding the extent of the property the subject of the will; and (c) the capacity to comprehend moral claims of potential beneficiaries. The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include "disorders of the mind" and "insane delusions". Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator's normal capacity for decision-making.
In Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 (at 290-291), the Court considered it a grave matter to invalidate a will: The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton and Marston v Knight, above. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind. … Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.
Meagher JA (Basten and Campbell JJA agreeing) in Tobin v Ezekiel (2012) 83 NSWLR 757 ('Tobin v Ezekiel') set out the following principles (at [44]-[51]): The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1090; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey (1924) 34 CLR 558 at 570; Timbury v Coffee (1941) 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P&D 655 at 657-658; Atter v Atkinson (1869) LR 1 P&D 665 at 668, 670; Nock v Austin (1918) 25 CLR 519 at 522, 528. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound and disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P&D 398 at 436; Bull v Fulton (1942) 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm (1952) 86 CLR 439 at 453. Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429, McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, (2012) 83 NSWLR 757 at 772 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. ... Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the court (at 157, 159) that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551, 557, 561-562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281-282; Nock v Austin at 528; Vout v Hay at [29]-[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294.
Further in Mekhail v Hana [2019] NSWCA 197 Leeming (Basten JA and Emmett AJA agreeing) emphasised the need to assess the "full nature" and "gravity" of the suspicious circumstances (where they exist) as part of the evaluation of whether the burden cast on the proponent of a will has been discharged ([134], [136]). Further each suspicious circumstance or doubt which is raised must be allayed by the proponent of the will ([147]-[148]). However there is no inflexible rule as to what will be necessary in order to justify the will ([137], quoting Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 at 485-486). One must look at the evidence as a whole ([154]).
A will made by a person of advanced age should be carefully scrutinized (Boreham v Prince Henry Hospital (1955) 29 ALJR 179, 180 (Williams, Fullagher and Kitto JJ)).
However as Kunc J considered in Phillips v Phillips [2017] NSWSC 280 in the context of dementia (at [131]-[134]): The parties also relied on the helpful summary of the law by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275: "246 It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, "the mental power may be reduced below the ordinary standard" provided the deceased retains "sufficient intelligence to understand and appreciate the testamentary act in its different bearings". In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows: "In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed." In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he or she was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. However, it does need to be shown that the deceased understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs at [97]. … In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 571, per Isaacs J. I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct, Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation." … Mr Morrissey also relied on the observation by Windeyer J in Loupos v Demirgelis [2008] NSWSC 1207 at [55] that "[c]ognitive failure does not of itself mean there is no capacity to make a will. It is the extent of the failure which bears upon this." To that I would respectfully add his Honour's observations at [54] that: "In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses." In Loupos, Mr Morrissey submitted, his Honour had found the deceased had the requisite capacity to make his will, notwithstanding the evidence that eleven weeks after executing that will the deceased had an MMSE score of 13/30 which indicated severe cognitive impairment. However, the Court notes that in Loupos his Honour was primarily influenced by the unchallenged evidence of a large number of lay witnesses, especially on the topic of the deceased's memory. That is not this case. Finally, I have also relied upon Lindsay J's recent summary in Estate Stojic, Deceased [2017] NSWSC 168: … 85. In any event, the Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way: King v Hudson [2009] NSWSC 1013 at [50]- [51]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]; Estate of George Aeneas McDonald [2015] NSWSC 1610 at [53]- [70]. Decisions about "testamentary capacity" and "knowledge and approval" are necessarily fact sensitive.
It is clear that while the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is ultimately a question of fact for the trial judge, and lay evidence may equally be relevant (see, e.g., Croft v Sanders at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing)). It has generally been said that neither expert medical evidence nor the opinions of attesting witnesses as to competency are on their own decisive (Norris v Tuppen [1999] VSC 228 at [335] (Ashley J); see also Nicholson v Knaggs [2009] VSC 64 at [41] (Vickery J)).
An experienced solicitor's evidence is capable of being "valuable evidence of testamentary capacity" because an "experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path" (Drivas v Jakopovic (2019) 100 NSWLR 505 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing), citing Re Crooks Estate (Supreme Court of New South Wales, unreported, 14 December 1994) at 29 (Young J)). Equally a solicitor's evidence may, depending on the circumstances, have considerable weight where the solicitor does not have a specific recollection of a will being signed but gives evidence of his or her usual practice (Drivas v Jakopovic (2019) 100 NSWLR 505 at [54]-[55]).
A solicitor taking instructions where capacity is potentially in doubt has a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It has been accepted that it is undesirable to attempt to lay down precise and specific rules as to what that necessarily entails in every case (Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [89] (Hallen AsJ), referring to Pate v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported, Santow J)).
However the Court ought not accept the evidence of a solicitor as to testamentary capacity or knowledge and approval where the solicitor's usual practice or conduct in relation to the making of any particular will is deficient, including where the solicitor has not asked the client open-ended questions to allow a proper assessment to be made (Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [137]-[197], [297]-[299], [304], [306] (Hallen AsJ); Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [98], [107]-[108] (Kunc J); Rowe v Sudholz [2019] QSC 306 at [149]-[150] (Applegarth J)). The Court must also consider whether the particular instance before it "may stand apart from the ordinary case" (Drivas v Jakopovic (2019) 100 NSWLR 505 at [54]).
In terms of assessing the medical evidence that is before the Court it has been said that the best medical evidence will always be that of a specialist for example a psychiatrist, consultant physician or clinical psychologist who, with the benefit of a clinical examination, expresses an opinion by reference to the elements of testamentary capacity enunciated in Banks v Goodfellow, in a report which complies with the expert witness rules of court (Re Fenwick; Application of J R Fenwick; Re 'Charles' (2009) 76 NSWLR 22 at [127] (Palmer J)).
It is nonetheless said that the evidence of treating practitioners can sometimes be of more assistance than that of medical experts who did not examine the deceased (Nicholson v Knaggs [2009] VSC 64 at [39] (Vickery J); see also Dellios v Dellios [2012] NSWSC 868 at [32] (White J)). To that end the evidence of specialists who have never seen the deceased is to be considered bearing in mind the evidence of medical practitioners who examined the deceased and the evidence of lay witnesses (including solicitors) (Loupos v Demirgelis [2008] NSWSC 1207 at [54] (Windeyer J); Re Estates Croft, deceased [2018] NSWSC 1303 at [118] (Lindsay J, upheld on appeal: [2019] NSWCA 303)).
However little weight ought to be given to a medical opinion where the doctor is insufficiently apprised of the facts. That is because, in interpreting the facts as the doctor thinks they are (and not as they actually are), the doctor is not to be regarded as properly drawing on his expertise in a field of specialised knowledge (Drivas v Jakopovic (2019) 100 NSWLR 505 at [65] (Macfarlan JA, Bell ACJ and McCallum JA agreeing), referring to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 305 at [86]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]).
The least satisfactory evidence is generally that of laypersons who stand to benefit under the will (Re Fenwick; Application of J R Fenwick; Re 'Charles' (2009) 76 NSWLR 22 at [129] (Palmer J)).

[11]

Professor Watson

Professor Watson provided two reports dated 15 August 2019 and 22 July 2020 respectively. His areas of expertise include the assessment of people with brain damage and cortical dysfunction, the use of experimental methods for studying cognitive function in normal volunteers and the assessment and management of patients with cerebrovascular disease.
He was supplied as were all others with a good deal of material.
He explained his approach as being to adopt a medically based analysis of the person and his conditions, illnesses and underlying diseases (e.g. dementia) along with a consideration of the size and complexity of the estate and the content of the wills or the type of gift involved, CB.6/2686. He further explained that in such a case the medical expert will try to determine what cognitive complaints and difficulties may be present. The complaints if any then have to be assessed to decide on the underlying cause and attempt to reach a medical diagnosis. Thereafter it is a case of assessing the severity of the condition and importantly how it might affect high level activities such as capacity.
In reviewing the various documents he indicated how he weighted the information with which he was provided in coming to his opinions. He gave greatest weight to contemporaneous documents from medical practitioners, paraclinical staff, and hospital based personnel. Next he relied upon professional and lay observers (not beneficiaries) and last upon actual or potential beneficiaries under the various wills.
He specifically referred to the medical and other material he had been provided and in particular the materials from Mr Colley, accountant, the solicitor, Mr White, and Mr Peter Rogers, who had all dealt with the deceased.
He also referred to the various doctors, such as Dr Dedousis, Dr Smith, Dr O'Shea, and Dr Barrett, which he found helpful in assessing the deceased's capacity.
As a prelude to answering specific questions, he expressed the view that the deceased had important medical conditions and that he did have "a progressive and/or stepwise decline in cognition and physical abilities in the last years of his life", CB.6/2687.
He was asked quite specifically whether the deceased suffered from a medical or mental condition, or conditions, which was likely to impair his cognition on "18 July 2014". He stated he did suffer from a number of conditions that were capable on the balance of probabilities of affecting his cognition on 18 July 2014 but that most were also present at the times of his earlier testamentary acts.
However he thought that from all the materials he reviewed (which included medical and lay evidence, Dr Lonie's findings of 2015, and his review of the CT scans) that the deceased did have a range of conditions that were "capable of and, likely to impair his cognition", CB.6/2688.
He was asked a pointed question about whether if the deceased did suffer from a medical condition it was likely to impair his cognition at the date of any of the "previous testamentary documents", CB.6/2688. Having reviewed some of the clinical materials Professor Watson expressed the view that, "So with all of Mr Gooley's various conditions over the years it was likely that through many of the relevant times he was suffering from medical condition or conditions capable of affecting cognition", CB.6/2689 (emphasis in original).
Professor Watson in addressing the nature and severity of the deceased's cognitive impairments expressed the view unsurprisingly that the totality of the evidence needed to be considered, CB.6/2689. Professor Watson placed considerable weight upon the evidence of Mr Colley, Mr White and Mr Rogers and on the basis of their impressions thought that any cognitive impairment was unlikely to have been significant in the context of the deceased's testamentary capacity. He placed particular weight on Mr White and his description of the deceased changing his wills at different times and giving instructions in the manner he did.
However he was of the view the deceased's "medical conditions per se directly or indirectly some of the cognitive issues, did… have some effect on [the deceased's] daily life". Professor Watson did not consider the deceased having full time care as necessarily an indicator of cognitive impairment. He thought that the care requirements were "more based upon [the deceased's] age and frailty per se", CB.6/2690.
Professor Watson expressed the view that the deceased at all relevant times understood the nature and act of making a will and its effect. In addition he thought the deceased understood the nature and extent of the property which he was disposing. He thought he had a general understanding although he may not have kept the individual details in his mind at all times. Again Professor Watson relied heavily upon the assessments of Mr White, Mr Colley and Mr Rogers. He also relied upon the deceased's daughter when she explained how her father still dealt with estate agents and his properties. He also according to her knew the right person to ring about rates and the like. Further Professor Watson expressed the view that in relation to the identification of beneficiaries the deceased suffered no cognitive impairment at any relevant time and further could weigh up the nature and strength of the claims of all beneficiaries to whom he ought have regard, CB.6/2691.
Professor Watson thought the deceased's ability to write out by hand his comments on revised versions of his wills was helpful in considering testamentary capacity as being logical and coherent. Again he accepted the evidence of Mr White.
Professor Watson thought the deceased was indignant about the two Guardianship Tribunal hearings and the caveat on his property. But by implication at least he was rightly indignant. In addition he did not consider him delusional. Although the deceased had "significant episodes of acute ill health including sepsis, delirium, two hip fractures …", Professor Watson thought for the 18 July 2014 will, the deceased had capacity, as he did for the 12 November 2012. As for the 4 September 2012 will, Professor Watson noted that Mr White said he did not have any recollection of the circumstances of the making of that will. However Professor Watson said the fact the deceased also signed an Enduring Power of Attorney that day, and had been given an explanation as to its effect by Mr White, showed some support for lucidity and he thought again by implication that he had capacity.
So far as Dr Lonie's reports are concerned Professor Watson commented upon them in some detail in an appendix but in summary he dismissed them on the basis that they do not test testamentary capacity.
In his "Review of Documents" Professor Watson effectively summarised the various documents he saw as relevant including the statements of Mr Colley, Ms Melinda Foley, Mr Gary White, Ms Aleta Gooley, and many others, CB.6/2696-2715.
At CB.2716-2727 he purported to summarise the reports of Dr Lonie. He then summarised Dr Dedousis's file and numerous other medical records, CB.6/2727-2738.
In his second report (of 22 July 2020) Professor Watson again summarised the documents he received along with the assumptions he was asked to make, CB.13/5477-5478. He again expressed some views about Dr Lonie's reports.
Professor Watson stated that Dr Lonie's tests were intended to elicit the patterns of function and dysfunction relevant to different cognitive processes. He noted that for right handed people the left hemisphere is generally dominant for verbally based material. Executive functioning (planning, problem solving, and foresight) are commonly held to rely more on frontal lobe functions, CB.13/5481.
Professor Watson said he agreed with Dr Lonie that when she saw the deceased (in May 2015) he had retained capacity to decide on his own lifestyle and medical matters. He thought she had performed appropriate tests. Professor Watson placed a good deal of importance on what he describes as the "contemporaneous evidence both medical and lay", CB.13/5485.
Professor Watson expressed the view that the deceased had sustained a partial right middle cerebral artery territory infarction somewhere between July and September 2012 but that Dr Lonie thought at the time he had dementia and she did not consider him worse three years later. Indeed in the MMSE she conducted in 2015 he did better. Again Professor Watson thought that the deceased's "technique" of corresponding with his legal and accounting team "does indicate the retention of testamentary capacity". He noted the fact that Dr Lonie was asked to review materials including a transcript of Mr White's evidence (which he had not seen), CB.13/5488. Professor Watson while noting the stroke in say August 2012 said he thought the deceased had recovered by 2014. He further stated that any lack of capacity in the weeks or months after the August stroke does not mean he lacked capacity on a permanent basis, CB.13/5489. Further he considered it inappropriate to infer a lack of testamentary capacity in 2014 because of a lack of testamentary capacity in 2015. Again Professor Watson placed considerable weight on the deceased's capacity to make handwritten changes on wills and fax them back to his solicitor, CB.13/5490.
Professor Watson participated in two conclaves, the first on 14 November 2019 with Associate Professor Brodtmann and Dr Lonie. He and Associate Professor Brodtmann had another conclave on 27 August 2020. Dr Lonie and Ms Kennedy had a conclave on 3 September 2020.
In examination in chief Professor Watson was asked to assume that on 13 November 2012 the deceased was sufficiently in control of his faculties to know and act upon his own wishes, that between 13 November 2012 and late 2014 the defendant wished to speak to the deceased to discuss "family financial matters" and reach an agreement as to those matters, and that in March 2013 the deceased resiled from an arrangement with his grandson when an estate agent purported to increase rent. On those assumptions Professor Watson said that would reinforce his views that the deceased had capacity, particularly around the time of the assumptions put to him, T.1141/25-40.
In cross examination he agreed a matter of significance was the fact the deceased made draft changes to a will dated 12 November 2012, T.1143/20-35.
He could not recall reading a copy of the cross examination of Mr White, solicitor, T.1147/20-25. He also had not read the transcript of the cross examination of Mr Colley, T.1148/15-20. Likewise he had not read the cross examination of Dr Barrett or Dr Dedousis, T.1148/20-30.
He agreed the totality of the evidence needs to be considered to determine if the deceased had capacity, T.1148/35-36.
He agreed that in the 27 August 2020 conclave he originally agreed the deceased lacked capacity on 14 March 2013 but having reviewed some materials after the conclave, principally Mr White's affidavit, he changed his mind to say the deceased did have capacity, T.1149/10-40. In relation to the 22 May 2013 will Professor Watson was unable specifically to identify what material he relied upon in forming his opinion that the deceased had capacity but for the affidavit of Mr White, who said he had no recollection of how that will was made but he believed he followed his usual practice, T.1152/10-20.
He did not read any of the underlying documents prior to the conclave with Associate Professor Brodtmann, T.1153/30-35.
Professor Watson was taken to the deceased's handwritten note at CB.559 and was asked to accept that the deceased wrongly dated the document (it was dated 3 February 2013 when it was in fact 2014). He responded that at that time of the year people do write the previous year on cheques and financial documents, T.1154/25-30. He was taken to a part of the note, which appears to be instructions for a new will, purporting to gift two companies to the deceased's two daughters, Melinda and Aleta. He was shown a will of 14 March 2013 and asked to accept that the deceased had already given the shares to them in a previous will. He was unable to answer the question why a person would bother handwriting a whole page of instructions to put something in a will that is already in a previous will, to which he answered, "I'm a neurologist. I am not a psychic", T.1156/30-45.
He would not say on the basis that the deceased was merely repeating a previous testamentary gift that he did not have capacity, T.1156/28-36. He said, looking at the document in totality, it could have been written as a result of indignation, T.1156/45-50, T.1157/1-5. He did not believe the preamble could be explained by a lack of foresight, T.1158/1-5. He did not consider that misdating a document in respect of a will that had already made showed (necessarily) a lack of capacity, T.1159/5-15.
Professor Watson said he does not administer neuropsychological testing, T.1163/9-15. He agreed that he went to see a colleague, Dr Zoe Terpening, who said that Dr Lonie's conclusions were reasonable, T.1164/10-20.
He was asked about the August 2012 MoCA test where the deceased drew the numbers outside the clockface. He said that could be explained by visual difficulties together with the fact that at the time he was acutely unwell in hospital with acute sepsis and delirium, T.1166/5-15.
He was asked about a test performed in May 2015 and three unusual aspects of the deceased's clock drawing; the deceased wrote the numbers 1-16 inside the clock face, the numbers were not spread out, and thirdly, the deceased wrote "20 to 4" outside the clock. Professor Watson said one reason for that result could be that the deceased had a right hemisphere stroke that could have interfered with his visuospatial ability, T.1168/10-15. He was also very sick again in early 2015.

[12]

Associate Professor Brodtmann

Associate Professor Brodtmann provided two reports dated 4 and 20 October 2019. When she gave evidence she accepted my invitation to deliver a narrative in order to explain her reports.
She was provided with a significant array of materials including all the affidavits and carers' notes from 16 November 2012 until the deceased's terminal admission in 2017. She was also provided with CT scan images, CB.6/2992. She made it clear that she did not concern herself with the various wills or their terms.
In her first report she stated that different disorders "preferentially affect different brain functions". Most clinicians she opined include a number of cognitive domains for testamentary capacity assessment, incorporating cognitive testing such as attention abstract and logical reasoning, information processing, verbal abstraction and comprehension, language abilities, semantic and autobiographical memory, executive functions and decision making capacity. All of the testing emphasises the "critical need to assess executive function", CB.6/2995.
She also expressed the view that the ability to express a preference does not equate to having testamentary capacity. The mere fact that the deceased had a falling out with two of his children does not mean he had capacity.
She defined executive function as frontal lobe function; it involves a diverse range of cognitive processes including reasoning, abstraction, judgment, self-awareness and many other functions.
No formal testing of executive function was done until Dr Lonie's assessment of the deceased, although MoCA was performed on 28-29 August 2012. Associate Professor Brodtmann's view was that the deceased performed poorly on that test. The MMSE which was also administered has limitations and is not designed for accurate testing of the frontal domains and executive function. This was the only test administered by Dr Dedousis.
In the MoCA administered on 28 August 2012 the deceased scored 18/30 which means his cognitive impairment was in the moderately severe range, consistent with vascular dementia. His MMSE continued to be 25-28/30. Associate Professor Brodtmann noted that upon request the deceased was unable to tell Dr Lonie details of bank accounts so at that time he did not have knowledge of his estate.
She noted that the deceased in her view had a stroke destroying his frontal networks preferentially. She observed he had "severe white matter ischaemic change and small focal strokes (lacunar strokes) on the left side". The white matter was indicative of reduced blood flow. She observed these on CT and MRI scans. She said the white matter disease was extensive even on the images in 2012.
She expressed the view that the deceased had a large right-sided middle cerebral ischaemic stroke which destroyed parts of his frontal lobes sometime between July and September 2012 and which may have caused his admission. It was discovered on CT scan as a result of an investigation of his confusion and delirium.
She explained that the right side of the brain is sometimes referred to as the non-dominant hemisphere but it contains regions critical for attention and cognition. The deceased she asserted was ambidextrous but up to 90% of ambidextrous people maintain left hemisphere dominance for language. The fact she asserted that he developed no acute speech or language deficits in association with his stroke - just worsening confusion - is evidence he was left hemisphere dominant, CB.6/2999.
She further explained that the deceased's stroke was in the right hemisphere. That commonly affects areas of the brain critical for emotional processing and empathy. She made reference to caregivers commenting on his lack of perception of their mood. His atrial fibrillation (which can cause clots) was a risk factor for stroke. At his request the deceased was on a low dose Warfarin (a blood thinner) and she opined that he had his stroke when he went off his Warfarin. She thought it highly likely that the deceased had many small brain infarcts over time which were "clinically silent", CB.6/3000. Such strokes she stated are associated with worse cognitive functioning. The deceased also had poor hearing and poor eyesight. Associate Professor Brodtmann said hearing loss is a strong risk factor for dementia and may have further contributed to the deceased's cognitive decline. He was also prone to variations in blood pressure and heart rate.
In her view the deceased had vascular dementia by the time Dr Lonie saw him. She based that conclusion on accounts of his "impulsivity, lack of judgment, increased irritability… poor reasoning… and mental inflexibility", CB.6/3002. She also assumed he needed full time care from 16 November 2012 and had stopped driving after September 2012. She also based her views on observations of the carers. There was also evidence of paranoia, CB.6/3003.
She pointed to evidence she found in the various materials she had been given of the deceased's increased irritability, impaired emotional cognition, poor memory and poor judgment, poor decision making, impulsivity, poor attention, sleep-wake and circadian rhythm disruptions and confusion, and fatigue, CB.6/3004-3008.
She then reviewed the deceased's condition at the times the various wills were made in some detail. She stated that in her opinion he likely did not have testamentary capacity on 15 June 2012 given the progression of his medical illnesses at the time. He was ill and had an infection and had delirium. It was noted that he had confusion at the time.
She said that on 4 September 2012 the deceased would not have had capacity. He was in St George Hospital in the August with heart failure. He had had a stroke. The CT scan for 12 September discloses a subacute or chronic stroke. The stroke from her inspection of the images looked to be weeks not days old.
She noted however the view of Dr Barrett that the deceased was of sound mind and that of Dr Dedousis who noted cardiac failure and delirium which by 3 October he thought had settled. The MoCA done a week before the September will showed a score of 18 which is evidence of moderately severe cognitive impairment. Mr White had no recollection of the circumstances in which the will was executed.
She then set out a long list of factors exposing his "severe" functional impairments, CB.6/3012-3013.
Thereafter she opined in relation to each and every will he purported to execute from September 2012 onwards, including the wills of 14 March 2013, 22 May 2013, 7 March 2014, and 18 July 2014, that "he lacked testamentary capacity from the time of his stoke until his death", CB.6/3013-3014.
She then provided a critique of Dr Lonie's assessments. She agreed with them.
So far as Professor Watson is concerned she asserted that by 2012 the deceased had severe disease affecting his frontal regions. She "vigorously disputes" Professor Watson's suggestion that Dr Lonie failed to take into account his stroke. She stated that she has not seen "a single person who had a large right MCA stroke and severe white matter disease who would have executive function for testamentary capacity when adequately tested", CB.6/3015. She disagreed with the impression gained by Professor Watson of the deceased's conversation with a local council officer, and with his impression of the significance of the deceased's interactions with Messrs Colley and White.
As for Dr Dedousis, Associate Professor Brodtmann clearly had issues with his professional behaviour, especially the opinions he expressed in emotive language in letters, including where he described the Guardianship Tribunal proceedings as an abuse of process and expressed the view the deceased "is still being harassed by his son...".
She also made the point that Dr Dedousis is a geriatrician and not a dementia specialist and in particular that he was not so it seems aware of many of the deficits of the deceased and recorded by his carers. He was also out of touch with where the deceased was living. She expressed the view that Dr Dedousis downplayed the deceased's congestive heart failure as diagnosed by the deceased's cardiologist. Further she commented on his having taken the note "Background Medical History: Dementia" off a discharge summary of 5 February 2015 and having an amended summary issued. She noted "the reasons for this are not clear", CB.6/3019.
She described Dr Dedousis's statement on 21 January 2015 that the deceased was no longer able to make appropriate decisions about "residential, medical and financial issues" and recommending the Power of Attorney and Enduring Guardian "be invoked immediately" as "unusual, given that all his affairs appear to have been managed by his daughters for years prior", CB.6/3019.
She was further critical of Dr Dedousis's use of the MMSE and his apparent failure to understand it is not a proxy for testamentary capacity, especially because the MMSE does not test executive function. He never seemed to use any other test, CB.6/3020.
Professor Brodtmann expressed the view that the deceased did not suffer from psychosis but there was evidence of anxiety and depression which she asserted would have affected his capacity to process complex information. She also expressed the view that his memory was impaired. She gave examples such as his giving different amounts of money owed by his son and that he was unable to provide estimates of what was in his bank accounts when asked by Dr Lonie.
Further he did not, according to her, have adequate understanding. He scored 68 in the Addenbrooke's Cognitive Examination (ACE) administered by Dr Lonie in 2015. The cut-off point for dementia is 86 which is sufficient to make a diagnosis of dementia.
Finally she expressed the view that the deceased suffered a stroke somewhere between July and September 2012 which would have rendered his executive functions so severe that he would no longer have testamentary capacity. In particular she thought he lacked testamentary capacity by September 2012 and likely from 2010.
For her second report she had been provided with an affidavit of Mr Michael Marney and a will of the deceased dated 12 November 2012.
She expressed the view that the deceased lacked testamentary capacity on 12 November 2012 for the reasons previously stated. She referred to the nursing and carers' notes for the three months prior and the fact that he had prolonged hospitalisation during August-September 2012. She referred to references to him being "confused" and provided a detailed analysis of his various hospitalisations during this period.
As I have said Associate Professor Brodtmann participated in a conclave with Professor Watson and Dr Lonie on 14 November 2019 and in another conclave with Professor Watson only on 27 August 2020.
Some of the disagreement that emerged from the first conclave (14 November 2019) was because Professor Watson lacked some information.
In the second conclave Associate Professor Brodtmann and Professor Watson agreed that prior to 15 June 2012 they lacked sufficient material to express a view. They agreed he likely lacked capacity for the will of 4 September 2012. They disagreed on all other wills, namely 15 June 2012, 12 November 2012, 14 March 2013, 22 May 2013, 7 March 2014, and 18 July 2014.
At the commencement of her evidence Professor Brodtmann read a narrative summarising the views expressed in her reports and the conclaves.
In cross examination she was asked two questions only. First, it was put that she and Professor Watson generally agreed that the deceased had his stroke between July and August 2012. She agreed. Then she confirmed her view that from the date of the stroke he never regained testamentary capacity, T.1175/25-40.

[13]

Ms Kennedy

Ms Leanne Kennedy is a clinical neuropsychologist who has worked in the public health system for some sixteen years. She was provided with materials including a number of wills, handwritten documents of the deceased and a very limited set of assumptions, and of course the reports of Professor Brodtmann and Dr Lonie, CB.13/ 5462. She provided a report dated 15 July 2020.
She commented first on the tests performed by Dr Lonie on 21 May 2015. She described the tests in some detail and explained her understanding as to what each test entails. Having set that out she commented that delirium or other illness could affect the scores.
Apart from the repetition of one section of her report (CB.13/5447 and CB.13/5448) Ms Kennedy stated that executive function is notoriously difficult to assess reliably. Her criticisms of Dr Lonie's approach range from certain of the tests being too narrow in scope, to a test being administered at the wrong time, to her not being familiar with a test Dr Lonie used, the Financial Capacity Instrument, CB.13/5448.
But she agreed with Dr Lonie that at the time she administered the tests on 21 May 2015 the deceased did not demonstrate adequate capacity independently to manage his finances, CB.13/5449.
She accepted that some of the results support the opinion of impaired memory. She expressed the view that visual difficulties could have impacted on the written arithmetic task. She thought that the reluctance of the deceased to disclose his financial circumstances might have been a perception of an adversarial process. She thought too much emphasis was placed on notes of confusion because he had significant medical events in 2012 which "are sufficient to cause delirium", CB.13/5450.
Ms Kennedy thought the five hours the testing took was potentially too tiring and some caution should be exercised in interpreting the results. While she agreed early stage dementia was possible people can still function with that disease.
She expressed the view that Dr Lonie did not conduct an assessment to test the criteria set out in Banks v Goodfellow. She thought Dr Lonie wrongly extrapolated from function at the time of assessment to past performance.
She said the tests performed by Dr Lonie to assess financial management capacity in 2015 were not designed to test testamentary capacity for the will of 18 July 2014 and again that it is problematic to extrapolate from the results in May 2015 to conclude the deceased was impaired on earlier dates due to the nature of neurodegenerative process. In the deceased's case it was of cerebrovascular origin. In such a case there is no steady decline; she said the process is "quite individual", CB.13/5453.
She and Dr Lonie participated in a conclave.
She conceded in cross examination that over time people's cognitive function does decline, T.1180/45-50.
She was taken to many scores in the tests and agreed they were very often in the low numbers. She was also taken to the exercise with the clock and she accepted that to write the number "16" on the face could not be accounted for by way of visual impairment, T.1186/35-45.
She agreed that one very important aspect of being able to make a will is working memory, T.1188/29-34.
She would not accept that the state of relationships is of importance in making a will, T.1190/1-35.
She did agree that "the complexity of the estate and how to assign different parts of it to different people" would have to be held in mind as part of the task of applying working memory to making a will, T.1191/15-25.
She agreed that his mathematical abilities were impaired and that was a significant impairment to his working memory, T.1192/40-50.
She said that even though a person may have some impairment of cognitive ability they may still be able to recall what changes they want to make to their will, T.1193/5-10.
But merely expressing a preference is not of itself indicative of executive function, T.1193/18-22.
Ms Kennedy accepted she had not been supplied with the cross examination of Mr White, Mr Colley, Dr Barrett or Dr Dedousis, T.1194/25-45.
She also said she was not independently aware of the peer-reviewed three-year longitudinal study Dr Lonie relied upon to retrospectively extrapolate the deceased's 2015 neuropsychology results back three years to arrive at an opinion regarding his cognitive capacity during the relevant period, T.1195/4-50. She agreed the study recorded that rates of decline were slow and there was little change over a three year period, T.1196/1-T.1197/10.
She agreed the changes in the deceased's cognitive capacity must have occurred over years, T.1197/25-T.1198/17).
She said cerebrovascular disease does not happen overnight but a stroke may well accelerate the process, T.1198/10-20.
His failure to properly put the numbers on the clock face could not be explained by him simply being tired, T.1204/10-15.
She had commented that the deceased had continued to do his banking independently. She agreed she had some carers' notes. She was asked about a suggestion of confusion in the carer's notes which recorded that he tried to cash a cheque at St George Bank, where his account was closed, instead of at NAB. She would not agree such confusion amounted to a "major" error, T.1209/25-40. He merely made an "error", T.1210/20-25. Upon reflection she agreed he was having some issues and had made mistakes, T.20-25.
When asked about a carer's note that records an event that occurred one morning at 3am when the deceased wanted to ring the bank, she said "he was making some errors", T.1212/30-35.
She agreed the MMSE was relatively insensitive for executive function and does not screen for changes in social cognition, T.1213/25-45. It was also a common feature of people with dementia that they lack insight into their condition, T.1215/40-45.
She thought when he was asked questions about his assets and did not respond he was being defensive and uncooperative, T.1223/30-40. The fact that in a mock question he thought Origin was a telephone company was not in her view of moment, T.1226/30-40.

[14]

Dr Lonie

Dr Jane Lonie is a neuropsychologist. She provided numerous reports dated 21 June 2018, 8 October 2019, 18 October 2019, 13 February 2020, 25 February 2020, and 13 August 2020. As I have noted she also participated in a conclave with Professor Watson and Associate Professor Brodtmann on 14 November 2019 and with Ms Kennedy on 3 September 2020.
In her initial report she was asked to review certain medical records in order to express views about the testamentary capacity of the deceased on various dates. She was provided with substantial materials. Much of the materials comprised medical reports or communications between doctors and or lawyers. She was asked to assume that the content of medical and legal correspondence was accurate, CB.6/2744. She was also provided with a summary of various wills.
She set out the criteria and clinical features of major and mild vascular neurocognitive disorder (dementia).
Dr Lonie expressed the view that the deceased lacked insight into or awareness of his cognitive impairments and functional limitations. He exhibited no awareness that he put the current month as November when it was May and put the numbers 1-16 on a self-drawn clock face.
From her report of May 2015, orders were made for financial management.
Dr Lonie expressed views about various of the wills. She noted that Dr Dedousis administered a MMSE in October 2014 (three months after the 18 July 2014 will) and obtained a score of 28/30. He also scored 28/30 in May 2015. Dr Dedousis thought then (in May 2015) the deceased suffered from amnestic mild cognitive impairment, CB.6/2760.
There are however no other medical records to show what if any other tests were carried out in order to detect what level of impairment the deceased had. Dr Lonie stated that there are limitations on the MMSE as a cognitive screening instrument.
She stated she undertook a comprehensive evaluation of the deceased's cognitive functioning over a five hour period. She formed the view that the deceased lacked insight into his impaired abilities. He had an incomplete grasp of his financial affairs. She said the neuropsychological findings of May 2015 give some insight into his impairment in July 2014.
In May 2015 his delayed memory ability fell within the lowest 5th percentile of his age peers, at a severely impaired level for a man of his age. He was after a passage of 30 minutes unable to detail a series of short stories. His ability to recall newly acquired information after delay was severely impaired. He gave conflicting accounts of the amount owed to him from his son and could not provide current account details.
He could not maintain his attention. He thought his son, Brett, was trying to prove him "nuts". He was scoring within the normal range on the MMSE but he was displaying severe impairments. Dr Loni noted that the MMSE does not examine frontal executive functions. Therefore she said you cannot infer stability of cognition on the basis of change in the MMSE scores. And the MMSE is insensitive to change or loss of cognitive function over a short period of time, CB.6/2765.
His score of 68/100 on a more comprehensive dementia screening measure (namely, the Addenbrooke's Cognitive Examination) fell below the lower boundary cut off point for dementia of 86/100. Based on her 20 years of testing she expressed the view that it is most unusual to observe a score of 68/100 in the absence of an abrupt or acute decline in executive function.
Dr Lonie said there was nothing in the material to suggest the deceased did not retain his understanding of the nature and purpose of a will. She also said that there is no medical reason to suggest the deceased was not able to retain knowledge of his interests in the various assets listed in the will of July 2014 "in a general sense" and that his estate was of significant monetary value, CB.6/2767. She thought in May 2015 he did not know the exact value of his estate although he knew where he had bank accounts.
He was able to identify that his children, sister and that his wife pre-deceased him. He was unable to say how much his son owed him. But he performed badly in a number of areas. Based on the results of various tests she was of the view he had had a history of cognitive impairment dating back less than three years. And he lacked insight into is cognitive impairment. When she assessed him on 21 May 2015 the deceased was exhibiting significant cognitive decline consistent with vascular aetiology.
On 18 July 2014 in her opinion the deceased was able to understand the nature of a will, the potential beneficiaries and in broad terms his estate, but he did not retain working memory capacity to freely recall past information to weigh up the respective claims of the beneficiaries and he was suffering from a disorder of the mind in the form of a Major Vascular Neurocognitive Disorder that served to poison his affection towards his son and he did not retain capacity in July 2014.
Dr Lonie said the deceased's need for personal care is also an important indicator of his impairment. There was also a history of frequent changes to his wills in the period June 2012 to May 2014. She noted that there is little if any details as to how the deceased's capacity was assessed over this period.
On the basis of the tests she conducted in May 2015 Dr Lonie considered that the deceased did not have sufficient cognitive ability to weigh up the respective claims of the beneficiaries of his estate when he made the wills dated September 2012 and following. At the time he executed his September 2012 will his processing speed, working memory and executive functioning were likely to have been significantly compromised.
For her next report dated 8 October 2019, Dr Lonie was provided with the evidence filed in the matter including that of both lay and expert witnesses, hospital records and the Private Carer Notes.
In summary she stated that the deceased understood the nature and effect of will making, retained at least an approximate understanding his estate was significant and was able to comprehend his primary beneficiaries, but that during the period September 2012 to July 2014 he was suffering from a Major Vascular Neurocognitive Disorder on each occasion he executed his wills. Therefore she said it is likely the wills executed in that period were impacted by his executive impairment which would have affected his ability to weigh up the respective claims of his beneficiaries, especially in relation to his large, complex estate and the adversarial family conflict and dynamics.
After a thorough review of the various records she expressed the view that the correspondence between Mr White and the deceased across April, May and June 2012 was evidence that he retained adequate working memory capacity to bring to mind and consider his estate as whole in weighing up his will of June 2012. She accepted this view was contrary to her earlier opinion.
In addition she noted the hospital records for the period 26 June to 3 July 2012 contain no observations of confusion or impaired cognitive function. She said it is extremely difficult to provide an opinion about whether he retained capacity at that point in time. However she regarded him as not having capacity from September 2012 onwards.
Dr Lonie's next report was dated 18 October 2019 and she was asked specifically about the deceased's will of 12 November 2012.
She noted the primary alterations within the 12 November will appeared to relate to the removal of the defendant as executor and trustee, the assignment of half the shares in Decahill and Castlecrag to the plaintiffs, and the forgiveness of debt, loans, and mortgages as they related to the plaintiffs.
Having reviewed additional materials she was of the view that his capacity did not differ between September and November 2012. Therefore she considered he did not have capacity to make the 12 November 2012 will.
Dr Lonie's next report is that of 13 February 2020. She was asked to review the cross examination and materials of Dr Dedousis. The essence of her report is that she clearly had reservations about Dr Dedousis and that MMSE does not assess executive function.
For her report of 25 February 2020 she was asked to review the cross examination of Mr White. She commented that Mr White appeared to have based his opinion on the deceased's testamentary capacity on the deceased's expression of a preference and his issuing of instructions. But she thought Mr White did not appear to be aware of the deceased's underlying cognitive impairment. She said she would not alter her views in relation to the deceased's capacity as a result of Mr White's evidence. She thought the way Mr White went about his questioning of the deceased provided no reassurance the deceased retained capacity in accordance with the decision in Banks v Goodfellow.
In her last report of 13 August 2020 Dr Lonie she responded to Professor Watson and Ms Kennedy.
She thought the fact that Professor Watson was not provided with the carers' notes was important. She also explained and discounted the suggestion that vision impairment was an issue. She outlined the clocks drawn by the deceased in August 2012, September 2012 and May 2015. Each was an inaccurate representation of the clock face.
She rejected the criticism of her analysis by Professor Watson.
She also responded in detail to Ms Kennedy. Again she commented Ms Kennedy was not supplied with copies of the carers' notes. She made the point that there is a difference between an individual expressing his/her thoughts and wishes and the ability to do so as a result of having engaged in balanced, holistic, reasoned and reality based/insightful thought and with a clear objective as to the outcome, CB.13/5550.
She like Associate Professor Brodtmann made a statement at the commencement of her evidence, T.1232-1240. It was a concise summary of her reports.
She highlighted in particular the deceased's inflexible thinking, his need for full time care from November 2012 onwards, his misunderstanding of the clock face during his tests, which were not in her view explainable by reason of his vision, and importantly that he was unaware of his deficits.
She accepted that she had proceeded to form her views given the severity of his performance during his May 2015 neuropsychological assessment and thought it would date back to August/September 2012 and could have dated back earlier, T.1240/20-35.
She felt less confident extrapolating back to an earlier point, T.1241/25-30.
She said it is likely there would have been progression during that three year period. She agreed that one would need to look at the day to day activities and effectively the lifestyle factors of the deceased, T.1242.

[15]

Dr Barrett

Dr Barrett swore one affidavit in the proceedings on 25 June 2019.
He said he saw the deceased for many years as his patient ([6]). He said the deceased was often accompanied to appointments by Aleta, but in later years was generally accompanied by a carer ([9]). He stated ([10]): On most occasions Aleta or the carer would explain to me the deceased's condition or medical issue. The deceased would listen to their explanation and would tell me if he agreed or disagreed with their comments. I would then assess the issue and ask the deceased any additional questions.
He further stated the deceased had no hesitation in correcting anyone's comments or expressing disagreement ([11]). He recalled that the deceased had a history of atrial fibrillation and was at risk of having a stroke ([13]).
He stated that he was aware from Dr Dedousis that there was a history of family issues which involved the deceased's children but did not discuss these issues in detail with the deceased ([16]).
He recalled that the deceased appeared stressed during one of the Guardianship Applications. He also recalled that the deceased appeared anxious and stressed when he was having some tax trouble ([19]-[20]).
He further stated that in approximately the last 12-18 months of the deceased's life, although he was still able to converse with him, Dr Barrett believed he had some mental decline, stating he was forgetful, sometimes confused and had issues with his short term memory ([21]).
He said that whilst the deceased was his patient he was comfortable he could make decisions about his welfare and treatment ([22]). He said that scans showing microvacular changes do not necessarily mean a person is suffering cognitive decline ([23]). Further there are various types of dementia that exhibit different symptoms and various rates of decline ([24]).
During cross-examination Dr Barrett said that before retirement he was a medical practitioner practising as a general practitioner but did not have any specialist qualifications in say geriatrics or neuropsychology, T.288/20-35.
The deceased would consult him on specific problems and also for general check ups, T.288/45-47. He would see him on a reasonably regular basis.
The deceased had atrial fibrillation which is an irregular heartbeat. It can damage the heart and the main worry is the risk of stroke, T.289/5-10.
The deceased also had rheumatic heart disease and mitral stenosis, namely a faulty valve in his heart, and that could impact on his risk of stroke, T.289/40-45. He had a number of other problems and was on a number of medications, T.290/5-25.
His daughter Aleta would come with him and he could not recall him ever coming alone, T.290/30-40.
For any cognitive issues he would usually rely on Dr Dedousis but he would periodically measure the deceased's cognition himself, T.291/5-10.
The MMSE was the only test he used. He had not heard of the MoCA nor the ACE-R test, T.291/20-35. He was not familiar with testing that could take some hours, T.291/38-44.
He purely relied upon the MMSE as a simple tool to use in general practice to alert him of any early problems that might be developing, T.292/1-5. He performed a MMSE test on the deceased on 31 October 2012, T.293/25-30. He agreed that if a person got a small number of some basic questions wrong that might flag a need for further testing, T.295/1-10.
He was aware the deceased had a stroke in the period leading up to September 2012, T.295/30-35. He agreed on the basis of the CT scan report that the deceased had his stroke sometime after 6 July 2012 when he had his previous CT scan, T.297/20-25. He was also aware that the deceased had previously suffered from microvascular disease, T.297/35-40.
He saw the deceased on 11 September 2012 and he thought he was of sound mind, T.298/1-10. If he had noted a score of 20 out of 30 he would not have expressed that view (on 26 September the deceased scored 20 out of 30 on a MMSE test done at Calvary Hospital). Dr Barrett's report was dated 24 September.
Had he been told that the hospital records showed the deceased was unable to follow three commands at a time and that he was confused he would not have said the deceased was of sound mind, T.299/20-25.
He was not aware that hospital staff had recommended he have full time care and that would represent a decline in the deceased's condition, T.300/30-40. He was it seems in hospital from 11 September 2012 until 24 September, T.306/25-30.
Dr Barrett agreed that a common feature of dementia is that people have no insight into their condition and they also become non-compliant with their medication, T.307/20-35.
He agreed that dementia can start many years before symptoms emerge, T.312/45-50.
The usual flow of a consultation was that Aleta or a carer would state their concerns with the deceased who was able to give his own views on his condition, T.316/15-30.

[16]

Dr Dedousis

Dr Dedousis swore one affidavit in the proceedings on 8 August 2019.
Dr Dedousis prepared a report regarding his treatment of the deceased (Annexure A to his affidavit). He said he began treating the deceased in mid 2012 and continued until his death.
He then noted: His cognition was checked ay regular intervals and reported on in my correspondence. The method of checking included performing a Mini Mental State Examination as well as ongoing clinical conversation review with the gentleman. Capacity was assessed on a regular basis. As you can see from my review dated 3rd October 2012, when I was corresponding with the Medical Board regarding his case, Mr Gooley, though having been through periods of delirium recovered quite quickly and retained capacity. This meant that he could make his own decisions with regards to residential financial or medical management. Thus he could give us appropriate instructions with regards to ongoing medical care, medical follow up and home assistance as well as being able to make his own decisions with regards to financial and legal matters.
He further recorded that it was his view that the deceased retained his testamentary capacity throughout 2012, 2013 and 2014. The deceased's capacity was reviewed in the presence of his family, and although there was some element of short term memory loss this did not mean that the patient did not retain capacity to make his own decisions.
Dr Dedousis stated that following a fall in January 2015 and the subsequent surgery and hospital stay the deceased's condition began to deteriorate and his ability to make decisions became compromised. He stated that he had substantially recovered by May 2015 and his capacity was re-established. The deceased began to decline again in early 2016 and his "dementia worsened from mild to moderate and eventually severe prior to his death."
He stated that he changed the death certificate to reflect a term of dementia for two years. He stated that he believed this was correct, and from a clinical perspective his cognition only from about the beginning of 2016 onwards had declined significantly. He did not want him labelled as demented and then assumptions automatically be made about his capacity.
In cross examination Dr Dedousis acknowledged he was a specialist geriatrician, T.322/15-17.
He elaborated by explaining that his speciality involved looking after older people usually over the age of 65 from a medical, cognitive and psychological perspective and generally their wellbeing, T.322/20-30.
His first contact with the deceased was when the deceased was in St George Private Hospital, T.322/35-40.
The deceased was a complicated case with multiple problems that tended to change a bit, T.323/35-40
He met the defendant once only during a meeting with the Chief Executive of the Calvary hospital when some issues arose about him visiting the deceased, T.323/45-50.
He would meet the daughters regularly not only in hospital but also in the office, T.324/5-10.
He explained that geriatricians and neurologists overlap as far as some of their work is concerned, especially when it comes to cognitive issues, dementias and behavioural problems. He would engage a neurologist if he had a patient with seizures as he would not be expert in managing such a condition. He would also get a further opinion from a neurologist if there was a particularly interesting presentation of a neurodegenerative disease. The neurologist would do important work such as strokes, T.325/20-45.
He might treat strokes but more minor strokes. He would more likely manage cognitive deficits not more major strokes and he was aware that there are practitioners who specialise in cognitive geriatrics, T.326/5-20.
He does sometimes send patients for cognitive testing by a neuropsychologist, T.328/1-10.
In treating a patient he would also consider a patient's mood to detect if for example a patient might be depressed or have a psychological problem, T.330/1-15.
Many of the times when Dr Dedousis visited the deceased he was upset about impending legal situations and Dr Dedousis was concerned to see if that was affecting his quality of life. Dr Dedousis said in evidence that emotional lability often occurs in people who have vascular changes in their brain, T.330/25-30.
It did cross Dr Dedousis's mind that the deceased was suffering from dementia. But he did not refer him for any neuropsychological assessment because he thought the scores he got on his tests (MMSE scores) and his interviews were enough, T.331/1-5.
He agreed that as a general rule patients with dementia lack insight, T.331/20-22. He did not know that the deceased was a multimillionaire but the word "millions" was mentioned, T.332/20-30.
Neither the deceased nor his daughters were keen to have neuropsychological testing and he did not see a clinical need for one, T.333/1-10.
The deceased told him never to discuss any medical issues with the defendant. He obtained any history from his two daughters, T.334/8-10.
At each consultation he had with the deceased, his daughters were always in attendance, T.334/35-40.
He said you can come up with a firm diagnosis of somebody's cognition by just having a consultation, T.335/10-15. As a geriatrician it can be done without a neuropsychologist performing tests, T.335/20-25.
He agreed he told the deceased that it was not clinically necessary for him to have neuropsychological testing, T.336/15-20. He was initially concerned he may have missed something and thought there should not have been a hearing in the first place, T.336/30-35.
He was aware that a CT scan on 12 July 2012 indicated small vessel disease in the brain but a CT scan in early September indicated a hypodense area in the left white matter of the subcortical region which was not acute but old, T.336/35-37.
He agreed that the notes show that on 6 July 2012 a CT scan indicated no evidence of any recent stroke, T.338/35-36. The notes also indicated that he was refusing monitoring and was agitated and aggressive, T.339/15-20.
He was taken through a series of hospital notes (TT.339-342). He was asked whether he was aware that the deceased had a MoCA test done in the August in which he scored 18 out of 20. He was aware that the MMSE does not test executive function, T.345/30-35. The questions are fairly basic and do not change and it is not sensitive to whether or not a patient has dementia, T.345/35-45. If a person scored 29 out of 30 but the question they failed on was which city they were in, that might require further investigation, T.346/40-45.
He was never shown any notes which were taken by carers, T.347/25-30.
He would sometimes do a MMSE on bits of paper, T.349/25-35. It is a common feature that patients with dementia become aggressive to those who assert they have that condition, T.351/30-35.
People with dementia can start to become non-compliant with taking their medication, and it is a condition for which there is no cure and people deteriorate at variable rates, T.352/20-25. He agreed he had never seen a document from Sutherland Hospital of 12 September 2012 which stated the deceased had "Cognitive Issues/Dementia". He said he had not seen the document, T.353/1-10.
Having considered the notes from Kareena Private Hospital for September 2012 and their contents he agreed he would not have wanted the deceased making decisions about financial and property matters at that time, T.356/35-40.
During a meeting at the hospital on 24 September with members of the family the word "Drummoyne" was mentioned. He thought it was a nursing home or retirement village. He never actually found out what it was. He knew the deceased was very concerned about leaving his home, T.359/25-35.
He was taken to the Calvary notes but had no specific recollection of conversations with the family. He was perplexed as to why the Guardianship Tribunal proceedings were happening while the deceased was still in hospital, T.363/15-20. He was concerned he was not consulted as he would have had an input into the hearing, T.363/34-35.
Dr Dedousis assessed the deceased. He had a prolonged period of admission and although he had memory issues or cognitive issues Dr Dedousis thought he had the capacity to decide what he wanted, T.364/20-40. He wanted to go home.
He accepted the deceased had a MMSE on 26 September 2012 and scored 20 out of 30. He thought that such a person could make decisions for themselves, T.367/45-50. But he also agreed that a score of 20 out of 30 could indicate a problem with someone's capacity. T.370/40-45.
He would follow a patient's instructions unless a patient was mentally impaired, T.375/20-25. He agreed that he never spoke to the defendant about the deceased's health but that he had spoken to his daughters, T.376/1-10.
He stated that a patient's state can vary over the day and their situation can vary on a daily basis, T.377/15-30. He was unhappy that the Guardianship Tribunal application was being lodged, T.378.5-15. He also agreed he wrote a letter to the Tribunal in which he said the deceased had no issues, T.379/5-20. He agreed that in the letter he said he was quite "concerned and upset having heard about this guardianship application…", T.379/15-25.
He did not consider the deceased was under the influence of his daughters, T.381/35-40. He agreed he "inserted himself' in the process by writing to the Guardianship Tribunal on 3 October and he advised the daughters to get legal representation, T.383/30-40.
He agreed that he did not mention in the letter that the staff were frequently describing the deceased as confused, T.384/10-12. He agreed that his aim in writing the letter was to bring the Guardianship proceedings to an end, T.384/37-40.
He thought it was not an appropriate time for a neuropsychological test because of the deceased's condition. It would be better if his cognitive issues settled down, T.385/5-15. He said it would not have been a fair reflection of the deceased's capabilities, T.385/30-35. And he wanted him to be at his best before doing the test, T.385/48-50.
He agreed however that he did not mention any issues about the deceased's cognitive state in his letter, T.386/1-15. And he agreed that to state that there were no issues was not correct, T.386/20-25. He suspected it was Mr White who asked him to write the letter, T.386/28-30.
He agreed that in his letter of 25 October he did not mention the deceased had had a stroke in his right frontal cortex. He agreed that such a stroke could affect decision making, behaviour and executive function. He also agreed he did not mention any of these things in the letter to Mr White, T.391/5-10.
He also recommended that an AVO might be appropriate because the deceased did not want his son visiting him, T.390/40-50. He agreed the deceased's mobility declined in 2016.
He denied he was collaborating with the daughters to defeat the Guardianship Tribunal proceedings, T.396/5-15.
He agreed he wrote a letter on 25 February 2013 in which he described the deceased's son as harassing his father, T.400/15-30.
He agreed he had never visited the deceased in the home environment. He was taken at length to the carer's notes (TT.401-408).
He agreed that in March 2015 he wrote a letter in which he referred to 24 hour home care being organised for the deceased and accepted that he did not know the deceased had such care from in fact November 2012, T.460/15-25. He also agreed that he would have wanted to know that fact, T.460/40-45.
He said he believed he never saw the Guardianship Tribunal applications, T.460/48-50.
He agreed that the 2012 Guardianship Tribunal application was for the deceased to be at Drummoyne for two months and then return home, T.460/1-10. He did not see the application and was not aware that the defendant opposed the deceased going into a nursing home, T.462/1-10.
He agreed that the deceased was concerned he was being manoeuvred into a nursing home and on the documents he was shown in cross examination that was not true, T.463/20-30.
He did not see a copy of the August 2014 Guardianship Tribunal application either, T.464/1-5. Again the deceased was quite fearful and upset, T.464/35-36.
He agreed that if he had known what the application was really about he possibly would not have suggested an AVO. The information he got about the application was from the plaintiffs, T.465/25-30.
He had not been told that the deceased could not make contact with his son because he did not know how to do it, T.467/10-15, and he would have wanted to know that, T.467/15-20.
He agreed that all that he knew about the applications would have come from the plaintiffs, T.468/19-24.
He denied being aware that in 2015 the deceased had dementia; rather he was well aware the deceased was suffering from the effects of delirium, T.470/44-51.
He was asked why the hospital notes had references to dementia and he said many persons mistake the effects of delirium as dementia, T.471/1-15.
He agreed that in a letter to Dr Barrett on 3 June 2014 he spoke of the deceased's cognitive impairment as being "mild", T.472/40-50.
Had he known that the business affairs of the deceased involved interests of in excess of $100m, that would have cast a different shadow over what he was looking at. He was not aware of that financial situation, T.474/35-45.
He has read extracts from the carers notes about the deceased forgetting about renovations done on his home within months of that occurring. Had he known that, he would have wanted to know what his behaviour was like outside the hospital rooms, T.478/5-10.
The information about his condition would come from the plaintiffs, T.478/35-40.
He was not told that the plaintiffs were assisting him with his financial matters in 2014 and that would have been something he would have wanted to know, T.479/10-25.
He had many conversations with Mr White and also with Aleta and the deceased, T.488/1-5.
He agreed that his office was contacted by Aleta in April 2015. It was in relation to a discharge summary from Sutherland Hospital that mentioned dementia, T491/30-50. She was concerned her brother wanted to attach a copy of the discharge summary for the purpose of a neuropsychological report.
In a letter of 27 April 2015 he sent a letter addressed "To whom it may concern" with an amended discharge summary, with the term dementia removed, attached. He was not sure but he assumed he had done it, T.492/25-35.
He arranged the correction, the issue having been brought to his attention by Aleta, T.492/44-45. He wanted to ensure the discharge was accurate and that dementia was not confused with delirium, T.493/25-28.
He was taken to the deceased's death certificate and asked whether he had arranged to amend that as well. He agreed that he was approached by a member of the family and he reviewed the certificate and it had said that there had been "dementia, years" and he disagreed and wanted it corrected, T.494/1-5.
He did not remember having a conversation with someone from a funeral home about the death certificate. He said that he first diagnosed dementia in 2015, T.494, 45-50.
The dementia he had in 2015 was full-blown dementia, that is "moderate to severe dementia", T.495/15-25.
He insisted that the MMSE is a screening test for dementia, T.495/45-50. He stood by his evidence at T.345 and agreed that a diagnosis could not be made using that test alone, T.496/10-35.
He agreed that the MMSE was not a diagnostic tool, T.497/20-25. He agreed that he sent a letter to the GP, Dr Barrett, on 15 December 2015 but did not tell him he thought the deceased had full blown dementia. He also agreed that it would be very important to let the GP know that fact, T.498/25-45.
He wanted to correct the death certificate so it was accurate and it was done in response to the family, T.500/5-20. It was put to him that the real reason he corrected the certificate was to ensure it was more difficult to call into question the deceased's capacity after he died. He did not accept that, T.501/10-25.
The certificate was completed by an intern whose responsibility it was to complete it, T.502/1-15. He never referred the deceased to a neurologist or a neuropsychologist for testing and he knew there would be disputation between siblings about the estate, T.503/1-15.

[17]

Mr White

Mr Gary White swore one affidavit on 2 November 2018. He also swore one affidavit as an attesting witness on 25 February 2019.
Mr White stated that he did not recall ever having a conversation with the deceased where the deceased did not appear to understand or respond appropriately. Mr White stated that at no time up until mid 2015 did he think the deceased was unable to provide instructions ([9]).
Mr White said that at about the end of April 2012 he received a handwritten note from the deceased attached to a handwritten will that the deceased had prepared. Mr White prepared a will based on those documents. The deceased made several comments and gave further instructions and Mr White made various amendments. The will was then signed by the deceased at Mr White's office on 15 June 2012. Mr White said he "followed [his] usual practice" and the will was witnessed by Mr White's receptionist, Ms Du[n]phy ([20]).
Mr White's usual practice was that he would have the testator read the will to himself in his presence. He would then ask, "Is this in accordance with your wishes? Do you have any questions or do you want anything explained? Do you want any changes". If any explanation was needed he would provide it. If changes were needed he would make them immediately and repeat the process. He would then have the testator sign the will in the presence of two witnesses ([18]-[19]).
Mr White said that he never consciously considered the test in Banks v Goodfellow at that point. However given the fact the deceased was able to write out by hand and send him instructions, the handwritten comments the deceased made on each of the revised versions of the will, and that the discussions he had with the deceased were "all so logical and coherent", there was never any question in Mr White's mind that the deceased may not have had the requisite mental capacity to make a valid will ([21]).
Mr White said he did not recall the circumstances in which he received instructions relating to the 4 September 2012 will ([22]).
In relation to the 12 November 2012 will he said that in about mid September 2012 the deceased informed him he wanted to make some changes to his will. He prepared a new will and then arranged for another solicitor, a Mr Michael Marney, to have a short conversation with the deceased about its contents and witness the deceased's signature. He indicated that he explained to the deceased that was because he was concerned about a challenge to the will after the deceased passed away ([26]-[31]). However Mr White later stated that he could not recall whether he had actually said that to the deceased (T.24/40).
Mr White said that in 2013 Janine commenced proceedings regarding the properties owned by Motasea Pty Limited. Mr White represented the deceased and received instructions from him about the proceedings ([35]-[40]). He said no application was made to the Court that the deceased was not mentally competent or needed a tutor ([39]).
Mr White said he received faxed handwritten amendments to be made to the deceased's wills in 2013, but he does not recall the particular details of the deceased's making of the 2013 wills ([41]-[44]).
Mr White recalled that on 3 February 2014 the deceased faxed through handwritten amendments to be made to his will. He later had a discussion with the deceased regarding the effect of his proposed changes and that there was a risk that Brett and Janine might argue that they had not received appropriate benefits from the estate. Mr White said he advised the deceased to prepare something in writing outlining why he had divided his estate the way he had. The deceased later signed a statutory declaration detailing the reasons for his 7 March 2014 will ([45]-[48]).
Mr White said that in May 2014 he received a fax from the deceased with further handwritten amendments to be made to his will ([50]-[54]). He said he made the changes the deceased suggested and sent the draft back to him. Mr White said that at sometime prior to 18 July 2014 the deceased indicated he would also like to add a statement about why he had made no provision for Janine. Accordingly Mr White added additional subparagraphs to the statutory declaration that had been attached to the 7 March will. Mr White "followed [his] usual practice" and the deceased executed the 18 July 2014 will and amended statutory declaration at his apartment.
Mr White said he continued to act for the deceased until 2015 in relation to various transactions for him and his companies ([56]).
In cross examination Mr White agreed he was admitted to practice in 1974 and ceased practice in 2015, T.26/49-50.
He had a retainer from Harvey World Travel for 25 years and then did commercial work and conveyancing, not so much litigation. He drafted wills from the time he started, T.27/1-15.
He was asked why he was suspended from practice. He said he took fees out of an amount he received for a client. He had a solicitor write to the Law Society and they have not yet had a response, T.28/10-30. He did not conduct a trust account, T.29/25-40. After many questions he accepted that his failure to keep a trust account was part of the complaint against him, T.30/20-50 and T.31/1-14.
He had to surrender all his files and two other matters came up. One was a litigation matter and the other involved the administration of an estate. The litigation matter involved an allegation that he charged too much and deducted the amount of fees from proceeds received. The estate matter involved him using moneys to pay himself when certain amounts should have gone to beneficiaries. He charged monies to administer the estate when he was not entitled to, T.33/25-50 and T.34/1-40.
He was unsure whether a claim was to be made by the estate of Gooley and he never handled funds for the deceased. There was a time when he did not act for the deceased. It was a law firm called Haydon Solicitors. But from 2012 onwards he would have done most of the deceased's work, T.36/10-45.
He agreed that he has not chased up the Law Society about the complaints. But he accepted he did do something wrong, namely taking money for costs without authority. He has not followed it up with the Law Society because of the expense and the fact that he has turned 70, T.37/35-50 and T38./1-25.
He thought the concept of fiduciary "applies to nearly all solicitors" and he had not heard of the notion that he could not have claimed a commission from an estate without informed consent, T.39/5-25.
Between 2011 and 2014 he acted for the deceased on the sale of nine properties, T.39/44-46. At no time during any of the transactions did it cross his mind that the deceased had any problems. His consideration of the deceased's capacity was based on the way the deceased talked to him and the instructions the deceased gave him, "bearing in mind the very first of his wills that I did was handwritten by him and I thought he did a fairly good job…", T.40/30-50.
It was his practice for the deceased to come in and read a will to himself. Mr White would ask the deceased if that is what he wanted and needed and if he wanted any changes, T.41/10-30. He had similar conversations with other clients. As at 2012 he had not seen the deceased for about 10-15 years and he asked him if that was what he wanted and he said yes, so he arranged for the will to be executed, T.42/35-50.
On 2 May 2012 he prepared a draft will and sent a copy to the deceased who sent back a fax on 9 May together with a handwritten note, T.46/40-50. He agreed that there were various exchanges with the deceased about the will. He met the deceased on 15 June and the will was signed, T.52/35-50. He did not ask any questions about whether any of the various corporate entities were trustee companies and no questions about why the deceased was executing a will in those terms, T.53/20-50.
He asked no questions about the size of the estate, T.55/10-15. He did not ask him whether he made previous wills, T.56/5-10. He could not recall whether the handwritten instructions came after a conversation with the deceased or not, T.56/25-30. He cannot recall any particular conversations with the deceased and he had no file note to assist him, T.57/5-10. He could not remember the actual process of signing the will, T.59/30-40.
He could not remember who brought the deceased to the appointment for the signing of the June 2012 will, T.63/1-5.
He had no recollection of the circumstances of the signing of the 4 September 2012 will or Power of Attorney, T.63/34-38. He had lots of matters on the go and unless he had a file note he could not remember. The Law Society had uplifted all his files, T.64/1-20.
Mr White was not aware the deceased was on day leave from hospital to go to his office in September 2012. If he had known that the deceased had had a massive stroke in the weeks or months prior to his appointment in September that would have raised "a red alert", T.65/15-25. He would have liked to know if he had cognitive issues or dementia, T.66/5-25.
He had no recollection of seeing the deceased on 4 September or the circumstances of the signing of the will or Power of Attorney, T.69/20-45. He then said what he would have said at the signing of the Power of Attorney, T.70/20-30. He believed he told the deceased the effects of signing such a document, T.70/45-50.
He remembered attending a meeting at Kareena Private Hospital with Mr Colley, and the plaintiffs, T.73/35-50. The meeting took place on 19 September 2012 but he could not remember what was discussed, T.74/5-50. He observed the deceased was "a bit stressed" when he saw him in hospital but he did not know about his cognitive ability, T.76/25-40.
He accepted that he may not have a basis for saying the deceased was fine because he could not remember what he talked to him about, T.77/25-30.
He could not explain why the deceased signed a Power of Attorney on 4 September and 9 November 2012. On both occasions he appointed his daughters as attorneys, T.80/20-30. On the same day he prepared another draft will which he took away. He accepted this all may have been done because of a concern about the deceased's mental state on 4 September, T.81/5-10.
The deceased returned to his office on 12 November 2012 to sign the will, T.82/5-10. He denied having any concern about the deceased's capacity on that date, T.82/35-40. He was asked numerous times why he wanted another lawyer to witness the deceased's will on 12 November and he could not explain, TT.82-84.
He could not remember who was at the office the day the will was signed. He did not ask the deceased why he was changing his will, T.85/30-33. He never turned his mind to why the deceased had changed his will three times in five months, T.85/35-40. He asked him no questions about who he was providing for, what his assets were, whether any of the companies were trustees and he could not be sure that the deceased understood what he was doing, T.86/20-25.
He had other persons witness a will if he thought there may have been a chance it might be challenged. But again he could not explain his reasoning, T.92/5-45.
There were two changes made to his will between 12 November 2012 and 14 March 2013: Melinda was appointed Appointor of the Gooley Family Trust and Brett was no longer to get the shares in Barton Press, they were to go to Aleta, T.97/35-50. It did not strike him as odd that the deceased made four wills in the space of nine months, T.98/5-10. He made another will on 22 May 2013, T.98/33-35, in which the shares in Barton Press go back to Brett, T.99/9-11.
He accepted he got a fax from the deceased dated 3 February 2014 and then the deceased signed a will on 7 March 2014, T.108/30-40. He did not ask him why he was changing his will, T.111/10-20. Again he said he was not concerned about the deceased's capacity, T.113/1-25. He did not explore his instructions; he simply acted on a written document prepared by the deceased, T113/14-15. He was not concerned that the deceased had misdated the fax, T.113/47-48. He did not consider getting the deceased examined to test capacity as he was still giving Mr White instructions about his wills in his own writing, T.115/30-35.
He was not concerned the deceased had made six wills in eighteen months as there was a reason for the change in the 7 March 2014 will, T.116/10-11.
He agreed that by early 2014 he had begun to do legal work for Melinda and Aleta, T.119/38-40. He also could not explain why he was in 2014 preparing a statutory declaration which was inconsistent with the 15 June 2012 will, T.121/15-45.
He confirmed he had no independent recollection of the circumstances that led to the signing of the 4 September 2012 and 22 May 2013 wills, T.135/20-25.
He drafted the 18 July 2014 will based on a handwritten note but without meeting the deceased for that purpose, T.136/25-35. He went to the deceased's apartment because the deceased had difficulty getting around, T.136/40-45.
At one point he became aware that the deceased could not find a number of title deeds so he went over to his house to assist him to find them. He also knew the deceased had been unwell, T.143/5-35. He also acted for the deceased's daughters as well as the deceased in the 2012 Guardianship Tribunal, T.146/10-15. In the 2014 Tribunal hearing he acted for the daughters and not the deceased, T.146/40-45.
He was again asked about acting for the deceased on property transactions and how proceeds were banked. He accepted that on some occasions he banked cheques payable to the deceased into the deceased's accounts and on some occasions moneys were banked into his own account, but only if "they were agreed costs", T.151/15-30.
In re-examination Mr White said he did write to Dr Dedousis to ask for some advice on the deceased's medical condition, T.169/5-10.
He explained the differences in the two powers of attorney were the first required both to act together whereas under the second they could have acted "solely and jointly", T.170/30-35.
He accepted that the deceased did try and contact him on a Saturday, T.171/10-25.

[18]

Mr Colley

Mr John Colley swore two affidavits in the proceedings on 25 October 2018 and 19 July 2019 respectively.
In his first affidavit Mr Colley stated he managed the deceased's personal tax and accounting needs and the accounting needs of the various companies of which the deceased was a director from about 2000 until the deceased's death. He said he continues to manage the estate's accounts and taxation need and the accounting requirements of the deceased's companies ([7]-[8]).
Mr Colley said he would provide advice to the deceased on occasion but the deceased always made the final decision and often did not follow his advice [10]).
He said that over the years there were a large number of matters on which the deceased sought his advice, particularly in relation to the complicated nature of the deceased's financial situation and the various corporations and trusts he controlled or managed, and in relation to ongoing disputes with Janine and the defendant ([13]). Mr Colley said he was also involved in the deceased's succession planning over the years. Generally it was the deceased's plan to give to each of his children one of the various companies he controlled "except where there was some conflict or dispute between him and the original planned beneficiaries" ([14]-[21]; see also Colley, 19 July 2019, [8]-[10]).
Mr Colley deposed that from 2013 onwards he had many interactions with the deceased in relation to his succession planning and financial management. In 2013 and early 2014 Mr Colley discussed with the deceased ways to resolve a dispute with the defendant which mainly involved one of the deceased's companies, Breda Pty Ltd. The deceased sent many faxes with instructions and notations during this time and there is ongoing correspondence between Mr Colley and the deceased about the defendant's involvement in Breda ([27]-[40]).
In around mid 2014 the deceased sent Mr Colley a fax requesting advice on the implications of the defendant's resignation as director of Breda. Again the deceased and Mr Colley exchanged correspondence, with the deceased asking for advice and providing instructions on a variety of matters in relation to the companies and properties controlled by the deceased. In late 2014 Mr Colley and the deceased were involved in preparing for an ATO audit of all the companies and trusts controlled by the deceased ([41]-[61]).
In his second affidavit Mr Colley responded to the affidavit of Brett Gooley sworn on 20 March 2019. He stated that the deceased possessed and maintained his ability to clearly understand complex taxation and law concepts and advice at all times relevant to these proceedings ([12]).
In cross examination Mr Colley accepted he was the deceased's accountant for about fifteen years, T.181/20-25. He also did accounting work for his daughters and one of their husbands, T.181/45-50. He has also started to do some work for the estate, T.182/15-20.
The deceased's estate plan was to look after the interests of his children, T.183/40-45. Over the years he had observed the deceased build up a large asset base by acquiring real estate and rarely selling, T.186/25-40.
He arranged his affairs so as to have money offshore and he was the subject of a tax audit, TT.187-190.
Over the years he got to know the deceased well, T.192/45-50. He was a self- made man and headstrong, T.193/45-50. However in the later years he was fearful and intimidated by his son, T.194/10-15.
Broadly speaking he wanted to provide something for all of the children but when there were disappointments or altercations he changed things, T.195/5-15.
He remembered a meeting at a hospital when the deceased said that he was concerned his daughter Janine would squander her inheritance, T.198/30-40. Melinda and Aleta organised the meeting as they were looking after his "financials" at the time, T.199/1-6.
The defendant came into the meeting but he did not hear him saying his father was septic and had delirium and that he could not make his own decisions, T.200/1-20. Nor did he remember the defendant taking his father back to his hospital room, T.201/8-10.
Numerous medical extracts were read to the witness and he was not aware of anything like confusion when he was with the deceased, T.202/35-40.
He did not realise the deceased had had a stroke in the weeks or months prior to 18 September but said, "I'm an accountant not a doctor", T.203/15-20. If the client sounds rational and reasonable that is generally all he is concerned about, T.203/22-23.
It was not suggested to him by Aleta or Melinda that their father had had a stroke and nobody suggested it, T.207/1-10. Further he observed nothing "of the order of confusion", T.207/10-12. He accepted that the defendant had for some time been suggesting that his father was unable to make his own decisions, T.207/40-45.
He decided to render an account to Melinda and Aleta but not because the deceased was incapable, T.214/40-45. He accepted that he knew that Aleta was helping with her father's bank accounts in mid 2013, T.218/38-50. He denied he was in fact receiving instructions from Aleta notwithstanding a letter he sent to the deceased on 24 April 2013, T.220/40-50.
He had to write to the deceased in October 2013 to remind him that the BAS returns related to a three month period, T226/20-35. That did not cause him any concern, T.226/40-50. He also accepted that certain decisions to sell properties belonging to Motasea Pty Ltd were not astute financially. But he thought the deceased had rational reasons, although it was "pretty brutal on his daughter", T.227/15-25.
He was not later concerned when there appeared to be a problem about the deceased having lost some bank statements, T.229/25-40.
He was not concerned when the deceased asked him to be provided with rental statements or in having to remind the deceased of things he had previously advised him of, T.256/40-45. There was nothing in 2014 that caused him any concern about a loss of memory for the deceased, T.259/5-45.

[19]

The Parties' Evidence

The plaintiffs, Melinda and Aleta, and the defendant each swore numerous affidavits in the proceedings and were each cross examined at length. One of the most difficult parts of this case was considering the relevance of the evidence these three witnesses provided. Clearly both sides were motivated to some extent by self interest. McClelland J (as his Honour then was) poignantly observed the difficulties of placing too much reliance if any on the evidence of witnesses who are motivated by self interest (Watson v Foxman (1995) NSWLR 49 at 319).
In relation to more recent times it was only Melinda and Aleta who could give evidence of the deceased's apparent condition from time to time as the defendant, Brett, had very little contact with him and in my view cannot contribute much to the factual controversy. Further the defendant somewhat inconsistently insisted the deceased was suffering from cognitive decline over the period from 2012 (or perhaps earlier) but continued to write to his father and seek meetings with him in 2013 and 2014 in order to reach agreement with him in relation to family and financial matters.
However I do not regard Melinda and Aleta as reliable historians. They were both argumentative during the giving of their oral evidence and made their dislike of the defendant plain. I agree with the criticisms the defendant made of their evidence and which I have summarised below. What concerned me most was their apparent sanitisation of the factual material that was provided to the deceased's treating doctors, including Dr Dedousis, and his solicitor, Mr White. I return to this issue below.
The disaffection between the siblings was clear. It was nearly impossible to separate fact from fiction as each acted merely as advocates for their own cases, although the defendant did give his evidence in a somewhat more disciplined fashion.
For these reasons I prefer to rely upon contemporaneous documentation rather than the evidence of these witnesses.

[25]

Jane Savona

Jane Savona swore two affidavits, one on 20 March 2019 and the other on 4 October 2019.
In her first affidavit Ms Savona said she met the deceased in 1967 when she started working for him as a secretary for Barton Press Publishing. She worked for him in his businesses from 1967 to 1981 and from sometime in late 1983 or early 1984 until 1999 ([1]-[5]). From approximately 2009 she worked for the deceased cleaning stairwells in his properties. On about 14 November 2013 she received a letter from Melinda informing her that her services were no longer required. She also received a letter from Aleta terminating her services approximately two months later ([8]-[9]).
She said she and her husband had dinner with the deceased almost every Monday from about the time his wife died in 2000 for approximately four or five years ([13]). They kept in regular contact after that and went on a cruise with the deceased in October 2010.
She started to notice some differences in the deceased's behaviour and memory from about November 2012 when he moved from his house into the unit, including that he could no longer remember or did not have access to her telephone number ([17]-[23]). She recounted an occasion in or around late 2012 when she visited the deceased's unit with Janine but they were not allowed in ([24]). She said that during a short visit during or around February 2013 Janine asked her father to sign a letter giving her permission to visit him ([25]).
Ms Savona's second affidavit was made in response to Melinda's affidavit of 18 July 2019.
During cross examination she agreed that during November 2012 she had conversations with the deceased on the telephone where once she identified herself he recognised who she was and had a "normal, everyday conversation", T.1122/1-30. She noticed he had a hearing problem. She had no direct knowledge as to why he did not have her telephone number written down, T.1123/9-12.
She agreed that she had no direct knowledge of why Janine was not allowed into the apartment, T.1125/45-47. He was acting normally when they did visit in February 2013, T.1126/4- T.1127/15.

[32]

Matina Dunphy

Matina Dunphy affirmed one affidavit on 3 December 2019. She said she is the office manager at serviced offices where Mr White held a "virtual contract", meaning he did not hold physical office space but could use other facilities at the serviced offices such as the boardroom where he met clients ([2], [6]). Ms Dunphy also acted as his receptionist from some time after July 2009 until mid November 2012 ([5]).
Her desk location allowed her to generally observe everyone who entered the offices and she sat across from the boardroom ([4], [7]). Mr White often asked her to witness documents for his clients and she witnessed two wills of the deceased, those of 15 June 2012 and 4 September 2012. She could not recall if any one else was present ([9]-[13]) however she recalled that on several occasions in 2012 the deceased attended meetings with Mr White with one or both of his daughters, Aleta and/or Melinda ([14]).
She said on one occasion in 2012 one of the deceased's daughters came to the serviced offices by herself. She was angry and said words to the effect of, "I need to talk to [Mr White] about Mr Gooley's documents. I'm worried they're being leaked" ([15]). She said that some time after that visit the other daughter contacted her by telephone and said words to the effect of, "You spoke to my sister a short while ago. You are not to say anything to anyone about anything to do with my father!" ([16]).
During cross examination she said she remembered that when she signed the wills she was sitting in the boardroom witnessing two people signing the papers but she could not "exactly remember", T.1084/10-20. She did not keep notes. She said she did not work for Mr White, T.1086/8-9. She said she prepared her affidavit "together" with the solicitors from Macpherson Kelly who took notes of what she said (T.1087/5-15). Aleta's and Melinda's names were already in the affidavit when it was provided to her, T.1088/34-36.
During re-examination Ms Dunphy agreed that other solicitors contacted her before Macpherson Kelly and she told them about the two ladies who came to the office and were aggressive towards her but they did not call her back, T.1089/25-35. She could not remember if they were in the room when she signed the wills, T.1090/15-20.

[36]

Plaintiffs'/Cross-Defendants' Submissions

The plaintiffs submit that when all the evidence is considered as a whole the Court will be satisfied the deceased had testamentary capacity when he executed the will dated 18 July 2014.
They submit that factual outcome is reconcilable with their expert evidence, and that the defendant's expert's opinions are based on factual underpinnings that do not fit with the findings the Court should make as to the deceased's capacities from mid 2012 to the end of 2014 (those experts having been supplied with materials and left to reach their own conclusions as to what was accurate and established as fact).
They submit that Associate Professor Brodtmann and Dr Lonie did not view the deceased's condition as progressive but rather, illogically saw the deceased's May 2015 condition as pre dating all the way back to mid 2012 (or even earlier) with no correlating evidence. Although somewhat inconsistently, Dr Lonie then created a "carve out" for the June 2015 will in her second report, stating she thought the deceased probably had capacity at that time. They also say that Dr Lonie's May 2015 testing (which both Dr Lonie and Associate Professor Brodtmann rely upon) was performed to assess financial decision making capacity which is recognised as requiring more capacity than testamentary capacity (Gray v Hart [2012] NSWSC 1435 at [256]).
The plaintiffs make further criticisms of Dr Lonie and Associate Professor Brodtmann's reports and evidence, including in relation to their respective approaches and various alleged factual misapprehensions (Plaintiffs/Cross Defendants Outline of Submissions [77]-[109]), which I have also read and taken into account. They submit there were problems with Dr Lonie's 2015 tests, including the length of the testing, which may have impacted the reliability of the data. They submit Dr Lonie and Associate Professor Brodtmann were materially under informed as to the deceased's capacities at different times, inadvertently selected more extreme examples from the carers' notes, and did not consider there may have been better explanations for the deceased's behaviours (recorded in the hospital and carers notes) than cognitive dysfunction. They further emphasise the following matters.
The plaintiffs submit that a review of the hospital notes for the deceased's 2012 hospital admissions shows that references to the deceased's behaviours such as "confused", "delirium" and "aggression" were explicable to infections and reactions to antibiotics and sticking plaster, not a stroke or dementia.
The plaintiffs submit that admission and discharge documentation should be viewed as recording matters of history for the purposes of treatment and the medical management of the deceased as opposed to actual observed behaviours.
The plaintiffs submit that criticisms of Dr Dedousis, that he became emotionally involved, should not, objectively be accepted. They submit that he had no connection to the deceased before Dr Smith requested he become involved in the deceased's management, and the defendant had referred the deceased to Dr Smith. Dr Dedousis enacted the deceased's Power of Attorney on 21 January 2015 because of the defendant's then condition. Those treating the deceased understood him to have had capacity prior to that date and that no neuropsychological testing was necessary prior to that time. The plaintiffs say Dr Dedousis competently managed the deceased and had the opportunity to view the deceased over time, unlike the defendant's experts. They submit that he had seen what the hospital progress notes show and was not misled by anyone as to the deceased's condition.
The plaintiffs further submit that there is nothing in this case that would warrant the denigration of the role of the deceased's other treating medical practitioners and Courts have long recognised the valuable place of assessments made by treating doctors (see, e.g., Kerr v Badran [2004] NSWSC 735 at [48]-[50]; Revie v Druitt [2005] NSWSC 902 at [34]; Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir [2008] NSWCA 155; (2008) 71 NSWLR 593 at 598 [22], 603-4 [48]; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]).
The plaintiffs submit there was more to the defendant's 2012 Guardianship Tribunal application than a wish for the deceased to rehabilitate at his home in Drummoyne for one or two months. They say other aspects on the "agenda" included neuro-psychometric testing, access to the deceased, and for the defendant to be the deceased's guardian for those months. In response the defendant asserts this submission should be rejected in view of the express terms of the application but says that even if it is accepted it does not explain why the deceased thought the application was about finances or the defendant trying to control him.
The plaintiffs submit the fact the defendant agreed to withdraw his 2012 Guardianship Tribunal application because his solicitor, Mr Marshan, spoke to the deceased and formed the view the deceased was in control of his faculties is objective evidence of the deceased's capacities at 13 November 2012. The plaintiffs point out that Associate Professor Brodtmann was mistaken as to what occurred at the tribunal hearing, having assumed that guardianship was granted. They further submit that, from November 2012 and over 2013 and 2014, the defendant repeatedly sought meetings with his father to discuss financial matters, which demonstrates the defendant thought the deceased had capacity to reach agreements on such matters over those periods. In response the defendant submits that Mr Marshan's observations should not be regarded as significant given that the deceased's dementia was unlikely to have been detectable through normal conversation, and that the defendant, who is not an expert in the cognitive field, had no real insight into the deceased's condition at that time.
The plaintiffs submit that Tyrone's evidence, that in 2013 he was living in a property owned by the deceased at below market rent and when the real estate agent increased the rent he approached the deceased who took control and resolved the issue, speaks to the deceased's capacities at that time and later (it was said to have happened on other occasions as well). However the plaintiffs submit that Tyrone's evidence concerning the documents he obtained from Janine's computer is unreliable.
The plaintiffs submit that the medical material between the deceased's treating practitioners concerning his cardiac condition in 2013 and 2014 shows the deceased had better control of his cardiac condition during this period and with that, the deceased's overall condition was more stable. They point out that this was also the period when the defendant sought to reach an agreement with the deceased concerning family and financial matters.
The plaintiffs submit that Mr Hunt's evidence concerning his observations of the deceased during his meeting with the deceased and Mr Colley on 8 November 2014 was not challenged. He thought the deceased had capacity to participate and make decisions in an ATO audit process. That meeting also overlapped with the period when the defendant sought to reach an agreement with the deceased. The plaintiffs submit that dealing with the ATO audit process did not just require old memories but new information and new matters of understanding and consideration. The plaintiffs submit that if the deceased had capacity to participate in that process he would have had testamentary capacity four months prior.
In response the defendant submits Mr Hunt's evidence was to the effect that he could not actually remember what was discussed and in any event, to the extent that any substantive issue was discussed, the Court should infer that it must have concerned the operation of the deceased's companies, which represents old, not new, information. Dealing with taxation issues was not novel to the deceased and the only decision that appears to have been made was to have a third party specialist deal with the ATO (who was instructed by Melinda and Aleta).
The plaintiffs submit that a review of the deceased's handwritten notes on correspondence sent to him by others and in facsimiles sent by him shows that he commented and responded appropriately, which in the context of other evidence, provides reliable evidence as to his capacities. I return to the parties' further submissions in relation to the handwritten notes below.
The plaintiffs submit there was some confusion in this case concerning the deceased's care arrangements. They submit "live-in" care was put in place in 2012 because it was financially expedient (T.186/11-40, T.956/46-T.957/21) and involved carers having eight hours of sleep overnight. They submit "24-hour care", where carers are on duty 24 hours of the day, was only put in place in 2015 after the deceased's return from hospital.
They submit that the Private Care Notes show different carers had different approaches to what would be recorded and references to confusion and aggression are few and far between when viewed in context over the period from 2012 to 2014. They submit no behavioural type matters were recorded in the four weeks preceding the deceased's execution of the 18 July 2014 will and that there was a considerable body of routineness in the notes in the period to late 2014 which does not speak of a man with cognitive dysfunction. In response the defendant submits the notes are the best contemporaneous evidence the Court has of the deceased's behaviour and are replete with instances of bizarre behaviour throughout the relevant period.
The plaintiffs submit there is evidence (which the defendant disputes) to show the defendant had a falling out with the deceased, Melinda and Aleta at a Christmas event in 2004 and that the defendant and the deceased further fell out over money in about 2005 and 2006. The deceased thereafter continually wrote to the defendant about the money he said the defendant owed him. The plaintiffs submit the fall out was never remedied and the deceased altered his will accordingly.
The plaintiffs submit that while the deceased amassed a large property portfolio his long standing approach to his wealth was simple; he treated the assets of the various entities as his to do with what he liked and left Mr Colley to document things to the event possible after the event. The various structures were to facilitate tax matters.
In relation to wills other than that of 18 July 2014 the plaintiffs submit the will made on 12 November 2012, the day before the attendance at the Balmain premises of the Guardianship Tribunal, "has the hallmark of being factually unassailable". They further submit that there was no medical adversity after that date that should be taken to have deteriorated the deceased's capacities until the events of 2015 that led to the enactment of the Power of Attorney.
The plaintiffs submit that despite the manner in which their answers in cross examination were given there is very little of their evidence which is intrinsically discreditable; it accords with other categories of evidence.
In response to the defendant's medical case theory, that the deceased's cognitive impairment was not detectable during ordinary observation or conversation (see further below), which is based on Dr Lonie's report of 13 February 2020 at [23] and [27], the plaintiffs submit that a full review of Dr Lonie's reports shows that she does not opine such a proposition. Rather she merely considered that the type of dementia the deceased had would not be observable in ordinary conversation during the very early stages of the dementing process. They submit that Dr Lonie herself refers to a body of materials which relate to observations made by different people and conversations the deceased had with various people as part of the clinical correlation within her opinion.
The plaintiffs further submit that the deceased was doing things and making decisions (such as in relation to the ATO audit, the Motasea proceedings, and his legal representation in the 2014 tribunal application) which demonstrated his capacities in 2014, and if he could make those other decisions in 2014 then he sufficiently and satisfactorily met the legal requirements for testamentary capacity. In support of this contention the plaintiffs refer in particular to the deceased's handwritten notations on various documents which they compiled in a bundle, "Bundle of documents with M.G. Gooley's Handwriting Comments" (key examples of which were described in the Background Facts). They submit that, given the nature of the documents contained in the bundle, the Court ought to be slow to conclude the deceased was "in his room shuffling or pushing papers, writing things just for his own thoughts" (T.1297.24-27).
I should note that a dispute arose between the parties in relation to the provenance of these documents which led to further submissions being filed by the parties after the conclusion of the hearing. The defendant submits that their provenance is unclear, and in particular that it is unclear whether the handwritten notes on various documents were ever sent to their intended recipients. He submits that unless there is clear evidence to the contrary (such as a fax header) the Court ought to accept the notes were not sent and the deceased was in fact in his room shuffling or pushing papers and writing things just to reflect his own disordered thoughts.
In response the plaintiffs submit there is no direct evidence as to how the particular fax machines owned by the different witnesses operated, and therefore the presence or absence of some sort of transition record on the received counterpart document does not form a sound basis for the Court to conclude the documents were not sent. They further submit there is little forensic consequence if the Court is minded to think one or more of the documents were not sent; those documents would have a character similar to notations and commentary recorded in a diary or notebook, which may still speak to the deceased's capacities.
In response to the defendant's factual case theory on suspicious circumstances, that from mid 2012 the deceased was being manipulated by Melinda and Aleta in relation to his testamentary intentions and other transactions (see below), the plaintiffs submit that the defendant has not pointed to any direct evidence of such manipulation or establishing that Melinda or Aleta were involved in the preparation of any of the deceased's wills. They further submit that such an inference depends on the defendant's medical case, that the deceased had the cognitive dysfunction evident in May 2015 before that time, which meant he was readily amenable to manipulation, but that the medical case does not fit the facts of the case. They submit that the defendant's subjective personal suspicions are not the type of objective factual circumstance that gives rise to the operation of the suspicious circumstances principle (citing Estate Beeby, Re: Beeby v Eggers [2015] NSWSC 1466; Re Estate Stojic [2017] NSWSC 168). Nor is the mere fact that the deceased's final will differed from a long held succession plan. However they also submit that even if suspicious circumstances are found, presumption applying or not, the evidence establishes the deceased had capacity at the time of the last will.
The plaintiffs submit the reality is that the deceased had capacity to make decisions through to and after the last will in July 2014, and the deceased changed the allocation of his testamentary bounty in reaction to the deteriorated relationship with Dr Gooley, and Janine, and how that continued to deteriorate in line with the objectively controversial two tribunal applications, the Motasea proceedings, Preliminary Discovery proceedings and disputes between Dr Gooley and the deceased, which included Dr Gooley claiming through his lawyer payment of the sum of $860,000 in 2014 and for the deceased to resign as director of Breda. They submit the defendant's interpretation of the evidence contains errors.

[37]

Defendant's/Cross-Claimant's Submissions

The defendant submits the deceased lacked testamentary capacity at all material times after 1 February 2010, or alternatively 15 June 2012. He submits the deceased clearly had dementia when he died on 23 December 2017; that the expert medical evidence and contemporaneous hospital and carer notes indicate he was significantly cognitively impaired from at least mid 2012 onwards; and that the evidence indicates the deceased's impairments, caused by long standing vascular dementia (which affects executive function before memory) and a major right hemisphere stroke, which could not be detected through ordinary conversation but were nonetheless found to be severe when adequately tested, had a highly adverse and material impact upon the critical mental processes required for the process of will making (such as working memory, social cognition and the ability to freely retrieve past information).
The defendant submits however that if the Court finds the deceased retained testamentary capacity for later wills it ought to conclude that he did not have the requisite degree of knowledge and approval of the later wills so as to be able to conclude they are valid and binding. In particular he submits that at all times from about mid 2012 Aleta and Melinda controlled who had access to the deceased and were present when most of the wills after the June 2012 will were signed, and that it ought to be inferred they pressured their father as to the content of those wills. Aleta sought to have medical records and the deceased's death certificate altered.
Further suspicious circumstances said to have attended the making of the 4 September 2012 will include that: 1. The deceased was suffering cerebrovascular disease and had had a large right sided middle cerebral artery ischaemic stroke; 2. Melinda discussed and corresponded with Mr Colley about the content of the will on 3 September 2012, including in relation to her expectancy of receiving Goold Enterpises; 3. Melinda and Aleta arranged to take the deceased out of hospital on day leave to make the will but did not mention that to Mr White and do not mention this in their affidavits; 4. An ACAT assessment of the same day (and for which Aleta was present) recorded the deceased needed help or supervision with communication and "some short term memory loss [was] evident"; and 5. Melinda (seemingly) foresaw the possibility that the will would be contested, instructing the deceased to ask his GP for a letter confirming he was of sound mind.
And in relation to the 12 November 2012 will, that: 1. The deceased was suffering cerebrovascular disease and had had a large right sided middle cerebral artery ischaemic stroke; 2. The terms of this will depart from the deceased's long term succession plan with gifts to Aleta and Melinda increasing in circumstances where they had already received their inheritance during their father's lifetime; 3. Mr White said his instructions for this will came from the deceased and Mr Colley (T.79/11-18). Melinda was gifted the power of appointment of the Gooley Family Trust which she had discussed with Mr Colley on 3 September 2012; 4. In the days leading up to this will being made Melinda (not the deceased) corresponded with Mr White in relation to a Power of Attorney and appointment of Enduring Guardianship; 5. Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White; and 6. Mr White foreshadowed a dispute about this will when the deceased passed away.
In relation to the 14 March 2013 will: 1. The deceased was suffering cerebrovascular disease and had had a large right sided middle cerebral artery ischaemic stroke; 2. The terms of this will depart from the deceased's long term succession plan; 3. Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White; 4. Mr White foreshadowed a dispute about this will when the deceased passed away; and 5. Melinda and Aleta were exerting an increasing amount of control of the deceased.
In relation to the 22 May 2013 will: 1. The deceased was suffering cerebrovascular disease and had had a large right sided middle cerebral artery ischaemic stroke; 2. The terms of this will depart from the deceased's long term succession plan; 3. Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White; 4. Either Melinda or Aleta were present but stayed silent as to the deceased's unusual behaviour as reported to them by the private carers; 5. The deceased's increasing inability to control Melinda and Aleta (evidenced by Melinda giving instructions to Mr White, Mr Colley and Mr Rogers about Motasea despite not being a director and Aleta dealing with the deceased's bank accounts and corresponding with Mr Colley in relation to those accounts); and 6. Their increasing control over him.
In relation to the 7 March 2014 will, that: 1. The deceased was suffering cerebrovascular disease and had had a large right sided middle cerebral artery ischaemic stroke; 2. The terms of this will depart from the deceased's long term succession plan; 3. Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White; 4. Melinda and Aleta were both by this time concerned about the deceased's cognitive ability to deal with business issues but did not alert Mr White to their concerns about his cognitive ability or his unusual behaviour as reported to them by the private carers; and 5. Melinda and Aleta were exerting still increasing control, for example, Melinda had started instructing Mr Colley to act on the deceased's behalf with respect to accessing his accounts.
And finally in relation to the 18 July 2014 will, that: 1. The deceased was suffering cerebrovascular disease and had had a large right sided middle cerebral artery ischaemic stroke; 2. The terms of this will depart from the deceased's long term succession plan; 3. Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White; 4. Melinda and Aleta must have arranged for it to be made and, it should be inferred, instructed Vicky Rogers not to make any record about it at the time; and 5. As was in relation to the May 2013 and March 2014 wills, by this stage, Melinda and Aleta's ability to control the deceased and his affairs was increasing.
The defendant submits the plaintiffs have not allayed each of these suspicious circumstances. He also submits that there is no evidence the wills were read aloud to the deceased and explained, or that his solicitor asked open questions to ascertain his knowledge and understanding (Coates v Wattson; Estate of Sullivan [2013] NSWSC 604 at [18]; Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [306]; Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [98]).
On the other hand the defendant submits that the 1 February 2010 will is rational on its face and was duly executed. He submits that the plaintiffs do not seek to displace either the presumption of testamentary capacity or the presumption of knowledge and approval and there is no evidence suggesting that either assumption ought to be displaced.
The defendant further submits that the 15 June 2012 will is rational on its face and was duly executed. However he says there is some doubt arising from the medical evidence about whether the deceased retained testamentary capacity on that date. He submits that it is open to the Court to find the June 2012 will was the deceased's last valid will but given the evidence about Aleta and Melinda's involvement, or "insert[ion] of themselves into", their father's affairs, and Associate Professor Brodtmann's opinion, it is more probable than not that the deceased lacked capacity when he executed that will. He submits (in relation to this and other, later wills) that the lay evidence does not assist, particularly given that the deceased's ability to converse, express a preference or read and write does not speak to the type of dementia he had. He also submits Dr Lonie's opinion that the deceased probably retained adequate working memory capacity to make a will on that date was based on the "questionable assumption" that the content of correspondence from the deceased to Mr White from April to June 2012 was generated by the deceased alone (without the interference of Melinda or Aleta). The defendant's further criticisms of Melinda, Aleta, Dr Barrett, Dr Dedousis, Mr Colley, Mr White, Ms Kennedy and Professor Watson's evidence are summarised below.

[38]

The witnesses and experts

The defendant provided extensive submissions concerning the credit of the main witnesses in the proceedings and in relation to the expert evidence. I summarise the key points below.
The defendant submits Mr White's evidence is of no value because his "usual practice" was deficient and he did not turn his mind to the deceased's cognitive ability but instead blindly followed the deceased's (apparently invariably written) instructions (which were unlikely to reveal his type of dementia); he had no actual recollection of the wills being signed; his evidence was generally unreliable and his credit is in serious doubt given the conduct that saw him suspended from practice; he acted in a careless and partisan way towards Melinda and Aleta to whom he also provided legal services; and he said he relied on Dr Dedousis's assessment of the deceased's capacity.
The defendant submits that Mr Colley was defensive of the deceased and was clearly partisan towards Melinda and Aleta, for whom he also performed work, and from whom he received instructions and documents with respect to the deceased's companies and bank accounts (rather than from the deceased himself). He is also not a person qualified to assess cognition and his opinions on that issue should be given little weight. Further the defendant submits Mr Colley's ability to opine on the deceased's testamentary capacity must be judged in light of the fact he did not consider there to be any issue with the deceased's capacity on 19 September 2012 when Dr Dedousis conceded the deceased did not have the cognitive capacity to make any decisions relating to his succession plan (T.354/29-T.356/39). However the defendant submits Mr Colley's evidence about his dealings with the deceased in March 2014 is useful to the extent that the deceased's handwritten comments on the documents exhibited to Mr Colley's affidavit are non sensical.
The defendant submits Mr Roger's evidence as to the deceased's capacity was not directed to any particular point in time. His evidence was that the letter he sent to the Guardianship Tribunal in November 2014 was drafted by Mr White and may have been discussed with Melinda and Aleta. It likely overstated the deceased's capacities at the time. Further he initially gave evidence that he always dealt with the deceased alone but this was shown to be false in cross examination.
The defendant points out that Dr Barrett had no special training in the field of cognitive medicine. He also points out Dr Barrett's evidence that Aleta always accompanied the deceased to appointments and acted as his mouthpiece (Dr Barrett's affidavit, 25 June 2019, [10]). He submits Aleta controlled the flow of information to Dr Barrett, which prevented him properly assessing the deceased's mental acuity and means his opinion concerning the deceased's capacity should be given little weight. The defendant further submits little value should be placed on Dr Barrett's assessments of the deceased because he relied only upon the deceased's MMSE scores and whether he remembered things he had done before, which are not capable of measuring declining executive function, as well as Dr Dedousis's evaluation of the deceased cognitive capacity.
The defendant also submits that Dr Dedousis is a geriatrician, not a neurologist, and had no additional training in the cognitive field. The defendant submits his clinical practice in relation to cognitive testing was grossly deficient (relying solely on MMSE testing and conversation which does not assess executive function, often in the presence of Melinda and Aleta, and sometimes leaving out questions on the MMSE he knew the deceased could not answer and failing to record results). The defendant also submits Dr Dedousis's approach to obtaining information about his patient's circumstances was one sided and blindly accepting of information he was supplied with by Melinda and Aleta. Information Melinda and Aleta withheld from Dr Dedousis included that the deceased had live in care from November 2012, that the reference to "Drummoyne" in the defendant's first Guardianship Tribunal was not a reference to a nursing home, and various behavioural issues noted in the Private Care Notes. Accordingly the defendant submits Dr Dedousis's contemporaneous statements and opinions as to the deceased's cognition are of no value.
The defendant criticises the manner in which Melinda and Aleta gave evidence, stating that they were both argumentative and on occasion refused to answer questions. He submits their statements were self interested (they both standing to benefit under a will that benefits them to the detriment of all of the other beneficiaries) and replete with inconsistencies concerning for example whether the deceased had a stroke, whether he had dementia, when he started receiving full time care, and the terms on which care was provided. He submits Melinda was careful to give evidence she felt supported her case and as a result frequently gave out evidence that was fanciful, false or inconsistent with contemporaneous documentation. He submits Aleta's answers were evasive and coy, non responsive, and irrational in the face of contemporaneous documentary evidence to the opposite effect. Examples are set out at [81]-[114] of the defendant's closing submissions.
In contrast the defendant submits his own evidence was given directly, concisely and without volunteering extraneous information, and while he has an interest in the proceedings, he gave answers adverse to his own evidence. He submits his evidence should therefore be accepted.
The defendant also submits Tyrone gave his evidence in a clear, respectful and direct way. In relation to the suggestion that he had authored the documents he said he found on his mother's computer, the defendant submits it is not surprising Tyrone knew the meaning of the rhyming slang, the translation being set out in the document, and that document was consistent with other contemporaneous documents. However in relation to Tyrone's evidence concerning the deceased "solving a problem" concerning rental increases, the defendant submits the real estate agency would not have increased the rent without instructions to do so. Therefore the deceased either forgot he gave the instruction or somebody else must have given it. Further the problem recurred which suggests the deceased was not able to fix it.
The defendant points out Dr Lonie is the only qualified professional to have undertaken a detailed cognitive assessment of the deceased during his lifetime.
In response to the plaintiffs' criticisms of Dr Lonie and Associate Professor Brodtmann's evidence, the defendant submits that their briefing with a full suite of material and without instructions to make assumptions is a strength of their evidence. He rejects the plaintiffs' submission that they were not directed to important matters referred to in the hospital notes and other material because they were supplied with all of the material but did not consider the matters referred to by the plaintiffs significant in the overall context of the deceased's cognitive decline. He submits that the criticisms of Dr Lonie's May 2015 testing were ultimately abandoned by the plaintiffs' experts.
The defendant submits that Dr Lonie's retrospective extrapolation was supported by scientific peer-reviewed literature based on a longitudinal study, but she did not blindly apply its findings. Rather she searched in the contemporaneous material available for evidence that was consistent or inconsistent with that research which led her to conclude, despite the research, that the deceased probably retained capacity in June 2012.
The defendant submits that Associate Professor Brodtmann, to test her conclusions that the July-August 2012 stroke permanently destroyed the centres in the deceased's brain responsible for the particular executive and social functions required for will making, looked for evidence of improvement in the contemporaneous material, but found only evidence of deterioration.
He submits that it is entirely wrong to say that Dr Lonie and Professor Brodtmann did not contemplate a progressive deterioration of the deceased's capacities as they both gave evidence that dementia is a progressive illness but that the stroke event in July-August 2012 was a major precipitant for a stepwise decline followed by continuing progressive deterioration until the deceased's death.
The defendant also submits that it is significant that none of Dr Lonie's or Associate Professor Brodtmann's principal conclusions or reasoning processes were challenged in cross examination.
The defendant submits that unlike Associate Professor Brodtmann, Professor Watson is not a stroke or cognitive neurologist, and unlike Dr Lonie, he never met or examined the deceased. He also submits that Professor Watson's opinions are of limited assistance because he was provided only a limited suite of material and therefore misapprehended important facts. For example he was provided and relied heavily upon the affidavits of Mr Colley, Mr White, Mr Rogers, Dr Dedousis and Dr Barrett but was not given their transcripts of oral evidence; he did not see the MRI brain scans or all of the CT scans; he was not provided with all the contemporaneous Private Care Notes; he was not briefed with the full content of Mr Colley's files; and he was asked to assume, incorrectly that the deceased was right handed (which was relevant to his conclusion that the deceased's stroke affected his non dominant hemisphere). The defendant submits Professor Watson misapplied his expertise in his field of knowledge (Drivas v Jakopavic [2019] NSWCA 218 at [65]).
The defendant further submits that Professor Watson's reasoning process was flawed as a result of his reliance upon correspondence which Mr Colley, Mr White and Mr Rogers sent to the deceased (without evidence of how the deceased reacted to that correspondence) and the evidence and/or documents generated by Dr Dedousis and Dr Barrett (who have been criticised above), Dr Smith (who did not give evidence and had no relevant expertise) and Dr O'Shea (who was the deceased's dentist). He did not consider the random way in which the deceased included his grandchildren in his will or that his ability to handwrite notes or annotate previous wills may not have been a reliable indicator of his testamentary capacity, given the type of dementia he had and the possibility that the notes were not created by the deceased alone.
The defendant further criticises Professor Watson's opinion as being general and because he did not grapple with the type of dementia the deceased had and how it affected his executive function.
The defendant submits Ms Kennedy is a neuropsychologist with just 10 percent of her client base being patients with cerebrovascular disease. She considered a person retains testamentary capacity if their results from neuropsychological testing fall within the "borderline impaired range", being the bottom 5 percent of people in any given age bracket, but not if their results fall within the "impaired" range, being the bottom 2 percent of people in any given age bracket. The defendant submits her logic is flawed because it does not follow from the test in Banks v Goodfellow; it does not account for the fact the results are categorised by age range; and in concluding the deceased was not in the "impaired" range she aggregated all the test results from the May 2015 assessment that related to memory, failing to take into account the type of dementia the deceased had.
The defendant submits that Ms Kennedy's concessions given in cross examination, that working memory is important for making a will and the deceased's working memory was in the impaired range (T.1188/29-T.1189.32, T.1192.5-49), and that the changes in his cognitive capacity must have occurred over many years (T.1197.25-T.1198/17), is important given the type of dementia he had. He submits her criticism of Dr Lonie's extrapolation of the May 2015 results was misplaced given she was not aware of the study Dr Lonie based her opinion on.
The defendant submits that, as with Professor Watson, the brief provided to Ms Kennedy was incomplete such that her opinion was based on an incomplete factual matrix and is therefore of little assistance. For example she was not provided with the transcripts of oral evidence of Mr Colley, Mr White, Dr Barrett and Dr Dedousis and was provided a very limited set of private care notes.

[40]

Consideration

The plaintiffs propound the will of the deceased made on 18 July 2014, or alternatively, the latest in time of any of the wills made by the deceased on 4 September 2012, 12 November 2012, 14 March 2013, 22 May 2013, or 7 March 2014. The defendant propounds the deceased's 1 February 2010 will, or alternatively, his 15 June 2012 will.
The question is which of those wills is the last will the deceased made as a free and capable testator (Tobin v Ezekiel at [44]).
It seems that each will was duly executed. No argument was raised to the contrary. Each will appears rational on its face when viewed in isolation, allocating the deceased's property to various of his children and grandchildren, but one would expect them to be so, each having been drafted by a solicitor.
However there is considerable doubt that the deceased would have had testamentary capacity to make any will after he had his stroke sometime in the period between July and September 2012, and some doubt that the deceased would have had testamentary capacity to make his 15 June 2012 will arising from the evidence concerning the nature and progression of his dementia and his other illnesses. Accordingly in my view the presumption that the deceased had testamentary capacity is displaced with respect to his 15 June 2012, 4 September 2012, 12 November 2012, 14 March 2013, 22 May 2013, 7 March 2014, and 14 July 2014 wills, and it is necessary to have regard to the whole of the evidence to determine when the deceased was last of "sound and disposing mind" (Tobin v Ezekiel at [45]).
Each of the experts agreed that there was insufficient evidence to express an opinion about the deceased's testamentary capacity at 1 February 2010 and in my view there is no evidence that would displace the presumption of testamentary capacity with respect to that will, except some speculation only by Dr Lonie and Associate Professor Brodtmann that the deceased may have been experiencing some cognitive impairment prior to 2012, and possibly as early as 2010, which in my view is insufficient. Associate Professor Brodtmann said (in her 4 October 2019 Report, CB.3008): There is not enough first-hand and contemporaneous evidence to provide an opinion with any confidence. It is likely that there would have been evidence of executive impairments from his vascular brain burden, given the severity of his deficits two years later, but cannot say whether or not he had testamentary capacity at that stage.
She later concluded (CB.3022): I would state that Mr Gooley lacked testamentary capacity by September 2012, and likely would have had executive impairment sufficient to impede his capacity for a period of 2-5 years previously. Conservatively, it is likely that Mr Gooley lacked testamentary capacity from 2010, when his medical issues, including his bradycardia and atrial fibrillation would have impacted his executive function, however without first-hand, unbiased documentation, this can not be stated with any certainty.
Dr Lonie said (T.1241/45-50): I think, and obviously we are talking about Mr Gooley, in Mr Gooley's case, I think again the severity of his problems in May 2015, and I can't reply on the empirical literature because it doesn't exist, but I think it is possible that there would've been some degree of impairment if investigated with the right measures, it would've been uncovered prior to June 2012.
I note that neither party sought to displace that presumption with respect to the deceased's 1 February 2010 will.
The plaintiffs' expert, Professor Watson, relying heavily on the evidence of Mr Colley, Mr White and Mr Rogers, opined that the deceased retained testamentary capacity when he executed each of his wills, except for that of 4 September 2012. Professor Watson and Associate Professor Brodtmann agreed that the deceased likely lacked testamentary capacity at that date "due to a combination of vascular cognitive impairment and ill-health, after the likely time of his stroke and a lengthy period of delirium" (27 August 2020 Conclave). Ms Kennedy's report consisted of a critique of Dr Lonie's testing however she also expressed the view that there was "insufficient evidence to refute testamentary capacity at 8 July 2014" (CB.5454).
The first of the defendant's experts, Dr Lonie, was of the view that the deceased likely understood the nature and effect of will making, the significance of his estate and who his primary beneficiaries were, but that the damage to his brain caused by a combination of vascular dementia and stroke rendered him incapable of weighing the claims of his respective beneficiaries (see Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6]) and, to use the terminology of Banks v Goodfellow, served to "poison" his affections toward certain family members, in particular the defendant, from at least the 4 September 2012 will onwards (T.1239/45-50; CB.2772-2773 CB.2780-2781). However, her opinion in relation to the 15 June 2012 will, based on the content of correspondence between the deceased and Mr White from April to June 2012, was that he probably retained working memory capacity to bring to mind and consider his estate as a whole in weighing up the claims of his beneficiaries at that date.
The second of the defendant's experts, Associate Professor Brodtmann, stated unequivocally that the deceased lacked testamentary capacity permanently from the time of his stroke until his death. She thought the stroke occurred sometime between July and September 2012 but that the CT scan of 12 September 2012 disclosed a stroke that looked to be weeks not days old (that is, it most likely occurred prior to the making of the 4 September 2012 will). She was of the view that the stroke destroyed parts of the deceased's brain essential to executive functioning, such that his capacity for abstract thinking was destroyed completely, such that he was unable to weigh up the relative strengths and weaknesses of the claims of his potential beneficiaries. She also considered that a combination of extensive white matter disease (or small vessel disease: CB.2998), decades of silently accumulating small brain infarcts, poor hearing and eyesight, variations in blood pressure and heart rate issues and episodes of unresponsiveness would have contributed to the deceased's cognitive decline. There was no evidence in her view of any recovery but rather evidence of cognitive disability that progressed to vascular dementia. She also thought it unlikely that the deceased had testamentary capacity when he made the 15 June 2012 will, "given the progression of his medical illnesses, and the fact that his health was declining at such a rate that in a few months' time he required full-time assistance with his activities of daily living" (CB.3008). She also noted that he was suffering from a severe facial infection and developed a delirium around this time (CB.3008).
In my view the evidence of the defendant's experts, which I prefer, establishes that it was likely the deceased did not have testamentary capacity to make the 4 September 2012 will or any will thereafter by reason of the major stroke he suffered between July and September 2012 and the vascular dementia he was suffering.
What emerged clearly from their evidence, and which I accept, is that it is executive function that impacts a person's ability to consider their bounty and make decisions rationally about how their estate should be distributed between potential beneficiaries. As Associate Professor Brodtmann explained, executive function underlies cognitive processes such as reasoning; abstraction; comportment, including judgement, insight, self awareness, social adaptation and social appropriateness (sometimes referred to as social cognition); mental flexibility; set shifting (changing from one task to another); hypothesis testing; and planning and sequencing (CB. 2996).
The effects of the stroke were profound, and I accept Associate Professor Brodtmann's description of the consequences for the deceased's executive function. She was, out of all the experts in my view uniquely qualified, being a dual trained stroke and cognitive neurologist. I have come to the view that I should accept her evidence unequivocally. I also accept that such defects may not be noticed by the inastute or unskilled, and especially those who rely upon MMSE scores alone. More sophisticated tests, such as the MoCA, are likely to be required (CB.2997-2998).
In theory of course courts are not bound by the testimony of witnesses, lay or for that matter expert, even if there has been no cross examination. It goes without saying that testamentary capacity is a matter of fact and degree, but medical science has moved on exponentially since Banks v Goodfellow. The availability of sophisticated technology together with a high level of expertise makes the search for a "connection" between any cognitive impairment and a disposition a good deal easier to identify. This is an area no longer in need of judicial notice but rather that of expert evidence paying due deference to relevant facts. In a case such as this, especially given the way it was conducted, the medical evidence in particular called by the defendant is to be given very considerable weight.
In contrast to the experts called by the plaintiffs the defendant's experts had advantage of the availability of a greater amount of material. Professor Watson did not have the transcript of the cross examination of Mr White, Mr Colley, Dr Barrett or Dr Dedousis, upon whom he relied heavily. In other words he did not have the benefit of reviewing and considering their various qualifications and concessions. This in my view and to my observation placed him at a significant disadvantage.
As is obvious he relied heavily upon their accounts in chief of what he no doubt took in the case of Mr White and Mr Colley as "business as usual" and very much his own summaries of the evidence and what he perceived as pertinent and relevant. It is fair to say that when confronted with the documents underlying Mr White's affidavits, not having carefully considered them before, he understandably but unpersuasively attempted to avoid answering some of the questions and was in my view reluctant to make appropriate concessions (e.g. TT.1153-1156). He also did not have for example all the carers' notes which were of some relevance as to the deceased's confusion and forgetfulness in particular (TT.1160-1162). I did not find his attempt to reject or dismiss the importance of that material convincing (T.1170).
The failure to cross examine the medical experts for the defendant is in my view a real problem for the plaintiffs' case. Judges in the common law system are umpires not investigators. It is no part of the function of a trial judge to make or explore a case not sought to be made by one of the parties. They are not of course obliged to accept evidence even that which has not been the subject of cross examination. But the failure to cross examine at all where matters are seriously in issue usually should have consequences, especially where the decision is to be seen as a deliberate forensic choice.
The failure to cross examine in effect either Associate Professor Brodtmann and/or Dr Lonie is of some considerable consequence here. Forensic risk taking aside both experts were, as I have otherwise commented, highly qualified to express the views they did. They both thought that the deceased did not have testamentary capacity from at least mid 2012 due to the damage caused by the stroke and the deceased's dementia. Both did numerous reports and were given a vast amount of relevant material. They explained their opinions in some detail not only in their reports but in their detailed dissertations in chief which I invited each expert to give if they so chose. They gave thoughtful and comprehensive analyses of the situation by reference to comprehensive materials and supported each of their opinions in a highly persuasive and plausible fashion. In my view, in the face of that evidence, the lack of cross examination should be regarded by the court as an acceptance by the plaintiffs of those opinions. That is so notwithstanding the calling of opposing opinions, which were of course tested, and the criticisms the plaintiffs made against them in closing submissions, which by that stage could not be adequately ventilated with the experts themselves in order to test the foundations of their opinions.
Cross examination is not a test of willpower or cleverness. It is the opportunity for the relevant party to expose flaws, qualifications or doubts about the other side's evidence in order to persuade the court to accept or reject evidence. By adoption of this convention the court has the full opportunity to evaluate the opposing cases. Failure to cross examine will generally as I have said have consequences especially where, as here the evidence is expert, plausible and comprehensively explained.
If evidence is glaringly improbable or absurd it may be no cross examination will be necessary or if, as discussed in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1, the contest is plain and obvious. I dare say I may have had questions if an attempt to challenge either witness was attempted but, as I have said, the case must be made by the party not the court.
Absent some exceptionable circumstance, which is absent here, in my view, as I am otherwise satisfied with the reports and the evidence of Professor Brodtmann and Dr Lonie, the failure to challenge them is in my view highly relevant in assessing whether the court should accept their evidence.
Counsel for the plaintiffs did make the comment that the defendant's experts were not given the usual set of comprehensive assumptions. I agree. It is not generally appropriate to give an expert materials and ask them either to assume it is all true or worse to in effect make their own findings of fact and then express opinions based on in effect their findings. That approach which both sides adopted to some extent here is not to be encouraged. The lawyers should identify the relevant factual material and then ask the expert to assume certain facts which they have carefully constructed to support the case sought to be made. That ensures the expert is directed to what the party considers relevant. Then it is for the court to make the relevant findings or not. On the other hand inviting an expert to be a sleuth may well have the effect of making a case that is not pleaded or worse cause considerable confusion about what they are truly relying upon. In an extreme case it may be an expert draws impermissible inferences or relies on irrelevant or inadmissible material.
This problem is highlighted somewhat dramatically by the approach of Professor Watson who, despite being given some assumptions by the plaintiffs, it appears spent a huge amount of time preparing his own summaries of the evidence which must have been time consuming and may well have distracted him from addressing relevant materials before he expressed his views.
In the end he focused very much on an unqualified acceptance of the various plaintiffs' witnesses in chief and was not by his own side asked to consider the concessions made, or for example the carer's notes, although he was asked to do so in an effective cross examination which exposed the deficiency caused by the myopic approach the plaintiffs adopted in relation to his evidence.
I am satisfied in all the circumstances that I should accept the evidence of Professor Brodtmann and Dr Lonie on testamentary capacity with respect to the wills made between September 2012 and July 2014, namely that a combination of the deceased's dementia and other illnesses, and particularly his stroke, had destroyed the deceased's testamentary capacity by this time. And contrary to what the plaintiffs sought to argue there is it seems an abundance of material supporting that conclusion.
Many features of the deceased's behaviour which were referred to in the Background Facts, and pointed to by Professor Brodtmann and Dr Lonie, indicate or support a conclusion of executive function impairment from mid 2012. Examples include the numerous references to confusion, anger, paranoia, lack of empathy and forgetfulness recorded in the carers' and hospital notes from July 2012 up to and following Dr Lonie's May 2015 testing.
I do not accept the plaintiffs' submission that references to behaviours such as confusion and aggression are few and far between. A review of the chronology in the Background Facts shows that is not the case. However they are correct in pointing out that no behavioural type matters appear to have been recorded in the four weeks preceding the deceased's making of the 18 July 2014 will, and that the references to "confusion" and "delirium" in the hospital notes of 2012 could be explained by infections and adverse reactions to antibiotics and/or sticking plaster or the deceased's recent stroke.
However the carers' notes certainly record somewhat regular instances of bizarre behaviour that indicates a pattern of functional impairment. For example on 18 December 2012 the deceased forgot how to drive, being unable to change gears from "P" to "R" (recorded above at [222]). On 24 December 2012, Christmas Eve, he was up doing office work at 5:25am and could not understand why no one was picking up their phones or responding to messages (at [228]). On 20 February 2013 he stood in the middle of the road while a car waited, attempting to turn, and he ordered the carer, who was already on the curb, to get off the road (at [256]). On 28 February 2013 he got up and dressed for breakfast at 12:20am (at [264]). On 1 April 2013 he woke up at 1:50am because he thought someone was knocking on the door trying to give him a puzzle (at [290]). On 13 May 2013 at 8:30pm the deceased woke up from a nap and yelled into the telephone for 10 minutes with no one on the other end (at [310]). He misplaced things, such as the blood pressure machine on 20 March 2013 (at [285]), a cheque on 28 July 2013 (at [332]), his keys on 29 July 2013 (at [333]). On 3 March 2014 he went to the wrong bank, St George, not realising he had closed his St George bank accounts and the cheque he had was for NAB (at [382]). On 15 July 2015 he pulled his trousers down when the physiotherapist came to visit, saying he wanted to wipe himself (at [588]). Associate Professor Brodtmann was of the view that these behaviours were indicators of severe functional impairment.
The plaintiffs sought to argue that there may have been better explanations for the deceased's behaviours than cognitive dysfunction. I have already noted my agreement that the behaviours observed during the course of the deceased's 2012 hospital admissions may have been caused by other factors at least partly. Yet when other incidents, including those I have just listed, are viewed in context of the expert evidence I am not satisfied that is otherwise the case. Associate Professor Brodtmann considered that the observations recorded in the carers' notes provided evidence of gradual deterioration in the deceased's function in association with episodes of sudden worsening of his cognitive function, usually in the context of intercurrent illness. Yet she was of the view that was consistent with someone with vascular cognitive impairment developing vascular dementia (Associate Professor Brodtmann's Executive Summary, p 4).
The results of Dr Lonie's May 2015 tests seem to support Associate Professor Brodtmann's conclusions. Dr Lonie was criticised for extrapolating back from May 2015 to mid 2012. However that approach was supported by longitudinal research into the nature and course of cognitive decline in cerebral small vessel disease. She was criticised due to the length of her testing and because she was testing for financial management not testamentary capacity but Associate Professor Brodtmann "found little to dispute with Dr Lonie's report, except that I feel she erred on the conservative side when describing the severity of his impairments" (CB.3014). I found her dissertation at the commencement of her evidence particularly persuasive and I accept her evidence on this.
The plaintiffs also submitted that there is a wealth of evidence explaining the deteriorated relationship between the defendant and the deceased, and the change in the allocation of the deceased's testamentary bounty, other than the deceased's supposed cognitive condition. They pointed in particular to the fact that the deceased and defendant fell out over money in 2005 or 2006, the two Guardianship Tribunal Proceedings and other legal proceedings. However there is evidence that the deceased and defendant maintained a somewhat harmonious relationship in 2011 (for example see their 2011 correspondence set out in the Background Facts). And while many people are likely to be distressed or angry about their children commencing guardianship or any kind of proceedings against them, it is also the case that right hemisphere strokes and functional impairment can lead to problems with judgment and insight. As Dr Lonie pointed out the deceased's "impaired memory and executive function, lack of insight into his cognitive and associated functional impairments, limited understanding of the context in which he found himself and the actions taken by his son" may have contributed to his negative appraisal of the defendant (CB.2770; CB.2999-3000). It should also be noted that Melinda and Aleta did not correct the deceased's misunderstanding of the nature of the defendant's 2012 Guardianship Tribunal application. I regard the evidence concerning the deteriorated relationship between the defendant and the deceased as somewhat inconclusive.
The deceased had several episodes of syncope or non responsiveness that lead to hospital admissions on 7 March 2013 (recorded above at [267]-[268]), 19 April 2013 (at [299]) and 16 April 2014 (at [402]-[403]). Associate Professor Brodtmann thought he may have had further strokes, at least during the March 2013 admission (CB.3004).
In my view one of the most significant indicators of the deceased's cognitive impairment is the note he sent to Mr White on 3 February 2014. I agree with the defendant's characterisation of that note over that of the plaintiffs. The deceased was it seems instructing Mr White to write him a new will in the same terms as his previous one. That does not speak of a man capable of making rational decisions about his bounty. And I am not convinced the deceased's other handwritten notes which the plaintiffs' relied upon necessarily indicate any greater capacity. Some are cogent; some, such as that of 1 August 2014, are in my view less so. The deceased had a practice of making notes and faxing them to his advisors and family members over his lifetime, which he continued up to 2015, whether out of habit or otherwise. As the defendant pointed out, it is unclear whether all the notes were sent, and some could be considered somewhat divorced from reality (TT.1291-1292). Again I regard these handwritten notes as somewhat inconclusive.
The fact the deceased's deficiencies were not picked up by his legal, accounting or medical advisors does not in my view assist the plaintiffs' case very much. I regard Mr White and Mr Colley as somewhat unimpressive. Mr White was clearly not attuned or interested in making sure his client truly understood what he was doing. He had very little real recollection of events and I am uncertain as to whether he was being untruthful. He was in my view clearly favourable towards the plaintiffs who he also acted for and who failed to tell him that the deceased was on day leave from hospital when he made his 4 September 2012 will or later that he had had a stroke. He appeared to rely heavily upon Dr Dedousis's assessment of the deceased's condition. Mr Colley also acted for the plaintiffs and was it seems unaware of the deceased's true condition. Mr White and Mr Colley did not, let alone I am satisfied dare, to test, in the deceased's own interest as it were, his understanding of what he was doing in making his multiple post 2012 wills. One would think the deceased's frenzy of will making over the period June 2012-July 2014 would have raised questions in their minds about his capacity or at least rationality at the time.
The deceased's deficiencies were not picked up by either Dr Barrett or Dr Dedousis perhaps by reason of a lack of expertise but certainly by inadequate testing with the use of the MMSE alone. Even the deceased's clock drawing attempts did not appear to raise alarm. On 26 September 2012 the deceased inserted the words "20 to" in the place of the minute hand. On 28 August 2012 he drew some numbers inside the clockface and some numbers outside the clockface. During Dr Lonie's May 2015 testing he drew the numbers 1-16 inside the clockface and wrote "20" and "4" outside the clockface. Although by that stage Dr Dedousis had recommended (in January 2015) that the Power of Attorney be invoked.
Dr Barrett relied heavily upon Dr Dedousis who was to some extent kept in the dark by the plaintiffs. Dr Dedousis seemed convinced the defendant had done the wrong thing in bringing the Guardianship Tribunal proceedings in 2012 but was not told about the true nature of the application at the time. He was not told that the deceased had live in carers from November 2012 and he said he was not shown the private carers' notes. He was not aware of the deceased's financial situation.
I am satisfied the plaintiffs attempted not through altruism but self interest to orchestrate the facts so as to obscure their father's true condition and succeeded in cajoling Dr Dedousis to change his professional opinion on at least two occasions, in relation to the discharge summary that recorded "dementia" and the deceased's death certificate, for their benefit. During cross examination Dr Dedousis said he changed the records because he wanted to ensure they were accurate. I reject that explanation. That he was so malleable is indicative in my view of his partisanship but also his susceptibility to inappropriate influence, both of which blurred his judgment. He admitted that he did not mention the deceased's stroke or cognitive state to Mr White or in the letters he sent to the Guardianship Tribunal.
I accept that Mr Hunt's evidence was largely unchallenged in cross examination, although he said that he could not recall exactly what was said during his meeting with the deceased. I note that the deceased assisted Tyrone to resolve some disputes about rent with the real estate agent in about 2013, and the plaintiffs' submission that Mr Marshan's impression of the deceased at the Guardianship Tribunal on 13 November 2012 was that he was in control of his faculties, although he did not give evidence in these proceedings. I also accept that the evidence of lay people as to a testator's health condition can be valuable (Zorbas v Sidiropoulos (Estate of Kriezes) (No 2) [2009] NSWCA 197 at [90] (per Young JA, Bergin CJ in Eq agreeing).
However I am not satisfied on the whole of the evidence that the deceased was of sound and disposing mind when he made his September 2012-July 2014 wills. The factual question posed in Croft v Sanders was it seems whether the testator's moments of testamentary incapacity were in fact continuous as opposed to merely episodic. Clearly relevant capacity need not always be present. The question is to be answered on the particular facts. Here, although his deficiencies were largely undetectable unless adequately tested, the profound nature of the stroke suffered by the deceased and its effect on such an important aspect of brain function makes it in my mind more likely that he suffered with the incapacity more or less continuously afterwards and as his dementia progressed. His stroke was a physical injury which on top of his dementia, atrial fibrillation and other illnesses caused him cognitive impairment which I am satisfied he did not travel in and out of. I am satisfied on the evidence of Associate Professor Brodtmann and Dr Lonie that after his stroke the deceased never regained cognitive functions sufficient to weigh and contrast the potential claims of his various children and grandchildren to his estate, which was complex, consisting of numerous companies and various pieces of property, and therefore lacked testamentary capacity (Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6]).
Associate Professor Brodtmann and Dr Lonie differed however in their opinions with respect to the deceased's 15 June 2012 will which was made prior to his stroke. Associate Professor Brodtmann, who considered that the deceased lacked testamentary capacity at that time, based her opinion on the likely progression of the deceased's other medical illnesses, including it seems the extent of the disease in his white matter which was visible on CT brain scans prior to his stroke, the delirium he was likely suffering due to his facial infection, his atrial fibrillation, and the severity of his illnesses during his admissions over the following months (Executive Summary pp 3-4; CB.3000, 3008-3009; Report from Conclave between Brodtmann and Watson).
Dr Lonie on the other hand initially concluded on the basis of her May 2015 tests and the longitudinal study that the deceased likely lacked capacity at 15 June 2012 but later changed her opinion based on the correspondence between Mr White and the deceased about the content of the will. That correspondence was put to Associate Professor Brodtmann at least it seems in the conclave she had with Professor Watson but did not cause her to alter her opinion.
I prefer and accept Associate Professor Brodtmann's opinion given her qualifications and the explanation she provided. The correspondence between Mr White and the deceased was conducted via faxes and handwritten notes. It is of course some evidence that the deceased understood what he was doing however as I have said Mr White did not ever discuss the deceased's wills with him nor test his capacity himself. On balance I am not satisfied the deceased had testamentary capacity when he made his 15 June 2012 will.
Given what I have said already about the deceased's testamentary capacity it is not necessary to determine the defendant's suspicious circumstances case. However there are circumstances from at least the time of the deceased's 4 September 2012 will that raise doubts in my mind about whether his wills expressed his mind, unaffected by the influence of the plaintiffs (Tobin v Ezekiel at [46]). The circumstances surrounding the making of his 4 September 2012 will are particularly suspicious. The deceased was very ill in hospital at the time and his condition should have been obvious. The plaintiffs took him to Mr White's offices where he made the will and they also signed an Enduring Power of Attorney. However, as I have said, Mr White was not made aware of his precise condition or that he was on day leave from hospital. The plaintiffs were either unaware of the extent of his illness or intended to withhold it. These circumstances clearly also relate to the deceased's testamentary capacity, and as the plaintiffs' pointed out the defendant's case concerning the plaintiffs' manipulation of the deceased depended in part on their medical case, which I have upheld.
It seems clear that by the time the defendant made his first application to the Guardianship Tribunal in September 2012 the plaintiffs and the defendant were deeply divided. I am satisfied that the plaintiffs thereafter engaged in a course of conduct that, whether intentionally or otherwise, influenced the deceased against the defendant, and in their favour, and concealed his true condition from his medical and legal advisors. They did not for example inform their father of the true nature of the defendant's guardianship application which appears to have played on his vulnerabilities and fears about being placed in a nursing home. They did not inform Dr Dedousis or Mr White about the comments in the carers' notes and sought to sanitise information contained in hospital records and later on the deceased's death certificate.
I have carefully considered the submissions of both sides and would find the suspicious circumstances alleged by the defendant to have attended each of the deceased's respective wills from September 2012-July 2014 (and which I have summarised above at [1100]-[1107]) to have existed. Of particular significance in my view is the likely presence of one or both of the plaintiffs at the signing of most of the wills; the fact Mr White said (T.79/11-18) his instructions in relation to the 12 November 2012 will came from the deceased and Mr Colley, who had previously been corresponding with Melinda about the power of appointment of the Gooley Family Trust which she was gifted under that will (see above at [104]); the fact that Melinda agreed she assisted the deceased get paperwork together for meetings with Mr White (although she denied that was necessarily the case on occasions when he signed his wills: T.783.14-25); and, in relation to the deceased's 2013 and 2014 wills, their increasing control over the deceased's affairs at that time, evidenced for example by their instruction to the deceased's carers on 10 February 2013 to ban the defendant and Janine from the deceased's unit and Melinda's giving instructions to Mr White, Mr Colley and Mr Rogers about Motasea despite not being a director in May 2013 (see [305] above).
When these matters are considered alongside the general trend in the deceased's wills, which (save perhaps for the 22 May 2013 will) were changing in their favour, inconsistently with the deceased's long held succession plan, there is in my mind a suspicious circumstances case to meet. Yet given the deficiencies in Mr White's practice I am not satisfied it could be allayed.
For these reasons I am satisfied that the deceased lacked testamentary capacity at all relevant times after he made his 1 February 2010 will and would grant the primary relief sought by the defendant in his cross claim. I would dismiss the plaintiffs' claim. I invite the parties to bring in short minutes reflecting these reasons and would hear them further in relation to costs if necessary.

A Deed of Amendment in relation to the Tonkin Trust dated 8 July 2013 was executed: 2. REMOVAL AND APPOINTMENT 2.1 Removal of Alternative Principal The Principal removes BRETT RAYMOND GOOLEY as Alternative Principal of the Trust in accordance with the Principal Removal Clause with effect from the Deed Date. 2.2 Appointment of New Alternative Principal The Principal with the consent of the New Alternative Principals, appoints the New Alternative Principal, as Alternative Principal of the Trust in accordance with the Principal Appointment Clause. This appointment becomes effective on the Deed Date. 2.3 Acceptance by New Alternative Principal The New Alternative Principal accepts the appointment as from the Deed Date and agrees to act as Alternative Principal of the Trust and to be bound by the restrictions and obligations placed on that position by the provisions of the Trust Deed. 3. CHANGE OF NAME OF TRUST The Trustee amends the Trust Deed in accordance with the Amendment Clause, by changing the name of the Trust to the name specified in Item 10 in the Schedule effective from the Deed Date. 4. APPOINTMENT OF BENEFICIARIES The Trustee appoints MELINDA LOUISE FOLEY & ALETA JOY GOOLEY as Primary Beneficiaries of the Trust in accordance with the Beneficiary Appointment Clause with effect from the Deed Date. 5. REMOVAL OF BENEFICIARY The Trustee removes BRETT RAYMOND GOOLEY as a Primary Beneficiary of the Trust in accordance with the Beneficiary Removal Clause with effect from the Deed Date. 6. AMENDMENT OF SCHEDULE The Trustee amends the terms of the Trust in accordance with the Amendment Clause by amending the names of the "Primary Beneficiaries" in the Schedule to the Trust Deed so that the names of the Primary Beneficiaries appear as follows: PRIMARY BENEFICIARIES: MELVILLE WILLIAM GOOLEY MELINDA LOUISE FOLEY ALETA JOY GOOLEY" SCHEDULE Item 2. Principal: MELVILLE WILLIAM GOOLEY UNIT 6, 19-23 TONKIN STREET CRONULLA NSW 2230 Trustee: DECAHILL PTY LIMITED ACN 003 753 713 UNIT 6, 19-23 TONKIN STREET CRONULLA NSW 2230 New Alternative Principal: GARAMOND PTY LTD ACN 123 023 290 3A BERMUDA PLACE BURRANEER NSW 2230 XADA PTY LTD ACN 164 519 297 3 BYRNE CRESCENT MAROUBRA NSW 2035

He sent a letter to the Guardianship Tribunal in the following terms: I examined Mr Gooley today in the presence of 2 of his daughters. From the cognitive perspective he remains quite stable. He is orientated to time, place and person. His orientation score out of 10 was 9. His full Folstein Minimental status examination score was 28/30. Mr Gooley has full knowledge and understanding of the word 'capacity' and what it means. He understands what Power of Attorney and Enduring Guardianship mean. He has definite thoughts as to who he wants to have Power of Attorney and Enduring Guardianship. Of concern noted today was the effect that the new guardianship application has had on his levels of anxiety. Mr Gooley today is increasingly anxious, fearful, concerned and at times angry about yet another guardianship application. He is literally losing sleep [over] it at night, waking up and worrying about why his son has placed this application. He feels there are no issues or reasons for this application from his perspective and is fearful for his future. The above stress has been increasing now over several weeks and it certainly is the major thing occupying his mind, and understandably so. I am satisfied that Mr Melville William Gooley has clinical capacity to make his own decisions with regards to medical, residential and financial matters. I do not think the Guardian needs to be appointed to look after these issues. Furthermore, I am quite perplexed again as to why this application has been made when there is no clinical concern or clinical issues to necessitate it. I am concerned about the negative impact that this application is having on my patient's psychosocial health. I wonder what the underlying reason is with regards to this application and whether there is a financial motivation for the placement of this guardianship order. I can't help but feel that this is an abuse of process, as I don't think that Mr Gooley should be put through another guardianship hearing. I… would encourage the guardianship board to look at this issue over the past two years with the hope that we can avoid any further guardianship applications and thus decrease the amount of stress and anxiety that this legal manoeuvring is causing my client.

Dr Lonie, Consultant Clinical Neuropsychologist, was appointed under orders made by the Guardianship Tribunal on 23 March 2015 to assess the deceased's cognitive function and provide an opinion on his capacity to manage his own person and finances. Dr Lonie completed her report on the deceased's cognitive function on 4 June 2015. It states: 78. Mr Gooley was administered a comprehensive measure of his overall level of current cognitive functioning known as the Addenbrooke's Cognitive Examination (ACE-R). 79. This measure is widely utilised in place of the MMSE as a means of detecting cognitive impairment in early stage dementia on account of its superior sensitivity. 80. Mr Gooley performed well below the lower boundary cut off point that is taken to be indicative of an underlying neurodegenerative process (i.e. dementia) on this measure. 81. His level of performance on this measure was consistent with what one might expect to observe in the early stages of the dementia process. 82. The MMSE was administered to facilitate comparison with Mr Gooley's previously documented performances on this measure. 83. Mr Gooley obtained a score of 27/30 on the MMSW on this testing occasion. 84. This score does not differ significantly from any of his previous performances on this measure. 85. Mr Gooley's score on the MMSE remains within a normal range for a man of his age and is not, in and of itself, suggestive of any underlying neurodegenerative process.' … 91. Mr Gooley's auditory memory…visual memory…and immediate memory….are low average for a man of his age. …. 93. Conversely, Mr Gooley's delayed memory ability (i.e. his ability to recall newly learned information following a brief i.e. 30 minute delay) is significantly impaired, falling within a borderline range for a man of his age, at or around the bottom fifth percentile of his age peers. … Mr Gooley's working memory ability (i.e. his ability to hold information in his mind whilst manipulating it) is significantly impaired, falling within the bottom fifth percentile of his age peers. Numerous other aspects of Mr Gooley's executive functioning, including his verbal generative skills, simple concept formulation and mental flexibility, divided attention and self-monitoring abilities were significantly impaired relative to age expectations. Summary of findings 136. Mr Gooley is presently displaying a number of areas of significant cognitive impairment in relation to his age peers. … Mr Gooley's general level of cognitive functioning on a comprehensive and sensitive cognitive screening measure, is commensurate with a clinically significant level of cognitive impairment of the nature that is observed in an early stage dementia. It is noted that the diagnosis of dementia is reliant on evidence of functional decline together with cognitive decline of a progressive nature. In the absence of access to an informant history and in view of the current level of functional support that Mr Gooley is receiving, it is not possible to assess this aspect of his clinical presentation. Mr Gooley's overall level of general cognitive function is less good than one would typically associate with mild cognitive impairment. 142. He is displaying impairments in additional domains of his cognitive functioning, beyond that of memory alone, and as such, in my opinion, his presentation is not in keeping with an amnestic mild cognitive impairment.

Dr Lonie sent Aleta a letter dated 14 June 2015. It includes: Dear Aleta RE: Mr Melville William GOOLEY, DOB 07.08.1925, 6/19 Tonkin Street, CRONULLA NSW 2230 In response to your questions I offer the following: 1. At what stage of the 5-hour testing did Dad do the mini-mental test where he scored 27/30? Was it at the beginning or towards the end of the 5 hours testing? Would you please provide a copy of the Mini mental test report - indicating what time the testing was done - the question asked - & showing where Dad scored incorrectly. Mr Gooley was administered the mini Mental State Examination (MMSE) as part of the Addenbrooke's Cognitive Examination - Revised Version (ACE-R). ACE-R contains all of the items that comprise the MMSE and it is therefore possible to compute an overall MMSE having administered the ACE-R. The ACE-R was the first measure that your father undertook following an initial interview. I have attached a copy of the ACE-R (containing the MMSE - shaded item boxes). I met with your father at 11.00am. I would therefore anticipate that the MMSE was undertaken (as part of the ACE-R) around 11.30am. ... 3. My father has separate pairs of glasses for reading and seeing. I understand from talking to my father and the carer Jennifer, that the tests were carried out whilst he was wearing his seeing glasses - and not his reading glasses which would have significantly improved his vision. In interpreting your father's performances on the neuropsychological measures he undertook, I was acutely aware of the potential impact of his vision on test performance. Prior to drawing inference from a visually based test performance, I have ensured that your father has demonstrated adequate visual ability elsewhere such that visual difficulties alone could not account for his difficulties. Several tasks were discounted when it became apparent that their interpretation would have been confounded by Mr Gooley's visual abilities. Any loss of visual acuity on Mr Gooley's part is, in my opinion, of relatively little importance overall in determining his capacity to manage his financial affairs and I have placed little if any weight on this in arriving at an opinion as to his financial management capacity. The greater area of concern relates to the apparent lack of insight on Mr Gooley's part, into self-made errors and his corresponding lack of initiative to correct these. … 5. Did you ask Dad or the carer about the amount of sleep Dad had the night before the test? Your father indicated to me that his sleep was disturbed and that this was partly owing to anticipatory anxiety caused by the assessment. … You will note that considerable encouragement was given to your father to take breaks. The option of splitting the assessment over two sessions was also made available to him. It is always my preference to conduct assessments over two sessions (it also allows for observations of consistency of response to be made), however, I recall that it was the preference of both yourself and your father that the assessment be completed in a single visit. …

Aleta Gooley & Anor v Brett Gooley

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (41 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (45)

Cited By (7)