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[1995] NSWSC 87
Supreme Court of NSW
1995-10-19
Santow J
Original judgment source is linked above.
COURT IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION SANTOW J HRNG SYDNEY, 26-28 April, 3-4 July 1995 #DATE 28:8:1995 #ADD 19:10:1995
Solicitors for the Plaintiffs: Vrachnas and Co.
Solicitors for the Defendants: Colin Dalcy Quinn ORDER Orders made JUDGE1 A. THE ESSENTIAL ISSUES SANTOW J This is a dispute over the validity of the will of the late Mrs Joyce Jean Cole ("Mrs Cole"). It is attacked on the ground of her lacking testamentary capacity or her not knowing or approving it, or executing it under undue influence or under the influence of fraud. The Plaintiff, Mrs Anastasia Pates ("Mrs Pates"), is the sole beneficiary and executor of Mrs Cole, by that will (PX4) dated 11 March 1993 ("the 1993 will"). Mrs Pates seeks an order for the grant of probate of the 1993 will which is opposed.
B. OVERVIEW OF FACTUAL BACKGROUND 5. Mrs Cole was born on 20 January 1920.
Mrs Cole has apparently been married on two occasions. Subsequent to the death of her second husband in 1982, she appears to have had other relationships. These include a relationship with a Mr Foran, and another with a gentleman known as "the Priest". None of these relationships are of any relevance to the current proceedings.
In 1982 Mrs Cole executed a will, also not relevant to the current proceedings, in which she left her entire estate to Peter and Helen Marner (See DX10). Mrs Marner was apparently a friend of Mrs Cole of long standing.
At some time in the past 10 to 15 years, Mrs Cole became involved with Mr Greenfield, the father of the First Defendant. Prior to living with Mrs Cole, Mr Greenfield lived in some units at the back of a hotel in Paddington, close to Mrs Cole's house, although accounts differ as to his living arrangements. Although not living with Mrs Cole at this time, Mr Greenfield spent substantial amounts of time with Mrs Cole at her home. He was a regular visitor, apparently arriving at about 7 am and leaving at about 7pm each day. He used Mrs Cole's telephone number as his contact number with his daughter, Mrs Craig. I am satisfied that Mr Greenfield and Mrs Cole developed a very close and caring relationship during their time together, in which his companionship and devotion to her needs was not in question. This relationship included them engaging in many activities together, such as shopping, walking the dogs and domestic chores. Mrs Cole clearly placed great reliance on Mr Greenfield's assistance (see D below).
On 13 February 1989, Mrs Cole executed the 1989 will, appointing the Public Trustee as executor and Mr Greenfield as sole beneficiary, or in the event he predeceased Mrs Cole, to Mr Greenfield's daughter Ms Sandra Janie.
From Easter 1990, Mr Greenfield moved in to live with Mrs Cole. I am satisfied that Mr Greenfield was living at Mrs Cole's home as her de facto, not as a boarder (see D below).
In July 1992, Mr Greenfield suffered a stroke and was taken to hospital by ambulance. He was later admitted into a nursing home, where he continues to reside. He has not returned to Mrs Cole's house since his stroke. There is evidence, elaborated and tested in D below, that Mrs Cole herself suffered a decline, more marked in the ensuing period till her death, in her mental (as well as physical) condition. What is in issue is the extent of that decline, particularly at the time she executed the 1993 will, as it bears on the validity of that will, in the circumstances attendant on its execution, as elaborated below and in D.
From late 1992 or early 1993, probably after the Christmas holidays of 1992, Mrs Pates, at her initiative, began assisting Mrs Cole around the house. The extent of the assistance provided by Mrs Pates is in dispute, and in D below, I consider the evidence on that issue.
On 5 March 1993, instructions were taken by Mrs Pates long-time solicitor, as arranged by Mrs Pates, for the preparation of the 1993 will at the home of Mrs Cole. Mrs Cole executed the 1993 will, drawn by that solicitor, Mrs Evangelinidis, on 11 March 1993. In that document, Mrs Cole left Mrs Pates as her executor and sole beneficiary. The application for the grant of probate in the 1993 will is the subject of the current proceedings.
On 11 May 1993, Mrs Cole was found unconscious in her home following a severe stroke believed to have occurred two days previously. She was admitted to St Vincent's Hospital in a critical condition.
On 2 June 1993, Mrs Cole was admitted to Villa Magna Nursing Home, Burwood, where she resided until her death.
By an order dated 15 July 1993, Mrs Cole was declared to be a person incapable of managing her affairs. Management of Mrs Cole's estate was committed to the Protective Commissioner under the Protected Estates Act 1983.
C. APPLICABLE LEGAL PRINCIPLES 19. I have already noted the grounds upon which the grant of probate in the 1993 will is opposed by the Defendants.
3 . A duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding: Symes v. Green (1859) 1 Sw and Tr 401; Sullen v. Saddler [1857] EngR 738; (1857) 3 CB (NS) 87. Thus proof that a will, rational on its face, was validly executed is prima facie evidence of testamentary capacity. Thus, in effect, such presumption places an evidentiary onus upon the person disputing the will to adduce evidence raising doubts as to the deceased's competency: For a striking example see Easter v Griffiths and Ors (Santow J, Supreme Court of NSW, 17 June 1994, unreported, affirmed New South Wales Court of Appeal, 7 June 1995, unreported). Where the evidence as a whole is sufficient to throw doubt upon the deceased's competency, then the Court must decide against the validity of the will unless it is satisfied affirmatively upon the evidence as a whole that the deceased was of sound mind, memory and understanding when he or she executed it: Bull v. Fulton [1942] HCA 13; (1942) 66 CLR 295 at 343.
(a) The circumstance that the person who prepared, or procured the execution of, the document receives a benefit under it is one which should generally arouse suspicion and call for vigilant examination of the evidence as to the deceased's appreciation and approval of the contents of the will: Re Hodges at 705; Barry v. Butlin [1838] EngR 1056; (1838) 12 ER 1089; Nock v. Austin [1918] HCA 73; (1918) 25 CLR 519 at 528; Public Trustee v. McKeon [1917] NSWStRp 17; (1917) 17 SR(NSW) 157. (b) Where the alleged testator was enfeebled, illiterate or blind when he executed the document, it must be shown by
affidavit that the will was read over to the deceased before its execution, or that the deceased otherwise was aware of the
contents of the testamentary document: Tyrrell v. Painton (1894) P151; Kenny v. Wilson [1911] NSWStRp 73; (1911) 11 SR(NSW) 460 at 469; [1911] NSWStRp 73; 28 WN(NSW) 124.
in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even
be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, Though not actual violence."
D. ELABORATION OF FACTUAL BACKGROUND 22. It is not in dispute that the 1993 will is rational on its face, and has complied with the formal requirements for a valid testamentary document, including due execution. Accordingly, the Plaintiff has established a prima facie case that Mrs Cole possessed testamentary capacity, and that the 1993 will had her knowledge and approval. The question is thus whether the evidence, is such as to throw doubt on Mrs Cole's competency, knowledge and approval. If so, the onus again falls on the Plaintiff of proving that 1993 will was the intended last will of a free and capable testator.
The Witnesses For the Plaintiff Mrs Pates 25. The Plaintiff, Mrs Pates, was born on 15 August 1935 and came to Australia in 1962. Mrs Pates does not have a perfect command of spoken English, and is unable to read or write in English. Her first language is Greek. I was not satisfied that her language difficulties were of a nature such that she required the assistance of an interpreter when giving oral evidence in these proceedings. However, I have endeavoured to be sensitive in assessing her oral evidence for the possibility of misinterpretation or miscommunication. Mrs Pates's written statements in these proceedings were PX29 and PX30 and were not translated but in English.
According to Mrs Pates, she has been friends with Mrs Cole for a substantial period of time. She claims they first met casually in the Paddington area over twenty years ago. This was by reason of them living in the same neighbourhood, within about five minutes walking distance of each other. Mrs Pates was living at 31 William St, Paddington. Mrs Cole was living at 3 Cascade St, Paddington. Mrs Pates claims they struck up a friendship and chatted often. Mrs Cole subsequently began to ask her to hold items purchased from St Vincent De Paul so they could be secretly delivered to Mrs Cole's house when her then husband was not present. Her evidence was that as their friendship developed, Mrs Cole would speak to her children and leave lollies for them in the letterbox of Mrs Pates's house. On 26 May 1988, one of Mrs Pates's children died. She said, Mrs Cole would visit Mrs Pates at home and was very supportive in her grief Mrs Pates said that she would on occasion deliver cooked food in an aluminium container to Mrs Cole at home.
Mrs Pates did not call evidence from either of her children to support her claim that she has had a longstanding relationship with Mrs Cole, and that Mrs Cole used to drop around to the house and deliver lollies to the children. Neither was any other witness called to give a detailed account of such a relationship. Note that the evidence of Mrs Cole's next-door neighbour, Mrs Dammen, was that she had not seen Mrs Pates at Mrs Cole's house until after Christmas 1992 (see below). Mrs Austin, a friend of Mrs Cole, gave evidence to similar effect (see below). However, Mrs Pates was not cross-examined on the length of her relationship with Mrs Cole, other than the general suggestion that she was dishonest and was making up stories to suit her case. I thus accept that Mrs Pates has had some sort of relationship with Mrs Cole over a period of some years, arising from their living in close proximity.
According to Mrs Pates the following then occurred. In late 1992 or early 1993, Mrs Cole visited her and asked for her help, From that time she allegedly began to visit Mrs Cole regularly in her home to give assistance to Mrs Cole in looking after herself She allegedly prepared three meals per day for Mrs Cole. The food was prepared at Mrs Pates's home and delivered to Mrs Cole. Mrs Pates said she used her own money to pay for this food and that she made Mrs Cole coffee each morning. She went on to claim that she washed Mrs Coles' clothes and returned them daily. After the evening meal each night she bathed Mrs Cole in the kitchen and applied talcum powder. She washed Mrs Cole's hair. She assisted Mrs Cole to bed and would pray with her.
Mrs Pates's evidence, if correct, thus implicitly acknowledges some degree of physical helplessness on the part of Mrs Cole, in that she had to seek assistance in looking after herself Indeed the declining physical and mental state which this connotes would be consistent with the evidence of a number of the Defendants' witnesses. However, what is not consistent is Mrs Pates's claim that Mrs Cole was in fact well looked after and further that this was due to her own extensive assistance. Thus this account of Mrs Cole as being at that time fed, washed and generally well looked after does not appear to be consistent with the evidence of a number of the persons who had dealings with Mrs Cole during the last six months of Mrs Cole's life (see below).
Despite needing assistance from Mrs Pates in looking after herself, Mrs Pates suggests. that Mrs Cole remained mentally alert during this time. For example, Mrs Pates claims that Mrs Cole gave her English lessons each day. Mrs Cole would indicate words in English for her to remember and test her memory the following day. If Mrs Pates forgot the words, Mrs Cole would allegedly say "Stupid, you forgot again. How many times have I told you?" Mrs Pates also claims she would take letters received from her daughter, Anna, to Mrs Cole to read. Mrs Pates claims she also took other forms and documents written in English for Mrs Cole to read and explain. Mrs Pates thus suggests that despite her physical difficulties Mrs Cole's mental capabilities had not significantly declined during the period in which Mrs Pates was allegedly assisting her. Again, as I note below, this account of Mrs Cole's mental condition does not appear to be consistent with the evidence of other persons who had dealings with Mrs Cole during the relevant period.
Mrs Pates claims that during this time no other person visited the home of Mrs Cole, with the exception of a lady who visited after Christmas and brought a block of chocolate.
Mrs Arvanitis 32. Mrs Pates evidence in this regard is supported by the evidence of Mrs Toula Arvanitis ("Mrs Arvanitis"), who has been a friend of Mrs Pates for twenty years. Her statement of 10 November 1994 is PX38. Mrs Arvanitis states that during her visits to the home of Mrs Pates in 1991 and 1992, she observed Mrs Pates and Mrs Cole together. Mrs Cole, she said, appeared to be quite normal and sensible in conversations about various topics, such as the weather and Mrs Cole's lack of a family. They talked for about an hour over coffee. Mrs Pates and Mrs Cole would frequently visit each other. She claimed that Mrs Pates would shop, cook and deliver food to Mrs Cole. Mrs Arvanitis further claims that she would occasionally take Mrs Pates and Mrs Cole shopping in her car.
Mr Biondi 35. Some evidence corroborating Mrs Pates's version of events was also given by Mr Paul Biondi ("Mr Biondi"), a neighbour of Mrs Pates. Mr Biondi has known Mrs Pates for about 15 years, Mrs Pates and his mother being friends. Mr Biondi is also a friend of Mrs Pates's son. In his statement of 11 November 1994, Mr Biondi states that on or about January 1993, he was helping Mrs Pates move furniture at her home. He claims Mrs Cole came to Mrs Pates crying and looking sick. He said Mrs Cole asked Mrs Pates to help her as she did not have anyone to help her. Mr Biondi said he had also seen Mrs Cole at Mrs Pates's home a few times prior to that occasion. A few months later, Mr Biondi said he again saw Mrs Cole at Mrs Pates's house.
For the Defendants 37. The Defendants rely on the evidence of nine persons to deny Mrs Cole's testamentary capacity at the relevant time or, at the least, to raise doubts concerning it. If such doubts are raised, the prima facie presumption of testamentary capacity arising from due execution of the will is rebutted, in an evidentiary sense, and the onus again falls on the Plaintiff to satisfy the Court affirmatively upon the evidence as a whole that Mrs Cole had testamentary capacity when she executed the 1993 will. These witnesses are: Mrs Austin:...A friend of Mrs Cole; Mr Battaglia:...A neighbour, Mrs Craig:...The First Defendant, and daughter of Mr Greenfield; Mrs Dammen...Mrs Cole's next-door neighbour; Mr B Greenfield:...Mr Greenfield's brother; Mrs Hennessey:...A neighbour; Mr Madden:...Mrs Cole's pharmacist; Ms McDonnell:...A former employee at Mrs Cole's bank; and Dr Muhlen-Schulte:...Mrs Cole's doctor.
Mrs Austin 39. Mrs Margaret Austin ("Mrs Austin") resides on Cascade St, Paddington and has known Mrs Cole for a period of about 14 years. Her statement is DX28. Mrs Austin described herself as having had personal contact with Mrs Cole on a daily basis during those 14 years. However, in cross examination, Mrs Austin conceded that she did not visit Mrs Cole at home after Mr Greenfield got sick. She did, however, have contact with Mrs Cole after that time as Mrs Cole came to her house on several occasions, and walked past her house on other occasions. It does not appear that such contact was on a daily basis.
In addition to giving evidence on Mrs Cole's condition, Mrs Austin also described an incident in which she was approached by Mrs Pates. Mrs Austin claims Mrs Pates had approached her in early 1993, while she was weeding her front garden. Mrs Pates inquired if Mrs Austin lived alone, and then offered her assistance in domestic chores. Mrs Austin declined this offer. Mrs Pates does not deny she approached Mrs Austin in this way. Mrs Hennessey, another resident in the Paddington area, described a similar approach by Mrs Pates (see below).
Mr Battaglia 44. Mr Peter Gi Battaglia ("Mr Battaglia") has lived on Windsor St, Paddington since late 1972 or early 1973. His statement in these proceedings is DX20. Mr Battaglia came to know Mrs Cole in about 1975. She would walk past his home when visiting the shops. She would also take her dogs for a walk through the back lane behind his house. In her later years, Mrs Cole used to feed pigeons in the back lane and in front of his house. Mr Battaglia states that he used to chat with Mrs Cole outside his home, sometimes two or three times a week and sometimes two or three times a month.
On two occasions within one week in mid-February 1993 (not long before the 1993 will was executed), Mr Battaglia found Mrs Cole collapsed on the lawn in front of his house. He described her as sitting on the grass, hunched forward, with one leg in front of her and one leg behind her. On both occasions, Mr Battaglia carried Mrs Cole back to her home in Cascade St Paddington. The first time, he carried Mrs Cole to her front gate, and left her there. She stood up and appeared quite capable of supporting herself The second time, about four or five days later, Mr Battaglia carried Mrs Cole right to her front door.
Mr Battaglia described her at that time as weighing about 30 kilograms and, on both occasions, as smelling strongly with the "pungent smell of body odour of long standing". He did not notice the smell of alcohol. Mr Battaglia stated that Mrs Cole's right eye seemed swollen at that time. Mrs Cole did not respond intelligibly to the statements made by Mr Battaglia when he carried her home.
The cause of Mrs Cole's two collapses is not known. However, despite this, I am satisfied that the fact of such collapses is not irrelevant for the current purposes. This is particularly the case because the Defendants seek to raise sufficient doubts about Mrs Cole's capacity to rebut the prima facie presumption of testamentary capacity, and thus to place the onus on the Plaintiff to affirmatively prove such capacity.
Mr Battaglia stated that he had seen Mrs Cole and Mr Greenfield together over a period of about ten years, more frequently towards the end of that period.
Mr Battaglia has no apparent interest in the matter. I found his evidence entirely credible.
Mrs Craig 50. As was mentioned above, Mrs Craig is the First Defendant and Caveator in this matter. She is acting under a power of attorney on behalf of her father, Mr Greenfield, who is Mrs Cole's beneficiary under the 1989 will. Mrs Craig has been a registered nurse since the 1960s, and has had some experience in geriatric nursing.
Mrs Dammen 54. Mrs Claire Florence Dammen ("Mrs Dammen") resides in Cascade St Paddington and was a next-door neighbour of Mrs Cole. Her statement is DX 16. Mrs Dammen first met Mrs Cole in October 1989. She was in daily contact with Mrs Cole. Mrs Dammen described Mrs Cole as a frail elderly woman, unclean, with dirty clothes and a terrible smell. Her eyes were weepy and there were sores on her face and hands. Mrs Dammen also stated that Mrs Cole was frequently under the influence of alcohol. Mrs Dammen conceded that the occasions when she actually noticed slurred speech or the smell of alcohol on Mrs Cole's breath were infrequent. She assumed Mrs Cole's drinking was more frequent on the basis that Mrs Cole told her that she liked to have a drink every day, and by reason of the empty wine casks that accumulated outside Mrs Cole's house.
According to Mrs Dammen, Mrs Cole's physical and mental deterioration was evident in a number of ways, First, it was difficult to have any type of intellectual conversation with Mrs Cole. Conversations usually involved Mrs Cole relating stories about the past or her health, which Mrs Cole always described as poor. She would constantly repeat these stories, and the repetitiveness became worse after Mr Greenfield left.
Second, Mrs Cole suffered from extremely poor vision and would complain about her poor sight. She did not wear spectacles. Mrs Cole sought the assistance of Mrs Dammen and her daughter to read documents on a number of occasions, and would confuse one type of document for another, such as an electricity bill for a telephone account. This evidence appears to contradict the evidence of Mrs Pates, who claimed that Mrs Cole would read letters and other documents for her. I consider this inconsistency below.
Third, Mrs Cole began wandering the streets of Paddington at all hours, particularly in the 12 months before her death. She would search garbage bins in the area and rescue items from them. On one occasion after Mr Greenfield's hospitalisation, Mrs Dammen found Mrs Cole sitting in the centre of the intersection of Cascade and Paddington Streets. When she approached, Mrs Cole asked her "Who am I? What am I doing here?". Mrs Dammen also spoke of other occasions where Mrs Cole was found wandering the streets in a confused state by neighbours, who helped Mrs Cole home.
Fourth, Mrs Cole became quite pliable and easily led. Mrs Dammen and her daughter would often tell Mrs Cole to go inside and have a sleep. Mrs Cole would do so without question. However, Mrs Dammen did say that Mrs Cole refused to have anyone from meals on wheels or the Houldsworth Centre into her house, so there were clearly limits to her pliability.
Fifth, Mrs Cole's house was cluttered, unkempt and with a very strong smell.
Sixth, Mrs Cole's mental confusion became pronounced. After Mr Greenfield left with a stroke, Mrs Cole told Mrs Dammen that Mr Greenfield had died. A month later, when asked "How are you managing without Reg?", Mrs Cole told Mrs Dammen "Who told you that? That's how rumours start. He isn't dead at all." On another occasion in the 12 months prior to her death, Mrs Cole told Mrs Dammen that she had lost her dog, when her dog was standing right beside her.
Mrs Dammen knew Mr Greenfield through Mrs Cole. She states that prior to moving in, Mr Greenfield would attend at Mrs Cole's house daily. He moved into Mrs Cole's home in Cascade St in about Easter 1990. Mr Greenfield looked after Mrs Cole until his stroke.
Mrs Dammen first saw Mrs Pates after the Christmas holidays in 1992, visiting Mrs Cole next door. Mrs Dammen says Mrs Pates became a regular visitor to Mrs Cole, sometimes visiting her two to three times a day in the months before her death. Mrs Pates would often claim she was feeding and bathing Mrs Cole. Mrs Dammen did not believe this, by reason of Mrs Cole's malnourished and unclean appearance. Mrs Dammen says there was no sign of Mrs Cole having been fed or bathed. However, Mrs Dammen did concede that there were several occasions where Mrs Pates brought supermarket bags to Mrs Cole's house, which Mrs Pates said contained food. Mrs Dammen says that Mrs Cole referred to Mrs Pates as "the Greek lady" and never as "Anastasia" or "Tasia". Mrs Dammen only learnt her name was Anastasia Pates after Mrs Cole had passed away.
After Mrs Cole suffered her stroke in about April 1993, Mrs Pates visited the home of Mrs Dammen on several occasions, seeking assistance in gaining entry into Mrs Cole's home. Mrs Dammen says that Mrs Cole claimed she wanted to water the plants, feed the dogs and obtain clean clothes to take to Mrs Cole in hospital. Mrs Dammen did not accept any of these reasons and refused to allow Mrs Pates entry. She arranged for additional locks to be placed on the doors to Mrs Cole's house.
Again, I found Mrs Dammen's evidence credible and substantially uncontradicted.
Mr Greenfield's brother 65. Mr Brian Norman Greenfield ("Brian Greenfield") is the brother of Mr Greenfield and is the uncle of Mrs Craig, the First Defendant. His statement is DX27. Brian Greenfield has known Mrs Cole for a period of 10 to 12 years, after Mr Greenfield commenced having a relationship with her. However, during that time he has not had a great deal of contact with Mrs Cole, and has not participated in lengthy conversations with her.
Mrs Hennessey 70. Mrs Sadie Hennessey ("Mrs Hennessey") had some contact with Mrs Cole by virtue of living in close proximity to Mrs Cole. In particular, she would walk her dog past Mrs Cole's house twice a day, and would see Mrs Cole in her front garden. Mrs Hennessey conceded she did not knew Mrs Cole well, and her conversations with Mrs Cole were generally limited to an exchange of greetings, Mrs Hennessey's statement is DX22.
Mrs Hennessey often saw Mr Greenfield at Mrs Cole's home. In particular, she says she saw him doing the shopping for Mrs Cole and walking Mrs Cole's dog.
Mrs Hennessey described a conversation with Mrs Cole, after Mrs Cole had approached her on Paddington St while she was walking the dog. Mrs Hennessey was not able to give a date to the conversation but did not think it was in the last six months before Mrs Cole went into the nursing home. The conversation was to the following effect: Cole: I have been tip to buy a bottle of beer and there is nothing open. What is your name? I have forgotten. Hennessey: Sadie. Cole: What is my name? Hennessey: Joyce. Cole: Oh thanks.
Obviously little weight can be given to such undated conversation.
Mrs Hennessey has seen Mrs Pates in the Paddington area on several occasions. She described a incident in which she was approached by Mrs Pates as follows: "I recall that about twelve months ago, this Greek lady approached me when I was walking back from the shops, at which time I was carrying some shopping bags, and she asked me if she could give me a hand. She asked why my husband didn't help me with the shopping and I told her that I did not have a husband. I declined her offer for assistance but she walked with me until I arrived home and she then asked if I wanted her to do my house cleaning for her. She said that she liked to help people but if I wanted her to clean for me that she would have to charge me S5.00 an hour, but said that she primarily did the work because she enjoyed helping people. I again declined her offer and went inside my residence.
This Greek lady had approached me on several other occasions when I was at the front of my house, and she would ask if she could come in my house for a cup of coffee. She also again stated that she should come in and do my house cleaning for me. I had no doubt that this Greek lady was attempting to befriend me but I continually declined her offers in spite of her persistent attempts to gain entry into my residence."
As was noted above, Mrs Austin also gave evidence of such an approach by Mrs Pates. Mrs Pates does not deny that she approached Mrs Hennessey and Mrs Austin and offered her services in performing domestic chores. Counsel for the Defendants accused the Plaintiff of being a person who engages in a practice of attempting to get into friendly relations with elderly single women in the Paddington area. This is not conceded by the Plaintiff. I am not satisfied that taking these events in isolation, adverse inferences can safely be drawn, that is, merely from the fact that Mrs Pates had approached two other elderly women and offered to be of assistance to them. But those events, coupled with the evidence of the circumstances of the actual signing of the will (see below) and the way Mrs Pates appears to have exaggerated the supportive role she played in Mrs Cole's life especially when she had become frailer and more confused, do contribute to doubts concerning Mrs Pates' testimony.
Mr Madden 76. Mr Peter Andrew Madden ("Mr Madden") is a pharmaceutical chemist who operates a chemist shop on Oxford St, Paddington. He was an impressive witness. His statements are DX23 and DX24. Mr Madden has known Mrs Cole on a professional basis for about 27 years, and estimates that over that time he has had contact her at least once fortnightly, but often more frequently. These contacts arose by reason of Mrs Cole's visits to the Chemist shop and to the podiatrist at the rear of the premises. The pharmacy records (DX25) make clear that medication was dispensed to Mrs Cole on a number of occasions during the critical time period of February, March and April 1993. No records were made available revealing the frequency of Mrs Cole's visits to the podiatrist. Contact between Mr Madden and Mrs Cole also arose from that fact that Mr Madden delivered pharmaceutical supplies to Mrs Cole's home, but it not clear how frequently this occurred. Further, Mr Madden states that Mrs Cole would on occasion come into the pharmacy merely to talk, without wanting any prescription filled. Mr Madden states that he would on occasion drive Mrs Cole home after her visits to the pharmacy.
proud of her looks and wanted to appear attractive to the opposite sex. She used to talk about make-up and lipstick and she always made her face up and made all effort with her appearance. After Reg left, her appearance deteriorated markedly. Sometimes she appeared inappropriately attired; sometimes still with slippers on. She appeared obviously unbathed and I do not believe she was bathing daily. It was obvious by her body odour that she had some degree of urinary incontinence. She started to lose some weight even relative to her established small stature. In the last months she used to shuffle rather than walk and stop frequently and hold on to fences on her way up William Street.
She became very forgetful. She frequently misplaced her prescriptions and her medication. Sometimes I would check in her handbag and find prescriptions which she said she'd lost. Sometimes she would say she'd lost her medication. She sometimes would lose a script between Dr Muhlen-Schulte's rooms and my store; one is just across the road from the other. She would talk about the past and the present would not appear to mean anything to her. Her short term memory was shot. I can say from the way she related to me in the last months that she could not recall on one day what had occurred the day before. My observation of her at this time revealed an obvious and apparent deterioration in her mental capacity."
Ms McDonnell 81. Ms Catherine Agnes McDonnell ("Ms McDonnell") was employed as an accountant at the Westpac Banking Corporation branch on Oxford St, Paddington ("the Bank") until the end of January 1994. Her statement in these proceedings is DX26. During the period of her employee at the Bank, Ms McDonnell came to know Mrs Cole, who was a customer. Mrs Cole would visit the Bank at least once per week, generally to withdraw her pension money. Ms McDonnell states that she became familiar with Mrs Cole during the 12 months prior to Mrs Cole's death in August 1993. She cannot remember when Mrs Cole began to use the banking facilities at the Bank, as it was only in these last twelve months that Mrs Cole came to Ms McDonnell's attention. Ms McDonnell did not see Mrs Cole in the last six weeks before she died.
Dr Muhlen-Schulte 85. Dr Michel Muhlen-Schulte ("Dr Muhlen-Schulte") is a legally qualified medical practitioner, who carries on a general professional practice on Oxford St, Paddington. He was Mrs Cole's ordinary medical attendant from 1981 until her death in 1993. He frequently attended Mrs Cole up to the time she was admitted to St Vincent's with a stroke in May 1993, particularly towards the end of that period. Mrs Cole's patient history cards were inadvertently destroyed prior to these proceedings. Dr Muhlen-Schulte's practice has also included seeing dementia patients in nursing homes around Sydney for the past 8 years. Dr Muhlen-Schulte's medical report is DX18 and statement is DX19.
In his medical report, Dr Muhlen-Schulte states as follows: "This is to certify that I have been Joyce Cole's ordinary medical attendant since 21.10.81 up to her death in 1993. I was well acquainted with her medical and social problems during that time. Although she was fairly erratic and forgetful prior to October '92, around the time of her companion Reginald Greenfield's exit from her life she became very edgy and disorganised. She visited this surgery many times during late '92 and early '93 complaining of difficulty remembering basic chores and medication. She was basically not coping by herself, and her mental deterioration was quite evident.
In my opinion it is unlikely that she had the mental capacity to make any clear-sighted decisions at this time."
Dr Muhlen-Schulte's opinion was that Mrs Cole as suffering from a deteriorating dementia, and that by late 1992 she was not capable of making any sort of rational decisions regarding ordinary aspects of her existence. Mrs Cole was, however, capable of having a clear conversation about her past and her immediate surroundings. Dr Muhlen-Schulte did not actually administer any tests on Mrs Cole to determine her mental condition, and was not treating her for dementia.
Dr Muhlen-Schulte described Mrs Cole as suffering a steady and obvious decline in her physical appearance and ability to recall events in the six months before her stroke in May 1993. She was extremely thin, and appeared ungroomed and unbathed. He also stated that Mrs Cole had considerable difficulties with her eyes, having a "chronic irritation bilaterally in her eyelids."
Dr Muhlen-Schulte did not consider that Mrs Cole had an alcohol abuse problem during the time her treated her.
Again, his disinterested evidence is consistent with the picture of significant mental decline during the critical period.
Instructions for the 1993 will 91. It is necessary to consider the evidence in relation to taking of instructions and execution of the 1993 will in the context of the above evidence.
Mrs Viveca Evangelinidis ("Mrs Evangelinidis") is a solicitor who was admitted to practice in New South Wales on 27 July 1973. She first practiced as a sole practitioner in 1973, and has acted as such continuously since 1982. Her practice is in the areas of general litigation, conveyancing, probate and wills.
Mrs Evangelinidis has been acting on behalf of Mrs Pates for a period of approximately ten years in relation to family law matters arising from Mrs Pates's separation from her husband, Mr Nicholas Pates. Contested property proceedings arising from that separation are still continuing, and Mrs Evangelinidis continues to act on behalf of Mrs Pates in that matter. It is not in dispute that Mrs Pates was a client of Mrs Evangelinidis at the time the 1993 will was prepared and executed, and that at that time she had been such a client for many years. Mrs Evangelinidis has acted as the solicitor on the record in the current proceedings for some time on behalf of Mrs Pates. At Mrs Pates's instigation, as appears later, she also acted for Mrs Cole in the preparation of the 1993 will; Mrs Cole obtained advice from that source and no other.
It was submitted by Counsel for the Plaintiff that Mrs Evangelinidis was both a credible and an impressive witness. I did not find this to be the case. There were a number of occasions during cross-examination in which Mrs Evangelinidis, in response to allegations that she had knowingly made false or misleading statements in Court and other documents and during negotiations, merely stated that she was acting as instructed by her client, meaning Mrs Pates. These statements related to other matters where she was acting for Mrs Pates. See the transcript at 93, and 212 - 215. Whether or not these accusations be correct, and I note Mrs Evangelinidis did not otherwise attempt to deny them, this limited response calls for some scepticism concerning her present evidence in support of her client's case. This is when considered in light of the other matters to which I refer in relation to the taking of instructions from Mrs Cole at Mrs Pates's instigation and various unsatisfactory aspects concerning Mrs Pates own evidence, noted earlier.
Mrs Pates claims that during the period she was assisting Mrs Cole, during the first half of 1993, Mrs Cole had often said to her words to the effect: "You promise you don't sell my house. I leave everything to you. Make sure you don't sell the house. You live in the house and leave it for your children."
Mrs Pates claims that Mrs Cole asked her to arrange for a Greek speaking solicitor to make her will, stating words to the effect:
"It will be more easy for you as the solicitor speaks your language. When I pass away, you can ring the solicitor and say
Mrs Cole has passed away and the solicitor will fix tip the house to go into your name."
Mrs Pates rang Mrs Evangelinidis and arranged for her to attend at Mrs Cole's house to take instructions from Mrs Cole to prepare her will. Mrs Evangelinidis did not know and had not met Mrs Cole at the time of this telephone conversation.
On 5 March 1993, Mrs Evangelinidis attended the home of Mrs Cole to receive instructions for what became the 1993 will. Mrs Pates opened the door, showed her through to Mrs Cole's living room, and introduced her to Mrs Cole. Mrs Pates then left them in the living room and went into the kitchen. Mrs Evangelinidis conceded that Mrs Cole's house was cluttered and appeared not to have been cleaned for some time. Mrs Evangelinidis claims that Mrs Cole was lucid and clear at the time she took instructions. However, I did not find her evidence in this regard, when laid against the evidence of decline, particularly convincing.
Mrs Evangelinidis states that Mrs Cole asked her to prepare a will leaving all her assets to Mrs Pates. She states that Mrs Cole wished Mrs Pates to be the executor of the will. Mrs Evangelinidis alleges a conversation with Mrs Cole to the following effect: Evangelinidis: Do you have any dependents? Cole: I am a widow. My husband died years ago. I do not have any children or dependents. Evangelinidis: What do you own? Cole: I own my home at 3 Cascade St, Paddington. Evangelinidis: Where are the title deeds of the properly? Cole: They are either here or at Westpac at Paddington or possibly with Johnny Hawkins, a solicitor I knew 20 or 30 years ago. Evangelinidis: Do you own anything else? Cole: I have money with Westpac. I want Tasia to get everything. Evangelinidis: Who would you like to be the executor of your will? Cole: Tasia.
When questioned in oral evidence, Mrs Evangelinidis gave a slightly different version of events. Rather than an uninvestigated assertion by Mrs Cole "I am a widow. My husband died years ago, I do not have any children or dependents.", Mrs Evangelinidis claimed she explained to Mrs Cole what "dependants" means, and questioned Mrs Cole as to whether she had anyone who might be regarded as a dependant (T54). No conversation to this effect was mentioned in Mrs Evangelinidis's statement or in the written record of the meeting (DX9). I thus prefer Mrs Evangelinidis's original version of events, in which once Mrs Cole said she had no dependants, spouse or children, Mrs Evangelinidis did not investigate further or give any advice in relation to other persons who might be considered to have a natural claim on Mrs Cole's bounty. However, whether this later version of events be true or not, her evidence would indicate that Mrs Evangelinidis was not told about the 1989 will or about Mrs Cole's relationship with Mr Greenfield when she was taking instructions.
Mrs Evangelinidis stated that taking instructions took between 15 and 20 minutes (in cross examination she said it took 30 minutes). During that time Mrs Pates said she remained in kitchen area. The only written record of the instructions taken by Mrs Evangelinidis while at Mrs Cole's home is DX9. This was written in several different pens. Mrs Evangelinidis attributed this to the fact that she is "hopeless with pens" and that she loses them all the time. Mrs Evangelinidis says that it is possible, although not likely, that some of these notes were added at a later time, This written record is extremely brief It contains very little information. If it took between 15 and 30 minutes to cover these few matters, the inference is that taking instructions must have been extremely slow going. This is consistent with the evidence of Mrs Austin, Mrs Craig, Mrs Dammen and others that it had become very difficult to conduct any kind of productive conversation with Mrs Cole by that time, by reason of her mental deterioration.
As was noted above, the sole beneficiary of the 1993 will, Mrs Pates, was the person who arranged the meeting of 5 March 1993 with her solicitor. Mrs Pates was a long established client of the solicitor who took instructions and prepared the will. Whereas Mrs Cole had had no dealings with her before. The circumstances in which the instructions were taken thus call for a vigilant examination by this Court of any evidence as to the deceased's appreciation and approval of the contents of the will. Mrs Evangelinidis concedes she took no special precautions when taking instructions for the 1993 will. This was even though Mrs Cole was obviously a frail, elderly lady, living in what I am satisfied were at least cluttered and extremely untidy conditions, who wanted to leave everything to an established client, Mrs Evangelinidis concedes she was aware of these matters. Based on the evidence of her general condition, there may well have been evidence of mental confusion - at least as may be inferred from the slow process which it is likely characterised the taking of instructions.
Mrs Evangelinidis stated that she was satisfied she had taken sufficient precautions by her general procedure when taking instructions, particularly by asking questions in relation to Mrs Cole's dependants. As I noted above, in her statement and in the record of the meeting (DX9) Mrs Evangelinidis did not mention asking questions in relation to Mrs Cole's dependants.
Subsequent to taking instructions Mrs Pates, Mrs Cole and Mrs Evangelinidis had a social conversation for about ten minutes. Mrs Evangelinidis then arranged with Mrs Cole for her to come to her office to sign the will.
Execution of the 1993 will 105. On 11 March 1993, Mrs Cole and Mrs Pates took a taxi together to the offices of Mrs Evangelinidis to execute the 1993 will. Mrs Pates alleges that on the way to the offices Mrs Cole stated words to the effect of.
"I am doing something my heart wanted so much to do."
Mrs Evangelinidis states that Mrs Cole walked up the flight of steps leading to her office without difficulty. There is no evidence as to how many stairs this climb involved. Mrs Evangelinidis showed Mrs Cole into her office. She asked Mrs Pates to wait outside while the will was executed, but states that Mrs Cole said she wished Mrs Pates to remain with her in the office. Present at the time of execution were Mrs Cole, Mrs Pates, Mrs Evangelinidis and Mr Vasilios Kalantzis ("Mr Kalantzis"), a solicitor then in the employ of Mrs Evangelinidis. Mr Kalantzis was admitted to practice as a solicitor in 1992, but had been working for Mrs Evangelinidis for a couple of years prior to that time.
Mrs Evangelinidis read the will to Mrs Cole. Mrs Evangelinidis and Mr Kalantzis gave evidence that a conversation to the following effect then took place: Evangelinidis: Are you happy with the will Mrs Cole? Does it say what you want? Cole: Yes, I want Tasia to get everything. Evangelinidis: Are you sure this is what you want? Cole: Yes I am sure. I want Tasia to gel everything.
It is not clear the extent to which the clauses in the will had been explained to Mrs Cole and what advice she had received in relation to them. Mrs Evangelinidis simply says in her statement "I read and explained the contents of the will to Mrs Cole." Mr Kalantzis also mentioned in oral evidence that Mrs Evangelinidis explained the will to Mrs Cole, starting at the revocation clause but gave no details. Counsel for the Defendant submitted that such conversation was unlikely to have taken place, on the basis that Mrs Cole referred to Mrs Pates as "the Greek lady" rather than "Tasia". However, I am not satisfied that I should reject the evidence of Mrs Evangelinidis and Mr Kalantzis in this regard on so limited a basis. Accordingly, as was outlined above. I accept that the 1993 will was read to Mrs Cole prior to execution.
Mrs Cole then proceeded to sign the will in the presence of Mrs Evangelinidis and Mr Kalantzis, who both witnessed the will. Counsel for the Plaintiff placed some reliance on the signature of Mrs Cole on the 1993 will, which he sought to characterise as being "clearly the signature of someone capable of making her signature in a firm and clear manner". I do not believe I can safely characterise Mrs Cole's signature on the 1993 will in such a manner. The signature on the 1993 will is obviously less "firm and clear" than that appearing on the 1989 will. However, I do not attempt to draw any inferences from a comparison of the appearance of the two signatures against the Plaintiff either.
The statement of Mrs Evangelinidis dated 10 November 1994 (PX3) states:
"After the will was signed and witnessed Mrs Cole discussed how she had lived some decades ago in Surry Hills and at that time worked at the Bat and Ball Hotel for some time and recounted various of her recollections of Surry Hills."
In relation to the above paragraph and the earlier alleged conversation, the statements of Mr Kalantzis and Mrs Evangelinidis are virtually in identical terms. Mr Kalantzis in cross examination put this down to coincidence, stating that although he had discussed his recollections with Mrs Evangelinidis, the words in his statement were his own. Mrs Evangelinidis also claims the words in the statement were her own, but says there were some discussions between them prior to writing the statements. I am satisfied that the similarity may well have arisen from discussions between them rather than coincidence, thus weakening their veracity as independent recollection.
No written record was made by Mrs Evangelinidis or Mr Kalantzis of the events which took place on the execution of the 1993 will.
Mrs Pates alleges that on the trip home from execution, Mrs Cole stated words to the effect: "Thank God, I wanted so much to do this. I feel so happy today. This is the best trip I have done all my life."
Again, I observe the effusive, florid tone of the claimed language. The alleged bedroom incident
On page two of the first statement of Mrs Pates, dated 16 November 1994, she states: "In about early May, 1993, Mrs Cole took me upstairs to her bedroom and pointed to a framed picture of Jesus Christ on the wall. She said words to the effect:
"I did not feel well and it is likely that I will die soon. Behind the picture I have important papers for you. When I die, I want you to look behind the picture - as you will need those papers. Get up on the bed and bring the picture down. I want to show you what is behind it."
"She showed to me the papers behind the picture and told me that they the papers were the papers to the house and the will where she had given to me everything. She took her time to explain to me that the papers were the title deeds to her house at Paddington and her will in which she had left me as her sole beneficiary. She told me that it is important that I understand where these papers are kept. "
Mrs Pates said that once she had been showed the will, it was put back behind the picture. Mrs Pates says that some later time, after Mrs Cole's death, Mrs Evangelinidis asked for Mrs Cole's papers, and she offered to retrieve them from Mrs Cole's house (T204). Mrs Pates stated that she went to the house, removed the will and deeds to the house from the picture frame, and gave them to Mrs Evangelinidis.
In her statement of 16 November 1994, Mrs Pates makes no mention of the fact that she herself arranged for the preparation of the will, and was present when instructions were taken and when the will was executed.
This part of Mrs Pates's evidence is open to serious criticism. Mrs Pates's 16 November statement suggests that the will and house deeds were kept behind the picture. It also might be calculated to convey the impression that she was unaware of the will until Mrs Cole produced it from its hiding place in early May 1993. This is clearly not the case. Mrs Pates was present when instructions were received and the will executed. This is not in dispute. Once the will was signed it was put into the deed packet and stored at Mrs Evangelinidis's file section. This is also not in dispute. None of the evidence mentions an original or copy of the will being given to Mrs Cole to be secreted behind the picture. In fact, it is not disputed that the only documents called into existence in respect of the matter of Mrs Cole were the will, the deed packet, two yellow sheets and possibly a manilla folder (T37). These were all retained by Mrs Evangelinidis. Further, it is not in dispute that Mrs cole did not know where the deeds to the house were kept.
Accordingly I reject Mrs Pates's evidence on this incident. The improvisational character of Mrs Pates's evidence in this regard reflects adversely on her credit generally. The earlier claimed conversations of Mrs Cole, which I characterise as florid and effusive, are to my mind suspicious in their purported tone, when considered in light of the clear fabrication of the bedroom incident and the other difficulties of Mrs Pates's evidence.
The Deceased's relationship with Mr Greenfield 119. As was noted above, in February 1989 Mrs Cole executed the 1989 will appointing the Public Trustee as executor and Mr Greenfield as sole beneficiary.
From Easter 1990, Mr Greenfield moved in to live with Mrs Cole.
I am satisfied that Mrs Cole and Mr Greenfield were in a de facto relationship during the period in which they lived together, approximately from Easter 1990 until July 1992. By that time they had been involved in a close relationship for many years. They were obviously physically affectionate. They would hold hands, walk arm-in-arm, and kiss. Mrs Cole would worry about Mr Greenfield when he was out of the house, such as when he went to the races. They would drive or walk to the shops together. They walked the dogs together. They shared domestic duties, and Mr Greenfield was responsible for the payment of bills and the like. Mr Greenfield's brother and daughter believed they were in a de facto relationship. There is no evidence that Mr Greenfield had his own bedroom. There is no evidence he paid Mrs Cole board. I believe the evidence is clear of the closeness of their relationship.
In approximately July of 1992, Mr Greenfield suffered a stroke and was admitted to hospital by ambulance. That acknowledged, it does not, to my mind, remove him and his daughter, Mrs Craig, - especially given the absence of other apparent related claimants - as having a natural claim on her bounty.
Mr Kalantzis and Mrs Evangelinidis have given evidence of two telephone calls with Mrs Craig in November 1993, who was ringing to arrange the collection of some belongings of Mr Greenfield which were left at Mrs Cole's house. The first conversation was between Mrs Evangelinidis and Mrs Craig. The second was between Mr Kalantzis and Mrs Craig. Both Mr Kalantzis and Mrs Evangelinidis claim that in those two telephone calls, Mrs Craig described her father as "a boarder" of Mrs Cole. There have already been indications of prior discussion between Mr Kalantzis and Mrs Evangelinidis of their evidence, so its coincidence here is not to my mind to be treated as reinforcing the veracity of this account.
Mrs Craig agrees that such conversations did take place, but disputes that any reference was made to the fact that her father was a boarder.
Mrs Evangelinidis stated that she remembers Mrs Craig used the word "boarder" in the phone conversation, although she did not appear confident in that recollection. However, she relies on her allegedly contemporaneous file note of that conversation, PX36, a portion of which states: "Reginald Greenfield living He was a boarder there. Keys will be sent".
Several different pens were used in writing the file note. Although each of the above lines was written with a blue biro, it appears that the middle line was written in a different pen to that used to write the words immediately above and below it. The top and bottom lines are darker and are clearly in a different shade of blue to the words "He was a boarder there". The potential inference is that those words were added later. Mrs Evangelinidis denies this. It is not necessary for me to decide on this matter but if I did, I would prefer Mrs Craig's account. But in any event, whether or not Mrs Craig described her father as a "boarder", which would seem unlikely, it is clear that he was in fact Mrs Cole's de facto.
Mr Kalantzis, who now resides in London, was inadvertently not cross-examined on this part of his statement during the video link-up. Subsequent efforts to get in contact with him to arrange for further cross-examination were not successful. Thus it is not appropriate for me to make any adverse comment on his evidence in that regard, were that otherwise appropriate.
Events subsequent to Execution of the 1993 will 128. On Tuesday 11 May 1993, the Deceased was admitted to St Vincent's Hospital. On that day, Mrs Pates had come to visit but Mrs Cole had not answered the door. Although Mrs Pates had a key, she did not open the door herself. Instead Mrs Pates called the Police, who opened the door and called an ambulance. Mrs Cole was found unconscious inside the house.
Mrs Pates says she had not visited Mrs Cole on the previous two days as she had visited her daughter's grave on the Sunday. As a result of this visit she had been too upset to visit Mrs Cole until the Tuesday.
That night Mrs Pates tried to visit Mrs Cole in hospital, but apparently was told that Mrs Cole had returned home. The next day, being 12 May 1993, Mrs Pates again visited and was directed to Mrs Cole's bed. In her statement Mrs Pates claims that Mrs Cole saw her and waved to her, and states that they then had a conversation to the following effect: Cole: (Slurred speech) Come in love. Pates: What's happened to you.
Cole: (Crying) I have something very bad. I want you to take me home. Pales: I'll take you home in a wheelchair and wheel you from your house to mine. Doesn't matter if it is hard or easy. Dont worry. I do it. Cole: Thank you. What's happened to the house. Pales: The police are looking after the house. Its locked and safe. Don't worry. Cole: (Screaming) Go back and ask the police to open the house for you. The police have no right to lock the house. Its your house and they have no right to lock it. Go every day and air the house and feed the dog. Pales: Allright, I'll go.
Mrs Pates's account of this conversation, with its heightened tone conveying an impression of impassioned allegiance on Mrs Cole's part, does not appear to be consistent with the medical records subpoenaed from St Vincent's hospital, being DX15. The progress notes state that Mrs Cole was unconscious and unresponsive to voice on admission to the hospital at some time after 2 pm on 11/05/93. There are further notes at 8 pm on 11/05/93 and at 4.15 am on 12/05/93 stating that she remained unconscious overnight. Another note on 12/05/93 describes Mrs Cole as "Unresponsive to voice, pain stimuli". A note the next day, being 13/05/95 states "Responds to name and vocalising - not understandable". In none of the progress notes on those three days is there any mention of Mrs Cole making any intelligible sound or motion. At page 192 of the transcript Mrs Pates suggests that nursing staff were present at the time of the alleged conversation, who would have been aware of a patient screaming and crying instructions to one of her visitors, I am satisfied that the medical evidence is such that Mrs Cole was in no condition to wave someone over and conduct an intelligent conversation with them on 12 May 1995. I reject Mrs Pates's evidence in that regard.
It again throws, at the least, serious doubt on her evidence overall.
Mrs Pates says she visited Mrs Cole daily in hospital and often several times a day. She states that on each visit Mrs Cole held her hand and begged her to stay. Again the medical evidence, and in particular the speech pathology progress notes, does not appear to be consistent with Mrs Pates's evidence in this regard.
On 2 June 1993, Mrs Cole was admitted to Villa Magna Nursing Home, Burwood.
Mrs Pates says she visited Mrs Cole about three times a week at the nursing home, as she needed to take various forms of public transport to get there. Mrs Pates says she did not visit Mrs Cole for about a week while she was recovering from the flu. When she returned to the nursing home, she was informed that Mrs Cole had died and the funeral had taken place. She said she was upset that she had not been informed of Mrs Cole's death.
It is not in dispute that Mrs Pates did not attend Mrs Cole's funeral. The only two persons present at the funeral were Mrs Craig and another unidentified lady.
As was noted above, Mr Madden had acted as Pharmacist to both Mrs Cole and Mrs Pates. He claims that on two occasions, both in February 1994, Mrs Pates approached him at his shop requesting that he provide her with a letter. Exactly what the letter was to be Mr Madden was not certain, but he described it as a type of "character" letter. Mr Madden refused Mrs Pates's request. He claims that on the first occasion they had a conversation to the following effect: Pates: I want to get a letter from you Madden: What for? Pates: I want to tell you the story. You know Joyce who lived in Cascade Street who died. I had been going around to Joyce's house and looking after her. I clean the house and wash up. Something tells me to go upstairs and behind this picture is a paper. The paper said the house is mine. Madden: Joyce never told me about you. Pates: I often went down there in the dark at night so no one would see me. Madden: I've never heard about this. I would not be prepared to give you a letter.
Mrs Pates similarly approached Dr Muhlen-Schulte on three occasions asking him to prepare a medical statement on her behalf about Mrs Cole. He refused to do so on the basis that Mrs Pates's solicitors should make a written request specifying what was required. Dr Muhlen-Schulte claims that on the last of these occasions, in late 1994, Mrs Pates said words to the effect of. "It might be advantageous for you if you help me." Dr Muhlen-Schulte conceded that he could not remember the exact form of words used by Mrs Pates.
When this evidence is considered cumulatively with the other unsatisfactory aspects of Mrs Pates's account, it suggests that Mrs Pates in the first case was trying to prop up the fabricated bedroom incident and in the second, at the least, trying to ingratiate herself with a hoped for source of evidence helpful to her case.
E. RESOLUTION OF LEGAL ISSUES 141. Based on the above evidence I find as follows:
(a) The disinterested opinion of Dr Muhlen-Schulte, Mrs Cole's treating doctor since 1981, that Mrs Cole was suffering from a deteriorating dementia such that she was not capable of making any sort of rational decisions regarding ordinary aspects of her existence at that time. I accept that it is thus doubtful that Mrs Cole could understand the nature of the testamentary act, or its effects. (b) The disinterested evidence of Mrs Cole's neighbours and others appears to be completely consistent with that opinion, and corroborative of it. I do not accept Mrs Pates's evidence to the contrary for the reasons already noted.
(c) Mrs Cole's memory had clearly substantially deteriorated, and this has been accepted as being an appropriate indicia of the state of the mind: Murphy v. Lamphier (1914) 20 DLR 906. (d) It is clear that Mrs Cole was not in a position to comprehend and appreciate the claims which naturally ought to press upon her. In particular, there is evidence from both Brian Greenfield and Mrs Dammen that Mrs Cole was, at times, under the false belief that her former de facto, Mr Greenfield, had died. The manner and circumstances in which instructions were taken by Mrs Pates's own solicitor, provides no real support for a conclusion to the contrary. 5. As the evidence as a whole is sufficient to throw doubt upon Mrs Cole's testamentary capacity at the relevant time, I must decide against the validity of the 1993 will unless satisfied affirmatively upon the evidence as a whole that such doubts should be resolved in favour of Mrs Cole having testamentary capacity when she executed it, or possibly at the time in which she gave instructions. I am not so satisfied in relation to either time. Accordingly I do not grant probate of the 1993 will. Indeed were it necessary for me to do so, I would positively find that she lacked testamentary capacity. 6. In relation to the cross-claim, I order the grant of probate of the 1989 will (it being not otherwise challenged in the circumstances).
F. ETHICAL AND PROFESSIONAL CONSIDERATIONS - SOME GENERAL COMMENTS 142. Finally, I wish to make some general observations. They are not intended to connote any criticism of Mrs Evangelinidis. Rather they are directed at the precautions that should be taken to reduce the incidence of cases of this kind in the future and, more fundamentally, at the ethical and professional considerations which underly them. These issues arise in circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be a principal or major beneficiary under the proposed will and in particular where the client instigates that will. I also deal with the particular precautions that arise where the prospective testator is seriously enfeebled, whether or not the will is instigated by the prospective beneficiary or involves the prospective beneficiary's solicitor as the will's draftsperson. Where, however, these features are present in combination, they accentuate the need for close concern on the professional advisers part to act properly in the circumstances and take necessary precautions.
There do not appear to be rules of professional conduct specifically governing the first situation. Thus Rule 22 of the Professional Conduct and Practice Rules, deals with situations where a solicitor receives instructions to prepare a will in which that solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever "associate" may mean, it probably falls short of including a conventional solicitor/client relationship. Regulation 28 of the old Legal Profession Regulation 1987 is to similar effect. That does not, however, mean that no ethical considerations arise in such a circumstance. The essence of a solicitor's fiduciary obligations to a client is the unfettered service of that client's interests. This will require the solicitor to avoid acting for more than one party to a transaction where there is a likelihood of a real conflict of interest between the parties. As Wootten J stated in Thompson v. Mikkelsen (Supreme Court of NSW, 3 October 1974, Unreported) in the analogous context of conveyancing transactions:
"the reasonable expectations of a client instructing a solicitor (is) that the solicitor will be in a position to approach the matter concerned with nothing (in mind) but the protection of his client's interests against (those) of another party. (The client) should not have to depend on a person who had conflicting allegiances and who may be tempted either consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself."
The same considerations may arise in the context of preparation of wills. It is clear that a conflict of interest may arise between the interests of an intended principal beneficiary seeking to procure a will in his or her favour and the interests of the testator. The testator should be assisted by his or her legal adviser only in making a valid will. This means, inter alia, that the natural objects of the testator's bounty must be capable of being appreciated, by the testator, even though the testator may choose to exercise that capacity so as to omit such objects or disfavour them. In such circumstances the legal practitioner would be expected to give advice to the intended testator on a number of matters. Some of these may be potentially contrary to the interests of the proposed beneficiary. The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is reason to fear lack of testamentary capacity on the part of the testator by reasons such as fragility, illness or advanced age. Further, in such context the solicitor could not prudently rely on the informed consent of both clients to act in such a transaction where their interests conflict, there being doubts about the capacity of the testator to give such informed consent.
It should perhaps be recognised by the relevant professional body as a rule of ethics, that a legal practitioner must avoid such a conflict of interest when preparing a will, either by not acting, or by procuring additional, truly independent advice, where this is in circumstances where an intended principal or major beneficiary is an established client and where the will is instigated by that client. This would be so in any event, but especially so where the circumstances are such as to raise doubts about the intending testator's testamentary capacity, or as to the validity of the will on other grounds. I do not thereby consider it desirable to attempt to be exhaustive of the situations where the circumstances may require independent advice; the underlying principle as enunciated by Wootten J remains the ultimate test.
This may well be an appropriate matter for the Law Society to give guidance to solicitors for the future by issuing an appropriate statement, declaring what is proper professional conduct in those circumstances. That guidance may also need to deal with the matter to which I turn below.
There is an additional consideration, not dependent of the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It is clearly undesirable to attempt to lay down precise and specific rules as to what that necessarily entails for every case. Such rules may lead to a perfunctory, mechanical check list approach. What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity, as earlier set out; Banks v Goodfellow (supra). For this purpose, and subject to the earlier caveat concerning check lists, the advice concerning the taking of instructions, contained in Mason and Handler Wills Probate and Administration Service New South Wales (Butterworths) at (10,019), is a useful guide:-
"(10,019) Taking instructions - issues of testamentary capacity
If any doubt do arise as to the testator's capacity the
following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor in the discharge of his duties: (i) the solicitor who is to draw, the will should attend on the testator personally and fully question the testator to determine capacity - the questions should be directed to ascertain whether the testator understands that he is making a will and its effect, the extent of the property of which he is disposing and the claims to which he ought to give effect; (ii) one or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify where the issue of capacity is raised. Where possible one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of the testator's condition question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of other persons at this time would require the testators content;
(iii) a detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present.
If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will. It is a good general practice for the solicitor who look instructions to draw, the will and be present on execution and this practice should not be departed from in these circumstances. On execution the attesting witnesses should where possible, come from those persons (including the solicitor) referred to above who were present at the time of instructions and, again as at every stage, detailed notes of the events and discussions taken."
If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted.
G. ORDERS 149. I direct the parties to submit orders giving effect to this judgment within 14 days.
Anastasia Pates
Diane Craig and The Public Trustee Estate of The Late Joyce Jean Cole No. 106306/94 Wills - Solicitors [1995] NSWSC 87
(1988) 14 NSWLR 698
(1924) 34 CLR 558
(1952) 86 CLR 439
(1942) 66 CLR 439
(1942) 66 CLR 295
(1914) 19 CLR 222
(1924) 34 CLR 558
(1918) 25 CLR 519
(1991) 23 NSWLR 116