Anderson v Yongpairojwong

The primary judgment

1. The key issues at first instance concerned whether Amy possessed testamentary capacity at the point that she executed the Thai Will on 24 June 2020, and knew and approved of the contents of that will. This was an issue in respect of which Pat bore the onus of proof.
2. His Honour referred to the familiar principles and authorities in this area as usefully summarised by Kirk JA in Lim v Lim [2023] NSWCA 84 at [7]-[9] (Lim). It is convenient to reproduce that summary: "[7] It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] per Basten JA): (a) the capacity to understand the nature of the act of making a will and its effects; (b) the capacity to understand the extent of the property the subject of the will; (c) the capacity to comprehend moral claims of potential beneficiaries; and (d) the absence of mental disorders or delusions which affect the testator's "mental faculties [so as] to make them unequal to the task of disposing of [their] property" (to quote Bailey v Bailey (1924) 34 CLR 558 at 571-572 per Isaacs J). [8] Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]-[41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one's property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries. [9] Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA."
3. Reference was also made to the observation by Kirby P in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 295: "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."
4. The primary judge accepted at PJ [209] that issues of capacity on the one hand and knowledge and approval on the other hand are separate concepts, citing Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [166]. This conceptual distinction is reflected in the grounds of appeal.
5. In relation to the question of knowledge and approval of the contents of the Thai Will, the primary judge noted the following principle at PJ [246]: "In brief, where a will is properly executed and witnessed, a presumption arises that the testator also knew and approved of its contents. However, where the circumstances surrounding the giving of instructions for a will and its subsequent execution are such as to excite suspicion that the provisions of the will may not have been fully known to, and approved by, the testator, that presumption as to knowledge and approval does not arise and the person seeking to propound the will has the burden of removing the suspicion."
6. The issues of Amy's testamentary capacity and knowledge of the contents of the Thai Will centred upon a factual dispute as to Amy's cognitive abilities as at 24 June 2020, the date of the will's execution. His Honour engaged in a detailed assessment of both lay and expert evidence at PJ [40]-[198].

Assessment of lay evidence

1. The primary judge assessed the lay evidence of eight witnesses. For the Appellant, Palisa and Matt provided evidence. For the Respondents, there were six witnesses: Bob, Mr Kasemnate, Ms Klaisoi, Ms Srisomboon, Ms Kruahong and Pat. The primary judge's assessment of each witness is outlined below.

Palisa's evidence

1. The primary judge summarised and assessed Palisa's evidence, comprising five affidavits and oral evidence, at PJ [42]-[52]. His Honour held that, generally, Palisa was a "truthful and sincere witness", despite being unresponsive to some questions, and providing indirect answers: PJ [45].
2. Palisa's first affidavit, dated 11 April 2022, recited that between December 2018 and July 2019, Amy was aware of her surroundings and circumstances, but was unwilling to enter discussions capable of causing stress, anxiety or conflict. The primary judge held that such evidence did not cast doubt on Amy's cognition, and instead reflected a rational and considered decision: PJ [43(a)]. Palisa also stated that in December 2019, whilst in the Mosman Property, Amy only socialised if people visited her there. The primary judge held that such evidence was unsurprising, because this was during the Sydney bushfires: PJ [43(b)].
3. Palisa's first affidavit also claimed that, between August 2019 and January 2020, Amy was forgetful, lacked acuity, suffered from lethargy and generally demonstrated "scatter-brained" behaviour. Two indicative examples included: 1. forgetting about her plans to go to the movies with Palisa, and forgetting to attend a production meeting for a television series with SBS; and 2. when taking Palisa's children to school, driving in the wrong direction towards CT Group's shared office in Haymarket, rather than the school in Balmain. Whilst the primary judge accepted that Amy suffered from headaches and some forgetfulness, he did not accept that Palisa's examples, viewed individually or as a whole, indicated Amy lacked testamentary capacity six months before signing the will: PJ [43(c)].
4. Palisa claimed that she had a conversation with Bob in mid-April 2020 where he purportedly said words to the effect that Amy's pain management program had resulted in her being "too cloudy at times" and her "memory isn't great". Bob denied that this conversation took place, and the primary judge preferred Bob's evidence on this issue: PJ [43(f)].
5. Palisa gave evidence that, from mid-March to 5 June 2020, Amy had "bouts of forgetfulness and confusion", evidenced by repeating herself, and calling Palisa either "Soraya" (Palisa's daughter) or "Pat". Palisa also said that Amy referred to chemotherapy as "sweet water" or "nectar". The primary judge accepted Palisa's evidence in this regard: PJ [43(g)]. Nonetheless, his Honour noted that such evidence must be assessed having regard to the evidence of other witnesses as to Amy's cognition at the same time period: PJ [43(g)].
6. Palisa also gave evidence that Ms Kruahong had told her that Amy seemed forgetful and was often repetitive. Ms Kruahong provided contrary evidence, saying that in or about mid-July 2020, Amy had left voice messages asking her to buy certain products for the Chat Thai business. Ms Kruahong said that Amy's instructions in this regard were clear, and that she "sounded well and like her usual self". The primary judge did not expressly determine whether he preferred Ms Kruahong or Palisa's evidence on this specific point: PJ [43(h)].
7. The primary judge noted that Palisa disagreed with Bob's evidence that between mid-March 2020 and early June 2020 Amy "did not ever appear to have been mentally affected by the chemotherapy treatments in April 2020". Palisa said that Amy would say to her that she felt weak and was having problems breathing, ate very little, slept poorly and was paranoid about her medication and supplements. His Honour noted that this evidence indicated that Amy was physically debilitated by the chemotherapy, which was hardly surprising, but that, to the extent that it bore upon Amy's cognitive functioning during this time, his Honour considered that the evidence should not be looked at in isolation but "needed to be assessed along with the evidence of other witnesses who were in as good if not a better position than Palisa to assess Amy's cognition during and around this time, particularly Bob who was spending a lot of time with Amy in Thailand": PJ [44(a)].

Matt's evidence

1. The primary judge held that Matt was a "truthful witness", but that his evidence was of "limited value in assessing Amy's testamentary capacity": PJ [57]. Matt provided unchallenged evidence that during his visit to Bangkok from 29 January to 4 February 2020, Amy described Matt as "my son", and when Matt tried to correct this, Amy repeated "[n]o, you are my son".
2. The primary judge gave this evidence "little weight" because the event occurred five months prior to the Thai Will's execution: PJ [53]. Furthermore, the confusion could be explained by the fact that the impugned conversation occurred during her hospitalisation for brain cancer. In turn, his Honour held that such evidence should be weighed against all other relevant evidence concerning Amy's capacity when the Thai Will was executed: PJ [53]. It might also be added that he was Amy's son in law and such a reference may well have been understandable in that context.

Bob's evidence

1. The primary judge held that Bob, who gave evidence through a translator, was a "truthful and responsive witness" and accepted his evidence "without reservation": PJ [59]. The primary judge also rejected challenges made to Bob's credibility: PJ [59].
2. The primary judge held, in respect of Bob's assessment of Amy's capacity around the time of executing the Thai Will (PJ [68]): "I accept Bob's unchallenged evidence that, on 24 June 2020, 'Amy appeared normal'. I regard this as significant supporting evidence as to Amy's testamentary capacity. Bob and Amy were very close family members and he was in a unique position over many months to observe and assess the effects on Amy of the brain cancer and the treatment she was receiving. Bob freely acknowledged that there were periods when Amy was physically unwell. For example, he deposed to a conversation which they had in early June 2020 when Amy told him that she needed him to represent her for the Chat Thai Group as she was, in her own words, 'currently ill and cannot work properly'. This does not mean, however, that she lacked testamentary capacity. Merely because Bob took on an increased role in assisting Amy in the conduct of the Group's businesses and operation from about May 2020 does not demonstrate that Amy lacked testamentary capacity."
3. Bob observed that in February 2020, "Amy was alert and able to remember things that happened recently, as well as in the longer term past". Around 14 February 2020, Amy was described by Bob as being "normal as she was able to speak normally, although a little slower". Palisa sought to criticise such evidence as "vague" and "devoid of specificity". However, the primary judge rejected such criticisms, holding that Bob's evidence constituted "the kinds of observations which one would expect to be made about another family member in Amy's condition. Nor were they lacking in particularity": PJ [75].
4. Bob provided further evidence, which the primary judge accepted at PJ [77], that: "In about April 2020, Amy started chemotherapy treatments which she continued to have once every three weeks which I accompanied her to. On the days Amy received chemotherapy, she would be tired and show some signs of physical weakness. However, Amy did not ever appear to have been mentally affected by her chemotherapy treatments. For example, she was able to recall the progress of her treatments."
5. Palisa contended that Bob's process for creating the Thai Will was deficient, as Bob purportedly never asked Amy whether she understood the contents of the will. This submission rather overlooked Bob's evidence, which the primary judge accepted, that it was Amy who gave Bob the instructions to alter her NSW Will: see [29] above. Further, the primary judge held at PJ [79] that Palisa's submission did not "accurately reflect Bob's oral evidence", which was as follows: "Q. Once you had a draft prepared, how did you confirm with Amy that that draft reflected what she wanted? A. INTERPRETER: So, each time I produced a draft of the will, we'd go and have Amy go through each paragraph, each sentence, to confirm that. So I printed it out for her. Q. How did you know that she agreed with what was written on the page? A. INTERPRETER: So, I read it sentence by sentence for her to hear, and she would say, "Yes, okay, okay". Q. I observed, as you were providing that answer, that you were tracing your finger across the page. Whose sorry, I withdraw that question. As you were answering that question, you were tracing your finger across the page. Was that a movement that you did, or was that a movement that Amy did? A. INTERPRETER: So, I was following, pointing it out with my finger, and going along the line of his sentence, and Amy was reading what I was pointing out. Q. And how do you know that Amy was reading? A. WITNESS: I saw her, when I - when I read, and then I look at her." The primary judge inferred from Bob's oral evidence that Amy's repeated statement "[y]es, okay, okay" indicated that Amy was satisfied with Bob's description of the updated drafts for the Thai Will: PJ [80].

Mr Kasemnate's evidence

1. The primary judge noted that Mr Kasemnate was an experienced Thai lawyer, with 34 years' legal practice: PJ [86]. The primary judge observed that it was "clear that Mr Kasemnate turned his mind to whether Amy had testamentary capacity", which was unsurprising because he was visiting Amy in hospital for the purpose of providing legal advice about creating a new will: PJ [86].
2. As already noted, Mr Kasemnate's unchallenged evidence concerning Amy's testamentary capacity was that, at the time of his meeting with Amy: "(a) she looked like most people who had cancer. For example she had hair loss and looked skinny; (b) she still had a good ability to do things herself; (c) she moved and walked slower than normal people; (d) she was able to communicate well and was in a good mood; and (e) she clearly conveyed her instructions for her new will and did not appear confused."
3. Mr Kasemnate noted that the above observations were made because: "…as an outsider, like, I just wanted to just record on paper the status of [Amy's] health according to what I was seeing."
4. Mr Kasemnate further explained that he assessed Amy's health at the time of the meeting because: "…a person that's making a will, like, usually they should be in okay health. They should be able to communicate clearly, they should be understandable. If that wasn't the case, I would not have advised her to make one."
5. The primary judge held that such oral evidence provided (PJ [87]): "compelling evidence that Mr Kasemnate, an independent and experienced lawyer, was conscious of the need to assess Amy's capacity and that he proceeded to do so."

Ms Klaisoi's evidence

1. Whilst Ms Klaisoi witnessed Amy execute the Thai Will, she admitted that she was not close friends with Amy, and only had around ten interactions with her, which "lasted about one minute each time". Accordingly, his Honour gave "Ms Klaisoi's evidence little if any weight on the issue of Amy's testamentary capacity": PJ [89].

Ms Srisomboon's evidence

1. The primary judge accepted at PJ [240] that Ms Srisomboon had known Amy for "many years", despite not having seen her for almost a year before witnessing the execution of the Thai Will. His Honour acknowledged that Ms Srisomboon spoke with Amy for 15 minutes whilst the Thai Will was being executed. Ms Srisomboon's evidence that, in her view, on the day of the Thai Will's execution, "[t]here was no difference in Amy's mental capacity… She spoke clearly and was able to maintain conversation. There were no issues with Amy's memory" was also noted by his Honour. Ms Srisomboon also gave evidence that Amy was "thinking like a business woman" and "she want[ed] to get things organised": PJ [90]. His Honour held that these latter statements provided "some, albeit limited, weight regarding Amy's capacity at the time", and that they were consistent with Amy's contemporaneous decision to arrange her affairs: PJ [90].

Ms Kruahong's evidence

1. Ms Kruahong is a senior employee of the CT Group, and was Amy's friend: PJ [91]. Ms Kruahong provided evidence that there was a group meeting on 3 March 2020 with Amy, and that during the meeting, the Chat Thai businesses were discussed at length, including employee roles and management. Ms Kruahong acknowledged that Bob was providing Amy with "considerable" assistance in this process.
2. Ms Kruahong provided evidence as to the two voice messages sent on 26 August 2020 by Amy to the Chat Thai group chat (set out at [47]-[48] above), which the Appellant contended were repetitive and indicated her declining cognitive capacity: PJ [95].
3. The primary judge rejected Palisa's contention that the voice messages were repetitive, noting that there was no mention in the first voice message sent at 7.44pm that the apparatus which Amy was using or blowing was called the "ping pong machine": PJ [104]. The first message made no reference to a "ping pong" machine, and instead only referred to the apparatus being a "balloon": PJ [104].
4. Furthermore, the primary judge held that Amy's subsequent personal voice message to Ms Kruahong on 27 August 2020 (see [49] above) was significant because (PJ [107]): "It may also be inferred from the 27 August 2020 voice message which Amy sent to [Ms Kruahong] that Amy was conscious of the fact that she had made a mistake the previous day by sending her messages to a wider group of recipients, which was not her intention. She then rationalised, however, that this had happened and that she was not unhappy about her mistake because her message to the wider group broadcast her intention of having Pat become the leader of the Chat Thai Group. Far from this reflecting adversely on Amy's cognition, her recognition of her mistake and her subsequent rationalisation that the mistake may in fact have had unexpected advantages provides evidence which supports Amy's cognition at this time. That is further reinforced by the fact that, in sending the second message, with the reference to the doctor calling the machine "ping pong", Amy displayed a good sense of humour and was demonstrating this quality in the context of her having sent birthday wishes to her employees Ping and Pong."
5. Consequently, the primary judge "firmly" rejected Palisa's contention that the voice messages sent on 26 and 27 August 2020 outlined above cast doubt on Amy's cognition in the period that those messages were sent: PJ [109]. Rather, his Honour drew the opposite inference: PJ [109].

Pat's evidence

1. The primary judge rejected the Appellant's contentions that Pat was a "most unsatisfactory witness" and that he refused to make "direct and frank answers to questions": PJ [110]. The majority of the evidence provided by Pat did not relate specifically to Amy's testamentary capacity, and instead concerned his role in the business, and ancillary matters: see PJ [111]-[143]. Pat annexed to his first affidavit dated 8 April 2022 a video taken of Amy around October 2020 singing one of her favourite Thai songs while Pat drove her to her chemotherapy appointments: PJ [119].

Assessment of expert medical evidence

1. Palisa relied upon two expert medical reports prepared by Dr Dua and Professor Ogden. The primary judge placed minimal weight on either report in determining Amy's testamentary capacity because neither expert examined Amy, and both relied upon medical records which provided minimal detail as to Amy's cognitive capacity: "[197] I do not doubt the expertise, professionalism and objectivity of either Dr Dua or Professor Ogden. The fact remains, however, that both their expert reports, although very comprehensive, are in the nature of desk studies. Neither of them saw or examined Amy. Moreover, and significantly, prior to finalising their respective expert reports, neither was given the advantage of reviewing any of the lay witness statements nor were they briefed with copies of the various videos which cast some light on Amy's physical and cognitive condition at various relevant points in time. [198] I accept Dr Chapple's submission that the medical opinions of both experts, while sincerely given, are largely speculative, based on incomplete medical evidence, and on assumptions drawn from generalisations and not from specific observations in the medical records. I do not consider that their opinions outweigh the evidence of the lay witnesses and other materials which support a finding that Amy did not lack testamentary capacity."

Dr Dua

1. The primary judge held that the utility of Dr Dua's evidence in determining Amy's capacity was "limited by the fact that it [was] based upon his review of limited medical records which documented Amy's treatment and hospital admissions": PJ [156].
2. In summary, Dr Dua's opinion as to Amy's testamentary capacity as at the date of executing the Thai Will was that: "In my view, and based on my training, study and experience as an oncologist treating lung cancer that has metastasised to the brain (amongst other organs), it is highly unlikely that the Deceased had the cognition to understand and appreciate the nature, impact and effect of the Thai Will and Share Transfers."
3. Dr Dua's reasoning was as follows: 1. The location of the brain metastases is important to the patient's cognitive function when suffering from cancer that has spread to the brain; 2. Radiation therapy and chemotherapy impact cognition in patients with brain metastases and the chemotherapy often results in what oncologists call "chemo brain"; 3. The cognition of patients with metastasised brain cancer depends on the cancer's response to treatment, and certain treatments can affect cognition; 4. The presence of leptomeningeal disease (as was the case for Amy from 21 January 2020) impacts cognition; and 5. In his experience, where a patient's disease progresses on a trajectory similar to Amy's, and a patient experiences similar treatments, that person will "almost always suffer significant cognitive impairment as a consequence of both the disease and its treatment".
4. Dr Dua acknowledged that the Thai medical and hospital records on which his report relied were "not clear or comprehensive", and that day-to-day observations or examinations of the registrar would have assisted in making more specific observations about Amy's cognition: PJ [146(c)].
5. Furthermore, while there was no reference to any cognitive impairment in the medical records dated 5 April 2020, 12 April 2020 and 13 April 2020, Dr Dua explained that such issues may have been overshadowed by greater concerns to her health, such as fluid in Amy's lungs on 5 April 2020, and potential febrile neutropenia on 12 April 2020: PJ [146(h)].
6. Nonetheless, the primary judge noted that none of the medical records reviewed by Dr Dua contained any notations or observations of any cognitive impairment or reference to Amy suffering cognitive side effects from her treatment: PJ [157]. Furthermore, physical examination of Amy on 27 February 2020 showed that she recorded "good consciousness" and received the top Glasgow Coma Scale (GCS) score: PJ [157(d)]. Similar observations were found by the primary judge to have been made in hospital records dated 15 March 2020, 13 April 2020, 19 April 2020, 10 May 2020, 31 May 2020 and 21 June 2020: PJ [157(d)].
7. Dr Dua acknowledged in cross-examination that the outpatient medical note dated 27 February 2020 recorded a GCS (which measures basic neurological function) of 15, which was the "top score" available in relation to monitoring neurological function. Nonetheless, Dr Dua explained that the GCS is not a measure of cognition, and that it was merely a measure of basic neurological function.
8. As noted above, the primary judge placed minimal weight on Dr Dua's evidence concerning Amy's cognition, largely due to the limited material available to him (PJ [156]): "I accept Pat's submission that the utility of Dr Dua's opinion is limited by the fact that it is based upon his review of limited medical records which documented Amy's treatment and hospital admissions. Dr Dua acknowledged that the records were not comprehensive, particularly in that they did not disclose a "day to day" record of observations and treatment. Dr Dua agreed emphatically that the "day to day" records would assist him in being more specific in his observations."

Professor Ogden

1. The primary judge held that Professor Ogden was an "exemplary witness", but that his evidence failed to assist the court in determining Amy's testamentary capacity at the point of her executing the Thai Will (PJ [160]): "In his oral evidence, Professor Ogden proved to be a particularly convincing witness. He made concessions appropriately and was frank and direct in his answers. His plain intention was to assist the Court. I do not hesitate to describe him as an exemplary expert witness. For reasons which I will shortly explain, however, I found his evidence to be of limited value in this particular case."
2. Professor Ogden's "fundamental conclusion" was that Amy's cognition was likely impaired at the time she executed the Thai Will: "I have considered the totality of the information provided, and in the light of my clinical experience, study and training, it is my opinion that at the time of the adoption of the Thai Will and Share Transfers, the Deceased was significantly cognitively impaired with reduced executive function. She was unlikely to have been able to fully comprehend the nature of the important changes between the Thai Will and the Australian Will… In the light of my clinical experience, study and training, it is my opinion that at the time of the adoption of the Thai Will and Share Transfers the Deceased was unable to fully comprehend the nature of the decision she was making and the implications for the future."
3. Like Dr Dua, Professor Ogden acknowledged that the available medical records, on which his report relied, were "incomplete": PJ [161]. Furthermore, similar to Dr Dua, Professor Ogden commented on the side effects of the medication that Amy was taking, which included fentanyl, morphine, olanzapine and lorazepam: PJ [170]-[181].
4. Professor Ogden observed that Amy suffered weight loss of 30kg due to her condition of cachexia, and that such "wasting away" is concomitant with profound changes to the brain's functioning: PJ [177].
5. Professor Ogden provided two examples which served to highlight the importance of closely examining persons in order to properly assess their cognition: PJ [178]. Professor Ogden said that, when observing the first patient in-person, it became clear that he was not aware of the changes that he wished to make to his will: PJ [178].
6. The second example related to Professor Ogden's father. Professor Ogden explained that, through speaking with his father, it became clear that he did not consider the implications of what he was saying. Both examples, according to Professor Ogden's own evidence, highlighted the importance of "having a close conversation" with the person whose cognition needs to be assessed - "preferably someone who is fully independent": PJ [179].
7. The primary judge held that Professor Ogden's evidence as to the importance of assessing individuals by having a face-to-face conversation served to diminish the strength of Professor Ogden and Dr Dua's evidence, as neither of them had such an opportunity with Amy (PJ [180]): "I entirely agree with this aspect of Professor Ogden's evidence. Ironically, it serves to highlight the fact that Professor Ogden did not have the same opportunity with Amy to observe her cognition personally in contrast with the other two cases he described so powerfully. This is to be contrasted with the advantage experienced by people such as Mr Kasemnate, Bob and Fern, who were able to observe Amy at close quarters."
8. So much was acknowledged by Professor Ogden, who said that the real way of determining the effect of an illness on an individual's cognition is by having a conversation with that person: PJ [196]. Consequently, the primary judge placed less weight on Professor Ogden and Dr Dua's evidence in relation to Amy's cognition, as compared to Mr Kasemnate, Bob and Ms Kruahong: PJ [197]-[198].

Professor Ogden's supplementary expert report

1. On 25 October 2023, Palisa sought leave to file a supplementary report made by Professor Ogden, dated 22 October 2023: PJ [182]. This application was made on day three of a six day trial.
2. Professor Ogden's proposed supplementary report was to the effect that his conclusions as to Amy's cognition (see [97] above) had not been altered by either the pleadings or the lay evidence adduced in the proceedings: PJ [182].
3. Palisa sought to explain the delay in obtaining the supplementary report on the basis that the Respondents made no objections to the earlier medical evidence: PJ [183]. However, as his Honour noted, the Respondents' outline of submissions dated 18 October 2023 did note that Professor Ogden and Dr Dua did not consider any lay evidence - motivating Palisa's application to introduce Professor Ogden's supplementary report: PJ [183].
4. The primary judge ruled that Palisa should not be granted leave to adduce Professor Ogden's supplementary report because (PJ [188]): "First, Pat would suffer prejudice if leave was granted. This was not only because of the practical consequences of having to delay the scheduled cross-examination of Professor Ogden but also because, as Dr Chapple confirmed, there was simply insufficient time available before the end of the seven day hearing for Pat to obtain any medical evidence in response should he wish to do so." Furthermore, his Honour held that there was no adequate explanation provided for the lateness of obtaining a supplementary report from Professor Ogden: PJ [189]. The primary judge held that Palisa was on notice from 18 October 2023 (the date of the Respondents' outline of submissions) that they would challenge Professor Ogden's report on the basis that he was not apprised of the lay evidence: PJ [189]. Furthermore, the Respondents were caught by surprise when provided with Professor Ogden's supplementary report, which they received with no prior notice: PJ [189].

Amy's testamentary capacity

1. The primary judge held that he was "comfortably satisfied" that the Respondents discharged their onus in proving that Amy had testamentary capacity at the time that she executed the Thai Will on 24 June 2020: PJ [244].
2. His Honour determined the issue of Amy's testamentary capacity according to the following four-stage criteria (Lim at [7]-[9]; Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6]) (PJ [212]-[213]): "(a) The testator must have understood the nature and significance of the act of making a will… (b) The testator must have understood the extent of their estate. That involves an ability to recall at least in general terms the nature, extent and value of the estate, but "does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset"; (c) The testator must be capable of comprehending and appreciating any claims on their estate…; (d) The testator must not have suffered from a delusion that influenced the terms of the will at the time it was made…" (citations omitted.)

Limb 1: Amy understood the nature and significance of the act of making a will

1. The primary judge disposed of this limb at PJ [216] as follows: "I find that Amy had a clear understanding of the nature of the testamentary act in which she was engaged on 24 June 2020. She met with Mr Kasemnate earlier that month and explained to him that she wanted to revise her will and her reasons for doing so. It is also clear that she understood that her will would have the effect of disposing of her property on death. On the day that she executed her will, she explained to the two witnesses that she had cancer and did not have much time left; that she had previously made a will; and that she now wished to update that will. Consistently with this, and subsequent to executing her will, she explained to Bob that she would like to transfer the shares to Pat now to "finish it", as she was giving those shares to him in her will in any event."

Limb 2: Amy understood the extent of her estate

1. The primary judge held that there was strong evidence to suggest that Amy understood the nature and value of her estate. For instance, Palisa provided evidence that Amy had discussions about transferring Amy's interest in the Mosman Property and Boon Luck Farm to Palisa.
2. Furthermore, Amy expressed her wish to transfer her shares in the CT Group to Pat shortly after making her Thai Will, which also contemplated bequeathing such shares to him: PJ [218(b)]. Amy's involvement in the Chat Thai businesses, and her expressed intention for Pat to become the "leader" of the business, suggested Amy's knowledge that she controlled the CT Group, and that she intended to pass control to Pat through bequeathing her shares: PJ [218(d)]. Such evidence suggested to the primary judge that Amy was aware of the extent of her estate.

Limb 3: Amy could comprehend and weigh competing claims to her estate

1. The primary judge held that Amy appreciated, at the time of executing the Thai Will, who might reasonably have a claim to her estate: PJ [219]. His Honour held that there was "no doubt" that Amy appreciated that Palisa and Pat had a claim to her estate, and that Palisa's children might also have a claim: PJ [219]. Whilst the Thai Will did not refer to Palisa's children, the primary judge held that it was reasonable to infer that Amy was content to trust that Pat would carry out her intention that Palisa's children would obtain an interest in the Hua Hin Farm once they reach the majority age: PJ [219].
2. The primary judge reached the conclusion that Amy could call to mind and weigh competing claims to her estate by having regard to (PJ [220]): 1. inferences drawn from the will itself; 2. Amy's own explanations of her testamentary intentions; 3. Amy's interactions with friends and colleagues; 4. Amy's own interactions with Palisa; and 5. observations of independent third party witnesses.

(1) Inferences drawn from the will itself

1. The primary judge held that the will itself evidenced that Amy had regard to the competing claims of Palisa and Pat, as shown by the fact that she made "substantial provision" for both her children: PJ [221]. The primary judge held that, whilst Palisa received less under the Thai Will as compared to the NSW Will, she still received approximately $2,500,000 in property through Amy's devising her interest in the Mosman Property and the Boon Luck Farm: PJ [222].

(2) Amy's own explanations of her testamentary intentions

1. The primary judge held that Amy clearly explained that she intended for Pat to receive the CT Group shares due to her trust in Pat, and concerns about Matt's vision for the Chat Thai businesses: PJ [223]. The primary judge reached this conclusion having regard to three conversations that Amy had with Bob and Mr Kasemnate. The primary judge relied upon three statements that Amy made in this regard.
2. First, Bob provided evidence, which the primary judge accepted, that Amy said to Bob: "I want Pat to be inheritor of Chat Thai businesses instead of Palisa who is married to Matt which he always wanted to change the Chat Thai business model from what I always wanted it to be. I trusted Pat. He will run this business the same way I want. I also wanted him to look after my estate that I intended to give to my grandchildren [referring to Palisa's children] once they grow up as adults. I don't trust Matt. The current will did not include the assets in Thailand so I want to make a new will to include those assets in Thailand as well."
3. Secondly, Bob also gave evidence that Amy said to him: "I want Pat to take care of the whole business and to be able to do this, I need to give him all my shares so that he could get the majority in each company. He will then have more power than Palisa and Matt and he will protect our family business to stay with our family. Where, if Matt has power, I believe he will one day sell the business out. I do not trust Matt. For the land in Hua Hin that I initially wanted to give some part to Palisa but now I wanted to give Pat all and he will protect Palisa's part for her children until they grow up. He will then transfer those parts to them."
4. Thirdly, Mr Kasemnate gave evidence that Amy said similar words to him, to the effect that she wanted Pat to control the Chat Thai business, and that she was concerned about Matt's influence on the company: PJ [225]. Each of the three statements were consistent with one another, and reflected Amy's clear intention for Pat to take over the business, which would be affected by her bequeathing her interest in the CT Group shares to him.
5. Despite this, the primary judge noted that Amy did not fail to consider Palisa: PJ [227]. Rather, Amy made express reference to Palisa's involvement in TV shows, and that she was confident that Palisa could succeed in her own right: PJ [227]. For instance, Bob provided evidence that Amy said to him: "Palisa also has favour in TV shows and other things. She has her own name to do business better than Chat Thai anyway."
6. Such statements by Amy indicated to the primary judge that she did weigh the competing claims to her estate, and made the conscious decision to bequeath her shares in the CT Group to Pat.

(3) Amy's interactions with friends and colleagues

1. The primary judge held that Amy had sufficient cognitive function at the time of executing the Thai Will on 24 June 2020, as evidenced by her interactions with friends and colleagues. His Honour reached this conclusion having regard to: (i) her continued and active involvement in the Chat Thai business between February and July 2020; and (ii) the videos of Amy annexed to Pat's affidavit.
2. The primary judge held that from February to July 2020, Amy was actively engaged with her employees, asked questions and provided instructions - suggesting that she retained sufficient cognitive function: PJ [230]. On 25 May 2020, Amy discussed the rent of the Jarern Chai and Boon Café and there was no indication that Amy was confused or misunderstood the interaction: PJ [230(a)].
3. The primary judge made reference to various other interactions that Amy had with employees in relation to the Chat Thai business throughout July 2020 and August 2020 - each indicating that she had maintained a sufficient level of cognitive capacity to enter the will: see PJ [230(b)-(g)].
4. His Honour further held that three videos annexed to Pat's affidavit provided "some support for finding that Amy had what appeared to be normal or sufficient cognitive functioning at least at the time the videos were taken": PJ [232]. The first video, dated 9 May 2020, showed Amy using a stairlift at Hua Hin Farm. His Honour held that Amy appeared alert, and immediately followed Bob's instructions to stop the inclinator during the stairlift's descent: PJ [232].
5. The second video, dated 16 June 2020, showed Amy speaking frequently with her physiotherapist, and "plainly understanding her instructions": PJ [233]. The primary judge observed that Amy was laughing and freely conversing - showing no evidence of a failure to communicate or understand what was happening: PJ [233]. The third video, dated 31 October 2020, showed Amy travelling in a car, smiling and singing to a Thai song - having no difficulty remembering the words: PJ [234]. The video, taken three months after making the Thai Will, was relied upon by the primary judge as evidence that she had remained "quite alert": PJ [234]. Consequently, the three videos, taken alongside with Amy's active involvement in the business around the time of making the Thai Will, suggested to the primary judge that she had testamentary capacity.

(4) Amy's own interactions with Palisa

1. The primary judge held that Amy's interactions with Palisa indicated that Palisa herself had trust in Amy's cognition around the time of making the Thai Will: PJ [235]. On 3 April 2020, Palisa emailed Mr Mitry, an Australian lawyer, to draft provisions in Amy's will to ensure Amy's interest in the Mosman Property and Boon Luck Farm passed to Palisa on Amy's death. The primary judge held that the "inescapable inference" of the email was that at 3 April 2020, Palisa considered that Amy had capacity to amend her will: PJ [235(a)].
2. Palisa gave evidence that, in early May 2020, Amy had the following discussion with her: "Dr Thanate came to speak to me when you were gone. He told me that I needed to consider whether I want intubation and resuscitation. I told him that I don't wish to be intubated or resuscitated. I understand what that means." Palisa acknowledged in cross-examination that this was a rational decision, and that Amy had the capacity to make that decision. Palisa also acknowledged that Amy had capacity to make the decision to withdraw her superannuation to pay her medical expenses: PJ [235(b)].
3. The primary judge noted that Palisa observed that Amy could experience bouts of confusion or forgetfulness (see [64] above). Nonetheless, Palisa also accepted that Amy did not always experience such confusion and forgetfulness, and that such times included when Amy and Palisa discussed Amy's will: PJ [236]. Consequently, the primary judge held that he was "comfortably satisfied" that Amy had testamentary capacity to enter the Thai Will on 24 June 2020: PJ [236].

(5) Observations of independent third party witnesses

1. Finally, the primary judge had regard to the observations of third party lay witnesses who saw and spoke with Amy. His Honour noted the dicta of Young JA in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [89] (Zorbas): "In a probate suit, the vital evidence is very often not given by medical experts, but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes." His Honour had regard to the lay evidence of Mr Kasemnate, Ms Srisomboon and Bob, all of whom had spoken and interacted with Amy around the time of executing the Thai Will on 24 June 2020: PJ [238]-[243].
2. The primary judge noted that Mr Kasemnate, who was an experienced Thai lawyer, understood that Amy must have capacity to execute the will: PJ [238]. As noted at [32] and [75] above, Mr Kasemnate observed that Amy was "able to communicate well and was in a good mood", and that "she clearly conveyed her instructions for her new will and did not appear confused". His Honour held that (PJ [239]): "These observations carry additional weight because they were made in a context where Mr Kasemnate was visiting Amy in hospital and was on notice of her medical condition…Mr Kasemnate made clear in his oral evidence that he had turned his mind to Amy's capacity to make a will and that he would have advised her not to do so if she could not communicate clearly or understandably."
3. In respect of Ms Srisomboon's evidence, the primary judge noted that she knew Amy well, spoke with her for 15 minutes during the execution of the Thai Will, and observed that: "Amy looked well but had lost her hair and was a bit skinnier than usual. There was no difference in Amy's mental capacity and she appeared to be the same as in all my previous dealings with Amy. She spoke clearly and was able to maintain conversation. There were no issues with Amy's memory."
4. The primary judge held that Bob's evidence should be attributed "significant weight because he was able to observe Amy at close quarters over many months": PJ [241]. His Honour also noted that Bob was not a beneficiary under the will: PJ [241].
5. Bob observed that, in April 2020, Amy "did not ever appear to have been mentally affected by her chemotherapy treatments". Furthermore, Bob provided evidence that on 24 June 2020, during the signing of the Thai Will, Amy "appeared normal and did not have any issues with her mental capacity".
6. The primary judge ultimately held that, having regard to all the evidence, he was "comfortably satisfied" that the Respondents had discharged their onus of establishing that Amy had testamentary capacity to execute the Thai Will on 24 June 2020: PJ [244].

Amy's knowledge and approval of the Thai Will

1. The primary judge summarised the principles relating to the requirement that the testator had knowledge and approval of a will in the passage reproduced at [57] above. His Honour noted that, in many cases, suspicious circumstances arise through the conduct of a beneficiary in procuring the will. His Honour held that there was nothing in the circumstances surrounding the preparation of the Thai Will that excited suspicion in the present circumstances: PJ [248]. For instance, his Honour noted that: Amy personally explained her reasons for making a new will to Mr Kasemnate; neither of the beneficiaries were involved in the will-making process; and the will was rational on its face: PJ [248]. Consequently, his Honour held that he was satisfied that Amy knew and approved the contents of the Thai Will.
2. Attention is now turned to the grounds of appeal.

Grounds 1 and 2: Amy's testamentary capacity and the medical evidence

1. Ground 1 of the appeal is, in effect, a wholesale challenge to the primary judge's conclusion in relation to testamentary capacity. The Court must undertake a real review, and although this must be undertaken by the "correctness standard" (see Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9), the primary judge's evaluative judgment was influenced by findings concerning the credibility of Palisa, Pat and Bob. These findings have been summarised in some detail above at [59]-[86] and, to the extent that the primary judge had the advantage of observing the witnesses, deference should be given to that advantage for the reasons stated in Fox v Percy at [23].
2. Such advantages are less significant as a general proposition in relation to expert evidence. Here, however, it was not the Appellant's experts of which the primary judge was critical but, rather, the lack of support for their conclusions in Amy's medical records coupled with the fact that neither of them had ever examined Amy in person. Their evidence also did not take into account the lay evidence as to interactions with Amy around the time of execution of the will nor her recorded messages which suggested real lucidity on Amy's part.
3. In this context, ground 2 is problematic insofar as it attributed to the primary judge a holding that the expert reports of Dr Dua and Professor Ogden were "incapable of assisting him in concluding that the testatrix lacked testamentary capacity as at the date of execution of the Thai Will on 24 June 2020". His Honour analysed both reports in some detail in his reasons before concluding that "I do not consider that their opinions outweigh the evidence of the lay witnesses and other materials which support a finding that Amy did not lack testamentary capacity": PJ [198] (emphasis added). In reaching this conclusion, his Honour cited the following observation of Vickery J in Nicholson v Knaggs [2009] VSC 64 at [41]: "In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance."
4. To similar effect are the authorities collected in Lim at [217]-[218] which gathered authority for the principle neatly summarised by Windeyer J in Kerr v Badran [2004] NSWSC 735 (Kerr) to the effect that: "lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased." See also Zorbas at [65], Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133] and Croft v Sanders [2019] NSWCA 303 at [86], [128].
5. The short answer to this ground of appeal is that the primary judge simply did not hold that the expert evidence of Dr Dua and Professor Ogden was "incapable" of assisting him. Rather, consistent with authority, his Honour weighed it against other evidence. He did not consider that it had a great deal of weight, and gave reasons for this. He was correct to so hold.
6. In this area of law, it is common for experts to offer opinions as to the testamentary capacity of a deceased person. Where the expert is not the deceased's treating doctor, such evidence will invariably draw upon, inter alia, clinical notes and/or lay evidence. In the present case, although there were numerous medical notes in evidence created in the period up to the execution of the Thai Will, none of those notes made any material reference to the deceased's cognitive capacity.
7. Furthermore, neither Dr Dua nor Professor Ogden offered opinions which took account of the extensive lay evidence that was filed. True it is that a belated attempt was made, on the third day of the trial, to file a supplementary report of Professor Ogden but that attempt was rejected by the primary judge. This rejection is the subject of the fourth ground of appeal considered below.
8. The key point however for the purposes of the second ground of appeal is that the expert evidence relied upon by the Appellant was not of great weight in part because of the fact that neither expert had ever examined the deceased nor did the experts have any clinical notes upon which to draw to support the conclusions they reached. Nor did they take into account the extensive body of lay evidence recording various witnesses' conversations and interactions with the deceased in the period leading up to, on the day of execution of, and postdating the Thai Will which were capable of having a bearing upon the deceased's testamentary capacity as at the date of execution of the Thai Will.
9. Returning to ground 1, the Appellant advanced very little by way of oral argument in support of ground 1. In written submissions, one argument advanced by the Appellant was that the primary judge erred in placing reliance on the GCS test results without adverting to the significance of Dr Dua's evidence as to what the test in fact meant.
10. Reference was made to PJ [157] which was as follows: "The medical records reviewed by Dr Dua did not have any notations or observations (at least prior to November 2020) of any cognitive impairment, or any reference to Amy suffering from cognitive side effects of her treatment. Dr Dua agreed that: … (d) a physical examination of Amy was conducted on 27 February 2020. She was recorded as having "good consciousness" and received the top score on the Glasgow Coma Scale. Dr Dua accepted that these observations indicated that she had no "baseline end organ problems" and she was "grossly neurologically intact". Similar observations were made in hospital records dated 15 March 2020, 13 April 2020, 19 April 2020, 10 May 2020, 31 May 2020 and 21 June 2020."
11. The Appellant contended that "if the primary judge attached any significance to the [GCS] test result in his conclusion", his Honour's reliance upon the GCS to determine Amy's capacity was misplaced for the reasons provided by Dr Dua, to which "no proper regard was had" and which "ought to have been considered" (emphasis added). In this regard, Dr Dua explained in cross-examination that the GCS "does not monitor cognition, this is just basically monitoring the basic neurological [function]". The primary judge was aware of this matter and expressly referred to it, recording Dr Dua's evidence that the GCS was "not a measure of cognition; merely a measure of basic neurological function": at PJ [146(f)(i)]. This reference, together with that in PJ [157] were the only references to the GCS test result in the entirety of the primary judgment. The Appellant's submission was tellingly prefaced by the phrase that "if the primary judge attached any significance to the [GCS] test …". There is no basis for thinking that he did, and even if he did, he expressly referred to Dr Dua's evidence as noted above.
12. The Appellant also argued that the primary judge erred because he: (i) observed that there was a lack of medical notations or observations referring to Amy's cognition; and (ii) relied on the absence of medical notations to infer that Amy had satisfactory cognitive capacity.
13. This argument was to misstate and greatly oversimplify the primary judge's approach which was entirely orthodox. True it is that his Honour emphasised that in the present case, no support was provided for the expert's conclusion by medical records of the deceased: cf Wild v Meduri (No 2) [2023] NSWSC 669. These will frequently provide the data upon which expert witnesses, who have never examined the deceased testator, draw for the purposes of expressing their opinions. Even where such reasoning is based upon such medical records, it will not necessarily be decisive in circumstances where there is other evidence of greater cogency which points in a different direction to the expert opinion, as the cases referred to in [141] make plain and as was also the case in Wild v Meduri.
14. Contrary to the Appellant's submission, the primary judge did not reach the positive conclusion that Amy had testamentary capacity by reason of the absence of medical records pointing to such a conclusion. The primary judge did not reason that the absence of such evidence was evidence of the presence of testamentary capacity. As already explained, the significance of the absence of medical records was that it limited the value of the expert medical reports provided by Dr Dua and Professor Ogden.
15. The Appellant also argued that the primary judge erred at PJ [180] in suggesting that Professor Ogden's evidence should receive less weight than that of Mr Kasemnate, Bob and Ms Kruahong because those three lay witnesses were "incapable" of establishing that Amy had testamentary capacity at the time of making the Thai Will. The context is supplied by PJ [178]-[179], summarised at [100]-[102] above. In short, Professor Ogden had referred to the benefits of personal observations in assessing testamentary capacity. He then continued at PJ [180]: "I entirely agree with this aspect of Professor Ogden's evidence. Ironically, it serves to highlight the fact that Professor Ogden did not have the same opportunity with Amy to observe her cognition personally in contrast with the other two cases he described so powerfully. This is to be contrasted with the advantage experienced by people such as Mr Kasemnate, Bob and [Ms Kruahong], who were able to observe Amy at close quarters."
16. The primary judge's reasoning was entirely unremarkable and simply an illustration of the point Windeyer J had made in Kerr: see [141] above.
17. The Appellant argued that, contrary to his Honour's reasoning at PJ [180], Ms Kruahong's evidence failed to establish that Amy had testamentary capacity at the time of making the Thai Will. Specifically, the Appellant contended that Ms Kruahong's evidence concerning Amy's two voice messages to Chat Thai staff on 26 August 2020 evidenced her lack of testamentary capacity. These messages are set out at [47]-[48] above.
18. The primary judge rejected the Appellant's argument that these two messages indicated a lack of memory or testamentary capacity and, in fact, pointed in the opposite direction: "[104] … First, contrary to what was put to Fern in cross-examination there was in fact no mention in the first voicemail that Amy was "practising breathing using the ping pong machine" or "blowing the ping pong machine". The only reference to this subject in the first message as set out in the interpretation at [23] of Fern's affidavit was that Amy had been asked by the doctor "to blow up the balloon". The first message as set out at [23] of Fern's affidavit does not contain any explicit reference by Amy to the "ping pong machine" in those terms, contrary to what the cross-examiner put to Fern. When Fern agreed with Mr Maroya's description of this aspect of the first voicemail, I infer that she was simply substituting in her own mind the term "balloon" for the expression used by the cross-examiner, namely "ping pong machine". The only reference in the first message to the words "Ping" and "Pong" are to the two Chat Thai staff members who were celebrating their birthdays on 26 August 2020. [105] Secondly, the contentions gloss over the fact that Fern gave clear evidence under cross-examination that she combined the two voice messages from Amy in [23] of her affidavit. I accept Dr Chapple's submission that the second message starts with the sentence "I forgot to tell you…" in [23] of Fern's affidavit. [106] Thirdly, Fern said at [24] of her affidavit that on or about 27 August 2020 "Amy left me" (emphasis added) a voice message about Pat taking over the running of the Chat Thai restaurants. She added that Amy also said words to the following effect: Yesterday I pressed the wrong button. I pressed All Staff. I actually wanted to press All Star. Never mind, what happened has already happened. People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader. Any feedback please let me know. [107] This voice message appears to have been sent to Fern personally (as is reflected in Fern's use of the personal pronoun "me"), and not to a wider group as had occurred with the two voice messages sent at 7.44pm and 7.47pm on 26 August 2020. It may also be inferred from the 27 August 2020 voice message which Amy sent to Fern that Amy was conscious of the fact that she had made a mistake the previous day by sending her messages to a wider group of recipients, which was not her intention. She then rationalised, however, that this had happened and that she was not unhappy about her mistake because her message to the wider group broadcast her intention of having Pat become the leader of the Chat Thai Group. Far from this reflecting adversely on Amy's cognition, her recognition of her mistake and her subsequent rationalisation that the mistake may in fact have had unexpected advantages provides evidence which supports Amy's cognition at this time. That is further reinforced by the fact that, in sending the second message, with the reference to the doctor calling the machine "ping pong", Amy displayed a good sense of humour and was demonstrating this quality in the context of her having sent birthday wishes to her employees Ping and Pong. [108] Fourthly, and for what it is worth, I do not see any significant differences between the interpretation of Amy's second voice message sent at 7.47pm on 26 August 2020 as translated in the latter part of [23] of Fern's affidavit and the separate translation which Mr Maroya used in his cross-examination of Fern relating to that second voice message. The differences reflect different but insignificant interpretations by two different interpreters of what Amy said in Thai. [109] I firmly reject Palisa's submission that this evidence casts doubt on Amy's cognitive functioning in the period 26-27 August 2020. Indeed, I draw the contrary inference for reasons explained above. I should add that the inordinate amount of time devoted to this issue, both in cross-examination and in closing submissions, indicated a degree of desperation in striving to identify any evidence which might allegedly cast doubt on Amy's testamentary capacity."
19. I agree with his Honour's analysis and reject the Appellant's contention that the primary judge erred in finding that the two messages did not evidence a lapse in Amy's memory or testamentary capacity. The Appellant suggested that Amy referred to the "ping pong" breathing apparatus twice within three minutes, suggesting a failure of memory, with the repetition said to exist by reason of the following statements made three minutes apart:

• "In this photo that I took, the doctor asked me to blow up the balloon"; and
• "I forgot to tell you, in the photo, the doctor told me it is called ping pong. It's a medical equipment. I have to blow it. I have to take a deep breath and blow it out completely."

1. The first voice message made reference to the apparatus as "the balloon"; and the second voice message made reference to the apparatus as the "ping pong" equipment. Far from being repetitious, Amy was pointing out the amusing verbal correspondence between the colloquial name for the machine and the names of two of the Chat Thai staff. The function of the second message was to tell Ping and Pong that the name of the apparatus ("Ping Pong") matched their names - a detail that was omitted from the first message. This was hardly cogent evidence of a want of cognitive or testamentary capacity.
2. No attempt was made in the written submissions to impugn the primary judge's detailed reasoning leading to his conclusion that Pat had discharged his onus of proving that Amy had testamentary capacity as at the date of execution of the Thai Will on 24 June 2020. My own review of the evidence for the purposes of this appeal results in the same conclusion, essentially for the same detailed reasons given by the primary judge. Neither the written nor oral submissions on appeal advanced any persuasive reason for reaching the opposite conclusion. Although Amy was undoubtedly a very sick woman with her advanced cancer, her activities at the time (including near contemporaneous communications relating to her business), the largely unchallenged testimonial evidence from her solicitor, her brother and two witnesses all supported his Honour's conclusion. That evidence included Amy's articulated reasons for altering her will in the manner in which she did. This material collectively outweighed the medical evidence that was before the primary judge and, to the extent there was an attempt to impugn Bob's evidence, the primary judge's benefit in assessing that evidence favourably must also be taken into account.
3. For these reasons, grounds 1 and 2 must be rejected.

Ground 3: Knowledge and approval of the contents of the Thai Will

1. The Appellant contended that the primary judge erred in holding that Amy knew and approved of the contents of the Thai Will and erred in holding that there were no circumstances arousing the Court's suspicion that the Thai Will did not have the testatrix's consent.
2. In the course of the hearing of the appeal, Mr Ellison acknowledged that, although the maker of "a will, rational and duly executed, is presumed to have knowledge and approval", there "were enough gaps or absences of instructions to give rise to a suspicion, not in the nefarious sense, but a suspicion such that knowledge and approval had to be positively proved". Mr Ellison was pressed to identify what the suspicious circumstances upon which he relied were. None was identified as such in either his client's pleading or in the submissions on appeal. In his oral reply submissions, Mr Ellison pointed to certain references in the written submissions at first instance by way of purported identification of the "suspicious circumstances". These references were as follows:

• "In this case, the Defendants will have difficulty in discharging the onus (either in the context of testamentary capacity or in the context of knowledge and approval) bearing in mind, for example: a. the suspicious circumstances which form the backdrop to, not only the making of the 2020 will, but the events leading up to it, as well as events following it; b. the apparent irrationality of the will on its face, bearing in mind the contents of the 2017 will; c. the opinion of the Plaintiff's experts that the testatrix could not possibly have had the necessary cognitive ability to make or understand the 2020 will."
• "The evidence of the Defendants concerning the 24 June 2020 Will is that there is nothing in the circumstances of the making of that will that excites suspicion of any kind, despite, for example, the factors which are described in paragraph 1 of these submissions. The evidence of the Plaintiff is that it cannot possibly be the case that there are no circumstances that excite suspicion, and that, in addition to Plaintiff's substantial evidence as to suspicious circumstances, the Defendants' evidence focusses only on lay observations in respect of, primarily, the testatrix's moment-to-moment physical abilities, and brief references, in her conversation, in respect of facts about her assets; rather than a detailed, objective assessment of her cognitive ability or any testing as to whether she was capable of understanding the contents, and consequences, of the 2020 will."
• "On the question of knowledge and approval, the evidence reveals that: i. it was very likely, as the experts opined, that Amy was suffering from a cognitive deficit; ii. the 2020 will was not read out aloud to Amy; iii. the only evidence as to reading is Bob's which is that Amy read the will to herself; there is no evidence as to whether she read it aloud, or to herself, silently; iv. there is no evidence as to what, if any, steps were taken on 24 June 2020 to ensure that Amy understood what she had read; v. there is no evidence from Mr Kasemnate that he took any steps to ensure that the 2020 will in fact accorded with Amy's wishes, and that she understood it; vi. Bob's own evidence as to 24 Hope Street shows that Bob made decisions about the will's contents, not Amy".

1. It will be observed that the first of these passages does not identify any suspicious circumstances and the assertion of "apparent irrationality of the will on its face" is simply not borne out. The second passage must be mistaken insofar as it refers to "the factors which are described in paragraph 1" (as none were listed) and it may reasonably be inferred that the reference was in fact to the first passage set out above. The balance of the paragraph does not identify suspicious circumstances so much as posited weaknesses in Pat's evidence. The same observation applies in respect of the third of the passages identified.
2. As a matter of good practice as well as procedural fairness, where a party seeks to contend that "suspicious circumstances" surrounded the making of a will, those circumstances ideally should be identified by way of pleading and or particulars so that they can be appropriately addressed by evidence and submissions. Regard should be had to the fact that suspicious circumstances is a term of art with limits to its scope: Mekhail v Hana [2019] NSWCA 197 at [170]-[171] (Mekhail).
3. The significance of raising "suspicious circumstances" surrounding the execution of a will is as recorded by the primary judge in the passage reproduced at [136] above. In the absence of such circumstances, knowledge and approval of the contents of the will is presumed. Noting that mechanical approaches have long been rejected in this area of the law (Mekhail at [137]), it must be recalled that the primary judge expressly rejected the notion that the circumstances surrounding the Thai Will were suspicious at PJ [248] because: "(a) Amy met personally with Mr Kasemnate and explained her reasons for making a new will. (b) While Bob assisted Amy with the drafting of the will, he was not a beneficiary. That he provided assistance was not unusual and was consistent with the assistance he provided to her in relation to her business dealings generally. (c) Neither of the two beneficiaries (Palisa or Pat) were involved in the will-making process or were aware that the document had been executed. (d) Amy executed the will before two witnesses who were known to her in varying degrees. She explained her reasons to them for executing a new will. (e) The Thai Will is rational on its face, is considered, and does not exclude either of the two beneficiaries for whom Amy might be expected to provide. The differences between the Australian and Thai Wills are rational having regard to all the evidence concerning Amy's intention to have Pat step into her shoes and run the Chat Thai businesses."
4. No meaningful attack was made upon the primary judge's conclusion that there were no suspicious circumstances so as to lead to rebuttal of the presumption. In addition to the reasons identified by the primary judge in support of his conclusion that there were no suspicious circumstances, there was also evidence which the primary judge accepted that it was Amy herself who initiated the change to the will (see [29]-[30] above) and who gave her reasons for doing so to Bob, thereby highlighting her understanding of its effect: see [33], [117]-[119] above.

Ground 4: Declining to permit the service of further supplementary reports

1. Although ground 4 states that the primary judge erred in declining to permit the Appellant to serve supplementary reports of Dr Dua and Professor Ogden, his Honour's ruling was only in respect of a supplementary report of Professor Ogden. As at the date of his Honour's rejection of that report, Dr Dua had not prepared a supplementary report, although he had been instructed to do so.
2. The primary judge's decision not to permit the service of a supplementary report of Professor Ogden was made on 25 October 2023, the third day of the trial. His Honour's reasons for refusing to permit the service of supplementary evidence at that point in the trial have been referred to at [107] above.
3. Mr Ellison candidly accepted that Professor Ogden's report "could've been prepared or obtained much earlier, but it wasn't" and that "it was open to his Honour to do what he did, we just say that in the circumstances there was no prejudice."
4. The primary judge was confronted by a late and unsatisfactorily explained attempt to lead further expert evidence in the middle of a trial. He accepted the submission of senior counsel for Pat that he was prejudiced and, as Mr Ellison fairly conceded, it was open to the primary judge to do what he did. What his Honour did was also consistent with s 56 of the Civil Procedure Act 2005 (NSW) and he was best placed to make a discretionary assessment on the application before him to lead additional evidence mid-way through the trial.
5. This ground of appeal must be rejected.

Conclusion

1. For the above reasons, the appeal should be dismissed with costs.
2. LEEMING JA: I have had the considerable advantage of reading the reasons for judgment of the Chief Justice. I agree with the orders he proposes, and with his Honour's reasons on grounds 1, 2 and 4. The following elaboration of aspects of ground 3 does not repeat and assumes familiarity with those reasons.
3. As the Chief Justice observes, the assertion of "suspicious circumstances" at trial was exiguous as best. The pleaded case made no allegation of suspicious circumstances, and the challenge to knowledge and approval was entirely dependent upon the challenge to capacity which in turn was based on the advanced stage of the testatrix's cancers and the treatment she was receiving for them. If, as the statement of claim presaged, further particulars were provided, they were not in the appeal books, although it is possible that they existed but were not tendered.
4. The written opening mentioned "suspicious circumstances", but not so as to point out anything suspicious in the sense of this term of art, as opposed to asserted weaknesses in the defendant's evidence. By the time of closing submissions, the plaintiff had ceased to rely on suspicious circumstances, either in writing or in oral address. The defendant had supplied a written submission which maintained that "[t]here is little in the circumstances surrounding the preparation of the 2020 will that excites suspicion". Defence counsel's oral submissions adopted the same approach.
5. In those circumstances, insofar as ground 3 complains about a failure to find suspicious circumstances, no foundation for that complaint was laid at the trial.
6. Further, I respectfully agree with the Chief Justice's observation at [163] that if a contention is to be advanced that there were "suspicious circumstances", then it should be pleaded or particularised or otherwise communicated well in advance of the trial, both as a matter of procedural fairness and because it will inform the decisions made as to the appropriate investigations and service of evidence. (It may also potentially inform the exercise of a discretion as to costs.) This accords with what was said in Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018 at [11]-[13], to the effect that the significance of the doctrine of "suspicious circumstances" in a court determining probate in the absence of a jury at a trial in which all relevant evidence has been advanced can be over-stated. I concluded: The reality of most modern litigation is that there is no opportunity for any determination of capacity or knowledge and approval in advance of the trial. In truth, the role of the presumptions flowing from the due execution of a rational will primarily affects not so much the conduct of the trial and the determination by the Court, but the preparation of litigation in advance of trial, and in particular the decisions to adduce evidence of cognitive capacity and the circumstances surrounding the execution of the will.
7. The trial giving rise to the present appeal was one where there was a full exchange of evidence on testamentary capacity. The result was that the position accorded with the position stated by Williams J in Bull v Fulton (1942) 66 CLR 295 at 343; [1942] HCA 13, "[u]sually the evidence is such that the question upon whom the onus of proof lies is immaterial". As the reasons of the Chief Justice explain, the primary judge undertook a review of all relevant evidence which bore upon the knowledge and approval of the testatrix, and nothing said in this appeal discloses error in the conclusion that his Honour reached.
8. MITCHELMORE JA: I agree with the Chief Justice.

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