Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian

Decision

1. In my opinion, Mrs Bush had testamentary capacity on the occasions she executed each of the Impugned Wills.
2. In those circumstances, provision should be made for Helene in an amount equal to one fifth of Mrs Bush's estate.

Mrs Bush's testamentary capacity

1. Both Helene and the Trustee adduced expert evidence as to Mrs Bush's testamentary capacity.
2. Helene adduced evidence from Associate Professor Tuly Rosenfeld, a consultant geriatrician and physician. The Trustee called Dr Wayne Reid, a clinical neuropsychologist. Neither expert had treated Mrs Bush. Both examined the available medical records concerning Mrs Bush and produced reports setting out their conclusions concerning Mrs Bush's cognitive state at the date of each of the Impugned Wills. I heard their evidence concurrently.
3. Both experts agreed that there was no reason to doubt Mrs Bush's testamentary capacity at the date of her June 2011 will. That will was made two months after Ronny died and, as I have said, provided for her estate to go to Ronny's five children (including Helene), then Mrs Bush's closest surviving relatives.
4. The debate before me focussed on Mrs Bush's capacity thereafter to make the Impugned Wills, in particular the will made a little over five months later, on 22 November 2011.
5. Neither Helene nor the Trustee adduced evidence from any of Mrs Bush's treating doctors, although reports from some of them were in evidence.

Principles

1. The Trustee, as the party propounding the Impugned Wills, has the onus of proving them to be Mrs Bush's wills: for example, see Powell J, as his Honour then was, in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704F.
2. The Trustee must show, on the balance of probabilities, that Mrs Bush knew of the contents of the Impugned Wills, appreciated the effect of what she was doing "so that it can be said that the will contains [her] real intention and reflects [her] true will" (Tobin v Ezekial (2012) 83 NSWLR 757; NSWCA 285 at [48] per Meagher JA (Basten and Campbell JJA agreeing).
3. As I have mentioned, each of the Impugned Wills was prepared by the solicitor, Mr Palmer. Each was duly executed and thus sufficiently "made" and "acknowledged" in the formal sense as required by the authorities: see Re Hodges at 705C-D. The Trustee has thus, to that extent, established a prima facie case of regularity: Re Hodges at 704G.
4. The question is whether other circumstances show that, despite the formal regularity of the Impugned Wills, Mrs Bush lacked the capacity to make them.
5. The test for whether Mrs Bush had testamentary capacity to make all or any of the Impugned Wills is that described by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549. Did Mrs Bush: 1. Understand the nature of the act of making a will and its effects? 2. Understand the extent of the property of which she was disposing? And 3. Comprehend and appreciate the claims to which she ought give effect?
6. So far as concerns the third of those matters, Cockburn CJ said that, in order to have capacity: "…no disorder of the mind shall poison [the testator's] affections, pervert his sense of right, or prevent the exercise of his natural faculties - [and] that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." [At 565]
7. The question is whether any illness of Mrs Bush "so affected [her] mental faculties as to make them unequal to the task of disposing of [her] property" (per Isaacs J in Bailey v Bailey (1924) 34 CLR 558; HCA 21 at 572).
8. In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at 289-290, Gleeson CJ (as his Honour then was) said: Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439. This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter."
9. In relation to how this passage should be read, White J said in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226, at [65]: "It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator's (or testatrix's) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question."

The lay observations of Mrs Bush

1. The Trustee adduced evidence from a number of people who had day to day dealings with Mrs Bush in her later years, and who said that, so far as they could tell, Mrs Bush appeared to be able to have ordinary conversations and showed no sign of confusion or cognitive decline.
2. Mrs Maisie Kelly (who is now 90) met Mrs Bush in primary school. She became Mrs Bush's sister-in-law, as Mr Samuel Bush was her brother.
3. On 21 November 2011 Mrs Bush appointed Mrs Kelly as her enduring guardian.
4. Mrs Kelly gave evidence that: "On the occasions that I spoke with [Mrs Bush] she never appeared to be confused. She was able to hold an ordinary conversation with me. I do not remember any occasion when she had difficulty recalling things."
5. Mrs Kelly's daughter-in-law, Mrs Robyn Kelly, gave evidence that between 2001 and 2012 she was a member of and the secretary of the Wee Waa Cancer Support Group. She said that Mrs Bush was a member of that group and an active participant in it and that: "While [Mrs Bush] was definitely slowing down by February 2013, at all times that I saw her in [the] three month period leading up to my departure from Wee Waa I found her alert, sociable and aware of her surroundings. She knew and remembered me, and was able to have a conversation. [A]t that time she was still managing her own finances. I recall that she was having difficulty with some snakes in her garden and asked me to obtain some vibrating snake repellents for her, which I did. I recall that she wrote me a cheque to reimburse me for their cost."
6. Mrs Bush was a member of the Wee Waa parish of the Anglican Church.
7. Between 2006 and 2012, Reverend Simon Carter was the vicar of the Anglican Parish. Rev Carter said he regularly spoke to parishioners after church. He said that it was his practice to look for any cause for concern.
8. He said: "[Mrs Bush] generally came to church alone. I had a conversation with her at church on virtually every Sunday. I did not observe her to exhibit any confusion or difficulty in remembering events in any of the conversations I had with her."
9. The Rev Carter's successor as vicar at the Wee Waa Anglican Church was Rev Bernard Gabbott.
10. Between 2010 and 2011, when Rev Gabbott was assistant vicar, he visited Mrs Bush regularly. He said: "I cannot put a precise figure on the number of times I visited [Mrs Bush] in her home, but it was many. Each time was similar; we would spend time talking about her spiritual well-being and life in general, share a cup of tea and biscuits, I would read from the Bible and then pray. Sometimes I visited impromptu and would often find her sitting in her garden and we would briefly chat. In all these visits [Mrs Bush] was always clear, always attentive and the conversation was always lucid and intelligent. [Mrs Bush] was always attentive, thoughtful, never confused, never repetitive, always able to hold a conversation, talk about a topic and stay on topic. She had no difficulty in understanding what I was reading from the Bible. She was always able to organise her own morning tea and they were terrific. She was able to understand when I was praying. Ella gave me comments on her family history, her role in the town of Wee Waa and her opinion on many things, especially tennis."
11. But Rev Gabbott said that once he took over as vicar in charge at Wee Waa his pastoral visiting declined and that he saw Mrs Bush less regularly but that: "During the period up to the middle of 2012 my recollection is that I had no difficulty in conversing with her and she did not exhibit any confusion."
12. These observations are, of course, relevant to the question of Mrs Bush's testamentary capacity.
13. However, as Professor Rosenfeld said: "…many older people with cognitive impairment and dementing illness, in their day to day interactions with an extensive range of lay individuals and even health care professionals, go unrecognised and undiagnosed as suffering from cognitive impairment and dementia."
14. Thus, these lay observations cannot be conclusive and must be considered in the context of the available medical evidence and other evidence concerning the manner in which Mrs Bush behaved during this period.

Events between June and November 2011

1. Very shortly after she made her June 2011 will, Mrs Bush commenced to manifest symptoms suggestive of some diminution in her cognitive function.
2. On 8 July 2011, Helene and her sister Wendy visited Mrs Bush for her birthday. On that occasion, although Mrs Bush had known Wendy all of Wendy's life, she failed to recognise her, or at least, confused her with another "Wendy".
3. However, this event occurred only a month after Mrs Bush executed the 8 June 2011 will, which, it is common ground, she had capacity to make. There is no medical evidence pointing to any deterioration in Mrs Bush's cognitive state during that short period.
4. A month later, in August 2011, Helene married her second husband, Adrian Craig. Mrs Bush attended the wedding. Helene gave evidence that: "[Mrs Bush] looked very feeble at the wedding and her memory was not good as she did not recognise my mother. The deceased said to me 'who is that woman?' pointing towards my mother."
5. However, Mrs Bush had not seen Helene's mother for many years, and photographs tendered by Mr Armfield, who appeared for the Trustee, show that Helene's mother's appearance had, unsurprisingly, changed somewhat in the intervening years.
6. Between September and December 2001 Mrs Bush made statements which suggest some confusion. Thus Helene said that Mrs Bush said words to the effect "someone is breaking into the house to steal my keys" and "I cannot find my keys" and "he has hid them from me" and that "I've lost my handbag, someone must of [sic] stolen it" and "I had to climb in through the window because someone stole the keys out of my bag when I went down the street" and "my money keeps going missing. I'm sure I had more than that".
7. Helene said that, on one occasion, when she visited Mrs Bush at around this time and after her father, Ronny, had died, Mrs Bush said: "You cannot change the channel on the TV, Ronny is the only one that can change the channel as he knows how to do it."

The 22 November 2011 will

1. Helene said that in November 2011 she had this conversation with Mrs Bush: "[Mrs Bush]: I went to change my will today and they said I needed to give them some sort of papers before they would do it. The hide of them telling me I couldn't do it! [Helene]: Oh, ok, what sort of papers are they? [Mrs Bush]: I don't know. Something to do with my health or maybe it was the houses. [Helene]: So what are you going to do? [Mrs Bush]: Aunty Maisie and Dianne are going to find me someone else to go to."
2. "Aunty Maisie" is Mrs Kelly. Dianne is Helene's cousin.
3. It appears that Mrs Bush was referring to a visit she made to WA Baxter & Co solicitors in October 2011 (that is, a little earlier than Helene recalled) as, on 19 October 2011, WA Baxter & Co wrote to Mr Palmer as follows: "We advise that recently we received a visit from Mrs Bush with whom you have had contact in the past, seeking a second opinion in relation to the intestate Estate of her son the late Ronald Bush. In the course of our conversation, the question did arise as to Mrs Bush's personal affairs and it would appear that her Will and Power of Attorney are out of date and, because of her age, she should consider appointing guardians. We have suggested that she consult you in relation to those matters in view of the fact that she resides in Wee Waa and it is difficult for her to travel to Gunnedah."
4. As presaged by this letter, Mrs Bush did consult with Mr Palmer on 26 October 2011.
5. Evidently, by then, Mrs Bush had decided to leave her estate equally to the Cancer Council and the Anglican Church.
6. Thus, Mr Palmer's note of his meeting with Mrs Bush reads: "Executor brother Cecil Harvey HURN in Qld. 50% Cancer Council 50% C of E at Wee Waa. Guardian MAISIE DOREEN KELLY XXX Wee Waa XXX Wee Waa - if not Narrabri Nil life support."
7. The note makes clear that on 26 October 2011, consistently with the advice WA Baxter & Co evidently gave Mrs Bush, Mr Palmer took instructions from Mrs Bush about making a will and about appointing Mrs Kelly as her enduring guardian.
8. On 21 November 2011, Mrs Bush executed an Appointment of Enduring Guardian, prepared by Mr Palmer, in favour of Mrs Kelly.
9. The following day, 22 November 2011, Mrs Bush executed the first of the Impugned Wills.
10. The will is in simple form (see Bailey v Bailey at 570-571). It is a little over a page long. It appoints Mrs Bush's brother Cec as executor (I return to this below), leaves the whole estate equally to the two charities and enumerates four powers for the executor (to which I will also return).
11. The will represented a significant departure from Mrs Bush's earlier wills, under which she had left her estate to her closest surviving relatives; effectively her son Ronny in the case of the March 1990 will; and, after Ronny's death in April 2011, to her grandchildren (Ronny's daughters, including Helene) in the case of the June 2011 will.
12. There is no direct evidence explaining why Mrs Bush made this change. There is, for example, no evidence of conversations in which Mrs Bush stated why she had decided to leave all of her estate to the two charities, rather than her grandchildren.
13. Mrs Kelly recalled that Mrs Bush said, not long after Ronny died in April 2011, that "Helene wouldn't let her have much to do with [Ronny's] funeral". A year later, in December 2012, Mrs Kelly told the Guardianship Tribunal (at a hearing after which the Tribunal confirmed Mrs Kelly's appointment as Mrs Bush's enduring guardian) in Mrs Bush's presence that Mrs Bush "believed that her grandchildren had treated her badly regarding the assets of her late son after his death". But Mrs Kelly did not say that Mrs Bush had said anything to the effect that these were matters that caused her to leave her estate to the two charities, rather than to her grandchildren.
14. On the limited evidence before me, I am not able to come to any conclusion as to why Mrs Bush had this change of heart. The decision does seem a harsh one, from Helene's point of view. Helene remained in close and regular contact with Ms Bush throughout her life. As I discuss below, in the context of Helene's claim for provision, Helene lived with Mr and Mrs Bush during her teenage years and developed a relationship with Mrs Bush that Helene described as being akin to a mother-daughter relationship. There is no suggestion, apart from what I have set out at [71], that they fell out. However, the mere fact that a testator's decision to exclude particular beneficiaries might appear harsh or unreasonable does not, itself, necessarily bespeak lack of testamentary capacity: see for example, Re Griffith at 289 per Gleeson CJ.
15. I see no reason to conclude that the bequest to the two charities was not Mrs Bush's own idea. Mrs Bush's choice of the Cancer Council and her local Church was understandable. Both her husband and son, Ronny, had died of lung cancer and she was a regular member of the congregation at the Wee Waa Anglican Church. Mrs Bush's choice of these two charities certainly was not itself irrational or bespeaking of lack of cognitive function.
16. And the instructions she gave Mr Palmer were simple: half to each charity.
17. One problem is that Mrs Bush nominated her brother, Cec, to be her executor. As I have mentioned, Cec died in October 2002, some nine years earlier. Not only that, Mrs Bush had organised and attended his funeral.
18. Mr Armfield pointed out that Mr Palmer noted that Cec was "in Qld" (see [64] above). The evidence shows that he lived in the Gunnedah area in NSW, whereas Mrs Bush's other brother, Ted (who was alive in November 2011), did live in Queensland. Thus, Mr Armfield submitted, it may be that Mrs Bush's confusion was as between her brothers' names, rather than having forgotten that Cec had died nine years earlier.
19. However, evidence Helene gave as to a later conversation with Mrs Bush (see [119] below) suggests that she thought that Cec was still alive.
20. Whether Mrs Bush had forgotten that Cec was no longer alive or confused Cec with Ted, her misapprehension does raise questions as to her cognitive state at this time.
21. As to Mrs Bush's appreciation of the nature of her estate, Helene said that "in her later years" Mrs Bush would often comment that she had no money. In fact, in addition to owning her home in Wee Waa and a property at Yamba, she had some $700,000 in deposit at various branches of the ANZ Bank. For the most part, these funds represented the proceeds of a Lotto win that Mrs Bush's husband had obtained in the early 1990s. Helene said that Mrs Bush would "often" say that "Poppy…won all that money and its nearly all gone".
22. If Mrs Bush had simply forgotten about the money she had on deposit, this would suggest a lack of appreciation by her of the nature and extent of her estate. But it is hard to know whether this was the situation. It may be that Mrs Bush was simply being coy about her financial position.
23. In any event, in her supplementary affidavit Helene placed the one particular instance of this type of statement by Mrs Bush to which she deposed in 2012 or 2013 and thus, some time after she executed the November 2011 will.
24. The evidence that Mr Palmer gave did not cast much light on the question.
25. Mr Palmer had no recollection of any of his meetings with Mrs Bush.
26. In his affidavit he gave detailed evidence of what he said was his usual practice when taking instructions for a will. However, in cross-examination, Mr Palmer gave this evidence: "Q. Do you have a particular template of questions that you ask in the context of determining capacity or getting instructions? A. No, one relies generally upon conversations that one has with people or with clients, I should say. Because it varies from person to person, whether their age, whether they're young, whether they're newly married, whether they're farmers, whether it's raining. There's [a] general scenario as to how to conduct that interview."
27. Although Mr Palmer said that it was his usual practice to read out, aloud, a will to a client before execution, it seems unlikely that Mr Palmer read out all of the November 2011 will to Mrs Bush before she signed it. That is because one of the powers the will gave Mrs Bush's executor was to apply capital "for the maintenance, education or benefit of any minor beneficiary"; a plainly unnecessary power in a will for the benefit of two charities. Had Mr Palmer read out this clause to Mrs Bush, he would surely have noticed the problem.
28. However, the will is short and, so far as concerns the disposition of Mrs Bush's estate to the two charities, in simple terms. Mr Palmer's note records that Mrs Bush told him what she wanted and the form of the will reflects those instructions. In those circumstances it seems probable that, even if Mr Palmer did not actually read out to Mrs Bush the dispositive provision in the will, he at least orally summarised to her its simple terms and effect.
29. In Manning v Hughes, White J pointed out that in cases like this, the Court should have the benefit "of the inquiries a solicitor ought to make" when taking instructions from a person such as Mrs Bush (at [49]). White J cited with approval the statement in C Rowland, Hutley's Australian Wills Precedents, (7th ed 2009, LexisNexis Butterworths) at [1.14] (see also, C Birtles, R Neal, Hutley's Australian Wills Precedents, (9th ed 2016, LexisNexis Butterworths at :[1.14])): "Where the solicitor is drafting a will and there is any possibility that the testator's capacity might later be questioned, the solicitor should ask questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking instructions for a will must have the Banks v Goodfellow tests at the front of her or his mind."
30. I doubt that Mr Palmer followed this course. His appreciation of the relevant legal test was vague. Thus he gave evidence: "Q. ... Are you familiar with what might be called the principles or the rule in Banks v Goodfellow? A. Well, I haven't read it recently but in other words there are people who have, or who form a family relationship I suppose and who are cared for and look for support upon the deceased. Q. I haven't cut you off but I don't want to cut you short. Do you want to take any further your understanding? A. No, no I don't want to take it any further. Q. What do you understand might be the relevant criteria by which a court determines testamentary capacity? A. Well, I've been to a number of lectures. I suppose their general understanding of what they wish to do and the just general understanding of, their overall awareness of their assets, their duty to their family. I mean from a lay point of view I have been involved in caring, indirectly I suppose, for aged people since the really 1970s, both on hospital boards, caring for aged people."
31. In those circumstances, I am not confident I can draw any conclusions as to what enquiries Mr Palmer made of Mrs Bush concerning her understanding of the nature and extent of her estate, the proper objects of her bounty and other such matters.
32. However, Mr Palmer was a solicitor of some 40 years' experience when he made the Impugned Wills and I think it likely that, had Mrs Bush actually manifested some sign of cognitive impairment when in Mr Palmer's presence, he would have noticed. That Mr Palmer proceeded to witness Mrs Bush's signature on each of the Impugned Wills suggests that this did not happen.

The experts' opinions as at November 2011

1. Professor Rosenfeld expressed the opinion, based on his reading of the material with which he was provided, that Mrs Bush "suffered from a dementing illness the nature of which was likely to have been Alzheimer's Disease and/or Vascular Dementia".
2. However, this opinion appears to be based on opinions, to which I refer below, expressed by Dr Peter Harradine, the Director of Rehabilitation and Aged Care Services at Tamworth Hospital in October 2012; almost a year after Mrs Bush executed the November 2011 will.
3. Professor Rosenfeld opined that when Mrs Bush made her June 2011 will, she was suffering from "brain disease and at least mild dementia" as well as a "mental condition…which impaired her cognition"; and yet there was no reason to consider she lacked "an appreciation of the act or purpose of making a will", that it was "more likely than not [she could] understand and be aware of the nature and extent of her property and other assets" and that Mrs Bush was "properly aware of those who might reasonably have been thought to have a claim upon her testamentary estate".
4. Professor Rosenfeld expressed the opposite conclusions as to the second and third of these matters as at November 2011; just five months later. He said that it was likely Mrs Bush "was considerably worse, cognitively, in November 2011 than in June 2011". There was no medical evidence before Professor Rosenfeld (or the Court) as to Mrs Bush's condition in that intervening period. Professor Rosenfeld's opinion appears to be based on his reading of Helene's account of Ms Bush's conduct at her wedding, see [55] above, and the manifestations of confusion to which I have referred at [57] above.
5. Professor Rosenfeld also referred to Mrs Bush's nomination of Cec as her executor and said that this further "highlight[ed] the extent of [her] cognitive decline, disordered thinking and reduced recall".
6. Dr Reid agreed that Mrs Bush's nomination of Cec as her executor "raises concerns about her testamentary capacity" in November 2011.
7. Dr Reid noted that on 1 November 2011 Mrs Bush had been diagnosed with iron deficiency anaemia, was being treated with iron infusions and concluded: "I am of the opinion due to Mrs Bush's anaemia at that time, she was likely to have had significant impairment in her cognitive functioning and testamentary capacity as anaemia is a well reported cause [of] confusion/delirium and impairment in cognition is an important factor to be considered in evaluating dementia."
8. However, Dr Reid pointed out that the clinical records of Mrs Bush's general practitioner, Dr Sivanathan "make no mention of any cognitive impairment through to December 30th 2011 that was of sufficient severity to alert [him] to Mrs Bush being demented and significantly cognitively compromised at that time".

Conclusion as to the 22 November 2011 document

1. In these circumstances, there is certainly "room for some doubt" (see [37] above) about Mrs Bush's testamentary capacity in November 2011.
2. That doubt arises primarily by reason of Mrs Bush's nomination of Cec to be her executor. Whatever the reason for that confusion, it obviously bespeaks some lack of cognitive function.
3. And the opinions expressed by Professor Rosenfeld and Dr Reid require careful consideration, notwithstanding the fact that they have expressed their opinions on the papers and without seeing Mrs Bush.
4. On the other hand, one thing that was agreed between the experts was that it was likely that, at the time of each of the Impugned Wills, Mrs Bush was able to understand the nature of the act of making a will.
5. Further, as I have said, the will is very simple, and a decision by Mrs Bush to leave her estate to the Cancer Council and the Wee Waa Anglican Church is understandable.
6. The only evidence of conduct by Mrs Bush which might suggest she did not understand the nature and extent of her estate is Helene's evidence of Mrs Bush saying she had no money. But I find that evidence to be equivocal and, in any event, the one particular instance to which Helene referred was well after she executed the November 2011 will.
7. Notwithstanding Professor Rosenfeld's opinion, I am satisfied that in November 2011, Mrs Bush understood the claims on her bounty to which she should give effect. She was in regular contact with Helene and actually told her, in November 2011, that she was proposing to change her will (see [59] above). Helene also gave evidence in cross-examination that her sisters were in contact with Mrs Bush during 2011 but did not identify any instances, besides that involving Wendy (see [53] above), which suggested Mrs Bush had forgotten them.
8. Mrs Bush gave instructions to Mr Palmer without, I infer (see [90]), manifesting any sign of lack of cognitive function.
9. And Mrs Bush presented to the outside world as being attentive and alert.
10. In those circumstances, and notwithstanding there being some room for doubt, my opinion is that the balance of probabilities points to the conclusion that Mrs Bush had sufficient testamentary capacity to make her November 2011 will. The factor I find most persuasive is the simplicity of the will and its evidently rational disposition of Mrs Bush's estate.

Events thereafter

1. In May 2012 Mrs Bush (who was then 87), was admitted to Wee Waa Hospital.
2. The clinical notes from that hospital include: "Since admission Ella has had regular episodes of hallucinations, aggression, confusion and non-compliant → refusing medications and observations. Family states Ella has had increasing falls and confusion recently. She remains confused as to person place → except family members/friends."
3. Mrs Bush was transferred to Tamworth Hospital in June 2012.
4. That hospital's records include: "Ella is a [sic] 87 year old lady who transferred from Wee Waa for further investigation of recent cognitive decline and confusion. … CLINICAL NOTES Cognitive decline over 2 years, worse last 2-4 weeks. ? Dementia".
5. The clinical notes at Tamworth Hospital recorded that Mrs Bush had significant anaemia. She recorded a haemoglobin level of 4.4g/L which, it is common ground, is critically low.
6. A care plan prepared in relation to an assessment of Mrs Bush on 18 June 2012 recorded: "Mrs Bush has lived on her own since the death of her husband and son. Previously Mrs Bush was independent with most activities. In recent months Mrs Bush has had a cognitive decline with a delirium which placed her in hospital. Following investigations it was found that Mrs Bush had a low [haemoglobin count] resulting in her requiring a transfusion in Tamworth. Since the transfusion Mrs Bush has become more alert. Her regular blood tests show a gradual decline of her [haemoglobin] levels which is to be investigated… Recommend application to Guardianship Tribunal for financial management."
7. In June and September 2012, Mrs Bush underwent a screening test known as a "Mini Mental State Examination"; the results of which suggested moderate dementia.
8. On 2 October 2012, Dr Peter Harradine, the Director of Rehabilitation and Aged Care Services at Tamworth Hospital prepared a report in which he stated: "Thank you for referring this 88 year old lady for a dementia assessment whom I saw on the 26/09/12. She was accompanied by her sister-in-law Maisie Kelly who is her Enduring Guardian. Earlier this year in June she became acutely unwell and was admitted to Wee Waa Hospital. She was very confused and difficult to manage. She was transferred to Tamworth Hospital where she was found to have a haemoglobin of 4.4. This was not investigated further in view of her age and severe cognitive impairment and she was given iron infusions. There was no clear symptomatic cause. Since return to Wee Waa she has returned home where DVA nurses are now visiting her daily. Her driver's licence has been cancelled but she has apparently still been accessing a car and the police have had to stop her from driving. She thinks she is going to get her licence back. According to her sister-in-law she is managing reasonably well at home. She is still very active in the garden and last weekend won prizes in the flower show. Apparently she has quite significant financial assets according to her sister-in-law as she and her husband won Lotto many years ago. For example they own a house over at Yamba and she thinks she may have a lot of money sitting in accounts. She has limited family support locally as her two sons are no longer alive. One of her sons died from cancer last year. Her other family, including a brother and grandchildren, live in Queensland. She has no awareness that she has any memory problems or cognitive impairment. On a Folstein MMSE today she scored 18/30 with deficits in orientation, registration, recall (0/3) and design copying. On a clock face test there was some mild disorganisation but she was unable to put the hands to 10 past 11 indicating problems with planning and conceptualisation. On physical examination she was frail. Her pulse was regular but she had a very loud pansystolic murmur at the apex radiating across to the left sternal edge due to mitral regurgitation. There were no signs of cardiorespiratory failure. In summary she appears to have cognitive impairment due to Alzheimer's dementia which is obviously a progressive incurable condition. She has little awareness or insight into this. On a day to day basis from her sister-in-law's report she is managing reasonably well at home with support services however she certainly would be unsafe to return to driving and I could not support her wish to return to driving and reinforced this with her today. She is very vulnerable to financial exploitation or financial losses due to her own dementia and lack of capacity in this area and I suspect that she actually needs a financial manager to oversee her finances and assist with making decisions at this point."
9. Dr Harradine's report makes clear that by now Mrs Bush had some cognitive impairment. Dr Harradine reported that Mrs Kelly understood (as was the fact) that Mrs Bush "may have a lot of money sitting in accounts". Mrs Kelly and Mrs Bush were very close. Mrs Kelly was Mrs Bush's guardian. It seems likely that Mrs Kelly only knew of the money in the accounts because Mrs Bush told her. That does suggest that any remarks that Mrs Bush made to Helene of the kind referred to at [79] to [81] above did not reflect her actual understanding of her financial position.

The November 2012 will

1. On 12 November 2012 Mrs Bush asked Helene to drive her to Narrabri "to visit the solicitors to have a new will made".
2. This followed a conversation with Helene (see [77] above) in which Mrs Bush said that "Uncle Cec is my executor" and Helene reminded her that "Uncle Cec passed away years ago".
3. Mr Palmer saw Mrs Bush that day.
4. On that occasion Mrs Bush executed her 12 November 2012 will. As I have mentioned, the only difference between that will and her 22 November 2011 will was to nominate her brother Ted, rather than her late brother Cec, as her executor.
5. This makes clear that Mrs Bush had, belatedly, either understood that Cec had died, or that she had mistakenly nominated Cec, rather than Ted as her executor, and that it was necessary for her to appoint another executor.
6. Mr Palmer had no recollection of this occasion. His note of 12 November 2012 reads simply: "Also Edward John Hurn $100.00."
7. The meeting was very brief. Helene and her son waited for Mrs Bush at a nearby bakery. Helene said that Mrs Bush was in Mr Palmer's office for "not more than five minutes".
8. That being so, it seems most unlikely that Mr Palmer did any more than note that a new executor was to be appointed and arrange for Mrs Bush to execute a new will making this change.
9. Professor Rosenfeld expressed the view that on his reading of the medical material, Mrs Bush's dementia had progressed markedly since November 2011, and that in November 2012 "it is unlikely that Mrs Bush would have properly understood or recalled the nature and extent of her assets even in general terms" and that Mrs Bush was "more likely, than the year before, to have been either unaware or had less than adequate recollection in order to be able to weigh and consider her granddaughters as beneficiaries of her estate, as had been indicated in the testamentary intentions of her earlier wills of 1990 and 8 June 2011".
10. Dr Reid expressed a different view and said: "From the medical history however I disagree with Dr Harradine's diagnosis of Alzheimer's dementia being the cause of [Mrs Bush's] cognitive impairment and again refer to the impact her anaemia was having on her cognition at the time… [A]t the time of making her Will on 12th November 2012 despite her cognitive impairment I am of the opinion Mrs Bush had capacity to make her Will, understanding what a Will was, who her beneficiaries were and it was likely she also had some understanding of the extent of her estate with an awareness of the house that she owned plus a property in Yamba and that she had money in the bank although it is unlikely she knew the exact amounts of the money she held in bank accounts. I am also of the opinion, considering her age and changing property prices in the market place, it is unlikely she knew the value of her properties."
11. However, the only change to the November 2012 will was to replace Cec with Ted as executor. It seems clear that Mrs Bush understood that this was necessary and that this was why she needed to execute a further will. Notwithstanding the brevity of Mrs Bush's meeting with Mr Palmer, I see no reason to doubt that Mrs Bush understood the effect of what she was doing and continued to understand the extent of her property and the claims on her bounty.

Ted's death and the February 2013 will

1. Ted died shortly thereafter, on 7 December 2012.
2. Evidently, Mrs Bush came to appreciate that Ted's death meant that, once again, she needed to appoint a fresh executor. That makes clear that, notwithstanding that her cognitive function may have been declining, she appreciated she needed to make a further will.
3. Thus she met Mr Palmer again on 21 February 2013. Mrs Kelly accompanied her on that occasion.
4. Mr Palmer's file note on that day reads: "Your Executor Public Trustee. XXX Maisie Kelly - sister in law Wee Waa XXX XXX."
5. Mr Palmer could not recall this occasion. There is no evidence as to how it was that the "Public Trustee" was proposed as executor. It is likely to have been Mr Palmer's suggestion.
6. Professor Rosenfeld opined that Mrs Bush's testamentary capacity would have been even more problematic by this time.
7. He said that: "Mrs Bush was unlikely, by the time of her will of 21 February 2013, to have understood or become properly aware, even in general terms, of the nature and extent of her estate. … Mrs Bush was suffering from progressive dementia the nature of which would have continued to progress and worsened by the time of the will of 21 February 2013. In my view Mrs Bush would have been unlikely to have properly recalled or…been able to consider her granddaughters as potential beneficiaries in her will."
8. Dr Reid was more sanguine about Mrs Bush's capacity He said: "[D]espite Mrs Bush having evidence of cognitive impairment, considering she continued to live in her own home at that point in time with support from community nursing and the fact of her still looking well presented in my opinion does not indicate her cognitive functioning was so impaired to render her not having capacity of making her Will at the time of 21st February 2013."
9. Dr Reid continued: "At the time of making her Wills on 12th November 2012 and 21st February 2013 [Mrs Bush] had received treatment for her anaemia. [Tests undertaken by Mrs Bush] indicated [Mrs Bush] did suffer cognitive impairment, however there was no deterioration in her cognition over that time. Furthermore, examination of her [responses to the tests] together with the accounts of [Mrs Kelly] and the absence of documentation of clear cognitive impairment noted by her GP at the time of his examinations would further indicate her cognition, although impaired, was not of sufficient severity to render her lacking in capacity to understand the notion of a Will, show an understanding of her assets and be able to appreciate the various claims upon her bounty. Furthermore, I could find no compelling evidence that she suffered from a disease of the mind that poisoned her affection."
10. However, once again, the only change made by the February 2013 will was to substitute the Trustee for Ted as executor. That was necessary because of Ted's death, as Mrs Bush evidently appreciated. There is no reason to think that Mrs Bush was at this time reconsidering how to dispose of her estate.
11. Several months later, in May 2013, Helene first came to know that Mrs Bush had made a will in favour of the Cancer Council and Anglican Church. Thus, Helene gave evidence that in May 2013 she visited Mrs Bush and, at Mrs Bush's request, opened a letter (evidently from Mr Palmer) enclosing a copy of Mrs Bush's will.
12. Helene said that she then had this conversation with Mrs Bush: "[Helene]: Nan, would you please help me to understand why in your will you have given everything you own to the Cancer Council and the Church? You've never shown much more than a passing interest in either. [Mrs Bush]: I don't remember doing that. [Helene]: Have a look Nan. This is your will. [Mrs Bush]: Is this really my will? [Helene]: Yes Nan. [Mrs Bush]: Oh. Oh well, it doesn't really matter because there is hardly any money there anyway."
13. Helene said that "[f]rom her facial expression and voice" she formed the view that Mrs Bush was "very confused and was becoming upset" and that, accordingly, she did not continue the discussion.
14. In Mr Palmer's file there is a note dated 20 May 2013, made by a member of Mr Palmer's staff, in the following terms: "Attending Helene Craig-Bridges on telephone XXX who advised she is the granddaughter of Mrs Bush and who she had appointed executor has now passed away. She requested that [Mr Palmer] ring Mrs Bush on XXX to organise a new Will and Power of Attorney. Mrs Bush doesn't have a licence and was wondering if you could drive to Wee Waa."
15. Helene gave this account of a conversation with a member of Mr Palmer's staff on what appears to have been the same occasion as prompted the file note of 20 May 2013: "[Helene]: Hi, I am calling on behalf of my grandmother Ella Bush. I would like to speak with Mr Palmer about her will and my concerns. Receptionist: You cannot talk to him. It's inappropriate. [Helene]: Well the executor in Nan's will has passed away and she needs to appoint a new one but I don't think she has the capacity to make legal decisions. Receptionist: Well she has been fine to do it before. [Helene]: I disagree. Nan nominated her deceased brother in the first will and her terminally ill brother in the second. Her driver's licence is being revoked due to her mental capacity. Nan has been hospitalised and has been diagnosed with Alzheimer's disease. How can you say she is fine? Receptionist: Mr Palmer will take care of the situation. I'll post out the appointment date."
16. It does seem odd that Helene would, at this stage, refer to Mrs Bush's "appointed executor" as having "passed away" as by now the Trustee had replaced Ted as executor. It may be that Helene had not noticed that the will she had recently seen appointed the Trustee as executor.
17. Helene agreed that she rang Mr Palmer's office at around this time, but denied that she had requested that Mr Palmer "organise a new will". However, the file note of 20 May 2013 suggests that she did make such a request.
18. On 30 May 2013 Mr Palmer made a note: "Rang Mrs Bush. She told Helene that it was all fixed up. She'll let Helene know."
19. Mr Palmer had no recollection of this conversation. But his note suggests that, following the message Helene left on 20 May 2013, Mr Palmer rang Mrs Bush to discuss whether Mrs Bush wished to "organise a new will" and that Mrs Bush said something to the effect that this was not necessary and that she would explain the position to Helene.
20. Mrs Bush's reaction to Helene's questions about the disposition of her estate to the two charities might suggest a lack of recollection of the circumstances of her execution of one or all of the Impugned Wills. Or, it may reflect no more than that Mrs Bush did not wish to confront Helene about her change of testamentary disposition. And, Mrs Bush's response to Mr Palmer's 30 May 2013 enquiry suggests that she understood, and was satisfied with that disposition.
21. Taking all these matters into consideration, including the lay observations of Mrs Bush throughout this period, and Mrs Bush's evidently rational responses to the need to name new executors in her will and to Mr Palmer's enquiry of 30 May 2013, I am satisfied that it is more likely than not that, despite there being some diminution in Mrs Bush's cognitive function, even at this late stage, she still understood what it was to make a will, understood the nature and extent of her property and the claims to which she ought give effect.

Conclusion as to the Impugned Wills

1. For these reasons, I am satisfied that Mrs Bush had capacity to make each of the Impugned Wills.

Helene's claim for provision

1. It is necessary therefore, to consider Helene's claim for provision.
2. Helene lived full time with Mrs Bush and her late husband from 1989 until 1992. She said that: "For the majority of time that I lived with my grandparents I did not have a job and was unable to afford rent. I did not pay [Mrs Bush] any rent or board and she did not ask me to."
3. Helene was a member of the household of Mrs Bush and her late husband, went on holidays with them and was paid an allowance. Helene said that she regarded her relationship with Mrs Bush as that of parent and child and that she often spoke to Mrs Bush at length "about things which would generally be discussed between mother and daughter".
4. Helene is thus an eligible person within the meaning of s 57(1)(e) of the Act in that she was, during this period, wholly or partly dependant on Mrs Bush and was a grandchild. She was also a member of Mrs Bush's household.
5. To obtain an order for provision it is necessary for Helene, as a grandchild, to point to factors beyond those establishing her eligibility under s 57(1)(e): for example Re Fulop Deceased (1987) 8 NSWLR 679 at 681 per McLelland J; cited with approval by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241 and see Hallen AsJ (as his Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [61].
6. Mr Ellison submitted that those further factors were that Helene had been named as a beneficiary in the June 2011 will, that she was, in substance, a de facto child of Mrs Bush and had, throughout her life, an extensive relationship with Mrs Bush.
7. I accept that submission. Helene's unchallenged evidence was that she maintained close and regular contact with Mrs Bush throughout their joint lives and especially in Mrs Bush's later years.
8. After Helene ceased living full time with Mrs Bush in 1992, she moved to Queensland and started a relationship with her first husband.
9. Thereafter she visited Mr and Mrs Bush in Wee Waa regularly.
10. After Mr Bush died in 1995, Helene visited Wee Waa three to six times a year and stayed with Mrs Bush for periods of up to two weeks.
11. Mrs Bush suffered a stroke in 2007 and between September 2008 and February 2009 Helene moved in with Mrs Bush to assist her, on a full time basis, with cooking, housekeeping, shopping and other like activities.
12. Helene returned to Queensland in February 2009 to care for her children but thereafter remained in constant contact with Mrs Bush and visited Wee Waa every two or three months.
13. After Ronny died Helene visited Mrs Bush in Wee Waa regularly and stayed with her for up to two weeks at a time.
14. As I have found that Mrs Bush had the capacity to make the Impugned Wills, the result is that Helene receives no provision from Mrs Bush's estate.
15. In the circumstances I have described, my opinion is that, by making no provision for Helene, Mrs Bush did not make adequate provision for Helene's maintenance and advancement in life for the purposes of s 59 of the Act.
16. Helene is currently 43 and is employed in a permanent part time position as a childcare worker. Her taxable income for the year ended 30 June 2016 was in the order of $56,000. Her husband, Adrian, is a member of the Australian Defence Force. His income is similar to Helene's, although, when on deployment (as he was recently) his income was tax free.
17. Helene and Adrian live in rented accommodation. Helene's son, Andrew, who has some cognitive challenges, lives with them and is likely to be dependent on them for the foreseeable future.
18. Helene and Adrian can expect to have the benefit of subsidised Defence Force accommodation until Adrian retires (in some 20 years' time).
19. In those circumstances, the amount of provision that should be made for Helene provision is an amount equal to the share she would have enjoyed under the June 2011 will; namely a 1/5th share.

Conclusion

1. I invite the parties to confer and agree on the orders that should be made to give effect to these reasons.
2. I will hear the parties as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2016