Bailey v Bailey

Supreme Court of NSW|2019-06-17|Before: Henry J, Santow J

Judgment

These proceedings relate to the estate of the late Minnie Blanche Condon (also known as Blanche Minnie Condon) who died on 13 December 2016 aged 86. The deceased left a will made on 22 November 2016 (2016 Will).
The executors under the 2016 Will are Bruce Keith Phillips and Robyn Ruth Price, a nephew and niece of the deceased (Executors). By the first cross-claim filed in these proceedings on 16 August 2017, the Executors seek an order that probate in solemn form be granted to them in respect of the 2016 Will (Executors' cross-claim).
The validity of the 2016 Will is challenged by Andrew Battenberg, the plaintiff in the proceedings and cross-defendant to the Executors' cross-claim. Mr Battenberg is a nephew of the deceased. Mr Battenberg is also known as Andrew Lee and Lord Battenberg.

Deceased's estate

At the time of her death, the deceased's estate comprised real estate in Kensington (two houses valued at $2.6 million and $2.4 million), shares ($1.107 million), and pensions, a term deposit and other cash in the bank ($1.6 million). As there are no liabilities disclosed in the Executors' affidavits sworn 23 February 2017 and 21 March 2017, the total gross value of the estate was, at that time, $7,644,289.
There is no evidence of the current value of the estate. Presumably the nature of the estate has remained the same and its value has increased since the time of the Executors' affidavits.

Facts

Most of the facts in this case are not in dispute. To the extent there are disputes, the following sets out my findings of the facts relevant to the determination of the issues in the case based on the lay witness and documentary evidence adduced by the parties. I note that Mr Battenberg did not attend the hearing and was not cross-examined.
The deceased was married to James Condon, who died in 1993. She and her husband had no children.
The deceased worked for Citibank (previously IAC) for 49 years. She retired in 1995, at a senior level as Manager, Office Services.
The deceased had two siblings, Ruth Phillips and Harold Lee. The Executors are the children of Ruth Phillips. Mr Battenberg is the adopted son of Harold Lee and his wife Ailsa Lee.
The deceased was close to the Executors and her sister Ruth and regularly celebrated birthdays and Christmas with them and their families. Mr Phillips assisted the deceased in dealing with technology issues and would usually speak to the deceased every 4 to 6 weeks. He saw her about four times a year at significant events, such as Christmas or family birthdays, and also visited her when she was in hospital or had an illness. Mrs Price also saw the deceased regularly, particularly in the last 10 years of her life, and assisted when the deceased had medical issues.
In 2009, the deceased was diagnosed with chronic lymphocytic leukaemia. After that diagnosis, the deceased nominated Mrs Price as her next of kin on all medical records.
In 2011, the deceased fractured her hip after a fall and required hospitalisation and surgery. Mrs Price visited the deceased nearly every day and accompanied her to medical appointments after the fall.
In October 2014, the deceased was diagnosed with lung cancer. She received radiotherapy treatment for that cancer in November and December 2014.
In September 2015, the deceased broke her pelvis and was in hospital for a few weeks and rehabilitation thereafter.
During the last four years of her life, Mrs Price took the deceased to most of her medical appointments (including those relating to her lung cancer diagnosis and broken pelvis), visited her while she was in hospital or visited her at home on a monthly basis. Mrs Price also spoke to the deceased on the telephone most afternoons at around 5pm to check if the deceased needed anything.
For about the last five to six years of her life, the deceased had twice weekly private physiotherapy and exercise sessions with Jill Rowston, a physiotherapist, to assist with the deceased's lower back, neck balance and fitness issues. The deceased and Mrs Rowston became friends and often met for lunch and dinners.
Prior to her death, the deceased lived alone at her home in Kensington. She had carers who came in three times a week to assist her to shower and received Meals On Wheels. The deceased managed her own medications and used a walker as her mobility was somewhat limited.
The deceased died at Prince of Wales Hospital in Randwick on 13 December 2016, having been admitted to hospital the previous day showing signs of confusion and delirium. The death certificate, which was registered on 11 January 2017, discloses that the cause of death and duration of last illness was: (l) (a) Sepsis, 1 day (b) Left arm cellulitis, 1 week (ll) Aortic stenosis - years, Ischaemic heart disease - years, Chronic lymphocytic leukaemia - 7 years, Frailty - years
The clinical notes of the Prince of Wales Hospital for 12 December 2016 and the discharge referral dated 13 December 2016 state that the deceased had been found unresponsive by her carers at home on 12 December 2016. They also state that the deceased had "possible" sepsis secondary to left forearm cellulitis, she had received a cat scratch 2 weeks prior and that she presented with "delirium".

Deceased's prior wills

The evidence discloses that the deceased made prior wills on 16 August 1993 and on 18 July 1997. These wills were prepared by John Holmes who was, at the time, a principal at Holmes and Bevan, Solicitors. The 1993 will is not in evidence.
A copy of the 1997 will (with handwritten notations made by the deceased) is in evidence. The 1997 will provides for Mr Holmes as the executor (cl 2) and for specific bequests to sixteen named nieces, nephews, godchildren and friends. Those bequests included $400,000 each to Mrs Price and Mr Phillips (cl 3(a) and cl 3(b)) and $50,000 to Mr Battenberg (cl 3(c)) who is referred to in the 1997 will as "my nephew Andrew Charles Robert Lee".
The 1997 will also provides for bequests of $20,000 to each of the NSW Cancer Council and the Multiple Sclerosis Society (cls 3(o) and 3(p)) and for the residue of the deceased's estate to be divided equally between the RSPCA and the Stroke Recovery Association (cls 3(q) and 3(r)).

Circumstances surrounding the preparation and execution of the 2016 Will

On 3 November 2016, the deceased asked Mrs Price, who was with the deceased that day, to contact O'Rourkes, Solicitors (O'Rourkes), so that the deceased could make a new will. The deceased also told Mrs Price that she wanted a power of attorney and enduring guardian prepared so that Mrs Price and Mr Phillips could act for her.
Earlier in 2016, the deceased had told Mrs Price that she wanted to update her will using a local solicitor that one of her friends had spoken highly of and that she wasn't" going back into the city for anything anymore". Mrs Price was not aware of O'Rourkes, nor had she had any dealings with them prior to being told about them by the deceased on 3 November 2016.
The deceased gave Mrs Price a business card for O'Rourkes which had the name "Lorraine O'Rourke" on it. Mrs Price called the number and spoke to Aaron O'Rourke, who is Lorraine O'Rourke's son. Mr O'Rourke advised Mrs Price that his mother was not taking on new clients but that he was available to meet with the deceased. After being advised by Mrs Price that the deceased used a walking frame, Mr O'Rourke offered to come to the deceased's home to meet with her.
Mrs Price made an appointment for the deceased and Mr O'Rourke to meet at 11.45am on 10 November 2016. The deceased asked Mrs Price to attend the meeting and she agreed to do so.
At the time she made the appointment, Mrs Price did not have any knowledge of the terms of the deceased's prior wills. The only knowledge Mrs Price had about the deceased's testamentary intentions was that the deceased wanted to update her will, the deceased's intentions towards "Andrew" (Mr Battenberg) had changed and that the deceased would not be giving any of her estate to Andrew.
Mrs Price's evidence in relation to the deceased's testamentary intentions with respect to Mr Battenberg is consistent with the other lay evidence. Mr Phillips' evidence is that, in around 2003, the deceased told him that she was "taking Andrew out of my will". Ms Rowston's evidence is that, in mid-2016, the deceased told her she was going to see a lawyer to change her old will and that she did not want "Andrew in the will".
At around 11.30am on 10 November 2016, Mr O'Rourke arrived to meet the deceased at her home in Kensington. Mrs Price was already there. Mrs Price answered the door, introduced herself and took Mr O'Rourke through to meet the deceased who was in the back patio area of her house.
After introductions and a discussion of a general nature about the O'Rourkes practice, the local area and how Mrs Price assisted the deceased with medical appointments, the deceased advised Mr O'Rourke that she wanted to do a new will which she had been meaning to do it for some time.
The deceased handed to Mr O'Rourke a copy of her 1997 will which had handwritten notations on it. The deceased told Mr O'Rourke she had marked up the changes on her 1997 will that she wanted to make for the new will. Amongst the changes the deceased had made to the 1997 will were: 1. striking through the name of John Alan Holmes as the executor in cl 2; 2. writing the word "delete" in the margin next to and crossing out the words "DOLLARS ($50,000)" within cl 3(c), which was the clause providing for the bequest of $50,000 to Mr Battenberg; 3. writing "200,000" above cl 3(q), which was clause providing for the bequest to the RSPCA NSW, and crossing out the words "one half of the balance" of my estate within cl 3(q); and 4. writing "$20,000" above cl 3(r), which was the clause providing for the bequest to the Stroke Recovery Association.
At the meeting, Mr O'Rourke read every line of the marked up 1997 will with the deceased. They discussed each of the beneficiaries listed and each of the changes the deceased wanted to make for the new will. As the deceased and Mr O'Rourke discussed the marked up will, Mr O'Rourke also made handwritten notations on it to reflect his instructions from the deceased.
Amongst the handwritten notes that Mr O'Rourke made to the marked up 1997 will were: 1. writing "ex" in the margin next to the gifts to Mr Phillips and Mrs Price (cls 3(a) and (b)) after being advised by the deceased that John Holmes had been her solicitor but could not be executor as he had retired and that she wanted "Bruce and Robyn as my executors"; 2. writing "no gift" below the word "delete", next to cl 3(c). Those words were included after the deceased advised Mr O'Rourke that she did not want Mr Battenberg to receive any gift, that she wanted to "take him out" and that she didn't "want Robyn and Bruce to have any contact with him". When asked by Mr O'Rourke to confirm that she wanted Andrew to be removed from the will, the deceased responded that she did, that it had been her intention to remove him for some time and it was the main reason she wanted to "redo my will"; 3. writing "Guide dogs $50,000" at the bottom of the second page of the will underneath cl 3(p), after being told by the deceased that she wanted to give a legacy of $50,000 to the Guide Dogs Association; and 4. writing "remainder Robyn/Bruce" at the end of cl 3. Those words were included by Mr O'Rourke after the deceased informed him that she wanted the residue of her estate to go equally between "Robyn and Bruce".
After being told the deceased wanted Mrs Price and Mr Phillips to be her executors, Mr O'Rourke said he needed their addresses. Mrs Price gave him those details and Mr O'Rourke wrote the addresses next to Mr Phillips and Mrs Price's names at cls 3(a) and 3(b).
During the meeting, the deceased told Mr O'Rourke that she used to work for Citibank, her husband had died some time ago by stroke, and that she had previously had a cancer scare. She also told him about two houses she owned and that she had "a lot of shares" which were "managed by a financial manager". She told him that her "share portfolio is going well", there was "a large amount of money being managed" and that "I don't have to worry about money".
Other than to volunteer her address and that of Mr Phillips, Mrs Price did not say anything during the discussion between the deceased and Mr O'Rourke about the terms of the deceased's new will.
After Mr O'Rourke and the deceased had been through the marked up will, they discussed the power of attorney and enduring guardian appointments. The deceased told Mr O'Rourke that she wanted to appoint Mr Phillips and Mrs Price and that she wanted the documents to commence straight away.
The meeting on 10 November 2016 lasted about 45 minutes.
On 22 November 2016, Mr O'Rourke went back to the deceased's house to meet with the deceased. He had with him with a copy of the deceased's new will, which had been prepared based on the instructions Mr O'Rourke received from the deceased on 10 November 2016. He also had a copy of the appointment of enduring guardians.
Mr O'Rourke's wife, Sally, also attended the meeting on 22 November 2016 as the second witness for the deceased's execution of the new will. At the request of the deceased, Mrs Price was also present.
At the meeting on 22 November 2016, Mr O'Rourke brought out the new will to review it with the deceased. She took the new will from him, put it on the table and read every line of it out loud. The deceased did not ask Mr O'Rourke any questions about the new will but noted a minor spelling error in the name of her goddaughter at cl 3(e), which was corrected by a handwritten amendment so that it read "MIRANDA" and not "MARANDA".
The deceased then executed the new will and Mr and Mrs O'Rourke witnessed it. They each initialled next to the handwritten amendment to cl 3(e).
After execution of the 2016 Will, the deceased said words to the effect of "That's a relief. I am glad that Andrew isn't in the will anymore".
The enduring guardian appointments document was also executed by the deceased at the meeting on 22 November 2016.
At the end of the meeting, the deceased asked for the originals of the new will and enduring guardian appointments and Mr O'Rourke gave them to her.
The meeting on 22 November lasted about 30 minutes.
Later on 22 November 2016, the deceased saw her neighbour, Patrick Ryan, and advised him that she had just redone her will as she wanted to remove someone from it. The deceased told Mr Ryan that the person she wanted removed from her will was a fellow who "thinks he is an illegitimate child of Prince Phillip" and he was a "lazy good for nothing person that would not work".
On 22 November 2016, Mr O'Rourke sent an invoice to the deceased for the work performed.
The power of attorney was not executed on 22 November 2016 as a page was missing. It was executed by the deceased on 24 November 2016, when Mr O'Rourke returned to the deceased's house for that purpose.

Testamentary capacity

The first issue raised by Mr Battenberg's amended defence is whether the deceased had testamentary capacity on the date that she executed the 2016 Will.
There is no dispute that, as the propounders of the 2016 Will, the Executors have the legal onus to prove that it was the last will of a "free and capable testator" who "knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he/she was doing": Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 (Carr v Homersham) at 348 [98]; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704F-G.
If a will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent and had testamentary capacity: Re Hodges; Shorter v Hodges, at 706E; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Tobin v Ezekiel) at 771 [45] per Meagher JA, Basten and Campbell JJA agreeing; Carr v Homersham, at [98].
The presumption of mental competence may be displaced by circumstances which raise a doubt as to the existence of a deceased's testamentary capacity. Where the circumstances raise a doubt, the evidential burden shifts to the party propounding the will to dispel those doubts and show that the testator was of sound disposing mind on the balance of probabilities on a consideration of the evidence as a whole: Bull v Fulton (1942) 66 CLR 295 at 299, 341; [1942] HCA 13; Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67; Tobin v Ezekiel, at 771 [45]; Carr v Homersham, at 348 [98].
The test for the requisite mental competence for testamentary capacity is set out in Banks v Goodfellow (1870) LR 5 QB 549 at 565, as summarised by Basten JA in Carr v Homersham, at 330 [5] as: (a) the capacity to understand the nature of the act of making a will and its effects; (b) understanding the extent of the property the subject of the will, and (c) the capacity to comprehend moral claims of potential beneficiaries. At [6] his Honour said that "negative elements" are only relevant so far as they "interfere with the testator's normal capacity for decision-making".
The Executors contend that the 2016 Will is rational on its face. It is admitted by Mr Battenberg that it was duly executed. For these reasons, the Executors say there is a prima facie case of validity.
Mr Battenberg's amended defence particularises a number of matters in support of his contention that the deceased was not of sound dispositive mind, memory and/or understanding at the time she executed the 2016 Will.
The particulars include assertions that, on 22 November 2016, the deceased was a patient admitted to the Prince of Wales Hospital suffering from septicaemia obtained from a cat scratch and which led to her being diagnosed as being delirious. At the hearing, Mr Battenberg's counsel accepted that the deceased was not in hospital as at 22 November 2016 (T45:49-50).
The particulars also assert that: h. The delirium was manifest as at 21 and 22 November 2016 in that the deceased believed she kept important documents, including her previous will, under the cats' [sic] bed and believed her previous will was made on 18 July 1997 when the deceased had in fact made later wills on 16 August 1993.
At the hearing, Mr Battenberg's counsel confirmed that the only basis upon which it could be put that the deceased did not have a sound dispositive mind, memory and/or understanding at the time he gave instructions and executed the 2016 Will is a statement alleged to have been made by the deceased to Mr O'Rourke on 10 December 2016 that her will was kept under the cats' bed (T46:6-8). Mr Battenberg's counsel submits that this statement is sufficient evidence to raise a doubt as to deceased's testamentary capacity as, on its face, it suggests "irrational thinking".
Mr Battenberg also points to evidence that, as at 28 October 2016, the deceased had been scratched by a cat and six weeks later the deceased died of septicaemia, although he accepts there is a gap in the evidence as to when the septis started (T46:8-12).
I am not persuaded by Mr Battenberg's submission that a statement made by the deceased on 10 November 2016 that she kept her 1997 will under the cats' bed, either by itself or together with evidence that, as at 28 October 2016, the deceased had been scratched by a cat, is sufficient evidence in this case to raise a doubt about the deceased's testamentary capacity and overcome the presumption that the deceased was mentally competent. This is for the following reasons.
First, the medical and other contemporaneous records in evidence in relation to the deceased's health and cognitive condition do not suggest any delirium or lack of cognitive ability on the part of the deceased as a result of a cat scratch or at all, as at 10 or 22 November 2016. To the contrary, and as set out below, the contemporaneous records raise no doubt as to the deceased's testamentary capacity at the time she executed the 2016 Will.
On 18 August 2016, the deceased's cognitive condition was assessed as normal as part of a University of New South Wales Sydney Memory and Aging Study she had participated in.
The progress notes of the deceased's general practitioner, Dr Hudson, for 28 October 2016 refer to a cat scratch that had "healed" and the deceased as "otherwise well". Dr Hudson's earlier progress notes for 21 October also refer to the cat scratch, stating "healing well" (Ex 3).
The report from Dr Bosco, the deceased's haematology specialist, to Dr Hudson dated 3 November 2016, states that the deceased, while tired, was maintaining her usual level of activity and had no "constitutional symptoms, fevers, infections, bleeding or bruising" (Ex C).
Dr Hudson's progress notes in relation to her attendances on the deceased on 29 November, 1 and 9 December 2016 do not identify any cognitive or capacity issues in relation to the deceased. The notes refer to a cat scratch which needs to cleaned "with betadine" (29 November), the "wound looks better" (1 December) and the "cat scratch - healing well" (9 December) (Ex D).
Dr Hudson's written referral to Dr Kushwaha, a cardiologist, dated 9 December 2016, in relation to the deceased states "Cognitively she is very well" (Ex E).
The Prince of Wales Hospital records and progress notes in relation to the deceased's admission on 12 December 2016 state that the deceased was delirious when admitted to hospital on 12 December 2016. The background section of the notes do not indicate any prior cognitive impairment or delirium, but refer to the presenting problem as "confused, possible sepsis from cat scratch" and that she had a positive screen for delirium on that day but no formal dementia diagnosis (Ex F). The notes also indicate that the delirium was a result of infection from a cat scratch that the deceased received a week or two earlier, which was after the deceased had given instructions for and executed the 2016 Will.
Second, other documents in evidence negate any doubts about the deceased's cognitive abilities. A copy of a quote for building work obtained by the deceased from Kensington Kitchens on 6 December 2016 includes the deceased's sensible and coherent handwritten notes about matters such as the finish of floor tiles, scope of painting works and whether central overhead lighting would remain the same. The deceased's diary records for the period 1 to 11 December 2016 also include the deceased's handwritten notes which are clear and coherent.
Third, the lay evidence does not raise any doubt as to the deceased's testamentary capacity as at 10 or 22 November 2016.
Mr O'Rourke's evidence is that, to his observation, the deceased was coherent and competent given the conversations that he had with her on 10 and 22 November 2016 about her assets, the beneficiaries for whom she wanted to make provision and for whom she did not want to leave her assets, her interest in cats as a justification for providing a gift to the RSPCA, her discussion as to the way in which Mrs Price helped her out, the way the deceased read through the new will before executing and her definitive manner in answering questions.
Mr O'Rourke, Mrs O'Rourke and Mrs Price all saw the deceased at her home on 22 November 2016 and gave evidence that she appeared to be suffering no cognitive incapacity on that day.
Ms Rowston saw the deceased four days before her death when she took her out for a short walk. She did not notice any signs of mental deterioration in the deceased or in the manner in which the deceased spoke to her on that day.
Narelle Phillips, Mr Phillips' wife, gave evidence that she spoke to the deceased on the morning of 9 December 2016 for about 30 minutes. Mrs Phillips' evidence is the conversation was not different to any of the other telephone conversations over the years and reflected her view of the deceased as an intelligent and articulate woman who was mentally alert and did not suffer any diminution in her mental capacity.
Fourth, there is conflicting evidence as to whether the statement said to have made by the deceased that she kept her will and important documents underneath the cats' bed was made. Mrs Price, who was present at the meeting, does not recall the deceased saying those words (T14:20). As senior counsel for the Executors' submits, Mr O'Rourke could have been mistaken as to whether the deceased said those words.
Finally, as Mrs Price stated in cross-examination, the deceased had a sense of humour (T14:20). The statement, if made, could have been made in jest rather than in any seriousness.
In those circumstances, even accepting Mr O'Rourke's evidence that the deceased told him she kept her will under the cat's bed, I do not consider the making of it to be indicative of irrational thinking or an unsound mind on the part of the deceased or to raise a doubt as to her testamentary capacity.
Even if I was to accept that the deceased's statement regarding her will being stored under the cats' bed amounted to some form of irrational thinking, it is not the kind of statement that would warrant a finding that the deceased lacked testamentary capacity. It does not suggest the deceased lacked the ability to understand and assess the relevant claims on her bount, and did not have any effect upon the 2016 will. The statement was not material to the deceased's decision to exclude Mr Battenberg or the making of the other bequests and instructions: Carr v Homersham, at 348 [102]; Banks v Goodfelllow, at 571-572.
The deceased was elderly (86 years old) and frail: she required a walker, had a hearing aid and wore glasses. But extreme age will displace a prima facie case of testamentary capacity only if the testator's mental capacities are shown to have been so affected as to make him or her unequal to the task of disposing of his or her estate: Tobin v Ezekiel, at 770 - 771 [45]-[46]; Bailey v Bailey (1924) 34 CLR 558 at 571-572; [1924] HCA 21 per Isaacs J.
In light of the evidence referred to above, the deceased's age and her physical fragility are not, in my view, sufficient to displace the prima facie case of testamentary capacity.
It follows that I accept the Executors' submission that there is no evidence which casts doubt as to the deceased's testamentary capacity on 10 November 2016 when she gave instructions about the 2016 Will and when she executed it on 22 November 2016. The deceased's quip to Mr O'Rourke about documents being stored under the cats' bed and her physical ailments and age do not raise a real issue or doubt as to her cognitive capacity and there is nothing in the contemporaneous medical records to suggest any other relevant impairment.
If I am wrong to conclude that there is no doubt raised as to the deceased's testamentary capacity, I am satisfied that the evidence is sufficient to meet the Executors' onus that the deceased had the requisite mental competence at the time she executed the 2016 Will, based on the Banks v Goodfellow test.
Mr Battenberg did not contend that the deceased did not understand the nature of the act of making the 2016 Will. The evidence indicates that the deceased initiated the process that led to her making the 2016 Will and understood the effect of it, which included excluding Mr Battenberg, making Mr Phillips and Mrs Price executors and leaving them (Mr Phillips and Mrs Price) the residue of her estate.
As to understanding the extent of the property the subject of the 2016 Will, the deceased told Mr O'Rourke that she owned real estate, had a share portfolio and significant income.
The lack of identification by the deceased to Mr O'Rourke of the value of each of her assets or their total value does not indicate that she was not aware of the extent of the property of which she was disposing. It is sufficient that the deceased had a general knowledge of the nature and extent of her assets. No high level knowledge of precision is required: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [64], [94], [99]; Carr v Homersham, at 330-331 [8]. . In my view, the second element of the Banks v Goodfellow test is satisfied.
The third requirement is that the deceased was able to comprehend and appreciate the claims to which she ought to give effect: Banks v Goodfellow, at 565; see also Carr v Homersham, at 328 [9].
The evidence indicates that the deceased considered a range of people when making the 2016 Will and that she made a deliberate choice to exclude Mr Battenberg. The existence of previous wills which included Mr Battenberg, the last being made in 1997, does not support a conclusion that the deceased was not able to comprehend or appreciate the claims to which she ought to give effect. The removal of the bequest to Mr Battenberg is also consistent with statements made by the deceased to Mr O'Rourke, Mrs Price, Mr Phillips, Ms Rowston and to Mr Ryan.
Based on the evidence outlined above, I am also satisfied there are no negative elements or conditions, such as "disorders of the mind" or "insane delusions", that might be understood to interfere with the deceased's testamentary capacity: Carr v Homersham, at 330 [6].

Suspicious circumstances

The second issue raised by Mr Battenberg is whether there are suspicious circumstances which call into question whether the deceased knew and approved the contents of the 2016 Will when she executed it on 22 November 2016.
Where due attestation is proven, there is a presumption of knowledge and approval by the deceased of the contents of a will at the time of execution: Barry v Butlin (1838) 2 Moo PCC 480; 12 ER 1089 at 1090; Worth v Clasohm, at 453; Tobin v Ezekiel, at 771 [45].
That presumption may be displaced by any circumstance that relates to the preparation or execution of the will or its intrinsic terms which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the will: Barry v Butlin (1838) 12 ER 1089 at 1027, 1090-1091; Tobin v Ezekiel, at 771 [46]; Thompson v Bella-Lewis [1997] 1 Qd R 429 at 450-451.
Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances, it is said that such a person has the onus of showing the "righteousness of the transaction". The proponent of the will has to affirmatively establish that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tobin v Ezekiel, at [47]; Fulton v Andrew (1875) LR 7 HL 448 at 472; Tyrrell v Painton [1894] 1 P 151 at 157, 160.
The "righteousness of the transaction" does not require that a will be a wise and just one but that "there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it": Re Nickson, Deceased [1916] VLR 274 at 281; Vernon v Watson; Estate Clarice Isabel Quigley Dec'd [2002] NSWSC 600 at [5].
In Tobin v Ezekiel, at 772 [48] Meagher JA said (Basten JA agreeing): In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995 (NSW).
Mr Battenberg relies on eleven matters particularised in his amended defence (at 3(ii), (iii), (iv), (v), (vi), (x), (xi), (xii), (xiii), (xiv) and (xvi)) in support of his contention that there were suspicious circumstances attending the execution of the 2016 Will such that the deceased did not know and/or approve its contents. Five other matters had been particularised but were either not pressed at the hearing or had been subject to previous rulings that they be struck out.
The Executors submit that none of the matters relied on by Mr Battenberg - either alone or in conjunction with any of the others - raise a suspicion of any substance that support a finding that the deceased did not know of, or approve of, the contents of the 2016 Will.
The first matter raised relates to the circumstances in which the 2016 came to be prepared by Mr O'Rourke.
Mr Battenberg points to the 2016 Will being prepared by a "stranger", Mr O'Rourke, not John Holmes, who he asserts was the deceased's long-standing solicitor. Mr Battenberg also contents that Mrs Price, a beneficiary under the 2016 Will, arranged the introduction to Mr O'Rourke at a time when she "was acting as the deceased's carer". He also asserts that Mrs Price made the arrangement between the deceased and Mr O'Rourke with some urgency and prevailed on Mr O'Rourke to attend upon the deceased at her home.
Most of those assertions are not supported by the evidence. I also do not consider there to be anything suspicious about the fact that Mr O'Rourke prepared the 2016 Will or the way in which Mrs Price made the arrangements for the meeting between the deceased and Mr O'Rourke.
Mr Holmes was not "the deceased's long-standing solicitor" (as asserted in particular (ii)); he had not prepared a will for the deceased for several years. In any event, the letter from Mr Holmes in response to a subpoena indicates that he stopped doing work for private clients in May 2012 when he returned the deceased's wills and title deeds to her (Ex G).
Mrs Price phoned Mr O'Rourke to arrange the initial meeting with the deceased. But it was the deceased, not Mrs Price, who identified Mr O'Rourke, or at least the practice at which he worked, on a recommendation she had received from her friend, contrary to the suggestion in particular (iii). In that context, the assertion that Mr O'Rourke was a "stranger" and excited suspicion is unfounded. There is nothing suspicious about the deceased approaching a new solicitor to prepare the 2016 Will.
The deceased requested Mrs Price to make the call to Mr O'Rourke because the deceased wanted to change her will to remove Mr Battenberg as a beneficiary. The deceased's handwritten notes on her 1997 will and the evidence of Mrs Price and Mr Ryan (see [32], [33], 38 and [52] above) demonstrate this. The fact that Mrs Price was also a beneficiary and made the call to arrange the meeting between Mr O'Rourke and the deceased is, to my mind, of no consequence when considered in that light.
Contrary to particular (v), the evidence does not suggest that Mrs Price made the arrangement for the meeting between Mr O'Rourke and the deceased with any "urgency". Also, it was Mr O'Rourke who offered to come to meet with the deceased at home, rather than being prevailed upon by Mrs Price to do so.
While Mrs Price regularly assisted the deceased by taking her to medical and other appointments and checked on her regularly, Mrs Price was not acting as "the deceased's carer", as asserted in particular (iv). The deceased lived by herself independently, albeit she had carers from the hospital who visited her three times a week. It was the deceased's carers who found her unresponsive at the kitchen table on 12 December 2016.
The other matters relied upon by Mr Battenberg as claimed suspicious circumstances relate to the procedure adopted for the preparation of the 2016 Will by Mr O'Rourke.
In particular, Mr Battenberg relies on the presence of Mrs Price, a major beneficiary, for at least some period of time during the first meeting and for the entire meeting between Mr O'Rourke and the deceased. He also asserts that Mr O'Rourke took instructions directly from Mrs Price (particular (xiii)).
There is no dispute that Mrs Price was a beneficiary and was present during the meetings at which the deceased gave instructions and executed the 2016 Will. But the evidence makes clear that Mrs Price did not give instructions to Mr O'Rourke about the 2016 Will. Rather, it was the deceased who gave the instructions.
The deceased had made many changes to her 1997 will before Mr O'Rourke arrived at the meeting without any involvement of Mrs Price. Mrs Price's evidence, which I accept, is that she did not know of the deceased's testamentary intentions other than that she wished to exclude Mr Battenberg from her will, which was consistent with the evidence given by other witnesses prior to and on the date of the 2016 Will being executed.
The deceased discussed the changes she wanted to make to her will with Mr O'Rourke in a clear and coherent manner, without any involvement of Mrs Price other than providing details of street addresses of the Executors. The deceased told Mr O'Rourke that she wanted Mr Battenberg removed as a beneficiary.
The changes that Mr O'Rourke made in the 2016 Will were in accordance with the changes the deceased had made to the 1997 will and her verbal instructions to him. While Mrs Price was also present at the meeting when the 2016 Will was executed, she gave no instructions in relation to it. The deceased also read the 2016 Will out loud before she signed it.
Mr Battenberg's counsel relies on statements made by Santow J in Pates v Craig & Anor: the Estate of Cole (Supreme Court (NSW) 28 August 1995, unrep) (Estate of Cole) in support of the submission that Mrs Price's presence, as a major beneficiary who assisted in procuring the will, raised a possible conflict and excited suspicion.
Santow J's comments in the Estate of Cole concerned circumstances where a legal practitioner receives instructions from an established client to prepare a will from another person, where the client is to be a principal or major beneficiary under a will. That is not the situation here. Mrs Price was not a client of Mr O'Rourke. She had not had any dealings with him prior to the deceased asking her to contact him on her behalf.
In the Estate of Cole, Santow J refers to the potential for a conflict of interest to arise between the interests of an intended principal beneficiary seeking to procure a will, in his or her own favour, and the interests of the testator. But there was no such conflict of interest here. Mr O'Rourke acted for, and took his instructions directly from, and only from, the deceased. The deceased had asked Mrs Price to contact Mr O'Rourke. Mrs Price was not seeking to procure a will in her favour; nor do I accept Mr Battenberg's submission that Mrs Price was assisting with a view to doing so.
Mr Battenberg's counsel also relies on Santow J's comments in the Estate of Cole that a conflict of interest will especially arise where there is reason to fear a lack of testamentary capacity by reason of fragility, illness or advanced age. For the reasons earlier stated, the evidence does not suggest any lack of testamentary capacity on the part of the deceased because of advanced age, illness or frailty.
In these circumstances, I do not consider that Mrs Price's presence at the two meetings compromised the integrity of the deceased's instructions in relation to her 2016 Will.
Having regard to the procedure adopted for the making of the 2016 Will, I also do not accept the other matters relied upon by Mr Battenberg as suspicious.
When Mr O'Rourke arrived at the deceased's home for the meeting on 10 November, there was some introductory conversation and other small talk before the new will was discussed. The deceased did not "immediately" hand the amended 1997 will to Mr O'Rourke, as asserted in particular (vi).
There is no dispute that it was the deceased who gave the instructions; there is, therefore, nothing suspicious in Mr O'Rourke not asking the deceased to identify herself and verify her identity by a driver's license or passport, as asserted in particular (x).
Based on my conclusions regarding the deceased's testamentary capacity and Mr O'Rourke's evidence that the deceased was coherent and competent in giving instructions, answered questions in a definitive manner, provided him with a marked up will with her changes and he took notes of the oral instructions on the marked up will, Mr Battenberg assertion that Mr O'Rourke did not seek to ascertain whether the deceased was oriented to time, place and person (particular (xi)) and refrained from taking full and comprehensive notes of his interaction with the deceased (particular (xii), are also not suspicious.
There is no evidence that Mr Holmes had not retired (as asserted in particular (xiv)), although the statement in Mr Holmes' letter that he had stopped doing private client work in 2012 could be read an indicating that he had.
I refer to my reasons as to why a statement by the deceased about documents being kept under the cat's bed does not raise doubt about the deceased's testamentary capacity in response to the assertion that such a statement excites suspicion that the deceased did not know and approve the contents of the 2016 Will, as asserted at particular (xvi).
The 2016 Will did not increase the bequests to Mrs Price or Mr Phillips but appointed them as executors and made them the residual beneficiaries. There is nothing suspicious about the appointment by the deceased of her niece and nephew as executors and residual beneficiaries given the closeness of their relationship. Various other bequests were either eliminated or increased in value, none of which are unusual. The removal of Mr Battenberg as a beneficiary of those bequests is not "suspicious"; the evidence of the various witnesses referred to in [32], [33], 38 and [52] above shows that a major purpose in the deceased making a new will was to eliminate him as a beneficiary.
It follows that I am not persuaded that any of the matters relied on by Mr Battenberg, by themselves or together, amount to suspicious circumstances which attended the making and execution of the 2016 Will.
If I am wrong in that conclusion and Mrs Price's involvement in arranging and attending the meetings on 10 and 22 November 2016 requires me to be satisfied of the "righteousness of the transaction", I would be satisfied. The evidence that the deceased wanted to change her will to remove Mr Battenberg as a beneficiary, asked Mrs Price to contact Mr O'Rourke for that purpose, provided the instructions on the 2016 Will to Mr O'Rourke based on the marked up version of the 1997 will she created and her verbal instructions at the meeting, and read the will before she signed it, together with what is, on its face, a rational and fair approach in the 2016 Will, is sufficient, in my view, to establish that the deceased knew and approved the contents of the 2016 Will.
Where a will has been read by or to a deceased, the presumption that a testator knew and approved of the will is a "very strong one and can be rebutted only be the clearest evidence": Re Fenwick [1972] VR 646, at 651. The matters relied on by Mr Battenberg cannot, in my view, be described as clear rebuttal evidence.
In this case, there is evidence that the deceased gave instructions for the 2016 Will and that it was read over by her before she executed it on 22 November 2016. That is the most satisfactory evidence of actual knowledge of the 2016 Will: Tobin v Ezekial, at 771 [47].
It follows that I am also satisfied that there is affirmative evidence that the deceased knew and approved, in the relevant sense, the contents of the 2016 Will.

Costs

The general rule is that costs follow the event unless it appears to the court that some other order should be made: r 42.1 Uniform Civil Procedure Rules 2005 (NSW).
In probate litigation, two exceptions have been recognised in view of the Court's concern to effect the last will of a free and capable testator: In the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709; Perpetual Trustee v Baker [1999] NSWCA 244 at [13]-[14] and Shorten v Shorten (No 2) [2003] NSWCA 60; Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562 at [4]-[5] per White J. Those exceptions may be summarised as: 1. where the testator may properly be seen as the cause of litigation (see, eg, Shorten v Shorten (No. 2) at [19]) the unsuccessful party's costs of challenging the validity of the will may be paid out of the estate (see, Davies v Gregory (1873) LR 3 P&D 28; Perpetual Trust Co Ltd v Baker at [13]; Gray at [23]); and 2. where the testator is not the cause of the litigation, but an investigation is reasonably called for (or, a first instance decision is appealed where the decision was not "obviously erroneous": Perpetual Trust Co Ltd v Baker at [15]), there is usually no order as to the unsuccessful party's costs (see, Gray at [19]).
However, where there is no reasonable cause for investigation, the unsuccessful party will pay the costs incurred by virtue of their challenge to the will: Gray at [19].
In my view, neither of the exceptions referred to above apply in this case. Based on the evidence, it also seems to me that there was no reasonable cause for investigation or challenge by Mr Battenberg to the 2016 Will. Indeed, at the hearing, Mr Battenberg resiled from a number of the assertions particularised in his amended defence to the Executors' cross-claim as they were not supported by the evidence. I have also made findings that other assertions were not supported by the evidence.
In those circumstances, and while no submissions were made at the hearing on the issue of costs, I propose to make an order consistent with the general rule that costs follow the event and order Mr Battenberg to pay the Executors' costs of the proceedings. That order would, of course, be subject to any other orders made in the proceedings, such as the order made by Lindsay J on 10 December 2018 that Mr Battenberg pay the Executor's costs of the proceedings up to and including that date.
If either party considers that some other costs order should be made, they are to confer with the other party and, within seven days, notify my Associate that some other costs order is sought. They should also provide an agreed timetable so that any remaining issues can be determined on the papers.

Orders

For these reasons, I make the following orders: 1. Probate of the will of the deceased dated 22 November 2016 be granted in solemn form to the defendants/cross-claimants to the cross-claim filed on 16 August 2017. 2. The proceedings be referred to the Registrar to complete the grant of probate. 3. The second cross-claim filed by the plaintiff on 6 March 2019 be dismissed. 4. The plaintiff pay the defendants' costs of the proceedings on the ordinary basis, in an amount to be agreed or assessed.

Amendments 30 January 2020 - Date of orders and date of decision amended to 30 January 2020 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: 30 January 2020

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