Bailey v Bailey - [2021] NSWSC 257 - NSWSC 2020 case summary — Zoe

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Bailey v Bailey

[2021] NSWSC 257

Supreme Court of NSW|2020-11-25|Before: Lindsay J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-11-25

Before

Lindsay J

Catchwords

Lucas v Konakas [2014] NSWSC 786 Gerovich v Gerovich [2021] WASC 77 Gill v Woodall [2011] Ch 380 Gray v Hart
Estate of Harris (No. 2) [2012] NSWSC 1562 Hall v Hall (1868) LR 1 P & D 481 Hoff v Atherton [2004] EWCA Civ 155
[2005] WTLR 99
Shorter v Hodges (1988) 14 NSWLR 698 Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 Re Griffith

Source

Original judgment source is linked above.

Catchwords

Lucas v Konakas [2014] NSWSC 786 Gerovich v Gerovich [2021] WASC 77 Gill v Woodall [2011] Ch 380 Gray v HartEstate of Harris (No. 2) [2012] NSWSC 1562 Hall v Hall (1868) LR 1 P & D 481 Hoff v Atherton [2004] EWCA Civ 155[2005] WTLR 99Shorter v Hodges (1988) 14 NSWLR 698 Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 Re Griffith

Judgment (48 paragraphs)

[1]

INTRODUCTION

Before the Court are competing applications for a grant of probate, or letters of administration, in relation to the deceased estate of a wealthy man who, in his prime, was a prominent NSW barrister, an active participant in local government as a mayor of Woollahra and a Conservative political activist.
David Fulton Rofe ("the deceased") died on 21 July 2017, aged 85 years, leaving: 1. an estate with an estimated value of approximately $27 million; 2. twelve known testamentary instruments (comprising 10 wills and two codicils) ranging in date from 23 January 1995 to 17 December 2014; and 3. deep controversy as to his testamentary capacity, and his knowledge and approval of the several instruments signed by him, in the years following medical assessments (in or about and following late 2009) to the effect that he was suffering from cognitive impairment, recognised as a form of dementia associated with vascular disease, aggravated by a lifetime of heavy alcohol intake.

[2]

THE DECEASED'S PERSONAL RELATIONSHIPS

The deceased never married or had children.
Without children of his own, he enjoyed the children of friends (especially the children of Mr Hull) and those of his siblings. His enjoyment of his nieces and nephews was enhanced by pride in his family name and the family's patrician connections.
In the language of today, applied retrospectively to the facts of his life, the deceased appears to have enjoyed a same sex relationship with Mr Gregg Hele (the third defendant) between 1980-2000 or thereabouts, a relationship between domestic partners which in the language of the time was generally spoken of, discreetly, as a "close friendship". They remained close friends after 2000 despite the fact that, for 10 years or so after 2000, Mr Hele had another relationship.
The informality of the relationship between Mr Hele and the deceased is, perhaps, illustrated by a denial by Mr Hull (a close friend of the deceased) that Mr Hele had ever been the deceased's "partner" and a contrasting assertion of that character of the relationship by Ms Ruth Coleman, a long time secretary of the deceased. In October 2010 the man himself told Dr Margaret (Peggy) Bain, a Clinical Neuropsychologist at St Vincent's Hospital, that he lived alone but had a 72 year old girlfriend; that may well have been true (referring to Elaine Clarke, the woman who performed the functions of "Lady Mayoress" when he was mayor of Woollahra); but it conveyed an impression not quite in keeping with his domestic relationships. The deceased presented different images to different people. He was capable of deflecting an unwanted examination of his affairs by a casual remark, or something more forceful, as an occasion required.
The depth of the ongoing friendship between Mr Hele and the deceased became apparent when, on or about 11 July 2014, Mr Hele moved from Melbourne to Sydney to live with the deceased in his Woollahra home as a "full time carer" and "companion". Mr Hele (who, by that time, had recently completed training as a nurse) calmed the deceased's anxieties and encouraged him to embrace a healthier lifestyle, including a reduction in his consumption of alcohol. Mr Hele remained with him until the deceased's death.
In a critical period of his life (between 2002-2014 or thereabouts) the deceased was vulnerable to exploitation at the instigation of a younger gay man (Mr Nick Llewellyn, the 11th defendant), originally a Queenslander, trained as a solicitor, commonly viewed by others close to the deceased as an exploitative, disruptive personality, who, it is said, simultaneously entertained him; played on his susceptibility to flattery; and disturbed his calm by dramatic threats of suicide, or, possibly, threats to expose him publicly (to "out" him) as a homosexual, if not given financial incentives and testamentary preferment. Mr Llewellyn is said to have been given to throwing infantile tantrums if he did not get his own way with the deceased, which he evidently often did.
Mr Llewellyn admits to a pattern of bad behaviour (which he explains as a product of a bipolar condition); but he denies any suggestion that he ever threatened the deceased in any way. In any event, he says, everyone knew he was sick and often erratic. The main thing, he says, is that the deceased loved him, as he loved the deceased.
Mr Llewellyn and the deceased appear to have enjoyed a familial love-hate relationship, though such a characterisation is too simplistic. Mr Llewellyn appears to have regarded an exploitative relationship between an older man and a younger one in the gay community in which he and the deceased lived as entirely normal. He told a friend of the deceased, Ms Katherine Jackson, that he knew what buttons to press to get what he wanted from the deceased, and he confirmed as much in his cross-examination.
According to Mr Llewellyn's evidence (not contradicted), the relationship between himself and the deceased was at the outset one of intimacy, which (although there was an ongoing relationship) ended before, to the knowledge of the deceased, Mr Llewellyn was diagnosed as HIV positive (in or about 2004) and (in or about 2008) bipolar.
Mr Llewellyn's medical condition may help to explain the deceased's forbearance in dealing with the younger man and his concern to make some testamentary provision for him, knowing both the younger man's ill-health and his poor employment record and prospects. Nevertheless, close friends of the deceased wondered whether Mr Llewellyn had something over him. It was an unusual relationship.
The deceased may have loved Mr Llewellyn in a fashion, but Mr Llewellyn was a source of great anxiety to him, in his dementia years, in at least two respects. First, Mr Llewellyn represented an extravagant financial drain on the resources of a man who (although wealthy) was notoriously penny pinching. Secondly, Mr Llewellyn's bad behaviour (including threats), magnified by his unpredictability, engendered in the deceased a fear of what he might do next. Privately, the deceased complained to Ms Jackson that he was being "blackmailed" by Mr Llewellyn (an expression not necessarily to be taken literally) but, publicly and with Mr Llewellyn's encouragement, he spoke of Mr Llewellyn (but, perhaps, not exclusively Mr Llewellyn) as "the son [he] never had". He was prone to express approval of a close friend or relative in those terms. Ms Jackson was sometimes referred to as "the daughter I never had".
Despite tensions between Mr Llewellyn and the deceased (with each from time to time provoking the other), they appear for the most part to have had a cordial, if combative, anxious and controversial relationship. That relationship (which coexisted for many years with Mr Llewellyn's relationship with another man, Curtis) occupied the period between the year 2002 or thereabouts (when they met) and 1 August 2014 or thereabouts (when Ms Coleman, exercising her guardianship powers over the deceased, limited his access to Mr Llewellyn), not excluding the possibility that the deceased retained a residual affection for Mr Llewellyn after that time. Mr Llewellyn resisted his exclusion from the deceased's company. Nevertheless, he says that his last contact with the deceased was in or about February 2015, when he moved to the Gold Coast, Queensland, with financial assistance from the deceased's protected estate.
A turning point in the deceased's life, and a change in emphasis in his testamentary intentions, appears to have occurred when Mr Llewellyn's access to the deceased (and, with it, his ability to influence decision making of the deceased) was restricted in and after August 2014. Mr Llewellyn's constant demands for money and testamentary preferment (and disputation fomented by him with persons entrusted with protective management of the deceased's affairs, his person and his property) greatly distressed the deceased.
Restriction of Mr Lewellyn's access to the deceased was accompanied by the creation of a more stable domestic environment for the deceased in which his financial affairs were managed by his accountant (Mr Robert Horder) as a financial manager appointed by the NSW Civil and Administrative Tribunal (NCAT); his long time secretary Ms Coleman was encouraged by NCAT to exercise her access power under the Tribunal's guardianship order in her favour, to protect the deceased from stressful situations; Mr Hele took charge of the deceased's medicine, diet and daily routine as a means of improving his health; Ms Kathy Jackson provided him with additional care, company and administrative assistance; and, to an extent, he re-engaged with his nieces and nephews and their children.
Steps taken to shield the deceased from Mr Llewellyn allowed the deceased an opportunity to reengage with his family and space to reassess his relationship with Mr Llewellyn. Underlying the current proceedings are questions about whether the influence Mr Llewellyn formerly exercised with the deceased was coercive in nature and whether, in moving away from Mr Llewellyn, the deceased was better able to know, and did know and approve, what he was doing.
As the deceased descended into the fog of dementia, in the last seven years or so of his life, he fought against his inevitable decline. A feature of his struggle was that, at times, he lashed out or harshly treated long standing friends (principally, Mr Hull as a financial manager and guardian, Mr Lawler as an enduring attorney and alternate guardian and Ms Coleman as a guardian) who tried, with mixed success, to help him adjust to his new reality as a person in need of protective assistance in management of his affairs.
A number of the deceased's friends (including, but not only, Mr Hull, Ms Coleman, Mr Lawler and Ms Jackson) regarded Mr Llewellyn as a self-seeking, insatiably greedy and evil influence on the deceased. In correspondence between them, Mr Llewellyn was sometimes referred to by Mr Hele as "the Leech", a derogatory allusion to a blood-sucking, parasitic, predatory worm. In giving their evidence, several witnesses did not shrink from harsh criticism of him or equally harsh descriptive labels.
Even the plaintiff, Mr Illek (Mr Llewellyn's accountant - he says, at the deceased's request - and a man sympathetically inclined towards him) was reported by NCAT (in Reasons for Decision dated 28 August 2014 in support of orders made on 19 August 2014) to have described Mr Llewellyn, candidly, as "a parasite".
Against evidence critical of Mr Llewellyn must be taken into account evidence of the deceased's defence of him, and Mr Llewellyn's equally harsh description of others. Over several years Mr Llewellyn left a trail of vituperative emails in which few people in the deceased's circle were spared abuse. During his cross-examination, he spontaneously, venomously characterised Mr Philip Rofe (the second defendant, a nephew of the deceased) as "an enemy", Mr Hele as "a little rat", Mr Lawler as "a disgrace" and Ms Jackson as "a criminal". For the most part, he gave his evidence in an emotionally controlled manner, but he remained a determined adversary of interests perceived by him to be in competition with his own.
I do not exclude the possibility that the contrarian controversialist in the deceased sometimes took perverse pleasure in harsh exchanges between his friends and associates but, for most people, they are likely to confirm that, in inter-personal relationships, it is possible to have too much colour.
In these proceedings the high emotions engaged by people close to the deceased, and the base motives attributed by some to others, cannot but be noticed. However, the task of the Court is to focus on clinical questions about testamentary capacity, testamentary intention and ancillary questions necessarily encountered upon an exercise of probate jurisdiction. It cannot allow itself to be deflected by competing, adversarial perceptions of moral imperatives.
The unrelenting progress of the vascular disease underlying the deceased's dementia lent an inevitability to his mental decline; but his progressive disengagement from the world was (between July and December 2014) moderated by a dramatic reduction of his alcohol intake, regular adjustment of his medications and an improvement in his lifestyle under the care of Mr Hele. In terms of mental acuity, he continued up to and including mid-2015 to have intermittent good times and bad. Lack of sleep at night, or tiredness during the day, adversely affected his cognition, resulting in periods of confusion and anxiety, possibly coupled with aggression, characterised by Mr Hele and others as "sundowning". Always a creature of habit, he was better able to deal with what was familiar to him than something unfamiliar.
An assessment of the nature and quality of the deceased's personal relationships is complicated by the complexity of his personality. His personality was in full agreement with his chosen profession as a common law advocate, armed with an ability to display a range of personae. Throughout his life, until fully captured by dementia in about mid-2015, he was an inveterate social animal. By all reports, he loved to be the centre of attention, and to indulge his contrarian tendencies in banter which, aided by a cruel tongue, could savage friend and foe alike. He was not beyond bullying; but he had a gentle side, given to irony, and his sense of humour was mischievous. When relaxed, he was humorous. When roused, he was fierce. That he drank too much and too often was not assisted by his love of wining and dining in the patrician lifestyle he enjoyed. His routine domestic life depended upon paid staff and the good grace of friends. Dependency on social connections in the domestic sphere was not entirely a dementia-induced innovation. The nature and extent of his dependency changed, but not the fact of dependency.
A constant feature of his dependence on others was a notorious inability, or disinclination, to use computers or to type. He routinely turned to others to assist him with typing.
Implicit in an understanding of this is a need to appreciate that a typed document (including an email) purporting to have been prepared by the deceased may have been prepared by him with the assistance of somebody else or simply by somebody else in his name.
Something of his personality can be discerned in taped recordings of conversations to which he was a party. In one tape (recorded on 13 December 2013) he is heard speaking with solicitors from the firm Arnold Bloch Leibler and Ms Jackson: in the first section of the recording, in a conversation with a senior male solicitor (Mr Ross Paterson), he is business-like; in the second section of the recording, in casual conversation with a female solicitor (Ms Susanna Ford) and Ms Jackson, he is comparatively submissive. In other tapes (recorded in June 2014) he is heard remonstrating fiercely with Mr Lawler (then his enduring attorney) about his relationship with Mr Llewellyn and Mr Lawler's purchase of a property at Wombarra in his name.
In handwritten notes prepared for the benefit of the deceased's geriatrician Dr Chalkley in February 2015, Mr Hele wrote freely of the deceased's personality, his personal problems and his preoccupation with his legal career, a casualty of dementia: "David is a very special and unique person, devoted his life to law and unfortunately nothing else, no hobbies, no great love of natural scenery, beaches, bush, etc. Only law. David also had many many problems before dementia such as alcoholism, severe depression. For decades, low self esteem, not out/ashamed of sexuality, huge verbally aggressive moods, and 'lots' of tantrums if he didn't get his way with staff, friends etc…. This has also transferred into his dementia x 10. I have worked with many dementia patents but David is up there with the top 1% with disruptive behaviour. No full time nursing agency has worked (all failed) and all of his many friends/families agree I'm the best choice to look after David since we've been the closest of mates/ex-lovers. I'm with David 24/7 with now help during the day. … All hospitals find him extremely disruptive/annoying/aggressive both pre and post dementia. We have nearly run out of hospitals now…. He hates Bondi, Maroubra, going thru Sydney, hates driving across Sydney Harbour Bridge, Parramatta Road, M5 etc. Pls note, this was also a pre-dementia condition, too. Other dislikes before dementia (strong dislikes) [:] public holidays, special events etc, city to surf fun run, no interest in gardens, art, movies, public holidays, TV, beach, nature, animals, Xmas, children, etc, etc, etc, just law…."
This character reference may reflect Mr Hele's perspective as a non-lawyer and his geniality as much as the deceased's human frailty; but the deceased himself feared retirement because he had no interests outside work as a barrister, and similar assessments of his personality, with less colour, can be found in the evidence of other witnesses. A barrister friend of long-standing (Mr Anthony Tudehope) said of him that, prior to any health concerns the deceased may have had after about 2009, he was "a very confident, expressive, authoritative character who was quite often abusive and unkind, while on the other hand a regularly entertaining character and good company… famously 'tight' with his money".
All the testamentary instruments executed by the deceased in a critically important 2014 (but for the first codicil dated 10 July 2014) were prepared by or on behalf of the deceased without the benefit of specific legal advice, although with such benefit as could be had from a draft will prepared by solicitors (Arnold Bloch Leibler) on his instructions in December 2013. His refusal, or failure, to confine his will-making activities to working with a solicitor retained for that purpose appears, at least in part, to be the product of an unwillingness to spend money and the hubris of a senior legal practitioner confident of his own abilities. He had a template from Arnold Bloch Leibler and was content to adapt it in wills subsequently executed.
The deceased's relationships with Mr Hele and Mr Llewellyn appear to have engaged different parts of his personality. Both men are eccentric. In presentation, Mr Hele is lighter and more open than Mr Llewellyn, whose intensity may, at least in part, be a product of his health concerns. In its later years at least, the relationship between Mr Hele and the deceased appears to have been quieter, governed by Mr Hele's personality and his role as the deceased's companion and carer. The relationship between Mr Llewellyn and the deceased appears to have been characterised by constancy of tension associated with Mr Llewellyn's demands for material assistance and testamentary preference from the deceased. As the deceased's health declined between 2010-2015, he appears increasingly to have struggled to cope with Mr Llewellyn's behaviour.
In his decline, the deceased developed a close personal relationship with an unlikely outsider. In May 2012 the broadcaster Mr Alan Jones introduced Ms Jackson to him. She was, at that time, as she remains, a controversial public figure. Ms Jackson's partner at the time, who regarded the deceased as his mentor at the Bar (Mr Michael Lawler), says that Mr Jones conveyed to her an offer of the deceased to act for her as counsel. She was a trade union official (with the Health Services Union) who had had a falling out with the Union. She had initially been lionised as a "whistle blower" of union corruption, but she was later subjected to adverse personal criticism. Her battles with the Health Services Union led, in time, to a civil judgment against her for the payment of compensation to the Union, self-declared bankruptcy (operative between 18 May 2016 and 17 May 2019 or thereabouts) when she was unable to satisfy that judgment and, recently, criminal convictions in Victoria for dishonesty as an officer of the Union. Nevertheless, when, or soon after, she and the deceased met they appear to have shared a common sense of isolation, and a common need for companionship. She became a trusted companion of the deceased, assisting him in the care of his person and in management of his affairs generally, particularly before the time when Mr Hele came to his aid in July 2014.
In one sense or another, she and Mr Hele were both involved (to the exclusion of Mr Llewellyn) in the preparation of the deceased's last will, dated 17 December 2014. She acted as the deceased's administrative aid. Mr Hele drove her, the deceased and a carer of the deceased to an appointment with Dr Thomas Oldtree Clark before whom, and the deceased's carer, the deceased executed the will. Later that evening the deceased spoke of the terms of his will with Mr Hele.
The pattern of the deceased's will making between November 2011 and December 2014 or thereabouts is consistent with a perception on his part of a need for estate planning, if not simply the onset of dementia. That perception was accompanied by a realisation that some people in his social circle (most ostentatiously, Mr Llewellyn) had hopes or expectations of testamentary benefit. Not everybody was indifferent to his wealth. In fact, although formally disclaimed by everybody except Mr Llewellyn, self interest was unusually on display in these proceedings.
Several claimants on the deceased's bounty tended to coalesce in what appear at times to have been factions comprising: 1. Mr Llewellyn, supported by Mr Nick Illek, for some years an adviser to the deceased; 2. Mr Hele and Ms Jackson (commonly identified with her partner, Mr Lawler), supported by nieces and nephews of the deceased; and 3. Mr Philip Rofe, a lone nephew.
It would be an invitation to error to attribute unalloyed greed, or unbridled pursuit of self interest, to everybody who stood to benefit from the deceased's estate (his friendships were real); but it would be equally erroneous not to acknowledge a general consciousness amongst his family, friends and acquaintances (shared, if not encouraged, by the deceased himself) that there would be winners and losers in distribution of his wealth consequent upon an openly evolutionary development of his testamentary intentions, the subject of ongoing debates in some quarters between December 2012 and December 2014 or thereabouts.
A feature of the current proceedings is debate not only about whether, in his weakened mental state, the deceased was able "to remember, reflect and reason" about his testamentary arrangements, but also whether he was given sufficient space from the clamour of competing claims on him to do so.
The number of testamentary instruments executed by the deceased over a four year period, and the fact that some of those instruments were patently executed in circumstances so controversial that nobody propounds them in these proceedings, excite a general suspicion about their validity.
To an unusual degree the deceased allowed those around him to have a voice in his estate planning deliberations, or at least suffered their interventions. One is put in mind of the adoption by Cockburn CJ, in Banks v Goodfellow (1870) LR 5 QB 549 at 564, of a worldly-wise observation by the American jurist James Kent: "As was truly said by Chancellor Kent, in Van Alst v Hunter (5 Johnson N.Y.Ch.Rep. at p. 159), 'It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities'. For these reasons the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property. …"
The deceased's frequent talk of wills after his dementia diagnosis in 2009/2010 appears to have kept an interest in him alive within his circle of family, friends and acquaintances, although he was long before 2010 in the habit of speaking about his testamentary intentions.
The possibility that the deceased may have lacked, or might in the future be said to have lacked, testamentary capacity appears to have been within the contemplation of at least some of those who assisted his will-making exercises after his diagnosis of dementia in 2009/2010. With one exception, nobody, it seems, ever considered the possibility that an application could be made to the Court (under the Succession Act 2006 NSW, sections 18-19) for a court-authorised "statutory" will. The evidence of Mr Philip Beazley, a solicitor, is that he mentioned the option of a statutory will application to the deceased at a casual social engagement with the deceased and Ms Jackson some time between May-December 2014. Had such an application been made, the Court might have brought order out of the chaos of competing claims against the deceased's estate at a time when he was available for a transparently independent medical assessment and, within the limits of his capacity, personal consultation about his relationships and intentions.
That a will (with or without a codicil) of the deceased should be admitted to probate is uncontroversial. He made two or three wills before dementia arrived at his door, and their validity is challenged only on the basis of the revocation clauses found in subsequent, contested instruments.
However, there is no easy answer to the question of which of the deceased's testamentary instruments should be admitted to probate as a valid expression of his final testamentary intentions. The Court's task may require that each of the instruments executed by the deceased be assessed for its validity, commencing with the last instrument and proceeding back in time until such time as the last valid one is identified. In the context of the present proceedings, that task requires, at least, a contextual analysis of several instruments, not limited to the last in time.
From about the time he was diagnosed with dementia, the deceased was preoccupied with the making and refinement of wills. A common feature of the evidence of Mr Llewellyn, Mr Lawler and Ms Jackson is that they each portrayed the deceased as incessantly engaged (until 17 December 2014) in the process of drafting and redrafting wills, calling upon them, as persons close to him, to assist him in typing draft instruments.
Another common feature of the evidence about the deceased's will-making is that (apart from an engagement with Arnold Bloch Leibler in or about December 2013 and fleeting, formal contact with Mr Beazley's firm in December 2014 at the insistence of Dr Oldtree-Clark) the deceased disdained professional assistance. Whether that reflects the hubris of a senior lawyer or the machinations of prospective beneficiaries, or is a fact of no material consequence, is one of the questions encountered on a critical review of the evidence.

[3]

THE DECEASED'S TESTAMENTARY INSTRUMENTS

The testamentary instruments in play in these proceedings comprise the following: 1. a will dated 23 January 1995; 2. a will dated 28 March 2006; 3. a will dated 18 February 2010; 4. a will dated 17 November 2011; 5. a will dated 10 August 2012; 6. a will dated 5 March 2013; 7. a will dated 14 August 2013; 8. a will dated 11 February 2014; 9. a will dated 8 March 2014; 10. two codicils to the will dated 8 March 2014, the first dated 10 July 2014 and the second dated 8 October 2014; 11. a will dated 17 December 2014.
In this mix of testamentary instruments must be noticed a draft will prepared by the solicitors Arnold Bloch Leibler, on the deceased's instructions, in December 2013. It was never executed. A will in different terms was executed on 11 February 2014 without reference to Arnold Bloch Leibler. Nevertheless, their draft provided a template for what became the wills respectively dated 8 March 2014 and 17 December 2014. The evidence before the Court includes a recording of the meeting on 13 December 2013 between the deceased, Susanna Ford (a senior associate of Arnold Bloch Leibler) and Ms Jackson, with Mr Patterson (a Melbourne-based partner of Arnold Bloch Leibler) on the phone, when the deceased gave instructions for what became the draft will prepared by Arnold Bloch Leibler.
Although the deceased's testamentary instruments varied in content, no person named as a beneficiary by him was without a bona fide claim on his bounty as a member of family, a friend or an associate. No party to these proceedings contends otherwise.
There is no challenge to the validity of the wills respectively dated 23 January 1995, 28 March 2006 and 18 February 2010 "as made". Any invalidity attaching to them arises only if a revocation clause in a subsequent testamentary instrument has operative effect.
Nobody in these proceedings propounds the Will dated 23 January 1995, the Will dated 10 August 2012, the Will dated 5 March 2013 or the Second Codicil dated 8 October 2014.
The absence of any support for the will dated 23 January 1995 can be readily explained by the absence of any challenge to the validity of the wills respectively made on 28 March 2006 and 18 February 2010, each of which (if admitted to probate) would have revoked the earlier will.
Leaving aside a few variations in gifts, the main difference between the will dated 10 August 2012 and the one (dated 17 November 2011) that precedes it appears to have been in identification of an executor. The earlier will names Norbert Lipton (the 9th defendant) and Mr Illek as executors, the later will omits the name of Mr Illek as an executor. Mr Lipton has filed a submitting appearance. Mr Illek propounds the earlier will.
The will dated 10 August 2012 was made a few days before (on 13 August 2012) the deceased attended St Vincent's Hospital to have a pacemaker fitted, and a few months before (on 3 December 2012) the Guardianship Tribunal, at a time when the deceased was plainly unable, by reason of illness, to manage his own affairs, appointed Mr Hull as his financial manager and guardian.
The will dated 5 March 2013 was made at a time when (between 4-8 March 2013) the deceased was a patient at the Prince of Wales Hospital, Randwick, for treatment arising from an infected pacemaker, which was removed.
The second codicil (dated 8 October 2014) was prepared, and executed, at the deceased's recently purchased property at Wombarra. Mr Lawler says that he prepared it, under protest, at the insistence of the deceased. It contains clerical errors which suggest that, if the deceased had testamentary capacity at the time he executed the document, he did not know or approve its contents. The clearest example of this can be found in clause 1, which reads as follows: "I do now [sic] recollect or understand why I made by First Codicil of 28 June 2014 [sic] and I consider that it was a mistake. I revoke my First Codicil dated 28 June 2014 [sic] and any other testamentary acts done by me since executing my Will of 8 March 2014 to the intent that my Will of 8 March 2014 is restored subject only to the following variations effected by this Codicil."
There is no evidence that the deceased executed any form of testamentary instrument on 28 June 2014. The "First Codicil of 28 June 2014" is evidently a reference to the Codicil executed on 10 July 2014.
Mr Philip Rofe propounds, in the alternative, the Wills dated 28 March 2006 and 18 February 2010. He contends that all testamentary instruments executed after 2010 are invalid because the deceased lacked both testamentary capacity and knowledge and approval of the contents of those instruments. He contends, further, that all those instruments (other than those dated 8 October 2014 and 17 December 2014) were procured by an exercise of undue influence on the part of Mr Llewellyn. Although his pleading is ambivalent, at the outset of the final hearing he disclaimed any reliance upon an allegation of undue influence in equity (as to which, see Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]), confining himself to an allegation of probate undue influence, which is to say "coercion". The instruments excepted from his allegation of undue influence (coercion) were executed after Mr Llewellyn was, on 1 August 2014, excluded from the deceased's regular company.
Several of the disputed wills named Mr Illek as an executor. He propounds, in the alternative: (a) the Will dated 8 March 2014 together with the First Codicil dated 10 July 2014; (b) the Will dated 11 February 2014; and (c) the Will dated 14 August 2013. He contends that the deceased lost testamentary capacity shortly after execution of the First Codicil. He also contends that the Will dated 17 December 2014 is invalid for a want of testamentary capacity and a lack of knowledge and approval, pointing to "suspicious circumstances" attending its preparation and execution.
The will dated 17 December 2014 (propounded by the third to eighth and tenth defendants, a group of Rofe family members and Mr Hele) contains a tell-tale clerical error in a clause listing the powers of the executors and trustees appointed by the will. It refers, in terms, to "the Administration and Probate Act 1958 (Vic)", although it was prepared for execution, and administration, in NSW. This error reflects the terms of the draft will prepared for the deceased by Mr Patterson of Arnold Bloch Leibler (a Victorian) in December 2013. A copy of that draft was sent by Ms Ford of that firm, by email, to Mr Lawler (together with a letter addressed to the deceased) on 19 December 2013 and, at his direct request, to the deceased on 10 February 2014.
During the course of argument, opponents of admission to probate of the will dated 17 December 2014 made much of this clerical error (submitting that the deceased's failure to correct the error is indicative of a want of knowledge and approval of the contents of the will), comparing the form of the will to the form of the will dated 8 March 2014, said to be a template for the 17 December 2014 will. In the comparable clause of the 8 March 2014 will the reference to the Victorian legislation is qualified: "the Administration and Probate Act 1958 (Vic) (as if it applied in NSW)".
The form of the reference to the Victorian legislation in the 8 March 2014 will and the form of the clerical error in the 17 December 2014 will invite an inference that when the 8 March 2014 will and the 17 December 2014 will were respectively typed, the template was on each occasion the Arnold Bloch Leibler draft. Even if regard was had to the terms of the 8 March 2014 will in the preparation of the 17 December 2014 will, for typing purposes the template for the 17 December 2014 will was an electronic copy of the Arnold Bloch Leibler draft.
The will dated 11 February 2014 (executed the day after Arnold Bloch Leibler sent a second copy of their draft to the deceased) does not follow the Arnold Bloch Leibler draft as faithfully as either the 8 March 2014 will or the 17 December 2014 will. It was typed by Mr Llewellyn and, in form, more closely follows the will dated 14 August 2013 which, after some hesitation, Mr Llewellyn accepts he may also have typed.
The force of any submission that the clerical error in the will dated 17 December 2014 is indicative of a want of knowledge and approval on the part of the deceased is to some extent diminished by the fact that the error was not picked up by either Mr Patterson or Ms Ford at Arnold Bloch Leibler at the time they prepared their draft.
The testamentary instruments propounded by Mr Illek favour the interests of Mr Llewellyn, at least insofar as Mr Illek does not propound the will dated 17 December 2014. I draw no inference adverse to either man from this, although (for the purpose of noticing nuances in the parties' competing cases) I notice that Mr Illek advances his case as an independent professional man notwithstanding that there exists a bond between Mr Llewellyn and himself. Mr Illek has been Mr Llewellyn's accountant for several years. A letter dated 16 October 2012 written by Mr Llewellyn to perceived representatives of the deceased (at a time when the deceased himself was incapacitated), conveying an offer to "cut off all ties" with the deceased in return for a financial settlement, was copied by Mr Llewellyn to Mr Illek, expressly identified as "my Accountant".
Mr Llewellyn, having been joined in the proceedings at his own risk as to costs, elected throughout most of the proceedings to remain non-committal as to which of the deceased's testamentary instruments he supported as the deceased's "last valid will". He propounded no will or codicil himself. When pressed in final submissions, his counsel expressed concerns about the validity of the Will dated 17 December 2014, and supported Mr Illek's claim for admission to probate of the Will dated 8 March 2014 and the First Codicil, dated 10 July 2014. That stance accords with Mr Llewellyn's self-interest. The December will diminished his entitlements vis a vis the March and July instruments.
Together with Mr Hele, a group of the deceased's nieces and nephews (the fourth to eighth defendants and the 10th defendant) propound the Will dated 17 December 2014.
No party submits that the deceased's execution of the will dated 17 December 2014 was procured by an exercise of undue influence or fraud. Such a case was expressly disclaimed by counsel for Mr Illek, Mr Philip Rofe and Mr Llewellyn in refining their respective attacks on the credit of Ms Jackson, who was personally involved in the preparation of the will (they say, for the dishonest purpose of encouraging the deceased to confer a testamentary benefit upon her).
Ms Jackson's trustee in bankruptcy (the 13th defendant) submitted to the orders of the Court in these proceedings, but her creditors would benefit from admission of that will to probate compared with alternative outcomes. As asserted by her trustee in bankruptcy, any entitlement she may have to a share of the deceased's estate vests in the trustee pending payment of her debts: Bankruptcy Act 1966 (Cth), sections 127(1) and 153.
The Wills dated 8 March 2014 and 17 December 2014 share the distinction of having been executed in the presence of a forensic psychiatrist (Dr Thomas Oldtree Clark), the reliability of whose evidence has been called into question in these proceedings, at least as regards the Will dated 17 December 2014. At the time he gave evidence he was no longer a young man; and his evidence of events on 17 December 2014 (largely unsupported by contemporaneous documentation) lacked the cogency expected of an expert charged with expression of an opinion as to testamentary capacity. His evidence of what occurred on 17 December 2014 might be taken as rising no higher than that of a lay witness. Nevertheless, on reflection, I accept his evidence as essentially, and reliably, correct.
The present whereabouts of the originals of some of the wills brought to the Court's attention are unknown. Of potential importance is the missing original of the will dated 8 March 2014. There is a faint suggestion that it may have been destroyed by the deceased; but, even if this is found to have been so, its confirmation by the first codicil to the will (dated 10 July 2014), if valid, may have revived it. The original of the codicil is in the custody of the Court.
The original of the will dated 17 December 2014 (which is propounded in competition with the will dated 8 March 2014) is held in the Court's custody.
The deceased's flurry of testamentary instruments came to an end with the Will dated 17 December 2014 even though he lived for another two and a half years. Ms Jackson's evidence is that that was because, having made the 17 December 2014 Will, he was at peace with his testamentary arrangements. Another explanation, supported by evidence of Mr Lawler, is that there was a sharp decline in the deceased's cognitive function after his return from a trip with Mr Hele to the Philippines in or about early 2015. By 13 January 2015 (upon which date NCAT reviewed a guardianship order affecting the deceased) the deceased required 24 hours daily care. There is, however, disinterested evidence of rational conversations with the deceased well into 2015. It may be that, with Mr Llewellyn denied close, regular contact with him after 1 August 2014, and with others not inclined to engage in further agitation, inertia set in all round.
There is no ready answer as to why a man apparently predisposed to regular discussion of his testamentary intentions over a lengthy period seems suddenly to have stopped engaging in such discussion and in the drafting or execution of further testamentary instruments. An available inference is that this change in the deceased's pattern of will-making was the product of a combination of circumstances including, particularly, the exclusion of Mr Llewellyn from the deceased's regular company; the ancillary embrace of the deceased by competing interests; and a sharp decline in the deceased's mental health. Whether (and, if so, how) the deceased's sudden change of pattern reflects upon what preceded the change is a question for critical inquiry upon an assessment of the will dated 17 December 2014, if not earlier testamentary instruments.

[4]

THE STRUCTURE OF THE DECEASED'S TESTAMENTARY INSTRUMENTS

The deceased's wills generally conformed to a pattern which varied but slightly: 1. One, two, or three natural persons were appointed as executors and trustees. Mr Illek made his first appearance as an executor in the will dated 18 February 2010 and was named as an executor in each subsequent testamentary instrument (other than the will dated 10 August 2012) up to and including the codicil dated 10 July 2014. In the Codicil dated 8 October 2014 and the will dated 17 December 2014 the named executors were Jonathan Rofe (the 10th defendant), Katherine Jackson and Robert Horder. 2. Several pecuniary legacies were made to family, friends and associates, including Mr Hele in each will and (in and after the will dated 28 March 2006) Mr Llewellyn. 3. Until the will dated 10 August 2012, pecuniary legacies were made to several established charities. In the will dated 5 March 2013 (in the wake of a Guardianship Tribunal hearing on 3 December 2012), the will dated 14 August 2013 (in the wake of proceedings in NCAT on 29-30 May and 21 June 2013) and the draft will prepared by Arnold Bloch Leibler in December 2013, the deceased proposed to establish a charitable foundation of his own. In subsequent testamentary instruments (commencing with the will dated 11 February 2014) no gifts were made to charity. In their conference on 13 December 2013 Mr Patterson had counselled the deceased against establishing a charitable foundation without a commitment of resources greater than the deceased had envisaged. 4. Special provision was made for Mr Hele and (in and after the will dated 28 March 2006) Mr Llewellyn, such provision (in the case of Mr Hele, up to and including the will dated 14 August 2013 and, in the case of Mr Llewellyn, up to and including the codicil dated 8 October 2014) including a forgiveness of debts respectively owed by them to the deceased. 5. Specific gifts were made by the deceased of particular chattels (from and including the will dated 28 March 2006). Consistently, a portrait of the deceased's maternal grandmother, a silver tea dispenser and a Sid Long painting were given to family. In the will dated 5 March 2013 and in all subsequent wills the deceased gave a portrait of himself to Mr Llewellyn. 6. The deceased's residuary estate was divided between 9 - 12 natural persons (often 10), comprising mostly his nieces and nephews but including Mr Hele and Mr Llewellyn. Although the number of shares allocated to particular beneficiaries varied between testamentary instruments, Mr Hele was given at least one (and generally more than one) share in each of the deceased's wills, as was Mr Llewellyn from his first appearance in the will dated 28 March 2006. In the will dated 17 December 2014 Mr Hele was given a 2/10th share of the residuary estate, and Mr Llewellyn's share of residue was reduced to a 1/10th share of residue. Ms Jackson acquired a 1/10th share in the will dated 8 March 2014, lost it in the codicil dated 10 July 2014, recovered it in the codicil dated 8 October 2014, and retained it in the will dated 17 December 2014.
Given the size of Mr Llewellyn's debt in the records of the deceased (quantified by Mr Horder on 2 March 2017, as financial manager of the deceased, at $1,200,744.07), the omission from the deceased's will dated 17 December 2014 of a forgiveness of Mr Llewellyn's debts could (if those debts are enforced) have a large economic impact on Mr Llewellyn. The enforceability of any debts allegedly owed by Mr Llewellyn to the deceased's estate is a question for determination on another day; but the existence of such a question may be illustrated by reference to a written acknowledgement signed by Mr Llewellyn on 3 July 2013 that he then owed the deceased $1,230,000. If he is indebted to the deceased's estate, he nevertheless continues to have the benefit of a gift of real estate from the deceased, a legacy of $100,000 and a 1/10th share of residue. In the will dated 5 March 2013 the deceased gave him his (the deceased's) home unit in Woollahra. That gift was not repeated but, in each of subsequent testamentary instruments commencing with the will dated 11 February 2014, the deceased gave him a home unit in Surfer's Paradise (title to which the deceased acquired in or about August 2014) to which he moved in February 2015. Mr Llewellyn evidently sought to secure that property (estimated by Mr Horder in November 2017 to have a value of $1.35 million) for himself by having the deceased execute on or about 25 July 2014 a long term lease at a nominal rent.
In March - April 2017 or thereabouts, Messrs Horder and Llewellyn fell into litigation (with proceedings in both this Court's Protective List and in NCAT) about the validity of the lease and more general issues about entitlements claimed by Mr Llewellyn from the deceased's protected estate. On 5 June 2017 the Tribunal proceedings were stayed by an order made in the Protective List proceedings (Case No. 2017/00092975). Following the death of the deceased on 21 July 2019, the Protective List proceedings were on 28 August 2017 stayed pending, in effect, the current Probate proceedings.
In each of the deceased's codicil dated 8 October 2014 and his will dated 17 December 2014, the deceased gave Mr Hele the property in Wombarra which (to the deceased's passing chagrin) Mr Lawler, acting as the deceased's attorney, purchased at auction on 28 June 2014. Mr Hele's evidence was that it was at his suggestion that the property was sold in 2016 by Mr Horder, the deceased's then financial manager; Mr Hele explained that, by 2016, the property was, for the deceased, an unnecessary economic burden given his then lifestyle. In the deceased's wills dated 5 March 2013, 14 August 2013 and 17 December 2014 Mr Hele was given a motor vehicle.
In the deceased's will dated 28 March 2006 Brendan Hull received a pecuniary legacy and a 1/20th share of residue together with a pecuniary legacy, and his wife Anne received a pecuniary legacy. In each subsequent will up to and including the will dated 10 August 2012 they each received a pecuniary legacy. Thereafter (reflecting the estrangement between Mr Hull and the deceased following Mr Hull's surrender of the deceased's practising certificate), they received nothing. Nevertheless, in each of the deceased's wills except the will dated 23 January 1995, their children received a pecuniary legacy.
Mr Lawler received a pecuniary legacy in each of the deceased's wills dated 5 March 2013 and 14 August 2013; respectively, $50,000 and $60,000. He believes that, he having expressly disclaimed any interest in being named a beneficiary of the deceased, Mr Llewellyn engineered his inclusion as a beneficiary in these wills in order to spite him. The fact of that belief may say more about the relationship between Messrs Lawler and Llewellyn than it does about the deceased, though the wills dated 5 March 2013 and 14 August 2013 may also have been executed at times when the deceased was stressed by disputation about protective management of his affairs.
Ms Jackson made her first appearance as a beneficiary of the deceased in his will dated 5 March 2013. She was named as a pecuniary legatee in that and in each subsequent testamentary instrument of the deceased, in amounts that varied between $50,000 and $100,000. In each of the will dated 8 March 2014, the codicil dated 8 October 2014 and the will dated 17 December 2014 she received a 1/10th share of residue.
In each testamentary instrument (except the will dated 23 January 1995) Ms Coleman was named as a pecuniary legatee, in amounts that varied between $5,000 and $60,000.
In each of the deceased's testamentary instruments Elaine Clarke was named as a beneficiary but, whereas she was named as a major beneficiary in the deceased's wills up to and including the will dated 18 February 2010, the provision made for her thereafter took the form of a comparatively modest discretionary annuity.
The deceased's nephew James Rofe (the fourth defendant) was named as a beneficiary in each of the deceased's wills. In all but the will dated 8 March 2014, and the codicils respectively dated 10 July 2014 and 8 October 2014, he was named as a residuary beneficiary. He lost that status in the three identified instruments because when he remarried he did not invite the deceased to his wedding and the deceased took umbrage, thinking he had been snubbed. The two men are said to have been reconciled when the deceased was assured that the wedding, as a second marriage for both James and his wife, was conducted as a private ceremony with few attendees. James received a pecuniary legacy and a 1/10th share of residue in the will dated 17 December 2014.
Philip Rofe (the second defendant) received a 1/20th share of residue in each of the wills dated 28 March 2006 and 18 February 2010. In each of those wills and the wills dated 17 November 2011 and 10 August 2012 he received a right to purchase the deceased's Sid Long painting. Apart from that he received nothing. His participation in the deceased's estate was a beneficiary came to an end in (and after) the will dated 5 March 2013, following the deceased's execution (on 4 October 2012) and revocation (on 7-8 November 2012) of instruments appointing him as an enduring attorney and guardian.
There were other "winners" and "losers" in the shifting sands of the deceased's testamentary arrangements. However the main ones are here mentioned.
A major change in the deceased's testamentary arrangements appears to have occurred following the exclusion of Mr Llewellyn from the deceased's regular company on 1 August 2014 by Ms Coleman acting as the deceased's guardian. After that time, the provision made for him was changed in character, principally by omission of a forgiveness of debts, and Mr Illek (his accountant) was displaced as an executor. On the face of the deceased's wills, he remained a major beneficiary to the last. In substance, if indebted to the deceased's estate, the provision made for him was much diminished. That much is common ground in these proceedings. By agreement between the parties, the question whether Mr Llewellyn is (subject to any testamentary provision made for him) indebted to the deceased's estate, and the question of the quantum of any such liability, have been deferred for further consideration pending the admission of one or more of the deceased's testamentary instruments to probate.
Kathy Jackson's prospective entitlements waxed and waned throughout 2014. In each of the instruments respectively dated 11 February 2014, 8 March 2014, 10 October 2014 and 17 December 2014 she was named as a co-executor. In the will dated 11 February 2014 she was given a legacy of $60,000. In the will dated 8 March 2014 she was given a legacy of $100,000 together with a 1/10th share of residue. In the codicil dated 10 July 2014 the provision made for her was reduced to a bare $50,000. In each of the codicil dated 8 October 2014 and the will dated 17 December 2014 she was restored to a legacy of $100,000 and a 1/10th share of residue.
Other changes to the deceased's testamentary arrangements appear largely to have been comparatively modest adjustments.

[6]

A FACTUALLY COMPLEX CASE

Of the instruments under challenge in these proceedings, only one (namely, the "first" codicil dated 10 July 2014) was drafted for the deceased by a solicitor, Mr Fitzpatrick; but two instruments (namely, the wills respectively dated 8 March 2014 and 17 December 2014) were based upon the template of a draft will prepared by a firm of solicitors, Arnold Bloch Leibler; and (although it was prepared in draft by Mr Illek and typed by Mr Llewellyn) the deceased's execution of the will dated 11 February 2014 was witnessed by two solicitors, Jeffrey Choy and Malcolm Johns.
The first codicil was drafted in circumstances in which the deceased was living in a state of confusion about his affairs induced by a person (Mr Llewellyn) who promoted execution of the codicil for his own purposes (to frustrate protective management of the deceased's estate by Mr Lawler) and was instrumental in communication of the deceased's instructions to the solicitor, Mr Fitzpatrick.
The solicitors whose template was used in the preparation of the wills dated 8 March 2014 and 17 December 2014 (Arnold Bloch Leibler) played no role in the preparation or execution of those instruments.
The deceased had a predisposition to draft, and to redraft, his own wills (with the assistance of anybody available to do his typing) and he had an aversion to paying any lawyer to prepare a will for him.
Each of the testamentary instruments under challenge in these proceedings was duly executed and rational on its face.
All were made at a time when medical evidence establishes that the deceased was suffering cognitive impairment as a consequence of vascular dementia.
All were prepared by the deceased in circumstances in which he was assisted by one or more persons who received a benefit, or were closely associated with somebody who received a benefit, casting a shadow of doubt upon whether the deceased knew and approved of the terms of the particular instrument prepared with assistance.
In combination, the fact that the deceased was suffering from cognitive impairment as a consequence of vascular dementia, and the fact that suspicious circumstances could be said to have attended execution of each of the deceased's testamentary instruments under challenge, require the Court to scrutinise with care the evidence bearing upon the validity or otherwise of each instrument, drawing such inferences as may be available from the whole of the evidence.
Accepting that: (a) a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding; and (b) unless suspicion attaches to such a will, the deceased's execution of it is sufficient evidence that the deceased knew and approved its terms, nevertheless in these proceedings each testamentary instrument under challenge is the subject of evidence capable of displacing any presumption of testamentary capacity or presumption of knowledge and approval.
The questions for determination by the Court are essentially factual in character. In relation to each instrument considered for admission to probate, the focus is upon whether the deceased had testamentary capacity when he executed the particular instrument and whether he knew and approved the terms of the particular instrument. In relation to the first codicil (dated 10 July 2014) and preceding instruments, there is also a question about whether the deceased's execution of testamentary instruments was procured by an exercise of undue influence on the part of Mr Llewellyn.
Factual analyses are complicated by a number of factors: 1. First, a large part of the evidence is directed to the nature of the deceased's personal relationships rather than to the circumstances in which particular instruments were prepared and executed. 2. Secondly, because the deceased was always (whether well or not) dependent upon others to type documents for him and to assist him in the sending and receipt of emails, the mere fact that a document purports to have been written by or on behalf of the deceased cannot be taken as determinative of its true authorship. 3. Thirdly, allowance needs to be made for the fact that a number of people who acquired a benefit under the deceased's testamentary instruments (including Mr Llewellyn, Mr Hele and Ms Jackson) from time to time had access to the deceased's emails. 4. Fourthly, care needs to be taken not to presume that the incapacity for self-management that attracted an exercise of protective jurisdiction affecting the deceased in the Guardianship Tribunal and NCAT involved a lack of testamentary capacity. The existence of a financial management order or a guardianship order or the exercise of powers by an enduring attorney do not of themselves require, or justify, a presumption or finding of testamentary incapacity: Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377. 5. Fifthly, care needs to be taken in the assessment of medical evidence to appreciate that much of that evidence was directed to questions of capacity other than testamentary capacity, or to treatment of the deceased, in circumstances in which the deceased's capacity to execute a will was not under direct consideration. 6. Sixthly, the medical nature of the deceased's cognitive impairment, arising from his vascular dementia, was such that throughout 2014 (when the wills and codicils of primary concern in these proceedings were executed) he had good days and bad, good times and bad, so that his testamentary capacity was (often unpredictably) variable. Any assessment of his testamentary capacity in 2014 is necessarily situational, depending on a combination of factors, including his lifestyle, diet, medication and social relationships and on whether he was at the particular time experiencing good or bad form. 7. Seventhly, because most of the testamentary instruments executed by the deceased were prepared by him (via a succession of drafts) with the administrative or typing assistance of others, in circumstances in which those others stood to benefit from his testamentary arrangements, particular care needs to be taken upon an assessment of whether he knew and approved of the contents of any instrument he signed and whether his intentions were overborne. 8. Eighthly, upon any assessment of the evidence an allowance needs to be made for: (i) the strong, argumentative, patrician and theatrical personality of the deceased, given to use of irony; and (ii) the character of his closest personal relationships. Words attributed to him cannot always be taken literally. At least some of his portrayal of himself as a miser was theatre, as was his expressed concern that he might descend into poverty. 9. Ninthly, upon any assessment of the evidence, an allowance also needs to be made for Mr Llewellyn's self-confessed bipolar condition, which appears to have been a factor not only affecting his relationship with the deceased and others who dealt with the deceased, but also a factor affecting the character of his communications with all manner of people and his recollections of events. The deceased's relationship with Mr Llewellyn was itself a complex one, increasingly difficult as both men suffered experience of mental illness. Its complexity affected both the deceased's welfare and the course of his will-making activities. 10. Tenthly, recognition needs to be given to the fact that, because Mr Llewellyn (and Mr Illek) were excluded from the deceased's regular company after 1 August 2014 or thereabouts, they were unable to give any substantial evidence about personal experience of the deceased in the critical months before execution of the deceased's will dated 17 December 2014. Given the course of events between about 28 June 2014 (when the deceased, incited by Mr Llewellyn, objected to Mr Lawler's purchase of the Wombarra property) and 19 August 2014 (when NCAT appointed Mr Horder as the deceased's financial manager and confirmed Ms Coleman's appointment as his guardian) restriction of the access of Mr Llewellyn and Mr Illek to the deceased cannot readily, of itself, be characterised as a "suspicious circumstance" telling against a finding of knowledge and approval of the will dated 17 December 2014. It has not been pleaded as a suspicious circumstance; but it needs to be taken into account in assessing the evidence that is available vis-à-vis the preparation, and execution, of the will dated 17 December 2014. 11. Eleventhly, an allowance needs to be made for the fact that, following Mr Hele's assumption of the role of the deceased's full-time companion and carer on 11 July 2014 and NCAT's orders of 19 August 2014, the deceased's living arrangements shifted away from a life of anxiety associated with frequent contact with Mr Llewellyn to a healthier and more stable lifestyle allowing the deceased space to reassess his relationship with Mr Llewellyn and to re-engage with his family. An altercation between the deceased and Mr Llewellyn, when Mr Llewellyn rudely objected to a visit by the deceased, probably in late August 2014, may have caused the deceased to think less generously of Mr Llewellyn. A family barbeque held at Wombarra on 12 October 2014 drew the deceased closer to his family and away from Mr Llewellyn. 12. Twelfthly, recognition needs to be given to the facts that, despite hot controversy about the validity of the deceased's wills, there was, broadly, a consistent pattern to them; the people chosen by him to be his beneficiaries were generally from a relatively stable pool of relatives and friends; that no person named as a beneficiary in the deceased's wills was without a substantial family or social connection with him; and that, despite a reduction in the provision made by the deceased for Mr Llewellyn in the will dated 17 December 2014, and despite any disenchantment felt by the deceased towards Mr Llewellyn at that time, Mr Llewellyn continued to be a major beneficiary of the deceased, in both temporal and testamentary terms. 13. Thirtiethly, in considering whether the deceased's execution of the "first" codicil dated 10 July 2014 was procured by an exercise of undue influence on the part of Mr Llewellyn, allowance has to be made for the interposition of a solicitor (Mr Fitzpatrick) between the deceased and Mr Llewellyn in the process of formal instructions being given for preparation of the codicil and in the process of its execution.
These complicating factors arise for consideration in the context of the customary probate problem of having to assess the capacity and intention of an absent person, the deceased.

[7]

The Framework for Decision-Making

In these proceedings, the parties invoke the Court's probate jurisdiction, the purpose of which is to look to the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intentions of the deceased and the respective interests of parties beneficially entitled to the estate. The task of the Court is to carry out a deceased person's testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192.
The object of the Court, in this judgment, is to identify the instrument, or instruments, which represent the last will of the deceased as a free and capable testator: Tobin v Ezekiel (2012) 83 NSWLR 757 at [44]. The focus for attention is upon identification of his final, formally expressed testamentary intentions.
The Court is not concerned with the formal validity of any of the deceased's testamentary instruments. They all comply with the formal requirements (now found, principally, in section 6 of the Succession Act 2006 NSW) for the due execution of a will or codicil. Nor is the Court concerned with its jurisdiction (under section 8 of the Act) to admit to probate an "informal will". The deceased ostensibly chose, from time to time, to embody his testamentary intentions in a formal instrument. The Court is concerned with the "essential" validity of competing testamentary instruments which, on their face, appear to be formally valid.
With the concurrence of the parties, this judgment focusses on the validity of competing wills and codicils, leaving two ancillary questions aside for the time being, reserved for determination on another occasion. They are: first, identification of the person or persons to whom a grant of probate or administration should be made in respect of any instrument admitted to probate; and, secondly, the existence, enforceability and quantum of any debt owed by Mr Llewellyn to the estate of the deceased.
The question whether the Court is satisfied that a particular instrument (in the form of a will or codicil) is the last will of a free and capable testator is conventionally (and logically) analysed by reference to four main questions; namely: 1. whether, at the time the will was made (or, possibly, at the time instructions were given for a will prepared by a solicitor), the testator had testamentary capacity. 2. whether the will was made with the testator's knowledge and approval of its contents. 3. whether the testator's execution of the will was obtained by an exercise of undue influence on the part of an identified individual or individuals. 4. Whether the testator's execution of the will was obtained by the fraud of an identified individual or individuals.
The party propounding a testamentary instrument bears the onus (a "legal onus") of proving the ultimate fact that it represents the last will of a free and capable testator, and the subsidiary elements of testamentary capacity and knowledge and approval.
A party alleging undue influence or fraud bears the onus (an "evidentiary onus") of proving the allegation as a factor vitiating the testamentary intention of the deceased.
Analysis of evidence bearing upon the essential validity of a testamentary instrument is aided by rules of practice traditionally characterised as "presumptions" (discussed in terms of a shifting burden of proof or the existence of a "prima facie case", as in the classic formulation in Bailey v Bailey (1924) 34 CLR 558 at 570-572), but (as contemplated in Carr v Hommersham (2018) 97 NSWLR 328 at [46]-[47], Mekhail v Hana [2019] NSWCA 197 at [164]-[172] and, in the context of an informal will, Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 at [18]-[24]) perhaps better understood as inferences drawn, on the basis of common experience, from proof of particular facts.
In Mekhail v Hana [2019] NSWCA 197 at [163]-[173] Leeming JA, with the concurrence of Basten JA (at [1]), drew attention to what he perceived to be "some unsatisfactory aspects" of probate law. It is sufficient for present purposes to extract what his Honour wrote in paragraphs [164]-[167] under the heading "A Preferred Approach": "[164] First, I respectfully doubt the utility in adhering to the language of testamentary capacity as stated in Banks v Goodfellow (1870) LR 5 QB 549 at 565 as if that were a legislative text: cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134]. [165] Secondly, it is ironic that while reliance continues to be placed on nineteenth century English decisions such as Banks v Goodfellow and Barry v Butlin, the law in England and Wales appears to have moved on in cases such as the present. In Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430, Lord Neuberger MR approved a single stage approach, applicable to cases where as here there has been a lengthy trial on all issues. His Lordship said at [21]-[22]: "The Judge approached the issue of knowledge and approval on a two stage basis. He first asked whether Dr Gill had established sufficient facts to 'excite the suspicion of the court', which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the Will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the Will. This approach accords with Parke B's analysis in Butlin ... and it is reflected in the approach in a number of other cases. Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs LJ in In re Crerar (unreported) but see (1956) 106 LJ 694, 695, cited and followed by Latey J in In re Morris [1971] P 62, 78, namely, that the court should: 'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.'" [166] This has been reiterated in Greaves v Stolkin [2013] EWCA 1140; [2013] WTLR 1793 at [68]-[73]; and Simon v Byford [2014] EWCA Civ 280; [2014] WTLR 1097 at [47]. [167] I respectfully agree that it is artificial and has the potential to lead to error for a judge who has heard the entirety of the evidence in a case, where the so-called suspicious circumstances "rule" is in play and where undue influence has been pleaded, to proceed on the basis of onus and presumptions. The "presumption" involved when a person who is to take under a will is involved in its preparation is a standardised inference which arises where "common experience is that the existence of one fact means that another fact also exists", as explained in a similar context in Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49."
Although the expression "presumption" is commonly employed as term of art, it is not an expression used exclusively. In Nock v Austin (1918) 25 CLR 519 at 528 Isaacs J used the expression "assumption". In his propositional summary of the law in Bailey v Bailey (about "the proper method of approaching" questions about testamentary capacity, knowledge and approval etc) he presented his summary "in the form of working propositions": 34 CLR 558 at 570.
Whatever the current field of operation of "presumptions" (by whatever name known) the concept of "due execution" lies at their heart. Historically, this can be seen in early probate texts. Each of the 1832 and 1841 editions of EV Williams' A Treatise on the Law of Executors and Administrators (respectively published before and after the Wills Act 1837 (Eng)) includes the following paragraph (with emphasis added, omitting citation of authorities): "Generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the Will having been read over to the testator, or of instructions having been given, is not necessary: for when an instrument has been executed by a competent person, it must be presumed that the parties so executing knew the contents and the effect of the instrument, and that he intended to give that effect to it. But there are some cases of peculiar circumstance, where a more rigid mode of proof is enforced." [1832 edition, volume 1, Part 1, Book IV, Section V, paragraph 200; 1841 edition, volume 1, Part 1, Book IV, Chapter III, Section V, pages 262-263.]
If one goes further back in time, an even more liberal approach to proof of a will (almost akin to section 8 of the Succession Act 2006 NSW) can be found in Godolphin's The Orphan's Legacy, a testamentary abridgment, in Three parts. I. Of last wills and testaments. II. Of executors and administrators. III Of legacies and devises (first edition, 1673; fourth edition, 1701, Part I Chapter XXI, page 66) taken from the 1701 edition, with modernised spelling and emphasis added: "A Testament written by the Testators own hand proves itself, without the help of … witnesses; yea, though it hath not his name subscribed to it, nor his seal affixed to it, nor witnesses present to it; provided it be undoubtedly known to be his writing, or can be sufficiently proved to be; yet it shall have the more authority, if so be it be subscribed by himself or witnesses, and sealed. Nor is it necessary to the proof of a written will, that the witnesses hear it read, or subscribe it, so as they can declare that the testator declared before them, that the self-same writing now produced, is, was, or should be his last will and testament. For in a written will or testament it is not necessary that there be any testimony of witnesses, where it is certain and undoubted that the testament is written or subscribed with the testator's own hand; or that the testator caused the same to be written by another: but if these be doubtful, then the testimony of witnesses is necessary …"
In contemporary practice, execution of a formal will or codicil compliant with current statutory requirements ("due execution") is a point of entry to practical reasoning by reference to "presumptions" bearing upon proof of "testamentary capacity" and "knowledge and approval". The foundational assumption (presumption) is that, if a testator had wit enough to execute a will in due form (with two attesting witnesses) he or she must have been mentally competent to do so; must have known what a will was; must have known the contents of the particular document executed; and must have intended the will to take effect according to its terms. In the absence of evidence to the contrary, common experience suggests that that line of reasoning is correct.
Importantly, probate presumptions as presently understood are rebuttable presumptions of fact, not presumptions of law. Save, arguably, for the fact of "due execution" (mandated by legislation for a "formal" will), they do not mark out jurisdictional boundaries of any kind; although, upon an assessment of evidence in a particular case, they may provide assistance in determining whether or not an onus of proof has been discharged. They provide guidance in the assessment of evidence bearing upon "testamentary capacity" and "knowledge and approval". They have no routine role to play in the assessment of "undue influence" or "fraud", allegations of which must be specifically made and proved. Whether they are rebutted depends upon an assessment of all available evidence in context.
Where a determination of the validity of a will falls to be made by a judge, sitting alone, without a jury, at the close of evidence adduced by all interested persons, the judge is required to consider what findings of fact should be made (about whether the will was the last will of a free and capable testator, and subsidiary questions) on the whole of the evidence, drawing such inferences as may be available on the whole of the evidence. In that context, the profile of "presumptions" may be less visible than in other contexts - such as upon the determination of an interlocutory application for an interim (special) grant of administration or upon consideration of a routine application made to a registrar for a grant of probate or administration "in common form".
The distinction between a grant "in common form" and a grant "in solemn form" (explored in Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786) is indicative of the fact that probate law and practice must accommodate a wide range of cases, from routine administrative applications to hotly contested litigation. In a routine administrative application for probate (the vast majority of probate applications) the existence of a duly executed will that is rational on its face may be held sufficient for the admission of the will to probate: Veall v Veall (2015) 46 VR 123 at [171]. In contested proceedings in which the Court operates under a statutory mandate "to facilitate the just, quick and cheap resolution" of "real issues", debate about whether a "presumption" applies may aid or hinder an orderly resolution of the proceedings, depending upon the factual matrix of the case. The utility and prominence of "presumptions" may vary depending on the nature of the case; including, particularly, the real issues in dispute. Whether they bear their conventional character as "presumptions" or they are characterised as "inferences" drawn from common experience, and whether or not they are analysed in terms of an allocation of an "onus of proof", they are never entirely absent because they reflect common experience. The facts that give rise to a "presumption" (particularly the foundational fact of due execution of a formal instrument rational on its face and apparently regular) remain relevant to any consideration of the issues in aid of which they are said to ground a presumption (testamentary capacity and knowledge and approval), and any rebuttal requires consideration of the whole of the evidence then available, as does a determination of those issues without conscious invocation of a presumption.
In particular cases it may be important to know who bears the evidentiary onus of proving a particular matter and in what circumstances the onus of adducing evidence concerning that matter may shift: Tobin v Ezekiel (2012) 83 NSWLR 757 at [2]. In other cases (of which this is an example), primary attention may focus directly upon issues (usually "testamentary capacity" and "knowledge and approval") identified by parties for determination on the whole of the evidence placed before the Court.
In some cases probate "presumptions" can serve as helpful aids to analysis of evidence bearing upon "testamentary capacity" and "knowledge and approval"; but in other cases they may serve as a formalistic distraction from a proper consideration of the larger issues of "testamentary capacity" and "knowledge and approval" and the still larger, ultimate question of whether an instrument was the (last) will of a free and capable testator.
No party to these proceedings seeks to elevate conventional probate "presumptions" beyond their station, although the plaintiff invites the Court (by reference to obiter of Chadwick LJ in Hoff v Atherton [2004] EWCA Civ 155; [2005] WTLR 99 at [64]) to approach the question of whether the deceased knew and approved of the contents of his will dated 17 December 2014 on the basis that, because the deceased had "a failing mind" (by reason of his vascular dementia), the Court can not be satisfied that he did know and approve the contents of the will in the absence of evidence that the effect of the document was "explained" to him, rather than simply "read" to or by him.
If adopted (contrary to my inclination), this line of reasoning would add a formalistic layer of further enquiry to the question whether a testator knew and approved the contents of his or her will, inviting debate about whether the testator had "a failing mind" and whether a will was, or was not, "explained" to him or her. It is the testator's understanding that is decisive; the issue to be determined is whether the testator knew and approved the contents of the will; sufficiency of evidence depends upon the circumstances of the case read as a whole, drawing such inferences as may be available: Veall v Veall (2015) 46 VR 123 at [173]-[179]
A duly executed will, rational on its face, is conventionally presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding, sanity being presumed until the contrary is shown. Facts which, if established, may provide evidence to the contrary, include the exclusion of persons naturally having a claim on the testator's bounty and extreme age or illness of a character that has so affected the testator's mental faculties as to make them unequal to the task of disposing of his or her property: Re Estate of Paul Francis Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 706E-707B.
Not uncommonly, one finds (as in the present proceedings) an allegation of "suspicious circumstances" surrounding the making of a will sufficient, it is said, to negate a presumption of knowledge and approval arising from findings of testamentary capacity and due execution of a will: Nock v Austin (1918) 25 CLR 519 at [528]; Tobin v Ezekiel (2012) 83 NSWLR 757.
Where there is no question of fraud, the fact that a will has been read over to, and by, a capable testator may be sufficient evidence that he knew and approved of its contents (Re Hodges (1988) 14 NSWLR 698 at F-G), but not necessarily so. Clear evidence that a will was read by, and to, a testator in advance of its execution by the testator may provide persuasive evidence that the testator knew its contents, and intended to give effect to them, in execution of the will. Prudence counsels that a process of "reading the will" be adopted, but there is no rule of law that such a process must be followed or that a want of knowledge and approval must be found if the process is not followed. The same may be said of a process of "explaining" a will to a testator or having him or her explain its contents to a witness. Ultimately, the question is whether the testator "knew and approved" the contents of the will. What may be necessary, or desirable, to provide an evidentiary foundation for a finding of knowledge and approval depends on the facts of the particular case.
A convenient exposition of the principles governing discussion of a formal will or codicil to probate, articulated by reference to "onus of proof" and "presumptions", can be found in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[48] and [55]: "[44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. [45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. [46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. [47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. [48] 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] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. [49] It is then necessary to consider the relationship between the requirement that the will be that of a "free" as well as "capable" testator and the principles relating to the proof of undue influence. In this context undue influence means that the testator has been coerced into doing what he or she did not desire to do. What must be established is that execution was obtained by the exercise of "the power unduly to overbear the will of the testator": Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83; Baudains v Richardson [1906] AC 169 at 184-185; Craig v Lamoureux [1920] AC 349 at 357; Bailey v Bailey at 571-572; Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at [62] fn 55; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867 at [60]-[64]. Where the will has been executed by a person of competent understanding and, judged by the circumstances of execution, "apparently a free agent", the burden of proving that the will was executed under undue influence is on the party who alleges it: Boyse v Rossborough (1857) 6 HL Cas 2 at 49; 10 ER 1192 at 1211; Parfitt v Lawless (1872) LR 2 P & D 462 at 469; Craig v Lamoureux at 356-357; Bailey v Bailey at 571-572; Trustee for the Salvation Army (NSW) Property Trust v Becker at [76]. [50] In Boyse v Rossborough it was alleged that the will of the testator, Mr Colclough, had been obtained by undue influence or fraud of his wife. Mr Colcough had sent for his solicitor, in the absence of his wife given instructions for the preparation of the will and later executed it in the presence only of his solicitor and another disinterested witness. In those circumstances Lord Cranworth said (at 50; 1212) that the burden was on those challenging the will to show "that though what was done bore the semblance of being the voluntary act of Mr Colclough, yet it was an act which he was induced to perform under the influence of terror or fraud". [51] Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the Court (at 157, 159) that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551, 557, 561-562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281-282; Nock v Austin at 528; Vout v Hay at [29]-[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294. [52] In Boyse v Rossborough Lord Cranworth (at 44-45; 1209) distinguished between a testator who knows and approves the contents of the will and executes it of his or her own volition and a testator who knows and approves the contents of the will but executes it as a result of coercion or fraud. To illustrate the difference he gave this example (at 44-45; 1209): "If I meet a man in the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand; or if a neighbour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it,-in both these cases it was my will to hand over the purse and the horse; but the law deals with the case as if they had been obtained against my will, my will having been the result in one case of fear, and in the other of fraud. The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will." [53] That analysis will not apply to all instances involving the exercise of undue influence or fraud. For example, coercion may result in the testator signing an instrument whose contents are to some extent unknown. Or the testator may be mistaken as to the contents of the will as a result of fraud. In such cases the circumstances may also give rise to a suspicion or doubt as to knowledge and approval and the satisfaction of the requirement of affirmative proof would likely disprove the suspected undue influence or fraud. In the remaining cases, notwithstanding that the court may be satisfied that the testator appreciated what he or she was doing, there will still be a live issue as to whether what was done was as a result of coercion or fraud. [54] In the several provinces of Canada, other than Quebec, the law in regard to testamentary capacity, undue influence, fraud, coercion and the formalities attendant on the execution of wills is governed by English statutes re-enacted with slight changes and by English usage and decisions: Rodney Hull et al, Macdonell, Sheard and Hull on Probate Practice, 3rd ed (1981) Carswell at 14. In a passage cited with approval by Sopinka J in Vout v Hay at [29], Crocket J, writing for the Court in Riach v Ferris [1934] SCR 725 at 736 [16] described the inter-relation between suspicious circumstances, knowledge and approval and undue influence as follows: "Assuming that in the case in behalf of a plaintiff seeking to establish the validity of a will, there may be such circumstances of apparent coercion or fraud disclosed as, coupled with the testator's physical and mental debility, raise a well-grounded suspicion in the mind of the court that the testator did not really comprehend what he was doing when he executed the will, and that in such a case it is for the plaintiff to remove that suspicion by affirmatively proving that the testator did in truth appreciate the effect of what he was doing, there is no question that, once this latter fact is proved, the onus entirely lies upon those impugning the will to affirmatively prove that its execution was procured by the practice of some undue influence or fraud upon the testator. This, it seems to me, is the real effect of the three cases upon which the learned trial judge relied, and is precisely the principle stated by Lord Chancellor Cranworth in Boyse v Rossborough and distinctly approved by the Judicial Committee of the Privy Council in Craig v Lamoureux ... in which Barry v Butlin, Fulton v Andrew and Tyrrell v Painton were all considered ...". [55] … [The] primary judge was correct to proceed on the basis that the suspicious circumstances rule does not operate at large. It operates to displace presumptions of fact in favour of those propounding the will. For that reason it is necessary to identify the presumption or presumptions to which particular circumstances are said to be relevant. With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will. If they give rise to a doubt as to knowledge and approval, those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing. They do not have to go further and disprove any suspicion of undue influence or fraud. Approval in this context does not include that in addition to knowing what he or she was doing, the testator executed the will in the absence of coercion and fraud. The proponents having affirmatively established knowledge and approval, the onus of proving undue influence or fraud is on those alleging it. The appellants' arguments, which to a large extent are contrary to these propositions, are rejected."
Probate law and practice are often presented, and analysed, as an amalgam of substantive and procedural law. A prime example of this is discussion of the concepts of "testamentary capacity" and "knowledge and approval" in terms of presumptions and shifting burdens of proof. In a particular case, these procedural constructs may be decisively important, but it is equally important to bear in mind that they are called in aid of substantive law concepts. The ultimate question on an application for a grant of probate or administration of a testamentary instrument is whether the instrument was the "last" will of a free and capable testator. In the administration of justice, procedural imperatives are generally subordinate to substantive law concepts and more prone to change.
Conceptually, the subsidiary questions underlying the question whether a testamentary instrument was the (last) will of a free and capable testator each have a distinct field of operation: 1. The concept of "testamentary capacity" is directed to whether the testator had the mental capacity to make a valid will. That generally requires consideration of a further layer of logical, subsidiary questions considered, in common experience, to bear upon the existence of testamentary capacity: whether, at the time the will was made, the testator understood the nature of a will and its effects; whether he or she understood the extent of the property available for disposition; whether he or she was able to comprehend and weigh claims on his or her bounty; and whether his or her faculties were materially impaired by a medical condition. 2. The concept of "knowledge and approval" is directed (upon an assumption of testamentary capacity) to whether the testator truly knew the terms of a will and intended to give effect to them. 3. The concept of "undue influence" (upon an exercise of probate jurisdiction) is directed to whether the will (that is, the independent mind) of the testator was overborne in execution of a testamentary instrument so that he or she could not be said to have been a free agent and the instrument cannot be said to express his or her true intentions, but the intentions of another. In a probate case, "influence" is "undue" if it overbears the testator's independent judgement. In probate law, "undue influence" is often described as "coercion"; but that word, standing alone, is inadequate to describe the essence of the concept, which is the fact that (by whatever means) the will of the testator is overborne. A testamentary instrument the execution of which is procured by another person's undue influence (coercion) is not the instrument of the testator, but of the other. 4. The concept of "fraud" (upon an exercise of probate jurisdiction) is directed to whether the testator was misled into execution of a testamentary instrument such that the instrument cannot be said to be that of a free and capable testator.
The ostensibly logical precision of these concepts provides a structured approach to a determination of whether a testamentary instrument was the (last) will of a free and capable testator. However, their application is not a mechanical exercise. Any "tests" they embody are evaluative in character. An element of practical wisdom is required in the evaluation of evidence, focusing upon the perspective and personal circumstances of the testator, whose absence from the witness box is a central fact of probate proceedings. Medical evidence may be critical but, in contested proceedings, as in these proceedings, it may not in the final analysis be determinative.
The following observations by Kirby P in Re Estate of Griffith (Dec'd); Easter v Griffith (1995) 217 ALR 284 at 295-296 bear repeating: "(6) In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will: see [Banks v Goodfellow (1870) LR 5 QB 549 at 560]. Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: see Banks, above, at 558. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law [freedom of testamentary disposition] would be undermined and the expectations of testators unreasonably destroyed. (7) If, by reason of evidence, a doubt is raised as to the testamentary capacity of the testator, that doubt must be resolved by the civil and not the criminal onus: see Worth v Clasohm (1952) 86 CLR 439 at 453: 'The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is thought by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.' (8) In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as a 'delusion' or 'paranoia' have been established. Such evidence is only relevant as it throws light on the court's responsibility to decide whether the testator has appreciated the extent of the property to be disposed of; realised the various calls for disposition to which consideration should be given; and was able to evaluate those calls to give effect to the resulting dispositions by the provisions of the will: see Banks at 557. There is nothing excessively technical in any of these considerations. What the court is asked to do is to determine, on all of the evidence, whether for the purpose for which the law provides and protects testamentary freedom, the testator had the capacity to give effect to the legal privilege. Determining that question, courts must steadfastly resist the temptation to rewrite the wills of testators which they regard as unfair, unwise or harsh. …"
These observations should be read with those Gleeson CJ in the same case (at 290): "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."
As was recognised in Tobin v Ezekiel (2012) 83 NSWLR 757 at [51], circumstances which may suggest "undue influence" or "fraud" will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Viewed from different perspectives, the same evidence may, in a particular case, bear upon more than one of the issues ("testamentary capacity", "knowledge and approval", "undue influence" and "fraud") subsidiary to a finding that a testamentary instrument is the (last) will of a free and capable testator.
Decisions bearing upon the validity of a will are often fact-sensitive even if all conventional formalities in the process of making a will have been observed. Although the validity of a testamentary instrument depends upon findings directed to a particular point in time (usually the time which an instrument is executed) an application of principles governing an assessment of validity may require an investigation of facts that play out over time. Context can be critical.
These proceedings have been conducted by the parties on the basis that each testamentary instrument considered for admission to probate is to be assessed (for a determination whether it was the testamentary instrument of the deceased as a free and capable testator) by reference to the concepts of "testamentary capacity", "knowledge and approval" and (in respect of some instruments, not including those dated 8 October 2014 and 17 December 2014) "undue influence", working backwards from the will dated 17 December 2014 as may be necessary to identify the deceased's last valid "will". "Presumptions" have been referred to in passing but never as a centre of attention. The focus of attention has been on "testamentary capacity", "knowledge and approval" and "undue influence" assessed by reference to the whole of the evidence.
This is entirely appropriate in circumstances in which each of the testamentary instruments under challenge in the proceedings was executed in circumstances in which, more or less: (a) the deceased is agreed by the parties, on reasonable grounds, to have been suffering at all material times from a cognitive impairment as a result of vascular dementia; and (b) there is no dispute, as evidence confirms, that at least one person who stood to benefit from the deceased's testamentary arrangements was involved in the making of each impugned instrument, grounding "suspicious circumstances" that require the Court to examine the whole of the evidence. There is little, if any, work to be done in these proceedings by presumptions operating as a gate keeper to the real questions in dispute.
The Court is required by section 56(1) of the Civil Procedure Act 2005 NSW "to facilitate the just, quick and cheap resolution of the real issues in the proceedings".

[8]

Testamentary Capacity

The classic "test" for an assessment of testamentary capacity is found in the following passage of Banks v Goodfellow (1870) LR 5 QB 549 at 564-566 (with emphasis added): "The law of every country has … conceded to the owner of property the right of disposing by will either of the whole, or, at all events, of a portion, of that which he possesses. The Roman law and that of the Continental nations which have followed it, have secured to the relations of a deceased person in the ascending and descending line a fixed portion of the inheritance. The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law. It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence - in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. But what if the mind, though possessing sufficient power, undisturbed by frenzy or delusion, to take into account all the considerations necessary to the proper making of a will, should be subject to some delusion, but such delusion neither exercises nor is calculated to exercise any influence on the particular disposition, and a rational and proper will is a result; ought we, in such case, to deny to the testator the capacity to dispose of his property by will? It must be borne in mind that the absolute and uncontrolled power of testamentary disposition conceded by the law is founded on the assumption that a rational will is a better disposition than any that can be made by the law itself. If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the depravation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right. It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause - namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. …"
Reproduction of the italicised passage in a broader setting lends weight to recent observations that the italicised criteria are not to be applied as if merely a statutory formula: Carr v Homershsm (2018) 97 NSWLR 328 at [6] and [133]-[134].
Despite criticism that they have at times been construed or applied too narrowly, the Banks v Goodfellow criteria provide a logical framework for an assessment of testamentary capacity with their identification of the following elements: 1. A competent testator must understand the nature of a will and its effects. 2. A competent testator must understand the extent of the property of which he or she is disposing. 3. A competent testator must be able to comprehend and appreciate (that is, to weigh) the claims to which he or she ought to give effect. 4. A competent testator must be free of any medical condition that prevents him or her from having, or duly exercising, those faculties in the making of a will.
In Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6] Basten JA characterised these elements in the following terms: "[5] Testamentary capacity is not a statutory concept but is derived from the case-law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely: (a) the capacity to understand the nature of the act of making a will and its effects; (b) understanding the extent of the property the subject of the will, and (c) the capacity to comprehend moral claims of potential beneficiaries. [6] The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include "disorders of the mind" and "insane delusions". Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator's normal capacity for decision-making."
The qualitative character of the Banks v Goodfellow criteria is implicit in their requirement that a testator be able to "understand", "comprehend" and "appreciate" certain things, in use of the word "ought" in identification of claims on a testator's bounty, and in the need for there to be consideration of whether there is a causal connection between any medical condition suffered by a testator and his or her will.
That qualitative character has led some to recast the criteria in terms of a formulaic guideline that a testator must be able "to remember, to reflect and to reason" about his or her testamentary arrangements: MS Willmott and CP Birtles, "Testamentary Dispositions - Wills and Codicils" (2016) 43 Australian Bar Review 62 at 82-83.
In King v Hudson [2009] NSWSC 1013 at [51] Ward J recorded the following submission made by Mr Willmott SC in the case before her: "[51] Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other."
This formulation is not far removed from the observations of Rich ACJ in Timbury v Coffee (1941) 66 CLR 277 at 280 (omitting citation of authority): "The issue of capacity is one of fact. … The question for the jury was: 'whether the testator was of sound and disposing mind and understanding when he made his will. That is the question which the wisdom of ages has framed, and, which as often as the question arises in courts of justice, and is put into form, in those words, it is put into form.' The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty …"
Helpful though these approaches are in encouraging a beneficial view to be taken of the Banks v Goodfellow criteria (demonstrating the availability of different formulations of the concept of "testamentary capacity"), they do not displace the abstract logic of the criteria. One must still consider elements relating to the nature and effect of a will; available property; identification and weighing of claims; and medical impediments. These are foundational to a finding that an instrument constituted the duly expressed testamentary intentions of a free and capable testator.
"Testamentary capacity" and "knowledge and approval" are distinct concepts but, in practice, evidence bearing upon one concept may also be relevant to consideration of the other: Mekhail v Hana [2019] NSWCA 197 at [128]; Drivas v Jakopovic (2019) 100 NSWLR 505 at [75].

[9]

Knowledge and Approval

Upon a consideration whether a testator knew and approved the contents of his or her will, the focus for attention is whether 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.
The principles governing the determination of a question whether a testator "knew and approved" the contents of a will are commonly summarised by reference to observations made by Isaacs J in Nock v Austin (1918) 25 CLR 519 at 528, here reproduced without citation of authority: "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
Having acknowledged these principles Hallen J, in Romascu v Manolache [2011] NSWSC 1362 at [204]-[205], made the following observations: "[204] Traditionally, a two stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not "excite suspicion", then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity. [205] When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec'd) [1950] 2 All ER 117, at 121."
Whether "a two stage approach to the evidence" (reflective of probate presumptions) is required in a particular case may depend upon "the real issues" for determination in the particular proceedings. This was implicitly recognised by Hallen J in Blendell v Byrne [2019] NSWSC 583 at [432]-[433] by reference to Gill v Woodall [2011] Ch 380 at [22], earlier extracted.
Although the validity of each testamentary instrument under challenge must be considered on its own merits, and any circumstances exciting suspicion about the testator's knowledge and approval of the contents of a particular instrument must be considered upon a consideration of the question of its validity, the primary focus of any "suspicious circumstances" attending the deceased's wills in these proceedings is upon two main features: first, the nature and likely course of the deceased's cognitive impairment as a result of the vascular dementia from which he suffered and, secondly, the involvement of interested persons in preparation of the deceased's wills. Those factors, alone, sufficiently excite a suspicion (that the deceased may not have fully known and approved of the contents of his various wills) to require close scrutiny of all the circumstances in which each will propounded was prepared and executed.
Where suspicious circumstances exist, for a court to be satisfied that a testator knew and approved the contents of a will it must be satisfied that the will reflects his or her "real" intention or his or her "true" will. The issue is not necessarily resolved by a finding that the testator read the will himself or herself before its execution. The strength of an inference of knowledge and approval that arises from the reading over of a will by, or to, a testator can depend on the complexity of the will. Where there are suspicious circumstances, a finding that a testator did or did not know and approve of its contents may require an assessment of the degree of suspicion, the capacity of the testator to understand its contents, and whether the testator both knew and approved of its contents such that it represents his or her "real" testamentary intentions: Stojic v Stojic [2018] NSWCA 28 at [133]-[136].
To establish a testator's knowledge and approval of the contents of a will, it is not necessary to establish that he or she understood each and every clause of the will. It is sufficient to establish that the testator understood the practical effect of the central clauses in the instrument, including the dispositions of property effected by the will and implications for the estate of the appointment of those who are to administer it: Gerovich v Gerovich [2021] WASC 77 at [36].
"Knowledge and approval" is conceptually distinct from each of "undue influence" and "fraud"; but, in practice, those who oppose the admission of a testamentary instrument to probate sometimes seek to advance an allegation of "undue influence" or "fraud" under cover of a challenge to a testator's knowledge and approval coupled with an expansive allegation of "suspicious circumstances".
Care needs to be taken not to permit this or to fall into the trap of elevating an allegation of "suspicious circumstances" into a stand-alone ground of opposition to the validity of a will. Properly understood, an allegation of "suspicious circumstances" simply serves to put the Court and a propounding party on notice of facts that may bear upon an assessment of a testator's "knowledge and approval" or, perhaps also, his or her "testamentary capacity".
Conceptually, the grounds for opposition of an application for admission of a testamentary instrument to probate are generally limited to an allegation of a want of testamentary capacity, an allegation of a want of knowledge and approval, an allegation of undue influence or an allegation of fraud: Veall v Veall (2015) 46 VR 123 at [198].

[10]

Undue Influence

A classic exposition of the law relating to undue influence in probate is found in Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121C-122G. In propositional terms, as summarised in the headnote, the case is authority for the proposition that, where it is alleged that a will apparently regularly executed and made by a person of competent understanding is challenged on the ground of undue influence: 1. the burden of proving that it was executed under undue influence lies on the party who asserts it; 2. the undue influence which must be shown to avoid the will must amount to force or coercion destroying a free agency; and 3. where what is relied upon is a purely circumstantial case, the person asserting undue influence must go further than merely establishing the circumstances from which it is sought to have the inference drawn; there must be proof that undue influence was exercised and that by means of its exercise the will was produced.
In summary terms, undue influence in probate is commonly equated with "actual coercion"; that is, "coercion" established without reliance on any form of presumption such as is commonly found upon a consideration of "undue influence" upon an exercise of equity jurisdiction. An illustration of this, omitting citation of authority, is found in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 at [62]-[63] per Gaudron, Gummow and Kirby JJ: "[62] The position taken by courts of probate has been that to show that a testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument, 'there must be - to sum it up in a word - coercion'. The traditional view, repeated by Sir Frederick Jordan, has been that a court of equity will not, on the ground of undue influence as developed by the Court of Chancery, set aside a grant made by a court of probate. [63] The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos. …"
Although "probate" undue influence is primarily concerned with coercion, one does not have to prove actual force, violence or threats of violence. Rather, it is sufficient that any form of pressure be asserted upon the will-maker so as to overpower his or her will. That pressure can arise in many forms. Classic expositions of this can be found in Hall v Hall (1868) LR 1 P & D 481 at 482; and Wingrove v Wingrove (1885) 11 PD 81.
The headnote for Hall v Hall summarises the law: "persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of a testator, will constitute undue influence, though no force is either used or threatened." An elaboration of that proposition is found in the report's transcript of a direction given by Sir James Wilde (later Lord Penzance) to a jury on the question of undue influence in probate: "To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition and not the record of someone else's."
To like effect is the transcript of an address to a jury by Sir James Hannen (later Lord Hannen) in Wingrove v Wingrove: "Gentlemen of the jury, I must ask your particular attention to the exposition which I am about to give you of the law upon this subject of undue influence, for I find, from now a long experience in this Court, that there is no subject upon which there is a greater misapprehension. The misapprehension to which I have referred arises from the particular form of the expression. We are all familiar with the use of the word 'influence'; we say that one person has an unbounded influence over another, and we speak of evil influences and good influences, but it is not because one person has unbounded influence over another that therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean, a young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favour, to the exclusion of his relatives. It is unfortunately quite natural that a man so entangled should yield to that influence and confer large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those contingencies. A man may be the companion of another, and may encourage him in evil courses, and so obtain what is called an undue influence over him, and the consequence may be a will made in his favour. But that again, shocking as it is, perhaps even worse than the other, will not amount to undue influence. To be undue influence in the eye of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quiteness' sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say 'this is not my wish, but I must do it'. If therefore the act is shewn to be the result of the wish and will of the testator at the time, then, however it has been brought about - for we are not dealing with a case of fraud - though you may condemn the testator for having such a wish, though you may condemn any person who has endeavoured to persuade and has succeeded in persuading the testator to adopt that view - still it is not undue influence. There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced."
A finding that the execution of a will has been procured by the undue influence of another does not require a finding of impropriety on the part of the other: Petrovski v Nasev [2011] NSWSC 1275 at [269]; Blendell v Byrne [2019] NSWSC 583 at [459].
In Bracher v Jones [2020] NSWSC 1024 at [468]-[475] Robb J found that the execution of a will by an elderly lady of doubtful testamentary capacity was procured by undue influence. At paragraphs [468]-[469] and [475] his Honour made the following observations (with emphasis added): "[468] If I am correct in my conclusion that Mrs Jones lacked testamentary capacity, then the 19 June 2013 will cannot be upheld. Even if I am wrong in that regard, I remain strongly of the view that Mrs Jones' capacity could only be considered to have been marginal in the actual circumstances in which the will was made. I consider that her circumstances made her in fact vulnerable to her will being overborne by incessant demands in circumstances where she would have had great difficulty in independently processing and assessing the validity of the reasons given by Stephen in support of the demands. [469] I have concluded that as a real, practical matter, the only way of explaining the making and the terms of the 19 June 2013 will is that, in Mrs Jones' weakened state, she was not able to resist Stephen's demands. … [475] In my view, constant importuning of an old and weakened person, with compromised testamentary capacity, is capable of overbearing the will of that testator, as much as more blatant forms of coercion. Here, I do not refer to the mere taking advantage of some relationship of influence under which the other party is susceptible. I refer to the situation where the testator effectively gives up and abandons free agency in order to stop being subject to incessant demands. A finding of undue influence for probate purposes may not be available where there is a basis for concluding that the testator has ultimately been persuaded to accept the demands of the particular beneficiary, even though the reasons given in support of the demands are wrong and unsupportable. The question is whether, in reality, the testator has made a "free" decision. However, where no reason can be found in the evidence that can explain the abandonment by a weakened and susceptible testator of the testator's long-term cardinal testamentary intention, in the face of demands that are both incessant and obsessive, a conclusion of practical coercion may be available. That is the finding that I make in this case."
The intervention of a solicitor in preparation of the impugned will did not in that case (or in Dickman v Holley [2013] NSWSC 18) preclude a finding of undue influence.

[11]

Fraud

Although there is no allegation in these proceedings that the deceased's execution of a will or codicil was procured by fraud, recognition of the field of operation of "fraud" in probate proceedings is important to distinguish the concept from the concepts of "undue influence" upon an exercise of probate or equity jurisdiction. That can be done conveniently by noting the observations of the Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [61]-[69]: "[61] It is important, however, to appreciate that undue influence and fraud are two fundamentally different concepts. [62] Before identifying the principal difference, I would note that the equitable doctrine of undue influence does not apply to testamentary gifts: Boyce v Rossborough; Craig v Lamoureux [1920] AC 349; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116. Importantly, probate undue influence differs from the equitable doctrine of undue influence under which the donor may fully intend and desire the transaction even though an inference of undue influence may arise: Bridgewater v Leahy (1998) 194 CLR 457 at 475 per Gaudron, Gummow and Kirby JJ. [63] Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will. The point was put succinctly in Wingrove v Wingrove (1885) 11 PD 81 by Hannen P (at 82): "[i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence". See also Hall v Hall (1868) LR 1 P & D 481 where Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment. [64] The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh. [65] On the other hand, fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her. [66] Fraud embraces a wide category of conduct affecting testamentary disposition. Relevantly, as regards the present case, in The Public Trustee v Mullane (Unreported, Supreme Court of New South Wales, 12 June 1992), Powell J (at 15) gave the following example of fraud capable of invalidating a will: "wilfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent benefits being received by a natural object of the testator's bounty." [67] In White v White & Cato (1862) 2 Sw & Tr 504, Sir Cresswell Cresswell distinguished between undue influence and fraud. He observed that there had been a plea of undue influence in the case but no clear plea of fraud. He is reported, at 506, as having said to counsel: "If you intend to charge the plaintiff with having obtained the execution of this will by instilling into the mind of the deceased false and delusive notions respecting the conduct of the defendant, this is tantamount to a charge of fraud, and you should have placed on the record a plea charging her with having obtained it by fraud." 68 In Riding v Hawkins (1889) 14 PD 56, the court distinguished between undue influence and fraud and required fraud to be separately pleaded. 69 There are suggestions in In the Estate of Fuld (at 672) and Re Stott [1980] 1 All ER 259 that it may not be necessary to make positive allegations of fraud in probate cases. I disagree with that approach. It is contrary to the modern notion of justice as well as the surprise rule. Consistent with the modern attitude to allegations of fraud, generally, in probate actions fraud must be explicitly pleaded."

[12]

MILESTONES IN THE DECEASED'S DEMENTIA-RELATED DECLINE, 2010-2015

A structured understanding of the deceased's dementia-related decline between 2010-2015, including an assessment of his personal relationships and his personal circumstances, requires a juxtaposition of events relating to: (a) the operation of the deceased's enduring attorney and guardianship appointments; (b) the operation of financial management orders and guardianship orders affecting the deceased, made under the Guardianship Act 1987 NSW; (c) the deceased's admission to care institutions; and (d) observations made by a variety of people, from time to time, about the deceased's mental health.
Shorn of detail, but placed in the context of the deceased's contested testamentary instruments, major milestones in his journey to incapacity, between the time of his diagnosis with dementia in 2009-2010 and the time by which (in mid-2015) he was more clearly incapacitated, are the following: 1. There was sufficient concern about a decline in the deceased's cognition in December 2009 for a mini-mental state examination of him (in which he scored 27/30) to be administered. 2. On 18 February 2010, the deceased executed a will, and an enduring power of attorney (witnessed by Mr Llewellyn as a solicitor) in favour of Mr Illek (who, alone of two nominated attorneys, accepted the appointment as attorney) expressed to operate only during a loss of mental capacity on the part of the deceased. The will of this date was the first will in which Mr Illek was named as an executor. 3. In September 2010, as a patient at St Vincent's Hospital in Darlinghurst, the deceased's impairment of cognitive function was formally recorded by Dr Ian Sutton (a Consultant Neurologist), with confirmatory reports prepared in October 2010 by Dr Sutton and Dr Bain. 4. In October 2010 Dr Sutton expressed to the deceased his concern that impairment of the deceased's cognitive function could impact on his ability to continue working as a barrister; Dr Sutton recommended that the deceased cease working as a barrister. 5. On 17 November 2011, the deceased executed a will. 6. In May 2012, the deceased first met Kathy Jackson and commenced his friendship with her. 7. Dr Sutton was sufficiently concerned about the deceased continuing to practise as a barrister (despite cognitive impairment) that he discussed his concerns not only with the deceased but also, confidentially, with the NSW Bar Association's Bar Care staff. He communicated his continuing concerns to the deceased on 19 June 2012. 8. On 10 August 2012, the deceased executed a will. 9. Between 28 September and 3 December 2012, the deceased was a patient at St Vincent's Hospital and subsequently a resident of a nursing home, having suffered delirium caused by a secondary infection. 10. On 3 December 2012, the Guardianship Tribunal appointed Mr Hull as the deceased's financial manager and guardian. 11. On 5 December 2012, Mr Hull surrendered the deceased's practising certificate, leading to an estrangement between him and the deceased, and Mr Hull's determination to relinquish his roles as financial manager and guardian. 12. On 5 March 2013, the deceased executed a will. This was the first will in which Ms Jackson was named as a beneficiary, with a legacy of $50,000. She was named as a beneficiary in all subsequent testamentary instruments, but given a substantially larger legacy and a share of residue only in the instruments respectively dated 8 March 2014, 8 October 2014 and 17 December 2014. 13. After a hearing on 29-30 May 2013, on 21 June 2013 the Guardianship Tribunal formally revoked the management order in favour of Mr Hull (leaving management of the deceased's affairs subject to an enduring power of attorney recently executed by the deceased in favour of Mr Lawler) and varied the guardianship order affecting the deceased by substituting, for Mr Hull as guardian, Ms Coleman, with Mr Lawler as her alternate. The Tribunal left Mr Lawler to manage to the deceased's affairs as an attorney upon an undertaking by him to make an appropriate application to the Tribunal in the event, inter alia, that the deceased purported to revoke his appointment as attorney. 14. On 14 August 2013, the deceased executed a will. 15. On 13 December 2013 the deceased gave instructions to Arnold Bloch Leibler for the preparation of a draft will, which (pending the provision of further instructions) was provided to him as a draft "interim will" on 19 December 2013 and, again, on 10 February 2014. The deceased gave no further instructions to Arnold Bloch Leibler. The draft will contemplated, inter alia, that Mr Illek and Ms Jackson would act as executors; that each of Mr Hele, Mr Llewellyn and Ms Jackson would receive a legacy of $100,000; that Mr Hele and Mr Llewellyn would receive a forgiveness of debts; and that the two men would each receive a 2/10 share of residue. 16. Having examined the deceased on 28 February 2013 and 18 December 2013, Dr Wayne Reid (a clinical neuropsychologist) concluded in a Report dated 28 January 2014 that the deceased had testamentary capacity, explicitly assessed according to the Banks v Goodfellow criteria. 17. On 11 February 2014, the deceased executed a will, the first to provide (as all later wills did) for Mr Llewellyn to receive a home unit in Surfers Paradise (to be) purchased by the deceased for him. This was the first will in which Ms Jackson was named (with Mr Illek) as an executor. She was named as an executor in all subsequent testamentary instruments, but for that dated 10 July 2014. 18. On 8 March 2014, the deceased executed a will based on the template of the Arnold Bloch Leibler draft. His execution of the will was witnessed by Dr Oldtree Clark and his wife. This was the first will in which Ms Jackson was named as a major beneficiary. 19. On 28 June 2014 Mr Lawler, exercising his power as an attorney, to the passing irritation of the deceased, purchased at auction in the name of the deceased a property at Wombarra close to where he and Ms Jackson then lived, resulting in a temporary estrangement between Mr Lawler and the deceased, encouraged by Mr Llewellyn, supported by Mr Illek. In cross examination, senior counsel for Mr Illek suggested that the purchase was completed on 29 August 2014. 20. On 28 June 2014 the deceased purported to revoke Mr Lawler's power of attorney, as a consequence of which Mr Lawler on 30 June 2014 made an application to NCAT which, in combination with competing applications, led to orders made by NCAT on 19 August 2014. 21. By a letter dated 29 June 2014 prepared for the NCAT proceedings cumulating in the orders made by the Tribunal on 19 August 2014, Susan Pordage (an occupational therapist) expressed opinions to the effect that: (i) the deceased used rote learning to perform everyday activities; (ii) he lacked the capacity to comprehend secondary consequences of his actions; and (iii) he was very vulnerable to making poor judgments under the influence of other people; but (iv) he nevertheless retained a significant level of capacity and verbal skills to interact effectively with people and with a substantial degree of autonomy. 22. On 10 July 2014 the deceased executed the first codicil to the will dated 8 March 2014, the effect of which (if valid) was to remove Ms Jackson as Mr Ilek's co-executor and to reduce to $50,000.00 the provision made for her. The codicil was drafted by Mr Denis Fitzpatrick (solicitor) and settled by Mr Kieran Smark SC with active encouragement on the part of Mr Llewellyn. 23. On 11 July 2014, at the request of the deceased's family and friends, Mr Hele commenced living with the deceased as a full time companion and carer. 24. At a directions hearing conducted by NCAT on 29 July 2014 the presiding member drew to the attention of Ms Coleman that her powers as the deceased's guardian included an access function. 25. On or about 1 August 2014, Ms Coleman, exercising her powers as the deceased's guardian, first restricted Mr Llewellyn's access to the deceased. By a letter dated 8 August 2014, she also warned off Mr Ilek. 26. On 19 August 2014 NCAT, with the ultimate acquiescence of the deceased, varied the guardianship order affecting the deceased by re-appointing Ms Coleman as guardian without any alternate, and made a financial management order in favour of Mr Horder. Having examined the deceased, the Tribunal observed that, although he maintained a high level of social skills he was susceptible to suggestions put to him and, at the commencement of the Tribunal's hearing, he was unable to articulate what his application to the Tribunal was about. The Tribunal's financial management order was, in form, final. The Tribunal retained oversight of the deceased's affairs by effecting a variation of the then existing guardianship order (reviewable, in the ordinary course, in January 2015) rather than making a fresh order with a longer duration. 27. On 14 August 2014 the deceased, in the absence of any interested party, told Dr Chalkley that his removal of Ms Jackson from the office of executor (via the codicil dated 10 July 2014) did not accord with his (then current) intention. 28. On 8 October 2012, the deceased executed a purported second codicil to the will dated 8 March 2014, the effect of which (if valid) was to revoke the first codicil and to restore the 8 March 2014 will, subject to removal of Mr Illek as an executor; nomination of Mr Jonathon Rofe (a nephew), Ms Jackson and Mr Horder as executors; and gifting the Wombarra property to Mr Hele. 29. On 12 October 2014, the deceased hosted a family BBQ at Wombarra attended by family and friends. 30. On 17 December 2014, the deceased executed a will, incorporating features of the second codicil with variations which, inter alia, adjusted the provision made for Mr Hele; restored James and Jonathon Rofe (nephews) as major beneficiaries; omitted forgiveness of Mr Llewellyn's debts and otherwise moderated the provision made for him; and confirmed and conferred benefits on several members of the Rofe family 31. On 17 December 2014 Mr Hele prepared a handwritten note of a discussion with the deceased about the will executed that day. 32. On 18 December 2014 the deceased, in the company of Mr Hele, met Mr Horder to discuss his financial accounts (a meeting confirmed by Mr Horder's diary entry, but not the subject of any independent recollection by him). 33. Between 23 December 2014 and 31 January 2015 or thereabouts, with the approval of Mr Horder and Ms Coleman, the deceased, his two nurses and Mr Hele travelled to the Philippines for a holiday. 34. At about the time of the deceased's return to Australia or soon after there was a sharp decline in the deceased's mental capacity.

[15]

Enduring Attorneys and Guardians

The enduring appointments made (and, in most cases, revoked) by the deceased fall into four categories: 1. On 18 February 2010 (the same date upon which he executed a will) the deceased executed an Enduring Power of Attorney appointing Mr Illek and Mr Timothy Shaun Murphy as his attorneys. It was expressed to operate only during a loss of mental capacity on the part of the deceased. It expressly authorised the making of gifts in favour of Elaine Clark and Mr Hele only; Ms Clark was a long established friend who had served as the deceased's "Lady Mayoress" during his service as Mayor of Woollahra. In his capacity as a solicitor, Mr Llewellyn witnessed the instrument. The copy of the instrument in evidence records the appointment as having been accepted by Mr Illek, not by Mr Murphy. Mr Murphy does not recall accepting the appointment or ever acting as an attorney for the deceased. Nobody submits that he did accept the appointment or act as an attorney. 2. Between 4 October 2012 and 8 November 2012 (in the lead-up to proceedings in the Guardianship Tribunal on 3 December 2012) a series of instruments were executed by the deceased at a time when he was in St Vincent's Hospital. On 4 October 2012 he executed in favour of Mr Philip Rofe and Mr Robert John McLaughlin an Enduring Power of Attorney and an Enduring Guardianship Appointment. On 7 November 2012 he executed two further documents: an Enduring Power of Attorney in favour of his solicitor, Mr Rodney John Kent (limited to funding the deceased's "care needs") and an instrument revoking the Power of Attorney of Messrs Rofe and McLaughlin, incorrectly identified by reference to the date 5 October 2012. On 8 November 2012 he executed two more instruments: a revocation of any enduring guardianship appointment of Messrs Philip Rofe and McLaughlin and a revocation of their Power of Attorney, correctly identified by reference to the date 4 October 2012. At a hearing of the Guardianship Tribunal on 3 December 2012 Messrs Philip Rofe and McLaughlin gave to the Tribunal an undertaking that they would not revive, or seek to revive, their appointments of 4 October 2012. 3. On 17 June 2013 the deceased executed an Enduring Power of Attorney in favour of Mr Lawler, which was registered as Book 4659 No. 864 on 9 December 2013. That document (which expressly authorised Mr Lawler to enter transactions favourable to Mr Llewellyn) was executed in the lead-up to revocation of a financial management order by the Guardianship Tribunal on 21 June 2013. 4. On 28 June 2014 the deceased ostensibly revoked Mr Lawler's appointment as an enduring attorney. This he did by his execution of a "Deed Poll" (in which he suggested that he had executed the Power of Attorney in favour of Mr Lawler during a period of temporary loss of mental capacity), served on Mr Lawler under cover of a handwritten letter. That documentation triggered proceedings in NCAT (when, inter alia, a financial management order was made) on 19 August 2014.
The Enduring Power of Attorney dated 18 February 2010 appears not to have been revoked. By operation of the Powers of Attorney Act 2003 NSW, section 50, any authority conferred by it was suspended during the operation of a Financial Management Order affecting the deceased's estate.

[16]

Financial Management and Guardianship Orders

The orders made by the Guardianship Tribunal and the Guardianship Division of NCAT fall into six categories: 1. On 3 December 2012, after a hearing that same day, the Guardianship Tribunal made a financial management order and (for a limited period of 12 months) a guardianship order in favour of Mr Hull. Those orders were made in the context of controversy about the Enduring Powers of Attorney and Enduring Guardianship appointments made in the preceding two months. The guardianship functions conferred on Mr Hull related to the deceased's accommodation, health care and medical / dental care and the services to be made available to him. 2. After a hearing held on 29 - 30 May 2013, on 21 June 2013 the Guardianship Tribunal formally revoked the financial management order in favour of Mr Hull (who, having fallen out with the deceased following his surrender of the deceased's practising certificate, sought to be discharged as financial manager), principally because the Tribunal placed reliance on the Power of Attorney dated 17 June 2013 executed in favour of Mr Lawler, not because it was persuaded that the deceased was capable of managing his own affairs. On the same date (21 June 2013) the Tribunal renewed and varied the Guardianship Order of 3 December 2012 (substituting for Mr Hull as guardian Ms Ruth Coleman, and providing for Mr Lawler to be her alternate) with the functions of making decisions about access to the deceased by others and by the deceased to others, the deceased's accommodation, his healthcare, his medical and dental consents and the services he needed. 3. On 19 August 2014 (after a hearing that same day), NCAT made a Financial Management Order in favour of Mr Horder and varied the Guardianship Order by re-appointing Ms Coleman as guardian without any alternate. The Tribunal's reasons included practical "recommendations" for the conduct of the deceased's affairs. The Tribunal's orders were made in the context of controversy about the deceased's purported revocation of Mr Lawler's power of attorney following his purchase of the Wombarra property at auction on 28 June 2014. 4. On 13 January 2015 (after a hearing the same day) NCAT confirmed, and continued, the appointment of Ms Coleman as the deceased's guardian for a further term of five years. 5. On 29 July 2015 (after a hearing the same day) NCAT dismissed an application first made by Mr Llewellyn on 3 June 2015, and varied on 29 June 2015, to vary the guardianship order of 13 January 2015 by withdrawing Ms Coleman's access function and conferring it on the Public Guardian. 6. On 18 November 2015 (after a directions hearing on 6 July 2015 and a hearing on 7 September 2015, followed by written submissions) NCAT dismissed an application made by Mr Lawler (to which Ms Coleman and, on their application, Messres Llewellyn and Illek were joined as respondents) seeking permission to disclose Tribunal documentation in his defence of allegations made against him in the media.
Relying upon the access powers granted to her by the Guardianship Tribunal on 21 June 2013, and in anticipation of the NCAT hearing on 19 August 2014 (which confirmed those powers), Ms Coleman had occasion, as she saw it, to "warn off" Mr Llewellyn, Mr Illek and Mr Denis Fitzpatrick (a solicitor ostensibly retained by the deceased on or about 30 June 2014) from interference with the deceased's affairs.
On 1 August 2014, she wrote a letter to Mr Llewellyn in the following terms (with editorial adaptation): "Dear Nick ACCESS POWER 1. I have tried warning you since I came back from overseas [on 3 July 2014] that you should move to the Gold Coast as soon as possible. This was initially due to me receiving a ridiculous revocation of Michael Lawler's EPOA and receiving an email from a solicitor who apparently appeared to be acting for David. And I was well aware that David did not have capacity to organise a solicitor to act for him or even to think of putting himself in such a precarious position. David has now been before the Guardianship Tribunal on two occasions and each time this was due to you. 2. I had asked you to meet me at David's at 10 am yesterday morning because I wanted to speak to you. You couldn't come and you then made a time of 3.30 pm - again a no show. 3. You are well familiar with the orders of the Guardianship Tribunal made on 21 June 2013 appointing me as David Rofe's guardian and conferring upon me an Access Power. 4. At the mention before the Tribunal last Tuesday her Honour Judge Boland AM made a rather pointed reminder that I had an Access Power. 5. I have been agonising for some time over whether I should exercise that power to curtail your access to David or exclude you altogether. I have been concerned about the hurt that David may feel if he is prevented from seeing you and have had to weigh this against the harm I see David suffering as a result of your actions and the time spent alone with you. 6. Yesterday's events were the last straw. You met David at Zigolini's for lunch that was arranged to last until 2.30 pm. At the very least you were aware that David had consumed a significant amount of wine (which you know is harmful to him given the vascular nature of his dementia and I have emphasised to you many times that I didn't want David drinking) and then you left him on his own from shortly before 2 pm. David was extremely agitated and angry and was calling out to the point where the staff had to call Gregg [Hele] to come and collect him. 7. I didn't know this had occurred until I met David at Zigolinis around 3.45 pm and as a result of whatever you said to David during lunch made him the angriest that I have ever seen. 8. I am sorry to say that this is simply the latest of a long course of appalling conduct on your behalf that I have found, quite unforgivable. 9. It is with a profound regret that I have come to the view that I have to limit your access in a substantial way. 10. Accordingly, I hereby exercise my Access Power to: a) exclude you from approaching David's home at …. Woollahra. You are not permitted to visit him at home or enter his home under any circumstances unless with a person approved by me; b) exclude you from David without my prior approval and in accordance with my arrangements (you will be dialled into a conference call); c) exclude you from spending any time with David alone under any circumstances (including on the telephone). Any contact you have with David in the future will be in the presence of a person whom I approve and by prior arrangement with me. 11. If David wishes to see you I am prepared to grant you access to him at Zigolini's Restaurant (or any other restaurant or public location reasonably chosen by David) but only by prior arrangement with me and only in the presence of someone I nominate who may instruct you to leave at their total discretion. Failure to leave as instructed will be a breach of this exercise of my Access Power. 12. Given the need to put appropriate arrangements in place, I exclude you totally from access to David in any fashion (at this home, face to face, by telephone, or by email) for one week from the date of this exercise of the Access Power. If you wish to communicate with David please send me an email of what you want to write and I will consider forwarding it to him. 13. I imagine that you will have a hostile reaction to this exercise of my Access Power. You are a solicitor with a practising certificate. You are on notice that if you object to this exercise of my Access Power you must resort to due process and challenge it in the Guardianship Division of NCAT or the Supreme Court. 14. What you are not permitted to do, and what will amount to serious misconduct by you as a Solicitor, is to ignore this exercise of the Access Power lawfully granted to me by the Guardianship Tribunal. 15. I am serving notice of this exercise of my Access Power on you by email in the first instance. I will notify you of this email by SMS. I have called you before sending this email. The historical records will demonstrate that you monitor your email and SMS closely. I suggest that you do not approach David claiming ignorance of this email. 16. You will be served with a signed copy of my exercise of this Access Power as soon as I can arrange it."
That letter was followed up with a further letter addressed to Mr Llewellyn, dated 7 August 2014, in the following terms (with editorial adaptation): "Dear Nick ACCESS As I said in my letter of 1 August 2014, I have the power to restrict access of people who I feel are detrimental to David's health and wellbeing. I am more concerned than ever about David's vulnerability when you speak to him. His agitation has increased and his dislike of the people who have been legally appointed to look after him has been extremely damaging. This has come about because of the negativity that has been fed to him. I became David's guardian to look after his wellbeing and I can't do that when you agitate and upset him when you talk to him about this case [the NCAT proceedings listed for 19 August 2014] and especially about me. You have now shown him the access letter and so I am now referred to as "that terrible woman". When you show him legal papers you only confuse and agitate him - and you know he doesn't have a clue what this case is about. I had asked Gregg [Hele] to take David away to a warmer climate for a few days last weekend. (As you know he loves driving up to Port Stephens and Coffs Harbour with Gregg.) But apparently last Sunday you told David that he shouldn't go away on the Monday. I have been told that David was yelling at you at lunch on Monday after you had shown him some papers and he didn't speak to you for a while and then asked you to leave. He was confused and angry. I'm very concerned about David drinking wine each time he has lunch with you. When David wasn't drinking when I became his guardian - his health had improved greatly. He looked extremely well and was much more alert than he is today. He didn't miss alcohol and didn't ask for it. You know that alcohol and medication are dangerous taken together. You told me a few months ago you were drinking from 7:00 am each day and needed to go into a clinic. Take this opportunity I am now giving you Nick and go into a clinic and dry out. You will feel so much better and when you move to Q1 [the Gold Coast unit bought by the deceased for Mr Llewellyn] (which I presume you will still be going on 1 September 2014) it can be the start of a new life for you. I'm sorry Nick this can't go on. As you know I have always supported you and we have had a good relationship but I can't let you go on like this, upsetting and confusing David; allowing him to drink; making his dementia worse; and causing him to be alienated from those people who have been specifically appointed by the Guardianship Tribunal to care for him and protect him from the very problems that can be caused when you have contact with him. As you know any sort of agitation is bad for his health but contact with you often results in him becoming agitated, and is clearly quite detrimental to his health and wellbeing. The now-frequent and repetitive nature of these episodes exacerbates the mental difficulties which he is suffering, and increases significantly the risk to his health. After these traumatic episodes David is experiencing it is taking Gregg a lot longer to calm him down. Consequently I am now giving you notice Nick that you are not to ring David, go to his home, write or email him, or make any contact with him until 28 August 2014. Don't take calls from David unless you hear from me first. And if David does speak to you do not discuss this ridiculous case and do not discuss this letter, Michael [Lawler], Kathy [Jackson] Gregg or me. I will review the position at the end of this hearing to see how David's health and demeanor are at that time, and whether he has regained confidence in me as his Guardian and in any other person who is appointed by the Tribunal to care for him and protect his interests. Please comply with these directions so I won't have to take this any further."
On 8 August 2014 Ms Coleman wrote a similar letter to Mr Illek, addressed to "Dear Nick". After reciting the terms of the guardianship order made in her favour by the Guardianship Tribunal on 21 June 2013, the letter continued in the following terms (with editorial adaptation): "At a mention before the Tribunal [NCAT] on Tuesday 29 July 2014 her Honour Judge Boland AM, when learning of the difficulties I was having in caring for Mr Rofe as a result of the problems you and Nick Llewellyn were causing, made a rather pointed reminder that I had a power to limit the access that people had to him. I understand that you have had conversations with Mr Rofe to cause him undue agitation and anger when you have belittled the people who have been put in place by the Guardianship Tribunal to care for him. It is my duty to exercise the Access Power in Mr Rofe's best interests and in circumstances where his present capacity prevents him from recognising your conduct for what it is. To that intent I now direct that you should not be alone with Mr Rofe, or have a private conversation with him, under any circumstances whatsoever. I am now giving you notice that you are not to ring Mr Rofe, go to his home, write or email him, or make any contact with him until 28 August 2014. If Mr Rofe calls you do not discuss the Guardianship Applications and do not discuss this letter, Michael Lawler, Kathy Jackson, Greg Hele or me. I will review the position at the end of that time to see how his health and demeanor are, and whether he has regained confidence in me as his Guardian and in any other person who is appointed by the Tribunal to care for him and protect his interests. If you do not comply with these directions I will have no other option than to engage lawyers to take legal action against you without further notice."
By a letter dated 5 August 2014 addressed to Mr Fitzpatrick, Ms Coleman noted that he had recently attempted to make an appointment for the deceased to meet with Dr Oldtree-Clark and, after reciting the terms of the guardianship order made in her favour on 21 June 2013, she continued as follows: "As a result of these orders I must make all decisions relating to Mr Rofe's health issues and medical assessments. No appointments can be made for consultations with doctors without my consent and I will be present at any consultation that takes place. Mr Rofe's mental condition is such that he does not have capacity to give you instructions in any event, and you should not accept any instructions to act for him unless provided by me, as his Guardian, or a properly-appointed Tutor. I will be objecting to your purporting to act for him when the matter is before the Tribunal."
As events unfolded, Mr Fitzpatrick did appear (with Mr Kieran Smark SC) on 19 August 2014 when NCAT heard competing applications for orders affecting the deceased's person and estate. On that occasion, the Tribunal dismissed an application for leave for the deceased to be legally represented by them, but granted leave for Ms Coleman to be legally represented (by Mr Chris Harris SC). By order of the Tribunal, the deceased was represented by Mr David Burwood of counsel as a separate representative.
In confirming Ms Coleman's appointment as the deceased's guardian on 19 August 2014, the Tribunal both noted (without criticism) Ms Coleman's then recent exercise of her access function and acknowledged the deceased's description of Mr Llewellyn as "the son I did not have".
Although the Tribunal on 19 August 2014 clearly supported management of the affairs of the deceased by Ms Coleman (as guardian) and Mr Horder (as financial manager), the fact that it took the unusual course of publishing "recommendations" for the conduct of the deceased's affairs demonstrates a consciousness of a need to address management of the deceased's relationship with Mr Llewellyn who, the Tribunal accepted, had been diagnosed as HIV positive and as suffering a bi-polar disorder.
As proceedings in the Tribunal on 29 July 2015 illustrate, the deceased's relationship with Mr Llewellyn continued to be problematic. That was the experience not only of Ms Coleman as guardian but also of Mr Horder as financial manager.
As the deceased's financial manager and with the approval of the NSW Trustee, in September 2015 Mr Horder discontinued monthly payments that had until that time been paid to Mr Llewellyn by or on behalf of the deceased. In March - April 2017 Messrs Horder and Llewellyn (and, incidentally, the NSW Trustee) became engaged in proceedings in the Protective List and NCAT which have since been stayed pending the determination of the current proceedings.
By their nature, financial management orders are generally (and, in the deceased's case, were) made to operate for an indefinite period. Mr Horder's appointment as special administrator of the deceased's deceased estate was made to provide continuity consequent upon his management of the deceased's protected estate.
Guardianship orders affecting the deceased, made by the Guardianship Tribunal and NCAT, followed a routine pattern for such orders in that they were limited in duration and function.
Recognising that such developments do not necessarily bear upon the question of testamentary capacity, notice should nevertheless be taken of: 1. Mr Hull's "surrender" of the deceased's practising certificate as a barrister on 5 December 2012 and the deceased's acceptance of retirement from the Bar on or about 17 May 2014; and 2. Dr Oldtree Clark's certification of (5 or 9) July 2013 that there was "no psychiatric reason for [the deceased] to be deemed unable to drive a car", responsive to Mr Hull's surrender of the deceased's driver's licence.
Mr Hull's surrender of the deceased's practising certificate (the validity of which the deceased challenged until, with the advice of Mr Wheelahan, he submitted to retirement from the Bar) was a major factor in the falling out between Mr Hull and the deceased that culminated in the proceedings in the Guardianship Tribunal in mid-2013.
Dr Oldtree Clark's certificate was expressed in terms that went beyond what may have been necessary for the deceased to retain his driver's licence; but, in my opinion, it should be read in the context of the purpose for which it was given. Dr Oldtree Clark recorded that, upon examination on 5 July 2013, the deceased's "thought systems were normal" and he had "a soundness of mind and [was] capable of understanding the nature of what he [was] doing". There is nothing to indicate that Dr Oldtree Clark addressed any criteria for an assessment of testamentary capacity.

[19]

Associate Professor Tully Rosenfeld

A useful introduction to the medical evidence adduced in these proceedings is that of Associate Professor Tully Rosenfeld because, in oral evidence supplementing medical reports, he testified to the nature of the deceased's dementia and factors affecting variations in the deceased's capacity.
Professor Rosenfeld examined the deceased on three occasions (29 November 2012, 22 March 2013 and 19 April 2013), producing a variety of reports bearing dates between 1 December 2012 and 22 May 2013. Those reports were directed variously to an assessment of the deceased's capacity for the performance of different functions and his ongoing treatment. They were directed, inter alia, to a consideration of the deceased's capacity to instruct lawyers to represent him in Tribunal proceedings, his capacity to express preferences about arrangements for his ongoing care and his capacity for self-management generally. The reports were prepared in the context of the guardianship proceedings heard on 3 December 2012 (when Mr Hull was appointed as the deceased's financial manager and guardian) and those heard on 29-30 May and 21 June 2013 (as result of which the deceased's affairs were managed by Mr Lawler as an enduring attorney and by Ms Coleman as a guardian appointed by the Guardianship Tribunal).
At the time Professor Rosenfeld first examined him, the deceased was suffering from a resolving delirium arising from an infection which, when treated, ceased to aggravate his underlying dementia, allowing an improvement in cognitive function between 29 November 2012 and 9 April 2013.
Professor Rosenfeld was examined orally, not only on the content of his reports, but on the nature of the dementia of the deceased observed by him and the likely course of the deceased's illness after Professor Rosenfeld last examined him on 9 April 2013.
From that evidence (which I accept as authoritative) the following facts may be drawn: 1. The deceased was suffering from cognitive impairment, most probably as a result of a vascular brain disease as well as heavy alcohol intake over several years. 2. The deceased's brain disease was progressive (trending towards incapacity) and irreversible; but the course of degeneration in his brain, and consequently in his cognitive abilities, was unpredictable depending, for example, upon whether he from time to time suffered a mini-stroke. 3. The pattern of vascular dementia of a patient, such as the disease suffered by the deceased, is one of improvements and worsenings up and down and depending on intercurrent factors: basically anything, whether the patient has had a drink, whether he or she has had a good night's sleep, whether he or she has an infection or an illness; so, from day to day, a patient can go up or down in terms of cognitive impairment. In vascular dementia, a patient tends to have little deteriorations, perhaps with some minor improvement and then a further deterioration, tracking a jagged line of deterioration. 4. The cognitive status and hence capacity of the deceased was likely to be subject to variability depending on a range of medical and situational factors, including: 1. The deceased's use of, or abstinence from, alcohol (consumption of which affected his cognition adversely). 2. The deceased's medication, which included medication for heart disease, antidepressants and antipsychotics and sleeping pills. 3. The deceased's health, lifestyle pattern and well-being generally. 4. The deceased's personality, and his training as a high functioning professional in dealing with familiar legal issues. 5. The people involved with him at any particular time. 1. Because of his training and experience, the deceased could be expected to retain a residual of high level functioning in dealing with familiar legal matters. 2. An incident of the deceased's illness was impairment of the frontal lobes of the brain and, with it, impairment of executive functions, including those involving judgement, reasoning and ability to compare pros and cons of different options, thereby limiting his ability to deal with complex issues. 3. The involvement of other people with the deceased was likely to be a factor in the variability of his cognitive impairment because people suffering from frontal lobe disease can be influenced or manipulated. This is because their ability to reason and resolve conflicting information is impaired. If they are presented with information that might otherwise be able to be refuted their own will and judgement becomes overwhelmed by that outside influence. They may not necessarily agree with people for the sake of it, but they might latch onto a fact that is presented to them and think that that fact is a good reason for doing something. 4. A characteristic of a person who suffers from frontal lobe brain disease is intransigence, and an inability to change a decision in light of new information and, possibly, an inability to remember the reasoning underlying an earlier decision. 5. The deceased's underlying cognitive impairment could be expected to deteriorate, unpredictably, over time, but it could be temporarily worsened by an infection or other factor able to be treated, as when the deceased suffered a delirium in late 2012 which was resolving in 2013. 6. That the deceased was able to attend to self-care and routine tasks, as learned tasks, was not inconsistent with a diagnosis of cognitive impairment.
Professor Rosenfeld did not, himself, express an opinion as to the deceased's testamentary capacity at any time. Nor was he cross examined about the deceased's capacity, to perform any function, in 2014.
His evidence nevertheless bears, particularly, upon questions relating to the validity of the instruments executed by the deceased in 2014.
Those who challenge the validity of those instruments (particularly the will dated 17 December 2014) focus attention on the progressive and irreversible character of the deceased's vascular dementia.
Those who seek to uphold the deceased's will dated 17 December 2014 acknowledge the significance of the deceased's brain disease; but they point to developments after he came under the day to day care of Mr Hele; the deceased's abstinence from alcohol; his adoption of a healthy diet and lifestyle; adjustment of his medicine intake; regulation of his contact with Messrs Llewellyn and Illek, eliminating a source of anxiety for him; re-engagement with his family; and his residual high level function in dealing with familiar legal matters.
Those who challenge the validity of the first codicil (dated 10 July 2014) point to: (a) the high anxiety induced in the deceased at and about that time by the claims and counter claims (productive of confusion in the deceased) about the conduct of his affairs in or about the period between 28 June 2014 and 19 August 2014 leading up to the orders made by NCAT on 19 August 2014; and (b) the deceased's comment to Dr Chalkley on 14 August 2014 to the effect that (contrary to the terms of the codicil) Ms Jackson should remain an executor in his will.

[21]

Dr Reid's Report

Dr Reid's report dated 28 January 2014 (addressed to Arnold Bloch Leibler Lawyers) was prepared specifically for the purpose of providing an assessment of the deceased's testamentary capacity. As appears in the text of the report, Dr Reid was conscious of a need to address the criteria for an assessment of testamentary capacity commonly associated with Banks v Goodfellow (1870) LR 5 QB 549 at 565.
In an introductory section of his report Dr Reid, as here set out, summarised information relevant to a neuropsychological assessment of the deceased he had gained from earlier medical reports provided to him: "2.1 The medical reports from the St Vincent's Hospital indicated Mr Rofe was admitted to that hospital via the Accident and Emergency Department on 10 September 2010 following difficulties with breathing, a delirium was also noted and this was thought to be secondary to a respiratory tract infection. Whilst in hospital his cognitive functioning was noted to decline and following investigations he had a diagnosis of an acute confusional state secondary to chest infection, atrial fibrillation and congestive cardiac failure/coronary artery bypass grafts. 2.2 On 5 October 2010 Mr Rofe underwent a neuropsychological assessment by Ms Peggy Bain, clinical neuropsychologist, and from her assessment at that time Mr Rofe was shown to have a number of areas of significant cognitive impairment particularly in areas of information processing speed, psychomotor speed and cognitive flexibility. Further deficits were noted in his immediate and delayed recall of visual information, verbal learning and recall, confrontation naming, semantic fluency, phonemic fluency, abstraction and more complex visuoconstruction. 2.3 Overall from her assessment Ms Bain was of the opinion that the pattern of results indicated quite widespread impairment involving functions associated with areas of frontal, temporal and parietal lobes. Furthermore, Ms Bain was of the opinion that the pattern of results overlaps with that found in each of vascular dementia and Alzheimer's disease but obviously other underlying causes would need to be excluded. 2.4 A report by Dr Anita Warrier, specialist in geriatric medicine, dated 8 November 2012 indicated she was of the opinion Mr Rofe had a moderate severity dementia, had a resolving delirium and he had considerable wealth and was vulnerable. 2.5 In his most recent report dated 1 May 2013 Professor Tuly Rosenfeld, Consultant Geriatrician, was of the opinion Mr Rofe retained the ability to understand the essential elements of the proceedings [in the Guardianship Tribunal] in which he was involved and in which he seeks to instruct his legal representatives. He was further of the opinion Mr Rofe's abilities to undertake a range of complex reasoning and decision making tasks was compromised by his underlying brain disease and Mr Rofe needed on-going help and supervision with the ability of an alternate decision maker involved with his financial affairs, personal care, health and lifestyle decisions to intervene on his behalf when appropriate. Professor Rosenfeld also opined Mr Rofe did not have the requisite competency to decide, with reasoning and proper judgement, between the range of conflicting issues and other influences that are relevant to a decision to appoint an enduring power of attorney and guardian. 2.6 Dr Thomas Oldtree Clarke [sic], Consultant Forensic Psychiatrist, in his report dated 28 May 2013 was of the opinion Mr Rofe was recovering from mild intellectual loss. When delirious he was not capable of managing his own financial or business affairs without assistance. Dr Oldtree Clark[e] further opined Mr Rofe had the capacity to instruct legal representatives to represent him in the Guardianship Tribunal proceedings and he understood that his bank accounts had been frozen and his affairs had been taken over by the Guardianship Board [sic] and that Brendan Hull had been appointed as his guardian. From a psychiatric perspective Dr Oldtree Clark[e] was of the opinion Mr Rofe was not psychotic or seriously depressed and had soundness of mind as to be capable of understanding the general nature of what he was doing. He also opined Mr Rofe was oriented, able look after his personal hygiene, dress and cleanliness. He did have a mild degree of loss of his mental capacities, but this did not affect his general sense of self care."
Dr Reid himself interviewed the deceased on two occasions: the first, on 28 February 2013; the second, on 18 December 2013.
Although Dr Reid's Report dated 28 January 2014 provides the primary focus for attention, given disputation about the validity of the testamentary instruments executed by the deceased during that year, the evidence also includes Dr Reid's typed "Dictation Notes" (upon which he was cross examined) recording his observations of the deceased on 28 February 2013. At that time, the deceased was adjusting to the circumstances which befell him in December 2012 and was on the path to further proceedings in the Guardianship Tribunal in May-June 2013. It should be noted, however, that he spoke favourably of Mr Llewellyn; not at all of Hele or Ms Jackson; and only begrudgingly of his nieces and nephews, preferring their children.
In his report, Dr Reid summarised the sequence of events relating to his examination of the deceased: "3. HISTORY/SEQUENCE OF EVENTS: 3.1 The following report is based on my interview and neuropsychological assessment of Mr Rofe on 18 December 2013 for the purposes of an assessment of his testamentary capacity to enter into Will [sic]. 3.2 I first interviewed Mr Rofe on 28 February 2013 although at that time did not conduct any formal psychological assessment. In that interview I specifically focussed on questioning Mr Rofe in regard to the accepted standards for assessing testamentary capacity according to Banks Vs Goodfellow. 3.3 On current interview Mr Rofe told me the reason he came to see me that he was considering making his Will again and he had already previously made approximately four wills. He also stated the concern about his Will making capacity arose after he became ill on 28 September 2012 and was admitted to St Vincent's Hospital. He said he was diagnosed with 'the dreadful D'. He said he was kept in a structured ward for some time before transferred to Lulworth House where he remained until 3 December. He was then discharged home and had 24 hour a day carers. He said he found that very unpleasant as he did not have a key to his own home and was a prisoner. He said this degree of care went on until approximately 21 June when he appeared before the Tribunal. He said he had to appear before the Tribunal on a second occasion and he was given the rights to his house keys and could come and go as he wished. He said he was now returned to his previous arrangements where he has staff that come and cook his meals and do the cleaning. 4. NEUROPSYCHOLOGICAL EXAMINATION: 4.1 On examination Mr Rofe presented as a bright, cheerful, well groomed elderly gentleman who was alert, fully cooperative and oriented to time, place and person. …"
With these introductory observations, Dr Reid's report sets out the results of tests he administered to the deceased on 18 December 2013 and a summary of his examination of the deceased by reference to the Banks v Goodfellow criteria.
His report concludes with a section entitled "Summary and Assessment": "11.1 Mr Rofe is an 81 year old QC who was referred for neuropsychological assessment for the purposes of providing a report on his testamentary capacity to enter a will. 11.2 Concerns where [sic] raised about his cognitive capacity to manage his own financial affairs and cognition when he was admitted to the St Vincent's Hospital Emergency Department on 10 September 2010 following increasing shortness of breath and reduced exercise tolerance and development of a delirium secondary to a respiratory tract infection. In October 2010 he underwent a neuropsychological assessment and was found to have impaired cognitive functioning particularly in areas of speed of information processing, psychomotor speed of tracking and cognitive flexibility. He also showed a tendency to lose track as attentional load increased, impairment in his immediate and delayed recall of visual information and verbal learning and recall. Confrontational naming, semantic fluency, phonemic fluency, abstraction and more complex visuoconstructional tasks were also found to be impaired. Subsequent to this he came under a Guardianship Order and following a Tribunal hearing he was later found to have capacity to instruct legal representatives to represent him in the Guardianship Tribunal proceedings. 11.3 On current neuropsychological assessment on 18 December 2013 Mr Rofe presented as bright, cheerful and fully oriented. He was well motivated in his performance on cognitive testing and was found to show evidence of a deterioration in his intellectual functioning from his premorbid estimate, impaired verbal abstract reasoning, difficulties with new learning of unstructured verbal material and deficits in his visual memory and visual planning and organisational skills. His nominal language functioning on a confrontation naming test also revealed high level nominal language problems. By contrast areas of intact function were found in his nonverbal reasoning and visuospatial problem solving, ability to learn and retain new logical verbal material. On a brief cognitive screening instrument administered in February 2013 (MOCA) he showed evidence of mild cognitive impairment. On repeat assessment using this instrument in December 2013 he showed no decline from the earlier assessment in February. 11.4 Overall I am of the opinion that Mr Rofe shows evidence of mild cognitive impairment consistent with a vascular dementia pattern. I am however of the opinion that despite his mild cognitive impairment he does have testamentary capacity according to Banks Vs Goodfellow criteria where he clearly demonstrates his knowledge and understanding of a Will and its effect, understands the nature and extent of his property, comprehends and appreciates the claims to which they ought to give effect and he does not suffer from evidence of a delusional disorder or psychiatric disorder to affect his decisional making skills. I am also of the opinion considering his mild cognitive impairment Mr Rofe requires the assistance of an accountant and a stockbroker investment manager and he continue to be assisted in the management of his affairs by a responsible person. 11.5 With regard to evidence of further cognitive decline since I first saw him in early 2013 I could find no evidence of further cognitive decline."
In cross examination, Dr Reid adhered to the opinions expressed in his Report; explained the nature of his examination of the deceased on the two occasions (on 28 February 2013 and 18 December 2013) they had met; opined that, in the absence of any other circumstance (such as delirium associated with an infection), the deceased may well have had testamentary capacity when he executed the will dated 11 February 2014; and explained the nature, and usual course, of vascular dementia in terms similar to Professor Rosenfeld's explanation, acknowledging its permanent, progressive character as well as the "step rise progression of cognitive decline", the importance of recognising that a sufferer may have reserve capacity to deal with familiar tasks and the sensitivity of a sufferer's functional capacity to factors associated with lifestyle, diet, exercise and medicine.
In the context of cross examination focusing on the deceased's will dated 11 February 2014 (approximately two months after he examined the deceased on 18 December 2013), Dr Reid elaborated his views in the following terms: "… Mr Rofe … has cognitive impairment. Cognitive impairment does not necessarily impair a person's ability to be able to know who they like, who they don't like, who their beneficiaries may be, who their relatives are, who their friends are, who their enemies are. Mr Rofe also has what we call a huge amount of cognitive reserve. Cognitive reserve is the capacity of the brain to function and have decision making skills in the presence of cerebral pathology. Mr Rofe is a highly educated barrister of 58 years of law where law has been his life. Neuronal wiring accommodating all that information just doesn't disintegrate in the presence of a disease. So what we are dealing with here is somebody who fails some cognitive tests and has periods where they are acutely ill, where they are very confused and they appear highly disorganised, incapable of making decisions for themselves. This man recovers from that, still having brain disease, but is still able to function and make decisions about who he likes, who he doesn't like, that he basically is a wealthy man, has no dependents and has been a person who has made decisions all his life for himself. He is able to make a decision about who he likes and about who his beneficiaries are in his will. He knows so well what a will is. He knows the law. I am sure if you asked him a legal question right up until almost the day he died that I saw him, he would still be able to give you a reasonable answer. But, if you asked him 'What did you have for breakfast?' or, 'Who came to visit you?', he would probably have no idea. So, the point is that when I saw Mr Rofe on the last occasion, two months before this document was prepared, he quite clearly indicated to me that he knew what a will was. He was able to clearly articulate who his beneficiaries were. I can read out his verbatim responses. So, based on that information, only two months later, unless I have contrary indication that he was in an acute state of delirium at the time of making this document, I would say from my opinion, he understood this document."
Counsel for Philip Rofe submitted that Dr Reid's opinions should be discounted by reference to the results of screening tests administered to the deceased. I do not accept that submission. Those tests do not pretend to be definitive, attractive though they may be to advocates. They are imprecise, subjective and dependent on a range of variables not easily reduced to mathematical expression. Their significance often depends more on a comparative analysis of tests administered by a single expert over time than the result of a single test or tests conducted by different experts. Dr Reid's qualifications and experience qualified him to view the deceased in the whole, rising above particular screening tests.

[22]

Dr Oldtree Clark

Introduction. Dr Oldtree Clark's assessments of the deceased's testamentary capacity require particular attention insofar as he witnessed wills of the deceased respectively executed on 8 March 2014 and 17 December 2014. He also on several occasions expressed opinions about the deceased's capacity to perform a variety of other functions.
Dr Oldtree Clark provided to different solicitors who, from time to time, acted for the deceased psychiatric reports respectively dated 29 November 2012, 2 May 2013, 28 May 2013, 5 (or 9) July 2013, 21 March 2014 and 25 February 2018. The style of the reports suggests that clerical exactitude is not a high priority with their author; for example, the Report dated 29 November 2012 refers to the same examination having occurred on 29 and 30 November 2012, the Report dated 28 May 2013 refers to Philip Rofe as having a power of attorney when Mr Rofe was merely acting as a stockbroker for the deceased, and the Report dated 21 March 2014 refers to an opinion of Dr Reid which (if it refers to Dr Reid's report dated 28 January 2014) was apparently only available to his instructors (Arnold Bloch Leibler) on or about 8 April 2014. The report dated 25 February 2018 was signed a little over three years after the will dated 17 December 2014 to which it relates.
Insofar as Dr Oldtree Clark assessed the deceased's testamentary capacity his assessments (recorded in Reports and, more particularly, the subject of his oral evidence) are open to the criticism that they demonstrate little, if any, familiarity with the formal criteria specifically identified in Banks v Goodfellow. Dr Oldtree Clark's focus, as a forensic psychiatrist, appears generally to have been on whether or not the deceased suffered from any form of psychotic illness, whether there were signs of a major depression, whether he was able to attend to his personal hygiene and dress, and whether he was lucid. His professional experience was predominantly in areas other than the law of succession.
Upon an assessment of Dr Oldtree Clark's oral evidence, and in particular his lack of familiarity with the Banks v Goodfellow criteria, an allowance must be made for his current physical frailty, the passage of time since the events the subject of his cross-examination, the focus of his expertise on forensic psychiatry rather than testamentary capacity, and the less than perfect state of his records.
In my assessment, deficiencies in presentation of his evidence detract from the force of his evidence as that of an expert qualified to express an opinion about testamentary capacity, but they do not negate it as evidence of an educated observer of fact. As an observer of fact, his evidence suffered from a lack of contemporaneous records and lapses of recollection about matters of detail; he was, for example, uncertain whether he received (as he did) written instructions from a solicitor, in 2018, before signing his report dated 25 February 2018. Nevertheless, his evidence retains significance, both in his observations of the deceased and in his assessment that the deceased understood what he was doing in executing the wills witnessed by him. I very much doubt that Dr Oldtree Clark would have witnessed either will unless (as he was) affirmatively satisfied that the deceased had that understanding.
Dr Oldtree Clark's Reports. In his Report dated 29 November 2012, Dr Oldtree Clark expressed opinions that the deceased then had a recovering confusional state or delirium associated with a moderate to mild dementia; he was not then capable of managing his own financial or business affairs without assistance, and he was not able to return to practice at the Bar; but he did have capacity to engage lawyers to assist and represent him in the Guardianship Tribunal proceedings then pending.
In his Report dated 2 May 2013 Dr Oldtree Clark expressed opinions to the effect that the deceased had capacity to give instructions for the conduct of the Guardianship proceedings affecting him; capacity to grant an enduring power of attorney and to appoint a guardian; and capacity to manage his own affairs, subject to a need to obtain financial advice. The deceased was said to have become much more settled since his admission to St Vincent's Hospital in November 2012, but he had been left with a nominal aphasia which made it hard for him to give an account of his affairs. Nevertheless, in the assessment of Dr Oldtree Clark, the deceased was able, with patience and some repetition, to focus on familiar material. In the opinion of Dr Oldtree Clark, the deceased had "a soundness of mind as to be capable of understanding the general nature of what he [was] doing". In passing, the Report refers to the deceased's distrust of Philip Rofe, his "father and son" relationship with Mr Llewellyn, and his having given up "drink". The deceased is reported to have said "he has willed a substantial part of his money to a young man [presumably, Mr Llewellyn] who has long been his protégé".
The statement that the deceased had given up "drink" may have been aspirational rather than an established fact. The deceased needed support to abstain from alcohol. The weight of the evidence is that the deceased's sustained abstinence from alcohol was a function of a care regime instituted by Mr Hele after he took up residence with the deceased on 11 July 2014.
Dr Oldtree Clark's Report dated 28 May 2013 is substantially to the same effect as the Report dated 2 May 2013, with greater elaboration.
Dr Oldtree Clark's Report dated 5 (or 9) July 2013 was prepared at the request of the deceased. On the basis of an examination on 5 July 2013, Dr Oldtree Clark recorded that the deceased showed no signs of a psychotic mental illness, his thought systems were normal, he had no signs of depression, he had a soundness of mind and was capable of understanding the nature of what he was doing, and there was no psychiatric reason for him to be deemed unable to drive a car.
Dr Oldtree Clark's Report dated 21 March 2014 (addressed to Arnold Bloch Leibler and marked to the attention of Ms Ford) is in the following terms: "I have been asked to assess Mr Rofe's psychiatric capacity as to his testamentary capacity. I examined him at his request on 07/01/14 and 08/03/14. I have seen him on five prior occasions. The opinion and details in this report are based on knowledge derived from my training, study and experience. I have been in practice as a Forensic Psychiatrist for over 40 years. I am a Foundation Member of the Faculty of Forensic Psychiatry of the Royal Australian and New Zealand College of Psychiatrists. You seek a report commenting, from an expert medical perspective, on the nature and extent of Mr Rofe's testamentary capacity. The first consideration is whether Mr Rofe suffers from a psychotic illness. On psychiatric state examination, Mr Rofe showed no signs of a psychotic illness. That is to say, he suffered no hallucinosis, he expressed no delusionary beliefs and his thought systems were normal. That is, he showed no derailment or sudden changes from subject to subject. He was lucid and coherent. On emotional state examination, he did not express suicidal thoughts. He slept and ate well. He was tending to his hygiene and was always smartly dressed. He showed no signs of emotional distress and had no present signs of a depressive process. My conclusion was that he was not psychotic or suffering from a serious mood disorder. Overall, Mr Rofe had a soundness of mind and was capable of understanding the nature of what he was saying and doing. You ask specifically the following - a) Does he understand the nature and effect of a will On my examination this year, he was capable. He was well oriented, understood the nature of the proceedings he had been through with the Guardianship Tribunal and his present position as to his affairs. At a personal level, he attended to his hygiene and dress. I note that Dr Reid was also of that opinion. b) Understands the nature and extent of their property Mr Rofe understood that Mr Lawler assisted in the management of his financial affairs. There had been no disagreements and generally he understood the nature and extent of his finances and property. Mr Lawler has enduring Power of Attorney and is a responsible person. On my examination, Mr Rofe was now able to socialise and to live unsupervised. c) Comprehend and appreciate the claims to which they ought to give effect Mr Rofe comprehended the claims to which he was responsible and was fully aware of how "they ought to give effect." d) Be suffering from a disorder of the mind or insane delusion that would result in an unwanted disposition. There is no evidence of this. Mr Rofe now has expert financial advice and is able to understand the nature of what he is doing and financial dealings. He is reasonable as to his intended dispositions. As regards his history of cognitive impairment, Mr Rofe has a form of patchy cognitive disorder as regards his speech. This form of patchy dementia or loss of cognition is most probably a "vascular" form of dementia. That is, there is no evidence of a global loss of functioning, as in other forms of progressive dementia. There has been no deterioration over the time I have known him, rather his awareness and reasoning have improved. I again note Dr Reid's opinion in this respect. There is no psychiatric reason for him to be deemed unable to make such dispositions. Mr Rofe is therefore able to have testamentary capacity, given the above reasoning."
Dr Oldtree Clark's Report dated 25 February 2018 (addressed to the solicitors on the record in these proceedings for the third to eighth and tenth defendants) is in the following terms: "You ask for a report in relation to the testamentary capacity of David Fulton Rofe on 17 December 2014. I examined Mr Rofe on 17 December 2014 and found he had testamentary capacity. I added my signature to his will, which was witnessed by his carer. We went carefully through the will to estimate his understanding, as on the prior occasion, 6 March 2014 [sic], when he was also examined by me and found to have testamentary capacity. Apart from the specific changes as to the appointment of the executors on special provision, both wills were essentially the same. In respect of Mr Rofe's testamentary capacity in the will of 17 December 2014, he showed no evidence of lack of testamentary capacity. My first consideration on 17 December 2014 was whether Mr Rofe suffered a psychotic illness. On psychiatric state examination, Mr Rofe showed no signs of psychosis, that is, he suffered no hallucinosis, expressed no delusionary beliefs and his thought systems were normal. "Normal" means that he had no sudden derailment or sudden change of subject. He was lucid and coherent. Secondly, on emotional state examination, he showed no signs of a major depression and he did not express suicidal thoughts. He was sleeping and eating well and smartly dressed. He was not suffering a serious depression. During my examination on 17 December 2014, Mr Rofe was oriented and understood the nature of the proceedings. The will was read to Mr Rofe, page by page, and he understood the nature and effect of his will. At a personal level, he had attended to his hygiene and dress. Mr Rofe generally understood the nature and extent of his finances and property. I understood that Mr Rofe's accountant had assisted in the management of Mr Rofe's financial affairs. There had been no disagreements. Mr Rofe at first was not allowed to live unsupervised, though capable of so living. As to whether Mr Rofe understood and comprehended the claims which were being brought, it was apparent from reading the second will, that he had changed some terms of beneficiaries and of the executor, Following this, it was necessary to understand whether Mr Rofe was suffering from a disorder of the mind or insane delusion, that would have resulted in an unwanted disposition. There is no evidence of this. Mr Rofe had no psychiatric disorder in the sense which was severe enough to result in an unwanted disposition. Mr Rofe had expert financial advice and understood the nature of what he was doing and the financial dealings. He was reasonable as to the intended disposition. I noted the neuropsychological report, which indicated that Mr Rofe was not functioning at his previous high level of intellectual or rational thought. He was not so lacking as to be regarded as incapable. His scores were in the normal range. That is, he was then functioning at a normal level. This was also the opinion of neuropsychologist, Dr Reid. My past opinion was that there was no deterioration in Mr Rofe's intellectual capabilities over the time I saw him, rather his health condition, awareness and reasoning had improved. In conclusion, there was no psychiatric reason for Mr Rofe to be deemed unable to make dispositions. Mr Rofe was therefore able to have continuing testamentary capacity in regard to the further will made on 17 December 2014."
The Deceased's Will dated 17 December 2014. Dr Oldtree Clark was cross-examined extensively on this Report to establish, inter alia, that at the time of giving his evidence in these proceedings he demonstrated no familiarity with the criteria in Banks v Goodfellow; that he had carried out no mini mental state examination on the deceased on 17 December 2014 because he had assumed that the deceased had been improving following their last meeting on 8 March 2014; that he had not been told of Dr Chalkley's recent reports; and that he had not been told of the deceased's first codicil (dated 10 July 2014) or his second codicil (dated 8 October 2014), each a development subsequent to his witnessing of the deceased's will dated 8 March 2014. The Report dated 25 February 2018 appears, at least to some extent, to have been an adaption of the Report dated 21 March 2014. In preparation of the 2018 Report Dr Oldtree Clark had regard to his earlier Reports on the deceased, not merely the Report dated 21 March 2014.
Dr Oldtree Clark accepted that his Report dated 25 February 2018 was prepared retrospectively but it may have been prepared in draft in or about December 2014, shortly after the events of 17 December 2014. He was not sure how long his consultation with the deceased on 17 December 2014 took, but most consultations of the nature of that one, he said, took between 30-45 minutes. His appreciation of the personality of the deceased extended to a recollection that the deceased was not a person who paid his fees promptly, a possible reason for his delay in preparation of his report.
Dr Oldtree Clark was not entirely certain who was present at the time he examined the deceased on 17 December 2014, but he understood that Ms Jackson asked him to witness the deceased's will of that date. She says, and I accept, that she waited outside while Dr Oldtree Clark examined the deceased and, with his carer, witnessed the will. This is consistent with Dr Oldtree Clark's evidence, tentatively expressed, that Ms Jackson was with him at the formal introductory and farewelling stages of his meeting with the deceased. He appears to have conducted his examination of the deceased without anybody else present, calling in the deceased's carer to co-witness the will with him before the departure of the deceased, his carer and Ms Jackson together.
Dr Oldtree Clark's evidence about the course of his examination of the deceased on 17 December 2014 is consistent with the evidence of Ms Jackson that, although he called upon her to assist with typing the will, the deceased himself was its author.
According to Dr Oldtree Clark (whose evidence on this I adopt), he engaged the deceased in general conversation to assess the deceased's ability "to make up his mind about certain things" and (as Dr Oldtree Clark put it) "to conduct his own affairs". The deceased read the will, silently, to himself. Dr Oldtree Clark then "read" the will aloud before it was executed by the deceased. He did not take it upon himself to offer to the deceased, beyond a "reading" of the will, an explanation of the terms of the will.
In his Report dated 25 February 2018 Dr Oldtree Clark wrote that the will "was read to Mr Rofe, page by page". Although in answer to some cross-examination questions, Dr Oldtree Clark suggested that he read the will to the deceased "word for word", "from start to finish", the better view, on the whole of his evidence, is that, reading aloud, he lead the deceased through the will, "page by page", identifying the executors appointed by the will and noting its dispositive provisions without literally reading them "word by word", passing lightly over machinery provisions relating to powers of the executors (including the typographical error in an investment clause earlier noted).
In going through the will with the deceased, Dr Oldtree Clark did not go into great detail. He was more interested in the deceased's speech, his manner of talking and his actual level of understanding. Although he was familiar with the deceased's personal history, he did not interrogate the deceased about his property portfolio; his business; his income; or his family, personal or social relationships. His concern was the welfare of the deceased and what the deceased "really wanted".
Having met the deceased on several earlier occasions, he was familiar with the deceased's personality; his high intelligence; and his obsessive character, including an obsessive concern about money. The deceased's tendency to arrive late at appointments and to be a slow payer of the doctor's accounts was impressed upon Dr Oldtree Clark's memory.
Dr Oldtree Clark was aware that the deceased had a "disorder of the mind" (vascular dementia) but he was satisfied that the deceased was not insane or deluded. His assessment was that the deceased's mental health had improved, and evidently so, since their earlier meeting on 8 March 2014, based upon his observations of the deceased.
Dr Oldtree Clark specifically remembers checking the deceased's "medication and things like that and his state of dress". He was aware, specifically, that the deceased was suffering from dementia, cerebrovascular and cardiovascular impairment.
Dr Oldtree Clark's focus did not extend to inquiries about changes in the deceased's identification of beneficiaries between the will dated 8 March 2014 and the will to be executed on 17 December 2014. Nor was he concerned about non-disclosure to him of the intervening testamentary instruments dated 10 July 2014 and 8 October 2014. His evidence was that (although he did not have a copy of the March 2014 will on 17 December 2014) he was told that the will dated 8 March 2014 and the proposed will were "essentially" the same, which he accepted "from a psychiatric point of view"; and he regarded the deceased as both able, and entitled, to change his mind about the identity of beneficiaries.
Dr Oldtree Clark rejected criticism of him for not having undertaken a mini mental state examination of the deceased, recording that he knew the deceased "better than that". In elaboration he made the following observations: "I saw him [the deceased] six times. I saw him delirious in hospital, I saw him getting better and better, I saw him outraged by his affairs being put into the Court [Tribunal] and he was reasonably outraged about that. Yes, he was very reasonable in most of his opinions, and if you think him unreasonable, well, I mean what's your evidence for being unreasonable except for the changes in his will?" Not unnaturally, he was not taken up on his rhetorical question.
The Deceased's Will dated 8 March 2014. Most of the cross-examination of Dr Oldtree Clark was directed to the circumstances surrounding execution of the will dated 17 December 2014. When asked about his examination of the deceased, and execution of the deceased's earlier will, on 8 March 2014 Dr Oldtree Clark confirmed that: 1. He was unsure whether it was the deceased himself or Ms Jackson who had asked him to witness the will dated 8 March 2014. 2. He remembered checking the deceased's "medication and things like that and his state of dress" on that occasion. 3. He recalled that the deceased was a little bit agitated on the occasion of execution of the will dated 8 March 2014. 4. He had knowledge of Dr Reid's Report before he prepared his own Report dated 21 March 2014, but he is uncertain now how he acquired that knowledge.
Dr Oldtree Clark's Report dated 21 March 2014 contains an express opinion in favour of testamentary capacity, supported by elaboration of factual observations. His answers to the questions specifically asked of him by Arnold, Bloch Leibler (implicitly referring to the Banks v Goodfellow criteria) were criticised in his cross examination as non-responsive. That criticism is not entirely misplaced. Dr Oldtree Clark's tendency to ramble is on display. Nevertheless, read as a whole, his answers to the questions put to him were responsive to those questions and supportive of a finding of testamentary capacity.

[23]

Dr Chalkley

Dr Chalkley's Report dated 15 August 2014. According to Consultation Notes prepared by Dr Ian McKenzie on 13 August 2014, the deceased had made an appointment to see Dr Chalkley, on 14 August 2014, five months earlier because he did not like his then geriatrician, Dr Beveridge. Dr McKenzie recorded that the deceased was reluctant to keep his appointment with Dr Chalkley, but was encouraged to do so. Dr McKenzie's notes also record that the deceased "[remains] as well as usual" but that "[he] is constantly been mentally and physically fatigued by a protracted guardianship case."
Dr Chalkley examined the deceased on 14 August 2014 and, by a letter dated 15 August 2014, reported on that examination to Ms Coleman, then the deceased's guardian.
Omitting the formal parts, that letter was, in substance, in the following terms: "Thank you for your letters and recent telephone conversation about David Rofe. I saw David Rofe on 14 August 2014 in my rooms. He was accompanied by his friend and carer, Gregg Hele. I understand David has a Guardianship Tribunal [more correctly an NCAT] Hearing on Tuesday 19 August regarding financial management. I also understand he has recently made documents made [sic] regarding Power of Attorney (POA) and has added a codicil to his Will removing an executor. I believe David Rofe was diagnosed with dementia in 2010. He has a history of cardiovascular disease as well as atrial fibrillation, macular degeneration and delirium the latter occurred around September 2012. David denied having any falls in the past 6 months but his carer Gregg said there was a fall one a week ago [sic]. I saw David alone to assess his cognition and capacity regarding POA and making a Will. David was alert and his speech was normal. He was able to relate to me some recent news items such as Neville Wran's daughter being in trouble (in the news the past 1-2 days). David underwent an Addenbrooke Cognitive Examination-III (ACE-III). For this test he scored 50/100. Within the ACE-III all cognitive categories were impaired: attention 9/18, memory 7/26, fluency 5/14, language 16/26 and visuospatial ability 13/16. The memory deficit was cueable. David could perform 3 out of 4 simple everyday calculations I presented to him. For the one calculation he could not do he said he got too tired trying to calculate it in his head but expected he could do it on paper. David could express and understand the concepts of POA, enduring POA and what a Will was. He said that he owned 9 units which were leased and was part-owner in another. He said he owned his own home. When questioned about other assets he said he owned a car and furniture in his home. When asked about the total value of his assets he said he has been told that it is worth 26 thousand dollars ($26,000) after tax. When I suggested it might be millions rather than thousands he said that was not what he was told. I asked what he expected his own home was worth and he said that if he were to sell it he would be wanting 3 million dollars for it. I asked about claims on his estate. He said he was unmarried and had no children of his own. When asked about other significant people in his life he said that he had made generous provisions for people who have cared for him. He also said he had made provisions for 2 people whom he had supported as law students or earlier in their careers, one through financial difficulties. When I asked whom he did not want to provide for in his Will he mentioned one of his nephews and his nephew's 'outsider friends' whom he has never made any provision for in previous Wills. I asked if David had recently made a codicil to remove an executor from his Will. He said there was a proposal to remove an executor who had been a whistleblower (about Health Service Union fund misuse) but that he thought the executor should remain in his Will. He also said he wished he could be practicing again as a Barrister but after several years out of practice he thought it would be hard to resume practice. Summary David Rofe has cognitive impairment spread throughout several domains including memory and executive function. He lacks insight into these deficits. Reportedly there have been delusions about people he may have previously considered as friends affecting his trust of them and if this is the case the delusions may be affecting his judgement and decision making capacity as well. Although David understands the concepts of POA and what a Will is, he may have underestimated his estate's total value and there may be other claims on his Will that are not known to me. If there are delusions about people involved in the decisions about POA and the Will he may additionally lack capacity in regard to these."
Dr Chalkley's Notes of 14 August 2014. Dr Chalkley's report dated 15 August 2014 was supported by detailed, handwritten contemporaneous notes of his consultation with the deceased and Mr Hele.
At least some of the clinical information recorded by Dr Chalkley about the deceased is likely to have been provided by Mr Hele. Included in that category is information that the deceased had suffered hallucinations. The doctor's handwritten notes on that score are in the following terms: "Gregg (carer) re: David Rofe Dementia diagnosed 2010 Hallucinations (thinks he is on a boat sometimes) Cries at night Delusions about friends taking advantage of him. Not many friends of recent years left he has contact with."
Dr Chalkley's notes confirm that on 14 August 2014 he interrogated the deceased about, inter alia, the deceased's understanding of a power of attorney, an enduring power of attorney, a will, his assets and the claimants on his bounty.
The deceased's responses to that interrogation, as recorded in the doctor's notes, appear to have been factually correct, save possibly for the deceased's valuation of his assets at "$26,000".
The entry in the notes relating to that estimation of value are in the following terms: "'People tell me that after tax my assets are worth $26,000'. I [Dr Chalkley] suggested it should be more. 'That is what I am told' ($26,000). How much is your home worth? - I would want about $3 million if I sold it."
As is evident in his report, Dr Chalkley appears to have taken the deceased's erroneous reference to $26,000 literally, as indicative of a want of capacity on the part of the deceased. However, I am inclined myself to read the deceased's come back upon correction of his verbal slip (a reference to "thousand" instead of "millions") as ironic. When Dr Chalkley (as recorded in his report, not in his notes) suggested that the deceased's assets might be measured in "millions" rather than "thousands", the patrician in the deceased responded: "That ($26,000) is what I am told". He then plausibly estimated the value of his home (alone) at $3 million.
In characterising the deceased's erroneous reference to $26,000 (rather than $26 million) as a verbal slip, I nevertheless notice that: (a) during his conference with Ms Ford on 13 December 2013 the deceased made a similar slip in response to which she and Ms Jackson remarked, to the amusement of all three, that the deceased "always" took the zeros off his description of amounts of money in speaking of his affairs; and (b) in its Reasons for Decision dated 28 August 2014, NCAT treated a similar slip (when the deceased referred to an allowance of $6,000 per month provided by him to Mr Llewellyn as "$6 per month") as clear evidence of confusion on the part of the deceased. This tendency to err may have been a by-product of the deceased's dementia; but (as Dr Reid's report dated 28 January 2014 testifies) it is not a tendency of mind determinative of testamentary incapacity.
Although Dr Chalkley was told about the deceased suffering "hallucinations" and "delusions", their nature was not explored in either the doctor's notes or his report, and he was not called to give evidence. An "hallucination" directed to a thought that the deceased was on a boat would appear to have had no bearing upon his testamentary dispositions. And any thoughts he may have had "about friends taking advantage of him", or about his isolation from friends, might have had too great a grounding in fact to be characterised as a delusion, particularly when (as recorded in Dr Chalkley's notes under the heading "Claimants") the deceased appears to have been rational in his thought processes in evaluating claims on his bounty: "CLAIMANTS Not married - no children I am last living Rofe, in Rofe family People who have cared for me - I have made generous provision for main ones - person I took on when he was a young person I have helped him through financial difficulties - another one (mentioned) when going through Sydney University Law School People who you don't want to receive part of his estate One of his nephews outsider friends of his never been a member of any Will I have made up to and including this one 'A lot of things going on at the moment' 'Will be determined after next meeting (Guardianship Tribunal) next Tuesday' ? made amendment to Will recently - ? removed an executor 'There is a proposal to remove an executor who was a whistleblower (about HSU funds being used inappropriately). I would prefer her to remain an executor'."
Dr Chalkley's Other Records. Documents produced to the Court on subpoena by Dr Chalkley go beyond his report and notes of 14-15 August 2014. He continued to see the deceased at monthly intervals or thereabouts. He saw him on 19 September 2014, 11 November 2014, 17 February 2015, 20 March 2015, 2 April 2015, 29 April 2015, 5 May 2015, 26 June 2015 and 24 July 2015, if not also on later occasions. On most, if not all, occasions when he saw the deceased, the deceased was accompanied by Mr Hele.
Dr Chalkley's records convey an impression that, when he saw the deceased in and after September 2014, his main concern was to monitor and, where appropriate, adjust the deceased's medications to allow him to live comfortably without undue anxiety. This is consistent with Mr Hele's evidence.
As Mr Hele (a nurse) explained in his evidence, the deceased's capacity for engagement with the world was sensitive to his medications, diet and lifestyle.
A feature of Dr Chalkley's records is that they include (in relation to the appointments on 19 September 2014, 11 November 2014, 17 February 2015 and 20 March 2015) observations about the deceased's general health which can reasonably be attributed to Mr Hele in company with the deceased.
On 19 September 2014 the deceased was presented to Dr Chalkley as having issues with the poor quality of his sleep (described as a long-standing problem); depression (associated in the deceased's mind with the loss of his career, although he disclaimed any suicidal thoughts); "sundowning" at about 5.30pm in the evening, associated with verbal aggression and anxiety; a delusion that there were sometimes in his presence two of Mr Hele; and, possibly, excessive use of alcohol.
In an email sent shortly after midnight, in the first hour of 20 September 2014, Mr Hele reported to Ms Jackson, Ms Coleman, Mr Lawler and Mr Horder on his visit to Dr Chalkley, focussing principally on a discussion of the deceased's medication, proposed adjustments to medication and the need to adapt and monitor medication.
Shortly after despatch of that email, Mr Hele forwarded the email to Messrs Agius, Tudorhope, Murphy and Canavan, and Philip Rofe.
Mr Hele was fastidious in his attention to detail in monitoring the deceased's medication and in reporting changes of medication to others with an interest in the deceased's welfare.
A short report dated 19 November 2014 signed by Dr Chalkley following the appointment on 11 November 2014 recorded the deceased's then current medications and a proposed adjustment; made observations about the deceased's blood pressure and sleeping pattern; and stated the following: "David (the deceased) has abstinent [sic] of alcohol for about four months. There are still some issues with sundowning and agitation in the evening."
Dr Chalkley's notes for the 17 February 2015 appointment contain an entry which reads: "No real change but ? more delusion."
More elaborate are observations made by Mr Hele in handwritten notes he prepared for the benefit of Dr Chalkley in advance of that appointment. Those notes speak as at February 2015 but traverse the deceased's patterns of behaviour going back to the second half of 2014 and, in some instances, to pre-dementia times. They suggest that the deceased was a particularly difficult, disruptive character whose dementia had reached the stage (by at least February 2015, if not earlier) that he was given to asking, "Where am I?" and following up that question with displays of "extreme anger and agitation".
Dr Chalkley's notes of his 20 March 2015 appointment with the deceased record that the deceased had a pattern of daily trips to La Perouse or Cronulla, but he experienced trouble in tolerating those trips and in recognising those places. They suggest also that the deceased was talking to his hallucinations and attempting to eat non-edible items.
Dr Chalkley's notes for 2 April 2015 record the following statement in the context of an assessment of the deceased's medication and blood pressure: "Agitation can be severe even after behavioural methods. Can be physically aggressive [,] not so much with Gregg [Mr Hele] but with other carers. … anxiety… 1 hour before visitor is due to arrive…".
On 26 June 2015 Dr Chalkley recorded: "Can get anxious if court cases are discussed".
On 1 July 2015 Dr Chalkley signed a letter addressed to NCAT recording that: "[The deceased has a moderate degree of dementia. He is prone to agitation, which can be very difficult to manage. Agitation occurs particularly when legal issues are discussed and the agitation can persist for hours. As well if there are more than a few people present at a meeting he will find it hard to follow or comprehend what is happening leading to agitation."
The course of Dr Chalkley's dealings with the deceased is consistent with the proposition that there was a sharp decline in the deceased's general mental state in the first half of 2015, if not earlier, in the second half of 2014.
Dr Chalkley's Evidence in Overview. In its Reasons for Decision published in support of its orders made on 19 August 2014 the Tribunal relied upon Dr Chalkley's report dated 15 August 2014 (and, particularly, his opinion that the deceased's memory deficit was "cueable") in its determination that the deceased was unable to manage his own affairs. It was explicitly concerned about the deceased's susceptibility to influence. However, but for his concern about the deceased's slip in valuation of his assets, Dr Chalkley's records provide qualified support for a finding of testamentary capacity as at 14 August 2014. The deceased understood the concept of a will. He knew the nature and composition of his estate. He demonstrated a rational assessment of claims on his bounty.
Although Dr Chalkley made reference to "delusions" in his "Summary" each such reference was expressed in contingent terms; no "delusion" was identified in detail so as to provide a basis for a finding that it bore on testamentary capacity; and Dr Chalkley's generalisations about the possibility of "delusions" stood in contrast to his specific observations about the deceased's assessment of claims on the deceased's estate.
Dr Chalkley's records implicitly inform an assessment of the capacity of the deceased to make the (first) codicil dated 10 July 2014 in so far as the deceased appears to have both acknowledged, and regretted executing, the codicil. This cuts more than one way. The deceased's observations to Dr Chalkley might support an inference that the deceased knew his own mind when he executed the codicil but simply had changed his mind about its contents; that, after his execution of the codicil, he came to understand that he had no proper understanding of it at the time of execution; or that he signed the codicil against his better judgement.
Dr Chalkley's records also inform an assessment of the deceased's motivation in his will making activities: to make provision for people who had cared for him and for those for whom he had earlier provided assistance.
The reference in Dr Chalkley's "Summary" to friends of the deceased who had lost his trust is too delphic to warrant more than speculative observations; but it is consistent with unresolved tensions between Mr Lawler and Mr Llewellyn in play at the time of Dr Chalkley's examination of the deceased on 14 August 2014.

[24]

MR HELE'S CONTEMPORANEOUS EMAILS ABOUT THE DECEASED'S CONDITION, CONDUCT AND CARE

In evidence, tendered by Mr Philip Rofe, are a number of emails written by Mr Hele in 2013 - 2015 routinely sent to a number of the deceased's friends (including, or copied to, Mr Philip Rofe), not generally including Mr Lawler or Ms Jackson. They provide a snapshot of the deceased's life, health and treatment over a critical period.
The first email (dated 21 October 2013) was primarily sent to Tim Murphy and Michael Canavan: "Sorry for the delay. I needed a rest from this and Im sure we're all exhausted from this. Hi Tim and Michael. Tim, we've been demoted in this one [the will of the deceased dated 14 August 2013] but I dont care, had enough. I knew this was coming sooner or later. I could tell cos Ive seen It before. I watched and listened as to how NL [Mr Llewellyn] made David drop Elaine [Clarke] like a tonne of bricks. NL would say to David and David would tell me, NL would say she'll bring you down David cos she's sick (dementia). Re NL letter dated 6th Feb 2011 in next lot. NL drummed this Into David over a period of months and David made a new will excluding Elaine and Increased NL's lot. In the last few months David has been telling me that Tim Murphy recently inherited a large some of money from a family member and I dont need much money to survive on. I could tell that NL has been very busy conditioning David to give less to Tim and myself and more to NL. I didnt want to play that game and stayed out of It for Davids and my sake. Attached is latest will but not last. Another will is in the making. I first heard about this will on Sunday 18ih August 2013. I was at the Woollahra Hotel with David having lunch and we had the misfortune of NL joining us. NL was talking about the will that he written and finalised the Wednesday before 14th /August/2013.. David was complaining he hadnt a copy of this will nor any draft since a draft didnt existed. NL reply to David was "you dont need one David and its for no-ones else's eyes to see. That this will, will remain strictly private and out of reach of everyone. David was still annoyed that night when I stayed with him. I simply told David to get Kathy Lawler to print him a copy. Also that day, NL asked David when he was going to sue Brendan Hull for damages, I told David it was a waste of time and that Brendan was acting under his powers and goodwill, I told David get on with your life and stop wasting your time and energy in this pursuit to sue Brendan . NL replied, well If David doesnt want legal action taken against Brendan then I want another $450,000 from your estate David since I was going to sue him too for defamation. I couldnt believe what I was hearing and I detested that person, NL at the lunch table. I would of prefered to be dipped in human sewer than to have lunch with NL. Also, notice there is one tenth left vacant in Davids will, NL will no doubt quietly take that too. The will I believe is signed by two girlfriends of NL according to David. Confusion: Kathy Lawler can really talk for hours and its impossible to get a word in anywhere. She has recently talked to me about this will and told me NL wrote this will behind hers and Michaels back. I got the Impression that NL included them and Ruth in the will to keep them happy and quite. I really dont know their involvement, however I do know they detest NL and I will admit Kathy has been a great help to David and often lectures David about NL and his evil ways. Anyhow, Tim and Michael. Hope you get the attachments ok and sorry about my grammar, Im in a rush. Bye for now. Keep well. Its really all too much."
On 12 August 2014 Mr Hele sent a circular email to a range of people: "Hi guys. Sorry I haven't been in contact. David doing well and keeping me busy, sometimes 24 hours a day, he wakes me at all hours of the night but thats fine with me, we often laugh about it. Ive been living with him for 33 days with two days off . He has been under a great amount of pressure with all this Guardianship stuff, mainly confusion, disorientation, and agitation but we've had no problems . He constantly tells me he has no Idea what this case is about. He has also told this to his SC and solicitor but they just don't take notice of him. David has read hundreds of pages re this case but unfortunately he cannot retain any of It, this agitates him to no-end. Ive have recorded David telling his SC and solicitor that he doesn't understand this case and that David thinks its got something about building bridges, employing Australians, pipes-I assume plumbing pipes and boats on the river. My recent recordings were only a few days ago yet they still make him continue the case. David and I drive off to La Parouse every morning to read the papers, then to Cronulla for some exercise in the park, he is keen to get in shape. The nursing techniques I learnt from College and on the field have been a great help., should something agitate him I am able to calm him down, talk about his concerns/worries and get him thru it. The next hearing at the Guardianship Board Is next Tuesday 19th August 2014. I hope its the last hearing but I doubt it. He still talks about you guys so when you are ready just give him a call. He recently dropped his mobile in the loo so thats gone to God, but give him a call on his home line on …, best time around 6.30pm. Sometimes he makes sense, other times no sense at all over the phone, or ring me before hand on my mobile … and I will let you know If its a good time to talk to him. Below is crap from the leeches. Cheers All."
On 20 September 2014 at 12.19am Mr Hele sent an email (to Ms Jackson, Ms Coleman, Mr Lawler and Mr Horder), copied to a range of people, reporting upon the deceased's appointment with Dr Chalkley on 19 September 2014: "David and I had a good long talk with Dr Chalkley about Davids current medications including new dementia mads and some of Davids many problems. When someone like David takes so many mrds its a matter of trail [sic] and error. Some medications work very well for some people and for others they just simply don't work at all. As we know most medications have unwanted side effects and quite often react unfavourably when taken with other medications. In Davids case with so many different types of medications its some what difficult to determine if the desired result is being achieved. This is also made harder with Davids usage of ETOH (alcohol), pre dementia chronic depression and other pre existing conditions/disorders. Aricept (Davids current med for dementia) This drug has stopped working for David. As previously mentioned in my recent text, there is a alternative dementia drug called Ebixa . Memantine). We used this drug often at South West Health and Barwon Health with some favourable outcomes for dementia patients that were experiencing problems with aricept. Dr Chalkley and I agreed that David may benefit from this med. We agreed to start David on Ebixa in early October. The reason why in October and not now is that Dr Chalkley and I want to start another med ( Seroquel ) now for Davids depression, and closely monitor this drug before starting David on Ebixa. Seroquel ( Anti-psychotic/ depressant drug ) This is a controversail drug especially with elderly dementia patients. In rare cases it can cause strokes. However, it can also improve the quality of life for the dementia patient such as peace of mind. We intend to start David on this drug straight away but on half of the lowest dosage, 12mg. Results are normally seen within two weeks. I personally agree with this drug for David. I have seen and read many favourable reports about Seroquel on dementia patients and believe David would benefit from it. I would also be monitoring his systolic/diastolic and pulse regularly each day while on this med.. NB, I'm aware David is on Pristiq but its having no effect at all. Panadol Osteo. i reduced this drug over two months ago on David with Dr McKenzie's permission. David was taking far too many osteo's each day and it was causing him frequent constipation and can cause S.O.B.. We've seen great results here with only a few incidents of constipation over this period since reducing this drug usage. Davids osteoarthitis is mild and basically his joint stiffness was due to lack of exercise and not osteoarthritis. Its now midnight and David will be waking me up in a few hours time. so bedtime for me now. I'll continue this report tomorrow. Cheers from Rosemont Ave".
On 30 September 2014 Mr Hele sent a circular email in the following terms: "How you going -----. All good here. David having a late nanna nap and I'll put him to bed soon. Ive got him on new dementia meds now but little Improvement so far, the old dementia meds were no longer working. He has his moments where he is really good especially when i direct the conversation to passed events, I.e. events 5 or more years ago. Anything recent to him is just a blur. Ive got his sundowning syndrome under control by distracting him with repeats of quiz shows, talking about old times or convincing him its time for our fitness routine. I had a huge problem for many weeks with Davids reduplicative paramnesia and delusional misidentification syndromes, where David thinks there are two Davids, Greggs, Rosemonts Ave's, etc. These syndromes would cause him great confusion and agitation. We are still dealing with it but the agitation is far less . When we travel in my car he thinks the other Gregg is in the back seat and we stop often so he can get out of the car and check the back seat. We still go on our daily drives and explore, tour and excercse, this is so important since it gives him a sense of being involved and a oart of the community. Leech still hangs around like a fucking bad smell but not so often, once or twice a week for a hour, he needs to check his investment. I want to take David to Darwin, Coffs or Broome in the near future but i must overcome his disorientation with time and place before I do for his own safety. David and i have been living together under the same roof now for over 80 days but no clashes yet and thats surprising for someone in his state and with leech doing his best to put a wedge between Dave arid I. Most of the time David is happy or content, loves to complain a lot but really that was a pre dementia problem, he misses work/law but I try to make it up by taking him to local courts. Below is a long lost photo of David when he was In the Sydney Uni Theatre group. We found it recently to his delight, and yes its our David Rofe. Cheers men. David and Gregg
On 5 October 2014 Mr Hele sent an email in the following terms to Ms Coleman and Mr Horder: "Dissociative Identity Disorder and Capgras Syndrome This was a very unusual day. Every disorder or syndrome came to life for David today, . While driving to La Parouse and Cronulla this morning, David regularly questioned me about the other David Rofe that was in St Vincents Hospital in Sep 2012, and how did I know if he was the current real David Rofe. This had nothing to do with the David Rofe in South Australia or anyone else that shared the same name. I thought I had done a reasonably good job convincing David there was only one David Role only i.e telling David he had delirium during this period in hospital and that can cause these thoughts , and sometimes medications can also make you think this way. However , every 30 to 45 minutes he would raise the same issue again. The more he talked about this the more obsessed he became. I avoided this issue with activities, music, other issues like politics, sports, and getting him to make conversation with complete strangers on the beach which he really enjoyed. I told him there is only one David Role and he's pretty special. I nearly said " One David Rofe is really enough" but I realised he would take it the wrong way. Capgras Syndrome . This also played a minor part that led to this afternoon's major agitation/anxiety episode. As previously mentioned, he believes there are two Greggs. This is not uncommon with dementia patients ( mid to severe range ) A lot of doctors and geriatricians will tell you just go with the flow and let them believe that. However, in nursing, best practice is to gently discourage this and I agree with this line of thought. David and I are making inroads to over come this. Again this afternoon,·David continuously thought the other Gregg was in the back seat of my car. This didn't agitate him but confused him. So far Ive convinced David that my double's name is Ross, not Gregg,, that i haven't met him yet, and next time David should get his details, i.e mobile number or invite him over to dinner. This has gently put a spanner in the works for David and David is slowly realising there isn't two Greggs. Delusional Misidentification Syndrome and Reduplicative Paramnesia. On our arrival to Davids home at Rosemont Ave approx 2pm, David didn't recognise his home being where it was. He recalled seeing his home elsewhere but not here in Rosemont ave, Woollahra. He wanted me to sell the house straight away. We carefully toured his home, I showed him his belongings, photo's,furnishings for over an hour and he was semi convinced. At this stage I gave David a mild seroquel 12mg. My hesitation of giving David a stronger dose is David would be unsteady and a great falls risk. We have had this problem many times before with David not recognising his Woollahra home. The dreaded Sundowning Syndrome. Normally, David and I have this under control without medications. At 5pm, David became disoriented with place, agitated,confused, talking to the other David Role and blaming him, He insisted he didn't know this home and demanded I get him out of Rosemont Ave and take him home. He had the same problem just 24 hours prior to this at his Wombarra home. This evening episode was bad due to the fact that David had several syndromes all happening at the same time. At 5.15pm, I decided to take him for a long drive to Cronulla and South Western Sydney. Gave him imovane 2mg at 6pm for his anxiety and slowly drove back to Woollahra at approx' 8pm. I gave him the illusion that we had not been here today, hence the earlier episode/drama had never occurred, and that it was late and time for bed. I stayed with him on his bed for 20 mins, gave him reassurance, head and foot massage and that he could wake me at anytime if he had any problems during the night.. He has been sleeping well since, its just after midnight and I can hear him snoring most brilliantly. David and I have spoken recently and openly to his geriatrician , Dr Chalkly about these disorders, but the real bottom line is there is very little that can be done other than wait for them to subside and they will in time. Davids case is unusual having so many disorders but unfortunately as most of us know, David had some major problems pre dementia such as chronic depression,parataxic distortion and other issues which impacts on his current state. In the nursing profession; stronger medications or increased dosages for dementia patients is not recommended, they only zap the last remaining thinking capacity the dementia patient has. I would rather have a happy, grumpy David Rofe with some capacity plus current disorders than a David Rofe that is bombed out all the time. Next week I will be seeing the Dementia nurses from Waverley War Memorial Hospital to talk about David, and hopefully David will agree to allow them into his home on a weekly basis and be part of his care plan. Good night. Will keep you updated".
On 16 October 2014 Mr Hele sent the following email to Mr Tim Murphy, copied to a range of other people: "How you going Tim. Yes, he enjoyed the show and now he wants to see more. It took him back to his old theatre days. We are going to see Wicked next. I didn't go to Wombarra for the weekend [that is, the barbeque held on 12 October 2014], instead I went to Victoria for a rest. David Is a little bit lost staying at Wombarra and with his disorientation of place and time, having two homes makes this condition more confusing for him. I always leave it up to David when he wants to go to Wombarra and I will never force him down there. He still calls Woollahra his main home and I will abide with that. I also got a quote for a stair lift so hopefully we can get this installed to make it easier for both of us. I find It hard sometimes that he forgets people, events of past importance and even who I am, I never correct him since it causes him more confusion . Its not easy for him since he knows he has this disease and he struggles with it every day. Every day is a challenge for him and myself but we are coping well despite the odd bad day. We are always busy, I give him a lot of responsibility, encouragement and decision making for the new day and he appreciates that. He enjoys, as I do, the physical contact that we have, even holding hands while I'm driving gives him so much warmth and security. Thank God we hear less of the leech everyday. Sometimes we go without hearing from the leech for a week or two.The leech knows David has no capacity now and leeches assets are now safe. I couldn't care a stuff about that, I'm glad that the leech is staying away from David and David is no longer tortured with leeche's evil . David and I would like to see you and the boys again, hopefully this Sunday. Keep well."
On 25 October 2014 Mr Hele sent the following email to Ann Hull, the wife of Mr Brendan Hull: "Our David Rofe Is a pretty special person and he is lucky to have so many true life long friends including you and Brendan. We look forward to meeting up with you both very soon, hopefully next Sunday. P.S We recently saw The King and I at the Sydney Opera House ( 19th Oct ) and he really enjoyed it. It took him back to his old Sydney University theatre days where David used to produce his own theatre productions. He has always said his true love was in the theatre. Unfortunately, he doesn't remember that much of that show now, but it brought so much joy and song into his life for a few days. We plan to see another show very soon, maybe Wicked. Best Regards".
On 26 October 2014 Mr Hele sent the following email to a range of people: "Hi Tim. David good . I just put him to bed at 9.30 pm. He didn't want to sleep last night at all , That's not uncommon for dementia patients. He finally went to sleep around 5.30am and me at 8.30am for a hour. I will stay awake and watch David should he be experiencing any sleeping disorders. David also had a nap this afternoon. It was a strange night last night, with David having reoccurring nightmares about two seedy characters called Chicko and Marcus that he had dealings with in his 20's. It was about some sort of business transaction that went wrong for David . David claims these two men wouldn't give him a financial loan and somehow David was conned out of his money ??. He has had these dreams before, but this is the first time David could recall any details of his dreams. He wasn't agitated at the end of these dreams, just disorientated and disturb. David's long term memory can be really good. His short term memory isn't at times. The Holden Commodore station wagon is my old car, well not that old , its a 2006 model and goes well. The leech still drives David's old blue ford, thank god we haven't seen it ( leech ) for over ten days. I took your advice and told Ruth I now refuse to be in the company of leech with David. When the leech and David do have lunch together it only lasts for less than 30 mins until David always screams at him and demands the leech to leave. I can hear David screaming at the leech from the public car park as I wait for David. The truth is David and leech have nothing in common and the leech relies on others to prop up his lunch conversations with David. Cheers mate P.S David hasn't been travelling well lately. We are going to see his doctor tomorrow. All of David's vital signs plus temp' are good . He is happy and comfortable and never left alone, yet his confusion/disorientation levels are continuously increasing. I've recently stopped all medications with his G.P's approval ,that could be causing this to no avail . His high agitation/anxiety episodes have subsided dramatically, especially after stop seeing the leech on a regular basis. When ever he starts to go Into his sundowning syndrome Im able to divert it. I apply the K.I.S.S method and keep everything simple for David to understand yet keep him up to date with current affairs without shocking or distressing him, read him the Bar Asssoc' emails/letters /newspapers to him and our daily car trips and activities. Its highly likely that his dementia is progressing that is causing his increased confusion/disorientation levels. However, we will give David a thorough look over including blood tests tomorrow. Will keep you updated. Anyhow mate. I better go. I gotta prepare for tomorrow for David and I then hit the sack."
On 29 October 2014, Mr Hele sent an email in the following terms to a range of people: "Hello from David Photo below of Dave at Cronulla beach this morning doing his mild exercise routine. David was far better today. On the weekend he was a tad down physically and displayed an arrangement of delusions that worried me. My concern was a UTI causing this condition. We went to his G.P yesterday re these concerns and blood tests this morning after a short fasting. Davids vitals are generally good every day. I will do them up to a dozen times a day which is a tad overboard but he insists and loves it, it also gives him a sense of security and comfort knowing this. Once I get the results of the blood tests I will let you know. Tomorrow he wants to go to Waverley District Court to watch few cases, then our $12 hair-cut at our Greek barber at Mascot and maybe down to Wombarra for the day only. He has said he would like to be back in the evening and thats fine with me. At the moment his sundowning and other disorders are very mild, however I do expect they will flare up again from lime to time. High and other levels of agitation are far, far less frequent with the leech absent. It was several times a day with leech present, now less than two a week and mild. David Is easily confused with ADL's and incoming info, hence we avoid complex tasks. The nice thing is David is eager to observe or learn new things, e.g. I recently.did a service/oil change on my commodore and he was fascinated how a car engine works, where as pre-dementia he was never interested in mechanics. He shows a great interest in improving his physical well being and enjoys encouragement from me and others. Also takes great pride in his appearance and LOVES comments e.g You look very handsome today, David. Still lacks confidence, also pre-dementia condition and tends to withdraw from friends/family-a very common dementia trait. Alcohol intake nil by self desire, prefers non alcohol wine/apple juice with lots of ice. Delusional/Misidentification SID with lime/place is still a problem, especially late at night and the wee hours of the morning. Both of us had very little sleep over the weekend, however able to avoid any agitation. Davids Capgras S/D has recently taken a bizarre but welcomed turn for me and I hope it stays that way for awhile. No longer are there two Davids and Greggs, especially the other Gregg in the back seat of the car, but now Tim Murphy in the back seat. Tim, I hope you don't mind and I don't know where this came from. It was a huge surprise and shock, but its a great relief for both of us since it doesn't confuse David so much e. g. two same personalities as in two Greggs traveling with David at the same lime caused continuous confusion. He is far more comfortable with one Gregg, David and Tim travelling together. · David has also embraced his Dementia Nurse that visits us weekly. This is also a great relief for me. It sometimes gets lonely here and these nurses have been working in this field far longer than I have. I know a lot but there is so much more for me to learn. I need to be able to talk to someone in depth about Davids problems, health issues and medications. Far too much responsibility for one person and you cannot get this sort of expert service from a local GP or even a specialist compared to these nurses that specialise in dementia. Its now 11.30 pm. Im ready for some sleep and looking forward to the coming day. Love to organise a lunch date for David and you guys soon at 143. Att John A [John Agius SC], David has been watching you on the Royal Commission and claims you need a few tips from him. Cheers".
On 4 November 2014 (Melbourne Cup Day) Mr Hele sent the following email to a range of people: "Another busy and good day. David and I in his new car by 8.30 am to be part of the world. First stop was the T.A.B at the Botany Hotel. a very nice female hotel employee assisted us on how to place a bet and was really great to David. she told Unchain My Heart was a sure thing to win, hence David put $5 on it. Also. Allan Nelson from Canberra has also included David into their office sweep. Davids horse's are Mutual Regard, Protectionists: AuRevoirs and Mr Ocheror? Allan claims David won last time and has reinvested Davids winning into todays cup. David really happy, but confused often. We will watch the cup from his home since he wants it that way. Regards".
On 5 November 2014 Mr Hele sent an email to Mr Horder in the following terms: "We are ready for our meeting tomorrow at 10.30 am at your office. David a tad anxious but fine about tomorrow. A few people wanted to join our meeting which added to David's anxiety but I've said no. A certain leech confuses David re your and Ruth's role. As you would know paranoia and distrust of others are common traits for people with dementia. Please read Alzheimers Australia website for confirmation. However, when you get assholes like leech that feed and prey on the mentally disabled, like David, and spread lies about David's friends and relations it sticks like mud. This should be made a criminal offence as far as far as I am concerned. Philip Rofe is one of the many victims of leech's immoral evil doings. David Is only half convinced by me that Philip did not steal any of David's money or shares. I've been telling David this for months, but fear/paranoia rule over any rational thinking in Dementia patients. If I gently bring this up at tomorrow's meeting by saying something like "By the way David, what was It you wanted to know about Philip Rofe re your shares. I know David will ask you was there any theft. I know I maybe putting you in a awkward position, but if you could tell David the truth that would be so much appreciated. It could help David to mend bridges with Philip and Philip has always been David's closet relation by far. See you tomorrow."
On 22 December 2014 (five days after the deceased executed the will dated 17 December 2014 and a short while before he travelled to the Philippines for a holiday) Mr Hele sent an email to various people (Mr Hull, Mr Agius, Mr Murphy, Mr Canavan, Mr Horder and Ms Stone) in the following terms: "Hi guys I hope you receive the below photo's [not adduced in evidence] alright. They are of our David at his childhood home of Rose Bay, yesterday. I had spoken with the new owner and he was happy to allow us to have a little tour of David's old home. This has helped us in dealing with one of many syndrome's dementia patients experience. In David's case, David didn't recognise his current home at Woollahra as his home and quite often requested he wanted to go home. This confused us both greatly and caused David confusion and levels of discomfort. It wasn't until recently I worked out David was referring to his childhood home. David now understands a new family lives there and they have taken great care of his old home. David is doing well. We go out for daily drives and have already clocked up 8000 km in his new car. Anyhow, I must go and join David at the breakie table. On behalf of David, we wish you all a Merry Christmas and a very, very best for 2015. Regards"
On 24 August 2015 (a month after NCAT had dismissed an application by Mr Llewellyn seeking to displace Ms Coleman's access function as guardian of the deceased), Mr Hele sent Mr Tim Murphy an email which included the following: "It never stops, does it. The leech wants contact with David since his 10k monthly allowance is in jeopardy. Tim, I don't have direct contact with Michael or Kathy Jackson unless David wants to contact them, thats been the case for over 12 months, and that last will I had nothing to do with it nor even interested it. The last will was to buy off David's distant relations, I think many of them were never in any of his previous wills, it was designed to keep them happy. That last will also left the Wombarra property to me and that even made me more disappointed since I'm not entitled to it nor do I believe it was David's wishes. The only good thing about that last will is that you are reinstated since David has always had you there. The drama never stops. I appreciate you sending me that letter. Thanks mate. Regards".
These emails reflect the nature and extent of the deceased's dementia over the period to which they relate; fluctuations in the deceased's capacity to engage with life, depending upon particular circumstances, including sleep, time of day and medication; and some of the machinations involved in the deceased's will-making activities.

[26]

Lawyer Observations

Introduction. Several witnesses who made observations of the deceased were lawyers without any, or any substantial, interest in the outcome of these proceedings.
I do not include in this category either Mr Llewellyn or Mr Lawler, both of whom have legal qualifications, and both of whom are the subject of challenges to their credit. Both men were actively involved in the deceased's will-making activities at one time or another. Mr Llewellyn is directly interested in the outcome of the proceedings. To the extent that Mr Lawler expressed support for Mr Hele and Ms Jackson in giving his evidence, he might reasonably be characterised, for present purposes, as indirectly interested in the outcome of the proceedings, albeit not in financial terms.
For present purposes, I also put to one side solicitors who swore affidavits in the proceedings about uncontroversial, formal matters and were not cross examined. In that category are Ms PG Suttor, Mr B McHardy, Mr BJ Dornan and Mr CF Windeyer.
Other disinterested lawyers are here treated in a chronological order that corresponds roughly with the times that they appear last to have had personal contact with the deceased. Regard has to be had in this context to the evidence of Mr Anthony Tudehope (whose last personal contact with the deceased appears to have been in 2012); Mr Brendan Hull (whose friendship with the deceased ended with termination of his roles as financial manager and guardian in 2013); Ms Susanna Ford (whose substantial contact with the deceased occurred in connection with the Guardianship Tribunal hearing on 29-30 May 2013 and on 13 December 2013, when instructions were taken for a will); Mr John Agius SC (who had contact with the deceased in the second half of 2014); Mr Philip Beazley (who also had contact with the deceased in the second half of 2014); and Mr Dennis Wheelahan QC (who had contact with the deceased at an indeterminate time late in 2014 or early in 2015).
None of the observations of these witnesses (all of them credible) bear directly upon the deceased's condition at the time he executed the will dated 17 December 2014, although the evidence of Messrs Agius, Beazley and Wheelahan might come close.
Messrs Fitzpatrick and Smark. Dennis Fitzpatrick is in a category of his own because he drafted, and was an attesting witness to, the deceased's "first codicil" dated 10 July 2014 and (unsuccessfully) sought leave to appear for the deceased at the NCAT hearing on 19 August 2014. His connection with the deceased appears to have had its origins in a letter dated 30 June 2014 ostensibly addressed to him by the deceased, arising out of the deceased's purported revocation on 28 June 2014 of Mr Lawler's power of attorney, a step expressed to have been taken in protest against Mr Lawler's purchase that day of the Wombarra property at an auction. The letter was signed by the deceased, a person notoriously unaccustomed to typing and dependent upon others (including Mr Llewellyn) to type documents of all descriptions, emails included. The fact that the letter was typed and copied to Messrs Illek and Llewellyn gives force to the belief of Ms Coleman (the deceased's guardian) that Mr Llewellyn was the active force behind the deceased's disputation with Mr Lawler about the purchase of the Wombarra property. The letter nominated Mr Smark SC as the deceased's counsel of choice.
Mr Fitzpatrick was diligent in the performance of his instructions (ostensibly from the deceased) in that he attended upon the deceased at his Woollahra home on 1 July 2014 (where he met Mr Llewellyn before taking instructions from the deceased alone); he received written instructions about the codicil on 3 July 2014 via an email expressed to have been sent to him by the deceased; he obtained a copy of the deceased's will dated 8 March 2014 from Mr Lewellyn on 3 July 2014 and, on the same date, copies of the deceased's wills dated 18 February 2010, 17 November 2011, 5 March 2013, 14 August 2013 and 11 February 2014 from Mr Illek; he sent a copy of the draft codicil to the deceased via email (to which Mr Llewellyn would have had access) on 10 July 2014; and he read the draft to the deceased over the telephone before attending on the deceased later that day to have the document executed.
The process of taking instructions for the codicil and preparations for the NCAT hearing (prompted by the deceased's purported revocation of Mr Lawler's power of attorney on 30 June 2014) were inextricably intertwined. Perhaps inevitably, Mr Fitzpatrick saw conflict with Mr Lawler, and Ms Coleman, through the prism of Mr Llewellyn and, attributing base motives to Mr Lawler and incidentally to Ms Jackson, he discounted warnings of Mr Lawler and Ms Coleman about the malign influence of Mr Llewellyn on the deceased. At a time when the deceased had been incited against Mr Lawler by Mr Llewellyn, he appears to have been drawn in to viewing his role as protection of the deceased from strident attempts by Mr Lawler to control him, a perspective actively encouraged by Mr Llewellyn.
Mr Fitzpatrick's endeavours to rise above an adversarial encounter with Mr Lawler were not assisted by a messy process of negotiations, associated with the pending NCAT proceedings, in which Mr Lawler attempted, combatively, to confirm (or reinstate) his power of attorney, revoke the codicil and regulate the deceased's financial assistance to Mr Llewellyn. The deceased himself was anxious for there to be a negotiated settlement of the Tribunal proceedings, but how much of what was happening around him at that time he understood is very much open to doubt.
Mr Fitzpatrick drafted the codicil and had it settled by Mr Smark before attending on the deceased (with his wife, also an attesting witness) at the deceased's home on 10 July 2014. Five days after the codicil was executed, he again attended upon the deceased at his home. This time he attended with Mr Smark for the purpose of an assessment being made as to whether the deceased had sufficient capacity to give them instructions in relation to: (a) negotiations with Mr Lawler consequent upon the deceased's purported revocation on 28 June 2014 of Mr Lawler's appointment as an enduring attorney; and (b) the proceedings in NCAT that culminated, inter alia, in a financial management order made in favour of Mr Horder.
Mr Smark's opinion that the deceased lacked capacity to provide instructions for the conduct of the NCAT proceedings was recorded in a letter dated 16 July 2014 addressed by Mr Smark to Mr Fitzpatrick. It was confirmed in two subsequent letters (both dated 30 July 2014) when Mr Smark, accepting that the deceased had capacity to give general instructions as to who might be entrusted with management of his affairs, expressed the opinion that the deceased was "not really able to grasp the ins and outs" of a settlement proposed by Mr Lawler.
On the morning of 31 July 2014 Mr Fitzpatrick sent an email to the deceased in which: (a) he recorded that he had sent Mr Smark's advices to the deceased the previous evening; (b) he acknowledged receiving that morning a telephone message from the deceased instructing him to "down tools"; (c) he expressed concern about Mr Lawler's continuing efforts to negotiate a settlement of the NCAT proceedings; and (d) he reiterated, with heavy emphasis, Mr Smark's opinion that he and Mr Smark had a duty to advise the deceased not to enter any agreement with Mr Lawler because they thought the deceased lacked capacity to do so and they did not think Mr Lawler had the deceased's best interests at heart.
Despite protests by Ms Coleman as the deceased's guardian, Mr Fitzpatrick continued preparations for an appearance, ostensibly on behalf of the deceased, at the forthcoming NCAT hearing.
As events transpired, Mr Fitzpatrick swore affidavits in the NCAT proceedings in which he deposed to an opinion that the deceased had capacity, within limits, to give instructions for the conduct of the Tribunal proceedings, the hearing of which was attended on 19 August 2014 by both Mr Smark and himself.
When Mr Fitzpatrick was cross examined before me he adhered to his opinion that the deceased had capacity to execute the first codicil. According to his observations, the deceased had testamentary capacity (assessed by reference to Banks v Goodfellow) on 10 July 2014 and at no stage did the deceased communicate to him any disavowal of the codicil. According to his observations, which thereafter focussed on the deceased's capacity to give instructions relating to the NCAT proceedings, the deceased's mental capacity appeared to decline in or about August 2014. Any such decline may possibly have been a function, in part, of stress suffered by the deceased because of the pendency of the Tribunal proceedings. Mr Fitzpatrick's contact with the deceased fell away towards the end of August 2014.
Mr Smark gave no evidence in the current proceedings. Although he may have discussed the question of testamentary capacity with Mr Fitzpatrick before or around about 10 July 2014, his primary focus (as expressed in his letters dated 16 and 30 July 2014) was upon the deceased's capacity to give instructions for the conduct, or settlement, of the contested proceedings regarding management of his estate. This was so, notwithstanding that (in a draft settlement deed proposed for the deceased's consideration) Mr Llewellyn, at least, contemplated that the deceased would agree not to make any changes to his will.
Although I do not doubt the professional integrity of either Mr Fitzpatrick or Mr Smark, their instructions appear to have had a close connection with Mr Llewellyn's influence over the deceased and the deceased's antipathy towards Mr Lawler that Mr Llewellyn had deliberately cultivated with criticism of the Wombarra purchase.
An illustration of Mr Illek's active involvement in preparation of the first codicil (dated 10 July 2014) can be found in Mr Llewellyn's email of the same date addressed to Mr Fitzpatrick, and copied to Mr Illek, with the subject heading "Doctor". It is in the following terms: "Denis, Michael [presumably Mr Lawler] in his email [not identified in the evidence] neglects to mention the psychiatrist who was of most help at the Tribunal and witnessed his March will.. That is Dr Thomas Oldtree Clark of Bourke st, Surrey Hills. David likes him and has a history with him. He would be the best to make an appointment with with an instructional letter re codicil capacity. I've left David's and will meet him for dinner to ensure all privacy. Yours faithfully, Nick Llewellyn"
Mr Lawler's speculation is that Mr Llewellyn persuaded the deceased to execute the codicil (the effect of which was to remove Ms Jackson as an executor and to reduce the provision made to her in the will dated 8 March 2014) as a means of punishing Mr Lawler for his purchase of the Wombarra property on behalf of the deceased on 28 June 2014. Given the antipathy towards Mr Lawler that Mr Llewellyn had fostered in the deceased at that time, and the robust response of Mr Lawler, leading up to the NCAT hearing on 19 August 2014, Mr Lawler's assessment is more likely than not to be correct.
The heat of the controversy into which Messrs Fitzpatrick and Smark stumbled was reduced only by the intervention of Ms Coleman, the arrival of Mr Hele as the deceased's companion on 11 July 2014, Ms Coleman's restriction of the access of Messrs Llewellyn and Illek to the deceased in early August 2014 and NCAT's confirmation of Ms Coleman's role as the deceased's guardian on 19 August 2014.
Mr Tudehope. Anthony Tudehope had a professional association with the deceased between 1994-2009 or thereabouts, and they maintained regular contact until about the time of the deceased's hospitalisation in 2012. After that time Mr Tudehope appears to have had little or no interaction with the deceased. He was not cross examined on his affidavit.
Beyond an acknowledgement that the deceased's health caused a reduction in his practice as a barrister, and a statement that the deceased had experienced incoherence and confusion during one of their luncheon engagements (which resulted in the deceased being hospitalised on an unspecified date), Mr Tudehope's evidence throws little light on the deceased's health. Its main thrust is criticism of Mr Llewellyn's "regularly appalling and disgraceful behaviour", in demanding money of the deceased, at the regular group lunches at which the deceased was the central personality.
Mr Hull. Brendan Hull had a close professional working relationship, and a strong social friendship, with the deceased between 1978 and 2012 or thereabouts. That came to an end in December 2012 when (as the deceased's financial manager and guardian) Mr Hull took a difficult decision, perceived by him to be in the deceased's best interests, to surrender the deceased's practising certificate and, at about the same time, imposed restrictive care arrangements on the deceased during a period of recuperation following his discharge from hospital.
The falling out of the two men quickly unfolded in the first half of 2013 (with encouragement of Mr Llewellyn) as the deceased maintained his objection to Mr Hull's surrender of the practising certificate, and personalised his criticism of Mr Hull, to such an extent that Mr Hull extricated himself from the offices of financial manager and guardian. His contact with the deceased fell away dramatically. His children continued to be named as minor beneficiaries in the deceased's wills, but both Mr Hull and his wife ceased to be named as beneficiaries after the will of the deceased dated 10 August 2012. In the deceased's eyes, Mr Hull's fall from grace was immediate, absolute and permanent.
In retrospect, Mr Hull might have been more prudent to engage the deceased in a discussion about retirement from the Bar before surrender of the deceased's practising certificate. However, his decision to surrender the practising certificate was supported by medical evidence and motivated by a belief, honestly held, that the deceased's mental health was such that, if he continued in practice, he would sooner or later fail professionally, with adverse consequences.
Mr Hull's evidence records his observations of the deceased's declining mental health, both in a professional and in a social setting, up to and including early 2013. Much of it focusses on bad behaviour of Mr Llewellyn in what, in Mr Hull's considered opinion, was Mr Llewellyn's financial exploitation of the deceased. Mr Hull's management of the deceased's affairs was impeded by Mr Llewellyn's persistent lobbying, and demands, of the deceased. Conflict between Messers Hull and Llewellyn focused upon Mr Hull's attempt to control the deceased's provision of financial assistance to Mr Llewellyn and his forfeiture of a deposit which the deceased had paid under a contract dated 18 September 2012 for the purchase of a home unit in Sussex Street, Sydney by Mr Llewellyn in expectation of the deceased funding completion of the contract.
Incidentally, Mr Hull records, with implicit disapproval, an unwelcome invitation he received from Mr Lawler (an acquaintance, not a friend), some time after he had ceased to be the deceased's financial manager and guardian, to participate in arrangements for the deceased to execute a new will. As events transpired, both Mr Lawler and Ms Jackson encouraged the deceased to "forgive" Mr Hull; but the deceased's single-minded attachment to his life as a barrister remained an impediment to reconciliation. The last time the deceased had a customary Christmas dinner with the Hull family was in 2011. He declined their invitation to Christmas dinner in 2012. He remained estranged from Mr Hull.
Ms Ford. As a Senior Associate in the firm of Arnold Bloch Leibler, solicitors, Susanna Ford had contact with the deceased in connection with the Guardianship Tribunal proceedings on 29-30 May 2013 and the preparation of a draft will for the deceased in December 2013. She was recommended to the deceased by Mr Lawler. In the Tribunal proceedings she instructed Mr Paul Blackburn-Hart SC and Ms Deborah Robinson, who appeared as counsel for the deceased. In the preparation of a draft will for the deceased, she acted under the supervision of a partner of her firm. The partner, Mr Paterson, prepared the draft and signed the firm's letter of advice dated 18 December 2013 addressed to the deceased. In preparation of the draft, Mr Paterson had the benefit of a copy of the deceased's will dated 14 August 2013 (provided via an email by Mr Lawler) and accounting information provided by the deceased's accountant, Mr Horder. The firm rendered an account dated 28 February 2014, which recorded work done by Ms Ford not only in relation to the draft will, but also in relation to the deceased's engagement with the NSW Bar Association about his practising certificate. With that account, the firm's retainer effectively came to an end. They were not consulted about revision of the draft will or execution of any will following preparation of the draft. On or about 23 July 2014, the deceased directed Arnold Bloch Leibler to deliver documents from their file to Mr Fitzpatrick.
On 13 December 2013, Ms Ford participated in a conference with the deceased and Ms Jackson in Sydney, joined by Mr Paterson on a conference call from Melbourne. The conference was recorded. A rough transcript is in evidence. In the first part of the conference, Mr Paterson took the lead in taking the deceased's instructions. In the second part of the conference, following termination of Mr Paterson's call, a lighter form of conversation continued between the deceased, Ms Ford and Ms Jackson. My impression is that, throughout the conference, the deceased manifested an ability to engage in discussion of his affairs and to address his testamentary preferences.
That view is consistent with the opinions expressed by Dr Reid in his report dated 28 January 2014, and by Dr Oldtree-Clark in his report dated 21 March 2014, obtained by Arnold Bloch Leibler on the deceased's instructions.
Having had experience dealing with the deceased in connection with the Guardianship Tribunal proceedings that culminated in a decision on 21 June 2013 that he should continue to be the subject of a guardianship order but, with Mr Lawler's availability as an enduring attorney, a financial management order could be discharged, Ms Ford harboured doubts about the deceased's capacity in December 2013.
That said, she did not interrogate the deceased by reference to the Banks v Goodfellow criteria. She was, at that time, working under Mr Paterson and the draft will prepared by Mr Paterson was in the nature of a "discussion draft", intended by Arnold Bloch Leibler to be the subject of supplementary instructions.
Without reference back to Arnold Bloch Leibler, at a time when Mr Llewellyn was actively pressing his claims upon the deceased, the deceased executed his will dated 11 February 2014.
In an email dated 31 January 2014 Ms Ford reported to Mr Lawler that she had received a telephone call from Mr Llewellyn in which Mr Llewellyn had said, inter alia, that he had given the deceased a list of what he wanted from the will. Mr Lawler responded by an email dated 1 February 2014 advising Ms Ford that the deceased had denied asking Mr Llewellyn to call her (as Mr Llewellyn had asserted) and denying Mr Llewellyn's representation to her that Mr Lawler and Ms Jackson were "working on" the deceased to execute the will.
Mr Agius. John Agius SC could reasonably be described as a protégé of the deceased who, as the deceased's mental health declined, became a mentor to him, counselling him not to accept work as a barrister he was no longer capable of performing to a high standard.
The professional association between the two men commenced in the early 1980s, when Mr Agius was often briefed as the deceased's junior in criminal prosecutions. It developed into a close friendship. Mr Agius' evidence provides examples of the deceased's professional decline in or about 2011-2012; but much of it was directed to a description of the deceased's relationship with Mr Llewellyn.
To Mr Agius, that relationship was attended by constant bad behaviour on the part of Mr Llewellyn, financially exploitative of the deceased. He was puzzled by the deceased's toleration of what he perceived to be abusive conduct on the part of Mr Llewellyn. Amongst other concerns, he noted that, by his criticism of her, Mr Llewellyn turned the deceased against his long-standing friend, Elaine Clarke. Mr Agius regarded Mr Llewellyn's influence as malicious as well as governed by greed.
On two occasions on the second half of 2014, after Mr Hele had (on 11 July 2014) moved in with the deceased, Mr Agius visited the deceased at home. He found the deceased to be well settled, and responsive to questions, but apparently unable to initiate conversations or to volunteer information.
Mr Beazley. Philip Beazley acted for the deceased between 24 February 2014 and May 2014 or thereabouts in the deceased's negotiations with the NSW Bar Association about his entitlement to practise as a barrister. As earlier recorded, on 17 May 2014 the deceased signed a letter addressed to the Association recording his intention to retire from practice and withdrawing his then current application for restoration of his practising certificate. Mr Beazley had little to do with the deceased after that time.
He deposes that when he first took instructions from the deceased his impression was that the deceased was lucid and capable of giving coherent instructions.
In mid-2014 Mr Beazley acted for Ms Jackson in relation to two Federal Court proceedings. At about that time he became aware that she was assisting the deceased with care.
At some time in 2014 (possibly as early as March 2014, but more likely closer to December 2014) he visited the deceased's home, in the company of Ms Jackson, on a social occasion. On that occasion, there was a casual conversation about the deceased wanting to effect amendments to his will. The deceased said that he had a document he wanted executed and witnessed. Mr Beazley was not prepared to witness the document as he knew it would be contentious, and the deceased was prepared neither to give him formal instructions to re-draft the will nor to pay him for his services.
Mr Beazley gave the deceased verbal advice on the means of having a will executed. The first was to send the deceased to a specialist medical practitioner who would form a view as to whether he had testamentary capacity and, if so, the will could be executed in front of the practitioner. The second was for an application to be made to this Court under the Succession Act 2006 NSW for authorisation of a "statutory will".
Although nothing came of this casual conversation, Mr Beazley observed that the deceased was lucid, and rational, in his engagement with topics under discussion. In Mr Beazley's estimation, nothing came of their conversation because the deceased did not want to pay him anything for whatever service might be rendered.
In or about November or December 2014 Mr Beazley was contacted by Ms Jackson, who told him that the deceased wanted to have his will executed, and that Dr Oldtree-Clark had agreed to assess the deceased's testamentary capacity for execution of the will, provided that the doctor received instructions from a solicitor. Mr Beazley agreed to be that solicitor.
Mr Beazley recalls speaking briefly by telephone to Dr Oldtree-Clark during which, he believes, he would have told Dr Oldtree-Clark that he had not drafted the deceased's will; and that Dr Oldtree-Clark would have to satisfy himself that the deceased had testamentary capacity, and that the will expressed the deceased's wishes. He did not keep a file note of the conversation.
Thereafter, Mr Beazley's secretary corresponded with Dr Oldtree-Clark's office about the deceased's appointment with Dr Oldtree-Clark on 17 December 2014, and merely acted as a conduit for a copy of the deceased's proposed will to be sent via email to Dr Oldtree-Clark.
Mr Beazley does not recall any further contact with Dr Oldtree-Clark after the doctor's appointment with the deceased on 17 December 2014.
Mr Wheelahan. Denis Wheelahan QC read with the deceased after his admission to the NSW Bar in 1967. He and the deceased became good friends, although not very close friends. They had different lifestyles. They met each other socially from time to time. In 2013 and until about May 2014, Mr Wheelahan (at the request of the deceased and in consultation with Mr Beazley) assisted the deceased in making submissions to the NSW Bar Association about his entitlement to continue in practice.
In advising the deceased about his dealings with the Bar Association, in March or April 2014 (probably shortly after Mr Beazley wrote to Dr Phillips on 16 April 2014), Mr Wheelahan consulted Dr Jonathan Phillips, a psychiatrist, about the prospect of obtaining a report in favour of the deceased's application to resume practice. After Dr Phillips had seen the deceased, Mr Wheelahan formed the view (apparently shared by Ms Coleman) that, if a report were to be obtained, it would be damaging to the deceased's case. He decided against getting a report. This was at about the same time as the Bar Association expressed strong opposition to any resumption of practice by the deceased.
Mr Wheelahan's evidence was that, in his discussions with the deceased about submissions to be made to the Bar Association, he did not get an impression that the deceased was suffering from any noticeable cognitive deficit. He observed that the deceased was not at the level that he had been at the height of his career, but he clearly understood the complexities and nuances of the subject matter, and reacted in an appropriate manner, acknowledging his limitations and discussing restrictions that might be placed on any practising certificate that might be issued to him.
Mr Wheelahan also recorded that during 2014 he had social engagements with the deceased. In the first half of 2014, on each occasion that he spoke to the deceased, he saw no sign or indicia of any loss of capacity. The deceased would chat about what was going on at the Bar, local events, political events and other topics of interest.
In about June 2014 Mr Wheelahan attended the deceased's home by invitation. On the occasion of that visit, Ms Jackson was present. Mr Wheelahan's observation was that the deceased was in control of his daily life.
Shortly thereafter, Mr Wheelahan took the deceased to lunch, during which the deceased's behaviour was unremarkable. They discussed all manner of topics; things happening at the Bar, political events and local news. According to Mr Wheelahan, no part of their conversation was constrained by any lack of ability on the deceased's part to participate in any topic raised.
Towards the end of 2014 or at the beginning of 2015 (Mr Wheelahan could not be certain when) he was invited (with his partner) to visit the deceased's Wombarra home for lunch. There were about eight guests in attendance, including Ms Jackson, Mr Lawler and Mr Hele. Mr Wheelahan's evidence was that, on that occasion, the deceased was an informed and amusing host. He engaged in conversation with everybody, knew what was happening in the world and locally, made appropriate comments about those topics and was interested in everybody at the lunch. He asked appropriate questions and made informed, sensible responses. In Mr Wheelahan's assessment, there was nothing in his behaviour on that day which in any way caused him to doubt the deceased's cognitive ability.

[27]

Observations of the deceased's accountant and former secretarial staff

Mr Robert Horder (accountant), Ms Inese Dobra (bookkeeper) and Ms Ruth Coleman (secretary and personal assistant) form another category of witnesses without medical qualifications who observed the deceased through the prism of a service relationship.
Of these, Ms Coleman had the longest relationship with the deceased. She was employed by him as his secretary and personal assistant between 1991-1993 and 2003-2010 or thereabouts. Cessation of her employment with the deceased was attended by no deterioration in their personal relationship, but a reflection of a falling away of the deceased's practice. On 21 June 2013 the Guardianship Tribunal appointed her as the deceased's guardian, an office she continued to occupy until his death with the benefit of confirmatory orders made by NCAT on 19 August 2014, 13 January 2015 and 29 July 2015. The functions entrusted to her as guardian included decision-making about access, accommodation, health care and services. On her responsibility as guardian Mr Llewellyn's access to the deceased was restricted in and after early August 2014. Aided, particularly, by Mr Hele, Ms Jackson and Mr Horder, she was a stabilising influence on the deceased in the second half of 2014.
Mr Horder. Robert Horder was appointed as financial manager for the deceased by NCAT on 19 August 2014. After the death of the deceased on 21 July 2017, he was on 20 November 2017 appointed by this Court as an interim administrator of the deceased's deceased estate. The estate continues to be administered by him pending the determination of the current proceedings.
Together with Mr Jonathon Rofe and Ms Jackson, Mr Horder is named as an executor in the deceased's will dated 17 December 2014. He was not consulted about his nomination as an executor in that will. Nor was he a party to preparation of the will. His recollection is that he first became aware of his nomination as an executor when, on 15 January 2015, Ms Jackson handed him a photocopy of the will.
Mr Horder first met the deceased in late 2008 when, upon an introduction by the deceased's friend Mr Michael Canavan, he was retained as the deceased's accountant. He continued as the deceased's accountant until the deceased's death.
The fact that NCAT determined on 19 August 2014 that it was necessary for the deceased to have a financial manager caused concern on the part of Mr Horder about the deceased's mental capacity. However, in retrospect at least, those concerns appear to have had their origins in the deceased's hospitalisation in September 2012. Before that time, the deceased was characteristically decisive in the instructions he gave to Mr Horder. After that time, he was less so.
In management of the deceased's finances (initially as the deceased's accountant and subsequently as his financial manager), Mr Horder liaised with the deceased's bookkeeper, Ms Dobra; his stockbroker, Mr Philip Rofe; and others in contact with the deceased. More than once, he counselled the deceased against allowing Mr Llewellyn to have generous, unbudgeted access to the deceased's finances. He updated and maintained the deceased's records of advances made to Mr Llewellyn, going back to 4 July 2003.
After his appointment as the deceased's financial manager on 19 August 2019, Mr Horder had three business meetings with the deceased during what remained of 2014. The first was on 25 August 2014, the second on 25 September 2014 and the third on 18 December 2014.
At the first meeting, on 25 August 2014, the deceased complained about Mr Lawler's purchase of the Wombarra property on 28 June 2014. Mr Horder advised him that, having paid stamp duty on the purchase, his best course was to settle the purchase, go to the property with Mr Hele to see whether he might not enjoy the experience and, if he preferred not to hold on to the property, sell it at a later date.
At that meeting, Mr Horder and the deceased spoke about having "monthly meetings" to review the deceased's financial affairs.
At the second meeting, on 25 September 2014, Mr Horder and the deceased reviewed the deceased's financial performance in the preceding year and discussed a six year projection. Mr Horder's recollection is that the deceased did not say much, but wanted reassurance that he would not "go broke". Towards the end of the meeting, Mr Horder asked the deceased what he was going to pay Mr Hele for his services. Upon a recommendation by Mr Horder, the deceased agreed to pay Mr Hele the same as he was then paying Mr Llewellyn - $10,000 per month.
When Mr Horder contacted Mr Hele a month later to arrange the next scheduled monthly meeting, Mr Hele said that he did not want there to be any more meetings because they stressed the deceased and he was trying to keep the deceased away from stress.
Mr Horder attended the barbeque at the deceased's Wombarra property hosted by the deceased on 12 October 2014, but he did not have much conversation with him at that function.
Mr Horder next met the deceased at their third meeting, on 18 December 2014. His recollection is that he was not on that occasion told of the deceased's will dated 17 December 2014. On that occasion, he met the deceased and Mr Hele to discuss the deceased's profit and loss accounts. He has no specific recollection of the meeting beyond his diary entry.
Mr Horder's evidence is that, during the second half of 2014, Ms Jackson and Mr Lawler took care of all of the deceased's bills, and the amounts would appear in his Xero accounting file; if he had a question about a particular expense, he rang Ms Jackson to inquire about it. Generally, he had no particular concerns about expenditure at that time.
Ms Dobra. Inese Dobra worked as the deceased's bookkeeper, on one or two mornings a week, between November 2008 and June 2013. She was recommended to the deceased by Mr Horder who, in turn, had been recommended to the deceased by her ex-husband, Mr Canavan.
Although initially employed as a bookkeeper, Ms Dobra was within a short time asked by the deceased to do typing and incidental chores, which she did. At his request, she typed and witnessed his will dated 17 November 2011.
From her vantage point, she noticed a slow deterioration in the deceased's clerical proficiency. She also observed at close quarters the relationship between him and Mr Llewellyn, characterised by Mr Llewellyn's constant demands for increasingly large amounts of money and discussion of the deceased's will. She observed that the deceased was often anxious about Mr Llewellyn: distressed when Mr Llewellyn was in his presence, upset when Mr Llewellyn was absent and unable to be contacted.
To her observation, Mr Llewellyn was unrestrained in his language and the demands he made on the deceased. As an example of those demands, she kept a list dated 6 February 2011, entitled "Things to talk about with David", prepared by Mr Llewellyn. She expressed her concern about the list to the deceased, with no great effect. The topics it details have in common implicit demands for money and testamentary benefits. In passing, it seeks to involve both Mr Llewellyn's partner Curtis and Mr Illek in management of his affairs. One entry in the list demonstrates a tendency on the part of Mr Llewellyn to lobby against the deceased's friends. It reads: "What are you doing with you [sic] will as Elaine [Clarke] cannot be a major beneficiary and Gregg [Hele] does not like me, I tried."
Ms Coleman. Ruth Coleman was overseas between 12 June 2014 - 3 July 2014 or thereabouts. While she was overseas she was alerted by Michael Lawler to the fact that, on 28 June 2014, the deceased had purported to revoke Mr Lawler's appointment as his enduring attorney. This came "as quite a shock" to her, because of her assessment that the relationship between the deceased and Mr Lawler had always been one of friendship and great respect. When she returned to Sydney she discovered that the deceased was confused about then pending NCAT proceedings (he not knowing what they were for) and related controversies. She was also sceptical about the capacity of the deceased to have retained Mr Fitzpatrick (not a solicitor usually retained by the deceased), who asserted to her that he was acting for the deceased in the NCAT proceedings.
Over the course of the next six weeks or so Ms Coleman took steps to restrict the access of Mr Llewellyn, Mr Illek and Mr Fitzpatrick to the deceased. She was not entirely successful in this, but her management of the deceased's person was endorsed by NCAT on 19 August 2014, when it confirmed her appointment as the deceased's guardian.
During the same period, she welcomed Mr Hele's return to Sydney (on 11 July 2014) to care for the deceased after completing his nursing training in Victoria. Mr Hele took up residence with the deceased and became his principal carer, assisted by other nursing staff Ms Coleman had engaged.
Throughout the balance of the year Ms Coleman observed Mr Hele: (a) stop the deceased from drinking alcohol; (b) sort out the deceased's medication with Dr Chalkley; and (c) institute a regime of healthy living for the deceased, all of which calmed him down and, to her observation, facilitated his attention to detail in reviewing accounts and other correspondence she placed before him for decision.
During the same time, she observed that the deceased came to enjoy visits to his Wombarra property, his "other home" as he called it.
Ms Coleman and her partner attended the barbeque lunch at the deceased's Wombarra property on 12 October 2014 organised, as she saw it, by Ms Jackson. To her observation, the deceased enjoyed the company of his guests, engaging in conversation with many of them, albeit that he spent a substantial amount of time sitting on a lounge with Ms Jackson as others approached him. She was not able to hear his conversations over lunch because she sat at the other end of the table to him. Nevertheless, she says, she heard no discussion on that day about the deceased's testamentary arrangements.
Ms Coleman often attended the deceased's home during the second half of 2014 and often found Ms Jackson in attendance. To her observation, Ms Jackson often spent mornings with the deceased, caring for his day-to-day needs, taking him to medical appointments and attending to his administration work. As she saw it, the relationship between the deceased and Ms Jackson was close, one in which the deceased had grown dependent upon Ms Jackson. Ms Jackson apparently worked well with Mr Hele. Ms Coleman worked well with both of them, and approved of their respective relationships with the deceased.
Ms Coleman was not involved in preparation of the deceased's will dated 17 December 2014. She knew nothing about it. She first learnt of its execution about a week after the event.
It was on the initiative of Ms Coleman that the deceased, Mr Hele and the deceased's two nurses (both from the Phillipines) travelled to the Philippines for a holiday between 23 December 2014 and 31 January 2015 or thereabouts. Ms Coleman hit upon the idea of the trip because, in November / December 2014, she heard the deceased several times interrogate the nurses and express a desire to see their country.
When pressed, Ms Coleman expressed her opinion that the deceased's will dated 17 December 2014 was a true statement of his testamentary intentions. Acknowledging that Ms Coleman is not a party to these proceedings, senior counsel for Mr Illek asked her point blank: "In these proceedings do you take a position that David Rofe's last valid will is his 17 December 2014 will?" She responded, "I do believe that". Upon the conclusion of Mr Illek's cross-examination, I asked her to explain the basis of her belief. To that inquiry she answered: "I believe he had capacity because that was at a time - around the time just after his carers were being spoken to by [him] about going overseas, seeing their country, asking how they lived. He had a very clear mind with regard to that."
I do not regard as inconsistent with that evidence the fact that Ms Coleman on 28 April 2015 wrote to the Office of State Revenue a letter requesting cancellation of a fine levied against the deceased for not voting in local government elections held on 8 September 2012. In that letter she wrote that the deceased had been first diagnosed with cognitive impairment in October 2010; that his dementia had "increased significantly since then"; and that he was "therefore unable to vote at any election". By the end of April 2015, looking forward, the deceased might well have been regarded as incapacitated for voting. There is no evidence about whether he did, or did not, vote in any election between September 2012 and April 2015. Despite its terms, Ms Coleman's letter is essentially directed towards future voting.
In cross-examination, Ms Coleman expressed a lack of interest in the deceased's testamentary arrangements. This is consistent with the pattern of the deceased's wills. Despite her long service as the deceased's secretary, not to mention her service as his guardian, she was only ever, but consistently, a minor legatee.
In cross examination she confirmed that she had discussed Mr Lawler's purchase of the Wombarra property with Mr Lawler and the deceased before the purchase. She had said as much in an affidavit sworn on 12 August 2014 in the NCAT proceedings then pending. Mr Lawler was not challenged on similar evidence in his cross-examination. Nor was Ms Jackson challenged on her evidence, in cross examination, that the Wombarra purchase was discussed a couple of weeks before the auction between Mr Lawler and Ms Coleman; that Ms Susan Pordage (a geriatric occupational therapist) inspected the property before the auction to assess its suitability for the deceased; that the deceased had inspected the property personally before the auction; and that Ms Anne Stone may also have done so.
Well before the Wombarra property became available for purchase, the deceased had been a regular visitor to the nearby home of Mr Lawler and Ms Jackson. He had at times stayed there with Ms Jackson overnight when Mr Lawler was away on work.
There were objective, rational reasons for purchase of the Wombarra property for and on behalf of the deceased, anticipating his continuing decline in health. With its double storey layout, his Woollahra property was not naturally suited for a disabled resident. The single storey Wombarra property was better suited to a disabled person. The Wombarra area was pleasantly familiar to the deceased. With Ms Jackson close at hand, as a neighbour, so too was the prospect of assistance in care of the deceased.
In her cross examination Ms Coleman confirmed that she had written to Dr Chalkley on 13 August 2014 (the day before Dr Chalkley examined the deceased on 14 August 2014) in the following terms: "Dear Dr Chalkley Thank you for calling me this evening. I forgot to speak to you about the following. The people who care for Mr Rofe had discussed a home that was coming on the market at Wombarra. This is an area where his EPOA [Mr Lawler] and partner [Ms Jackson] live and where he often goes to their home on weekend visits. He saw this home from the outside and he likes the area. When it came on the market we were lucky to be able to buy this for Mr Rofe. This is part of his care plan for the future being a single level property with no stairs. His current residence has stairs and when he climbs them he gets short of breath and has to stop and he also has great difficulty walking down. You will see in Mr Rofe's handwritten revocation [of Mr Lawler's power of attorney on 28 June 2014] that he talks about money being taken. This was for the deposit on his new home. This property was purchased with his knowledge and he was very happy that a decision had been made for him when he moves from Woollahra. I had discussions before I went overseas (12 June 2014) with Mr Rofe about this property and so had his friend/carer Gregg Hele and his EPOA and partner who looked after him before Gregg arrived in early July. I am attaching an application to the NCAT for your information. Mr Rofe appeared to have been 'brainwashed' that he didn't know about this property. And he appears to have forgotten all the conversations and ever having seen it. He has now been there and gone through it and loves it and has said he wants to build it into a hospital."
The significance of this is that, in the recorded conversations Mr Lawler had with the deceased shortly after the deceased purportedly revoked his appointment as the deceased's attorney, Mr Lawler forcefully asserted (and the deceased vehemently denied) that the purchase had been planned by Mr Lawler in consultation with both the deceased and Ms Coleman.
My acceptance of Mr Lawler's evidence on this point is consistent with the evidence of both Mr Lawler and Ms Coleman that Mr Llewellyn had stirred up trouble for Mr Lawler by lobbying the deceased against Mr Lawler and the purchase at about the time of the purchase, leaving the deceased in a state of confusion about the course of events and in a state of distrust vis a vis Mr Lawler.

[29]

Lay attesting witnesses

Of the 12 testamentary instruments brought to the Court's attention in these proceedings, evidence of an attesting witness to the deceased's execution of those instruments has been adduced only in respect of six instruments. Four other instruments are not propounded by any party. Two others, that are propounded, are not supported by the evidence of an attesting witness.
Dr Oldtree-Clark witnessed the execution of two wills; the first dated 8 March 2014, the second dated 17 December 2014. The first was co-witnessed by Dr Oldtree-Clark's wife, and both of them swore a formal affidavit deposing to execution of that will. The second was co-witnessed by a carer of the deceased, from whom no evidence was adduced.
Ms Dobra was one of two witnesses to the will dated 17 November 2011. She did not verify execution of the will in a formal affidavit, but gave evidence in her cross-examination of having typed and witnessed the will. No evidence was adduced from her co-witness to the will.
Mr Fitzpatrick and his wife witnessed the deceased's execution of the first codicil, dated 10 July 2014. Mr Fitzpatrick gave evidence of that effect orally, but did not swear a formal attesting witness' affidavit. No evidence was adduced from his wife.
A formal affidavit of an attesting witness was sworn by Judith Rosonakis in respect of the will dated 14 August 2013, and by Jeffrey Choy in respect of the will dated 11 February 2014. Neither was cross examined.
No evidence from an attesting witness was adduced in respect of the deceased's wills dated 23 January 1995, 28 March 2006, 18 February 2010, 10 August 2012 or 5 March 2013 or in respect of the second codicil, dated 8 October 2014.
No party invited the Court to draw an adverse inference arising from the absence of any attesting witness.
The cross-examination of witnesses who were attesting witnesses was directed principally to the essential validity of the will dated 8 March 2014, the first codicil dated 10 July 2014 and the will dated 17 December 2014.
That reflects a realistic assessment by counsel that those instruments are the ones primarily in play. On one view, the primary contest in these proceedings is between the deceased's will dated 8 March 2014 (with or without the first codicil dated 10 July 2014) and the will dated 17 December 2014. Of those instruments, in comparative terms, the first favours Mr Llewellyn; the second does not.

[30]

Observations of Rofe Family witnesses

Three members of the Rofe family, each a party to these proceedings, swore affidavits and were cross-examined: Philip Rofe (the second defendant, a nephew of the deceased), James Rofe (the fourth defendant, a nephew) and Anne Stone (the fifth defendant, a niece, and sister of James).
Another nephew of the deceased, Jonathon Rofe (the tenth defendant) was represented by the same solicitor and counsel as James Rofe and Anne Stone, but he gave no evidence in the proceedings. He was named an executor (with Ms Jackson and Mr Horder) in each of the second codicil (dated 8 October 2014) and the will dated 17 December 2014. By the will dated 17 December 2014 he was restored to the status of a residuary beneficiary, having last had such a status in the deceased's will dated 18 February 2010.
There was a faint suggestion in the plaintiff's submissions that suspicion might attach to the absence of evidence from Jonathon Rofe, but the submission went no further than that. Jonathon was at the "family" barbeque held on 12 October 2014, an event which marked the deceased's reengagement with members of the Rofe family, including Jonathon. There is no evidence that Jonathon was actively involved in the preparation, or execution, of the deceased's will dated 17 December 2014.
Mr Philip Rofe. Philip Rofe is a son of the deceased's brother, Wyndham Rofe, with whom the deceased had a strained relationship in life and whose death in February 2012 lead to Philip taking over business as the deceased's stockbroker. He continued in that role until 26 June 2013 at which time, Mr Lawler having been appointed as the deceased's enduring attorney, he withdrew his services from the deceased. The email to Mr Lawler which announced his decision to withdraw his services declared that the decision was not "personal", but long intended. The fact that Mr Lawler was not known to him (as was Mr Lawler's predecessor in management of the deceased's affairs, Mr Hull) appears to have been a factor.
Another factor, perhaps of greater significance, was that the deceased evidently blamed Philip Rofe for the events of 4 October 2012 when the deceased (then suffering from delirium in St Vincent's Hospital) executed an enduring power of attorney and an enduring guardianship appointment in favour of Philip and a solicitor Mr McLaughlin. Those instruments were revoked by the deceased on or about 8 November 2012.
Philip Rofe disclaims any forewarning of his appointments as attorney and guardian, saying that he accepted them only after ascertaining that no other member of the Rofe family would take them up.
As far as Philip Rofe is concerned, he had a close and congenial relationship with the deceased until the deceased went into St Vincent's Hospital in September 2012. He maintains that, on his side, the relationship continued. However as he recognises, the deceased turned away from him after the events of 4 October 2012. His evidence was that he continued to meet regularly with the deceased and others in the deceased's circle of friends, and to deal with Mr Hull, until Mr Lawler took over management of the deceased's affairs.
Philip Rofe ceased to be named as a beneficiary in the Deceased's testamentary instruments from and including the deceased's will dated 5 March 2013. He had been named as a beneficiary in each of the deceased's wills dated 28 March 2006, 18 March 2010, 17 November 2011 and 10 August 2012, although a comparatively minor beneficiary in the two later wills.
The will dated 5 March 2013 contained an opening "comment" by the deceased to the effect that "[as] a result of recent events" he had decided to change his legacies and his executor. The reference to a change of executor probably illustrates the growing influence of Messrs Llewellyn and Illek because the executor displaced by Mr Illek was a long-time solicitor of the deceased, Mr Norbert Lipton. Mr Lipton (the ninth defendant in these proceedings) has filed a submitting appearance. There is no evidence of any falling out between him and the deceased.
That the deceased's "comment" in the will dated 5 March 2013 was implicitly directed against Philip Rofe is reinforced by a similar "commentary" in each of the wills dated 14 August 2013 and 11 February 2014, in which Philip Rofe was expressly disclaimed by the deceased.
Each of the wills dated 14 August 2013 and 11 February 2014 included an express declaration to the effect that the deceased wanted "to make it clear that Philip Rofe is to get nothing of [his] estate". In slightly different terms, each will also asserted, incorrectly, that Philip Rofe had never been a beneficiary in his earlier wills. Philip was a residuary beneficiary in each of the wills dated 28 March 2006 and 18 February 2010 and a minor beneficiary in each of the wills dated 17 November 2011 and 10 August 2012.
That the deceased maintained a determination not to name Philip Rofe as a beneficiary is consistent with observations by the deceased recorded by Dr Oldtree Clark in Reports dated 2 and 28 May 2013, and with the deceased's disclaimer of an unnamed nephew reported by Dr Chalkley in his report dated 15 August 2014, recorded in the doctor's notes of the previous day. It is also consistent with evidence of Philip's cousin, Anne Stone, that the deceased fell out with Philip and had no apparent desire to repair their relationship.
The evidence of Mr Hele suggests that he felt very conflicted about his own relationship with Philip. Sometimes he praised Philip; at other times he claimed to have been bullied by Philip into expressing an overly positive view of the relationship of Philip and the deceased. However, Mr Hele's evidence does corroborate that of Anne Stone about a broken relationship; the deceased appears to have had no desire to engage with Philip anymore than necessary. Mr Hele's evidence is that, although he encouraged the deceased to make testamentary provision for Philip, the deceased resolutely refused to do so.
There are suggestions in the evidence that the deceased and Philip fell out over a family wake that descended into bitter controversy (and, independently of that, that the deceased may have believed that Philip may have stolen money from him); but the reasons for the two men falling out remain obscure. Mr Hele, on more than one occasion during his cross examination, sought to volunteer a reason for the falling out. No counsel took him up on his offer.
Whatever might have been the reason, or reasons, for the deceased falling out with Philp, I am satisfied that, over a substantial period of time, the deceased (unaffected by any delusionary thought) was firmly resolved not to confer any testamentary benefits on Philip. The last of the deceased's wills in which Philip was given a share (a 1/20th share) of residue was that dated 18 February 2010. In the deceased's wills dated 17 November 2011 and 10 August 2012, Philip was given a right to purchase a Sidlong painting. In all wills after the deceased's will dated 10 August 2012, no provision at all was made for Philip.
Philip Rofe's observations of the deceased are principally confined to times preceding September 2012. Of particular note, he records that the deceased's authoritative manner and sharp mind began to wane in 2009, and he reports that Mr Llewellyn (from the time of Mr Llewellyn's arrival on the scene, as he remember it, in about 2005) habitually and distastefully requested money from the deceased.
His evidence does not extend to observations of the deceased at any time after mid-2013 or thereabouts.
Mr James Rofe. James Rofe is a son of the deceased's brother, Alexander John Rofe. He had a close relationship with the deceased, but for a hiatus between March and October 2014 or thereabouts. He was named as a beneficiary in all of the deceased's wills other than the will dated 8 March 2014, as executed and as purportedly amended by the codicils dated 10 July 2014 and 8 October 2014. He was restored to the status of a residuary beneficiary (a one tenth share), with a legacy of $100,000.00 and a right to buy the deceased's Sid Long painting, in the will dated 17 December 2014.
The Deceased's disaffection with James Rofe, as manifested in the will dated 8 March 2014 and the codicils to that will, was the result of a misunderstanding on the part of the deceased. He was miffed that he had not been invited to James's wedding in November 2013, taking it as a slight. When, in or about October 2014, he learned the truth (that he had not been slighted) he was reconciled to James. The truth was that James had had only a very small wedding because it was a second wedding for both him and his bride, and the wedding was held at a time when James understood that the deceased was unwell. No offence was intended.
James Rofe saw the deceased two or three times in 2014. The barbeque held at the deceased's Wombarra property on 12 October 2014 was probably the last time he saw the deceased that year. He did not see the deceased a lot after that because, he explained, he was preoccupied by his own health problems.
His evidence was that he was approached by Mr Lawler at the barbeque on 12 October 2014 with an invitation to discuss the deceased's testamentary arrangements. Mr Lawler told him that, having been a beneficiary of the deceased in earlier wills, he had been omitted from the will dated 8 March 2014. Mr Lawler (whom he had never met previously) explained James's omission from the will dated 8 March 2014 was a result of the deceased's mistaken view of James's wedding. He then observed that the deceased was intending to make a will that, by inclusion of James as a beneficiary, would right a wrong that had been done to James by his omission from the 8 March 2014 will. James told Mr Lawler that he had not intended to offend the deceased by not inviting the deceased to his wedding. Beyond that, he declined to discuss the deceased's testamentary arrangements.
To James's observation, the deceased in 2014 was not 100% of what he had once been, but he was better than James had observed him in 2012, and he was lucid.
Mrs Stone. Anne Stone's observations about the deceased's health in the second half of 2014 were substantially the same as those of her brother, James Rofe. Between the end of July 2014 and early September 2014, she was overseas but, before and after that time, she generally visited him at his home each Monday, as she and her husband made their way to a local pub for dinner. Her evidence was that, although the deceased had not completely recovered, he was so much better in the second half of 2014 than he was when she saw him in hospital in late 2012. He was less argumentative and more easy going with people, a change in behaviour which she attributed in some measure to changes in his medication and a reduction of his alcohol intake. She swore that the deceased's demeanour improved dramatically and that there was no longer the aggression he had previously expressed; nor was there the anxiety that he had been suffering from, and generally, his overall capacity improved tremendously.
When she visited the deceased, particularly in the latter half of 2014, they loved to talk about politics, the TV programme "Home and Away", Woollahra Council, the current news in the newspapers and generally recalling incidents when he was Mayor of Woollahra. To her observation, the deceased could at that time maintain a very detailed and intricate conversation much like he could before his admission to St Vincent's Hospital in 2012.
Anne attended the "family" barbeque (as she characterised it) held at the deceased's Wombarra property on 12 October 2014, which, she assumed, Ms Jackson had organised. She knew Mr Lawler from the time when he was a member of the deceased's chambers, and she had known Ms Jackson from the time of the deceased's hospitalisation in late 2012. To her observation, the deceased loved the day and conversed freely with all in attendance, particularly enjoying stories of past activities; he seemed to have no problem remembering the names of those in attendance when he addressed them.
Nobody at the barbeque discussed with her the deceased's testamentary arrangements. She denied observing Ms Jackson grabbing the deceased by the arm and ushering him around at the barbeque, noticing only that she was attentive towards him.
In early December 2014 she received a telephone call from Ms Jackson to discuss the deceased and, during the course of the telephone conversation, Ms Jackson mentioned that the deceased had asked her to type out a new will for him as he wanted to right the wrong where he had left James Rofe out of his previous will. Ms Jackson also asked for the address of her son (David Stone, a godson of the deceased) in Singapore, which she provided not knowing that it was for the purpose of recording that address in the new will of the deceased, which was executed on 17 December 2014.

[31]

FIVE PERSONS WHO ACTIVELY ASSISTED THE DECEASED'S WILL-MAKING ACTIVITIES, 2012-2014

Five people, in one way or another, actively assisted the deceased's will-making activities in 2012-2014. They were Messrs Llewellyn and Illek (up to and including the codicil dated 10 July 2014) and Mr Lawler, Ms Jackson and Mr Hele (especially after 11 July 2014).
In identifying these people, I put to one side the lawyers retained by or on behalf of the deceased to prepare a testamentary instrument; that is, Arnold Bloch Leibler and Messrs Fitzpatrick and Smark. Their involvement with the deceased was relatively formal and confined to a particular instrument (respectively, the draft will of December 2013 and the codicil dated 10 July 2014).
The involvement of any or all of Messrs Llewellyn, Illek, Lawler or Hele or Ms Jackson in the preparation of a will of the deceased is sufficient to invite an examination of "suspicious circumstances", and to require proof of the righteousness of the transaction, upon a consideration of whether the deceased knew and approved of the contents of the will. Directly or indirectly they were each either a beneficiary or a partisan in what, at times, took on the appearance of a contest for influence in assisting the deceased to settle his testamentary arrangements.
Although the credibility of each of them was called into question during the course of these proceedings, I am satisfied that each one of them endeavoured to tell the truth according to his or her own lights. They could hardly have done otherwise in the context of the mass of contemporaneous evidence about their dealings with each other and with the deceased. To a large extent, whatever their machinations, they lived in a world which was transparent.
Accepting that they each endeavoured to be truthful in giving their evidence, the reliability of their evidence in each case nevertheless needs to be tested against an assessment of where their interests lie and their self-perception of those interests. Broadly speaking, Mr Illek was generally in the camp of Mr Llewellyn. Mr Lawler and Ms Jackson were generally in a competing camp, with each looking out for the other. Mr Hele was generally more sympathetic to the Lawler/Jackson camp but, in large measure, that appears to have been in response to what he (and many others) regarded as Mr Llewellyn's appalling behaviour. He was always confident of his relationship with the deceased and focused on a carer's concern for his patient, conscious of his status as a beneficiary of the deceased, but not (as was Mr Llewellyn) driven by it. In his assessment, the deceased was "besotted" with Ms Jackson and she was a good friend to the deceased.
Care needs to be taken, on any reading of the evidence, to remain conscious of shifting alliances between people associated with the deceased in his final years. From time to time, intemperate statements were made by one against another which do not, in retrospect, sit comfortably with statements earlier or later made. Some of that may be attributed to changing perceptions of self-interest, but some also may be attributed to the frustrations of dealing with a contrarian with dementia, the deceased.
Mr Illek. Although Mr Illek's self-image, and his demeanour, is that of a qualified accountant and a detached professional estate planning advisor, he has a close relationship (perhaps, as he says, not a friendship) with Mr Llewellyn sufficient to identify him with Mr Llewellyn. He appears, generally, to have worked in Mr Llewellyn's interests in dealings with the deceased. He was never, himself, a beneficiary. However, he was named an executor in several testamentary instruments (respectively dated 18 February 2010, 5 March 2013, 14 August 2013, 11 February 2014, 8 March 2014 and 10 July 2014) and he was not indifferent to having the benefit of a charging clause in any will of which he was an executor.
An illustration of Mr Illek's independence vis-à-vis Mr Llewellyn is his advice to the deceased, by an email dated 6 June 2014, that the Surfers Paradise home unit that the deceased was then involved in buying for Mr Llewellyn should be purchased in the deceased's name alone rather than (as desired by Mr Llewellyn) in the names of the deceased and Mr Llewellyn as joint tenants. By an email dated 11 June 2014 addressed to Mr Lawler, Mr Illek expressed his agreement with Mr Lawler's insistence that the property be purchased in the deceased's name alone. The purchase was completed, in the deceased's name, in July or August 2014. Mr Illek's rationale was that a gift of the property by the deceased to Mr Llewellyn would be best effected by a testamentary disposition, protecting both the deceased and Mr Llewellyn against the possibility that Mr Llewellyn might become a bankrupt or dispose of his interest in the property without the deceased's consent.
Mr Llewellyn. Mr Llewellyn's behaviour towards the deceased (and many who crossed their paths) was so outrageous that, in cross-examination, he tended to "confess and avoid" his failings. He routinely accepted criticism of his behaviour and attempted to explain it away as the product of his medical condition. The evidence does not include any elaborate form of expert medical evidence about his condition, but he was not challenged on his self-claimed diagnosis of a bi-polar condition, supported by a medical certificate relied upon by him in aid of an application (not pursued) to give his oral evidence by video link. In giving his evidence he seemed to think anything offensive he did or wrote could, would and should be excused by everybody who encountered him in the deceased's circle of friends and acquaintances because, he contends, they must have known that he could not help himself on account of his illness, he truly loved the deceased and the deceased loved him. That sort of excuse wears thin when constantly repeated, and one notes that, by an apology or otherwise, Mr Llewellyn rarely redeemed himself in dealings with others when free of a medical episode.
Whether Mr Llewellyn did, or did not, have something over the deceased is difficult to determine with certainty at this remove. However, his denial of any threat to "out" the deceased is open to question when notice is taken of a proposal by him (between August 2005 and May 2006 or thereabouts) to sue the well-known solicitor John Marsden, a one-time employer and lover. In May 2006 (shortly after the death of Mr Marsden) Mr Llewellyn sent to the deceased a copy of a draft witness statement he had prepared in aid of a claim for compensation he then proposed to make against Mr Marsden's estate, with a threat of media exposure. Mr Llewellyn was not above a threat of public exposure that the deceased would have found distressing. Colloquially, the deceased may well have described Mr Llewellyn's customary combination of demands for material assistance, combined with threats of dire consequences, as a form of "blackmail"; which, in a colloquial sense, they were.
For all that, as everybody in the deceased's circle (including, to their credit, Mr Lawler, Ms Jackson and Mr Hele) appreciated, the deceased, over more than a decade, publicly provided financial assistance for Mr Llewellyn, excused his bad behaviour, claimed him as "a son", and was intent on making some testamentary provision for him.
Mr Lawler. Mr Lawler is a passionate man, a man of strong loyalties who, motivated by what he saw as obligations of honour, committed himself to do "right" as he saw it in the interests of the deceased and in the interests of Kathy Jackson. He considered the deceased to have been his mentor at the Bar. When he saw the deceased suffering from delirium in St Vincent's Hospital in late 2012, he committed himself to the care and protection of the deceased, as he saw his self-motivation. At the same time, he saw himself as responsible in part for the personal trials suffered by his then partner, Ms Jackson because, fully conscious of the likelihood of opposition, he encouraged her to blow the whistle on corruption in the Health Services Union, an act which brought her world crashing down on them both.
Subjectively, in his dealings with the deceased he was motivated by honesty of purpose; objectively, he was perhaps too close to events to be an entirely reliable judge of them or, at least, of contentious dealings with Mr Llewellyn and others working in the same interest as Mr Llewellyn. In dealing with Mr Llewellyn, he was emphatic and judgemental, unintentionally issuing a provocative invitation to Mr Llewellyn (though Mr Llewellyn needed no provocation) to lobby against him when in contact with the deceased. On 27 June 2014 he demanded that Mr Llewellyn not stir the deceased up about the $160,000 withdrawn from the deceased's account that day to fund payment of a deposit upon his anticipated purchase of the Wombarra property for the deceased on 28 June 2014. Stir up the deceased is precisely what Mr Llewellyn did, inciting the deceased (purportedly) to revoke Mr Lawler's power of attorney.
Like Mr Hull before him, Mr Lawler was perhaps too strident in the exercise of his management functions, confident of his ability (and motivated by a perception of duty) to make decisions in the best interests of the deceased with or without the deceased's fully informed consent. Even if (as I accept) he and Ms Coleman discussed the Wombarra purchase with the deceased prospectively, and in the midst of his confusion on or about 28 June 2014 the deceased forgot that fact, Mr Lawler unwittingly contributed to the deceased's confusion by not involving him directly and personally in the auction process.
To his credit, between 28 June-19 August 2014 he honoured his undertaking of 21 June 2013 to return the deceased to the Tribunal in the event of a purported revocation of his power of attorney, or disputation with Mr Llewellyn, and he facilitated the outcome embodied in NCAT's orders of 19 August 2014.
It is, however, doubtful whether his confrontation with Mr Fitzpatrick in attempting to procure a settlement of the Tribunal proceedings did anything to settle the deceased's anxieties or to resolve the confused state of mind suffered by the deceased in the context of disputation about the Wombarra purchase.
The assumption by Mr Hele of the role of the deceased's full-time companion and carer on 11 July 2014 (the day following execution of the deceased's codicil dated 10 July 2014) was a first step towards calming the deceased and giving him space to reflect on his affairs.
Mr Lawler made a constructive contribution to that by stepping back from management of the deceased's affairs and supporting the appointment of Mr Horder as the deceased's financial manager on 19 August 2014. In the meantime, his robust engagement with Mr Fitzpatrick did little more than to entrench Mr Fitzpatrick's scepticism about his motives and, by association, those of Ms Jackson.
At or about the time of the family barbeque held on 12 October 2014, Mr Lawler actively promoted the prospect of the deceased making a new will, inviting James Rofe and Mr Hull to discuss the deceased's testamentary arrangements. This was shortly after his reluctant participation in the deceased's execution of the "second" codicil dated 8 October 2014. He was mindful that the deceased was anxious to make a new will. He was mindful also of a perceived need for the deceased to re-engage with the Rofe family following disengagement with Mr Llewellyn.
Mr Lawler was not directly or actively involved in the deceased's subsequent preparation and execution of the will dated 17 December 2014, although a fair inference is that he kept in touch with developments through his partner, Ms Jackson. He did not seek, or obtain, a testamentary benefit from the deceased. He had, in mid-2014, encouraged the deceased not to "forget Kathy", but (after NCAT appointed Mr Horder as the deceased's financial manager and confirmed the appointment of Ms Coleman as his guardian on 19 August 2014) there were fewer opportunities for him to engage with the deceased's will-making activities.
Ms Jackson. By the time she gave evidence in these proceedings, Ms Jackson appears to have grown accustomed to, and weary of, attacks on her character. Her criminal convictions for dishonesty cannot be disclaimed. However, my impression of her as a witness was that she was endeavouring to be truthful with the Court, and there is no basis for a finding that she ever knowingly mislead the deceased. Attacks on her credit were accompanied by an express disclaimer of any allegation of fraud.
Ms Jackson's acceptance as a bona fide friend and companion of the deceased by members of his family, and by the likes of Mr Hele and Ms Coleman, is no less worthy of notice than the deceased's ongoing concern for the welfare and interests of Mr Llewellyn. As manifested in his comments to Dr Chalkely on 14 August 2014, at a time when he appears to have spoken his own mind clearly, the deceased regretted removal of Ms Jackson as an executor in his first codicil dated 10 July 2014.
Mr Hele. With the exception of Mr Llewellyn, nobody appears to have doubted the bona fides of Mr Hele in his long-time friendship with the deceased or his constructive care of the deceased. His optimistic nature, and apparent indifference to wealth, provided a natural counter-balance to the dark, mean side of the deceased's personality. He was attentive to detail in his care of the deceased but inclined to informality in his mode of expression, both in emails and in his presentation as a witness. He is more likely to have been an interested observer of the deceased's will-making activities, than (as was Mr Llewellyn) an incessantly active advocate of the interests of himself or any other person. He was nevertheless overtly sympathetic to the interests of Ms Jackson and James Rofe (who were restored to the status of residuary beneficiaries in the deceased's will dated 17 December 2014) and he did try, without success, to persuade the deceased to name Philip Rofe as a beneficiary.
Three classes of documents associated with Mr Hele attracted particular attention during his cross-examination. One was the series of emails earlier extracted in this judgment. Another comprised a statement made by Mr Hele in an email dated 3 August 2016 addressed to a journalist, Mr Brad Norington, read with a statutory declaration dated 2 August 2017 based on that statement and apparently settled by Mr Norington and the solicitor (Mr Robert McLaughlin) before whom it was made. A third was a handwritten document which Mr Hele said he wrote as a diary note on the evening of 17 December 2014 about a discussion he says that he had with the deceased over their evening meal that day.
The handwritten note is in the following terms: "[17 December 2014 Will]. I asked the following questions to David about a hour ago over Dinner. 1) Gregg asks David about the appointment of Robert Horder, K Jackson and Jon' Rofe, and illeck out. David happy and prefers the new team. David trusts Robert H. 2) K Jackson & J Rofe back in David is glad that they are in. 3) Nic Llewellyn - Reduced to 1/10 +no Forgiveness of money/Loan. Told David of this, but David said he needs to learn to stand on his own two Feet, anyhow David said he's getting the apartment. 4) I also told David I have gained the car and Wombarra house - David - You knocked back my offer of a house in my 1st Will and I want to give you a home. "You're my closest friend and I've always loved you. - DAVID REALLY GOOD David and I laughed when I said can I not have the SUV, since I only like commodores. David is satisfied he has completed this task. Signed - G Hele -"
On its face, the reference to paragraph 2 of this note to "J Rofe" could have been a reference to either James Rofe or Jonathon Rofe: both nephews of the deceased, both returned to the deceased's favour in the will dated 17 December 2014 as (1/10th share) residuary beneficiaries rather than (as they had been in recent wills) comparatively minor beneficiaries. Both had attended the family barbeque on 12 October 2014.
Mr Hele's evidence is that he intended to refer in his note to James Rofe, although his current recollection of the history of Jonathon Rofe's inclusion in earlier wills was flawed.
The cross-examination of Mr Hele on the written statement and statutory declaration provided by him to Mr Norington demonstrates the awkward fluidity of Mr Hele's thought processes when engaged in discussion of controversial issues. His explanation for these documents is that he provided the statement under pressure from Mr Philip Rofe who wanted to clear his name after criticism from Mr Llewellyn, and he signed the statutory declaration without reading it at a time when he was grieving the then recent death of the deceased on 21 July 2017. Both demonstrate a need to treat Mr Hele's evidence with caution.
The cross-examination of Mr Hele on his handwritten note of 17 December 2014 focused on the awkwardness of its language if read as a post-event diary note of statements made by the deceased. Alternative readings put to Mr Hele (and rejected by him) were that the note recorded instructions given to the deceased, by Mr Hele, on the morning of 17 December 2014 before execution of the will or that the note was prepared on a date other than 17 December 2014.
In my assessment, Mr Hele's evidence that the note was written after execution of the will on 17 December 2014 should be accepted. Although awkward, the language is consistent with enquires made of the deceased by reference to topics identified by Mr Hele as the deceased's interrogator, bearing in mind that Mr Hele was not in the presence of the deceased at the time of execution of the will. If it was the purpose of Mr Hele to give the deceased instructions in advance of execution of the will, some passages (including the last sentence) defy an innocent explanation. It was not put to Mr Hele that the note was a fraudulent concoction designed to pervert the administration of justice.
In my opinion, the note can be accepted as a genuine contemporaneous record of a conversation between Mr Hele and the deceased on the evening of 17 December 2014, after execution of the will. However, the fact that Mr Hele saw fit to create, and to keep, the note may demonstrate a consciousness of controversy about the deceased's testamentary capacity at or about that time.
Cross examination of Mr Here canvassed at length: (a) his many contemporaneous statements about the deceased's ill health, aberrant behaviour or lack of "capacity" in the context of his provision of care to the deceased; and (b) observations to similar effect made in the contemporaneous records of various medical professionals, not limited to the main ones (Associate Professor Rosenfeld, Dr Reid, Dr Oldtree Clark and Dr Chalkely) earlier extracted in this judgment.
The contemporaneous records ("Consultation Notes") put to Mr Hele included notes written by Dr Rosalin Fuzes on 30 September 2014; by Dr Stephen Carran on 27 October 2014; and by Dr Ian McKenzie on 25 November 2014.
Dr Fuzes' notes recorded a need to refer the deceased to another doctor, coupled with the following entries: "Needs medications[;] dementia getting worse quite paranoid". Dr Fuzes' consultation with the deceased started at 2:12pm.
Dr Carran's notes recorded that the deceased had attended upon him with his carer, probably Mr Hele. An entry to which Mr Hele's attention was drawn was interpreted by him and his cross examiner to read: "also a bit of confusion lately". The consultation with Dr Karran started at 4:00pm.
Dr McKenzie's notes also recorded that the deceased had attended upon him with his carer, again probably Mr Hele. Mr Hele's attention was drawn to the following entry: "He [the deceased] continues to become agitated and disoriented at times, usually precipitated by various 'friends' or family members trying to take him back to the Guardianship Tribunal to get control of his financial affairs and estate, or when he 'sundowns'." Dr McKenzie's notes suggest that he was on his guard in dealing with the deceased. His notes record that he had declined to speak to Ms Coleman over the telephone or otherwise without the deceased's approval and presence. In a reference to the deceased's treatment by Dr Chalkley, he appears to have taken comfort from the observation that Dr Chalkley was a geriatrician not "appointed for assessment by the Guardianship Tribunal". Dr McKenzie's consultation with the deceased started at 4:03pm.
Mr Hele met criticism of his evidence on at least three bases. First, some of the statements made in his emails were exaggerated (or, perhaps, more accurately, left unqualified by counter observations) because he was writing emails as a means of relieving himself of the pressure of constant, 24 hours a day care for the deceased. Secondly, by focusing on negative aspects of the deceased's health and aberrant behaviour, his emails generally fail to mention the fact (which he maintains) that the deceased regularly had good times as well as bad times in coping with his dementia. Thirdly, many of the deceased's bad times took the form of "sundowning", when he was (for only a relatively short time, usually in the afternoon) adversely affected by a lack of sleep or general tiredness.
During the course of his cross examination, Mr Hele was challenged about his repeated references to "sundowning", a suggestion being that such references were a belated attempt to explain away inconvenient evidence of incapacity on the part of the deceased. His attention was not drawn, as perhaps it should have been, to scattered references to "sundowning" in contemporaneous records; for example, Dr Chalkley's Reports dated 19 September and 19 November 2014, and Mr Hele's emails dated 30 September, 5 October, 26 October and 29 October 2014.
It is not necessary to consider whether, in the abstract, a reference to the deceased "sundowning" at particular times implicitly conveys a suggestion that, when not sundowning, the deceased was entirely lucid. It is sufficient, for present purposes, to record my acceptance of Mr Hele's evidence, assessed in the light of all the evidence, that as the deceased's lifestyle improved, and as his medicines were adjusted, he not uncommonly had regular "good times" and a sequence of "good days".
I also accept his evidence that he would not have allowed the deceased to travel to the Philippines on a holiday in December 2014-January 2015 had he not been confident that the deceased was well enough to cope with, and enjoy, such a trip. His evidence on that count is consistent with the evidence of Ms Coleman that, having formed the view that the deceased was indeed well enough for the trip, she suggested it.
The Nature of Interaction with the Deceased. Whereas Mr Llewellyn was brutally, and outrageously, direct in his endeavours to influence the direction of the deceased's deliberations about testamentary arrangements, and entirely self-centred, Mr Lawler and Ms Jackson were moderate, subtle and conscious of the deceased's broader circle of family and friends. As to their personal interests, Mr Lawler disclaimed any interest in the deceased's estate, but counselled him "not to forget Kathy". She, on the other hand, following the deceased's falling out with Mr Lawler over the purchase of the Wombarra property, was anxious to rehabilitate Mr Lawler in the eyes of the deceased and, accordingly, reminded the deceased how lucky he was to have Mr Lawler as a friend.
The deceased, for his part, appears to have enjoyed the involvement of others in his will-making activities. Mr Llewellyn, Ms Jackson and Ms Dobra each independently had experience of the deceased habitually calling upon them to type amendments to a draft will as he endeavoured, with cut and paste, to give due recognition to those friends and family who had cared for him or for whom he felt obliged to make provision.
Although the preparedness of Mr Llewellyn and Ms Jackson to act as an amanuensis for the deceased provided each of them, from time to time, with opportunities to influence the deceased's thinking about his testamentary arrangements, and so invites a critical review of any expression by the deceased of his testamentary intentions documented by them, the fact that he turned to them for the performance of secretarial functions is not, of itself, a reason for attributing to them, or to either of them, authorship of the testamentary instruments executed by the deceased in (at least) 2014. His long established practise, both professionally and privately, was to call upon others (whoever was available) to do his typing.
There is no allegation, or evidence, of coercive behaviour constituting undue influence of the nature recognised upon an exercise of probate jurisdiction in relation to either the will dated 17 December 2014 or any conduct on the part of Mr Lawler, Ms Jackson or Mr Hele. Nor is there any allegation, or evidence, of fraud on their part.
The conduct of Mr Llewellyn (aided at times by Mr Illek) in lobbying the deceased to make a will or codicil in terms promoted by him involved an application of social pressure on the deceased which, at times, caused great anxiety to the deceased. However, the deceased's ongoing support for Mr Llewellyn (in public, in the absence of Messers Llewellyn and Illek, in proceedings before the Guardianship Tribunal or NCAT, and in the teeth of criticism of Mr Llewellyn by the deceased's close friends) counsels caution against any abstract finding of undue influence on the part of Mr Llewellyn. Whether the deceased was the subject of undue influence on the part of Mr Llewellyn is a question that must be considered in the context of a particular testamentary instrument.
Although Mr Llewellyn's lobbying of the deceased may have involved unfair criticism of others, there is no allegation that he procured the execution of a testamentary instrument by conduct that was fraudulent.
The deceased's mental health fluctuated, so that there were times during which he did, and other times when he did not, have testamentary capacity.
At least until 17 December 2014, his testamentary arrangements were a constant concern for the deceased.

[32]

A NARRATIVE SUMMARY LEADING TO THE DECEASED'S WILL DATED 17 DECEMBER 2014

A reasonable inference from the deceased's pattern of will-making and the possibility that he was first alerted to a decline in his cognition in December 2009, is that he began at or about that time to think seriously about his testamentary arrangements. Prior to that time, he had executed one will on 23 January 1995 and another on 28 March 2006. After that time, and before his hospitalisation in September 2012, he executed three wills; respectively dated 18 February 2010, 17 November 2011 and 10 August 2012.
Although he had been advised by Dr Sutton (as early as October 2010) that his cognitive impairment was such that he should consider retirement from the Bar, he lived in a state of denial about the need for such drastic action. On the same day as the will dated 18 February 2010 was executed, he executed an enduring power of attorney (in effect) in favour of Mr Illek, expressed to operate only during a loss of mental capacity on the part of the deceased. That instrument was witnessed by Mr Llewellyn in his capacity as a solicitor. There was at that time a conscious acknowledgement of a risk of future incapacity.
The deceased's hospitalisation and confinement between 28 September and 3 December 2012 appears to have come as a shock to him, not least because the delirium he experienced was associated with the appointment by the Guardianship Tribunal of a financial manager and guardian (Mr Hull) and the surrender of his practising certificate without reference to him.
The year 2013 was for the deceased one of stress and confusion, marked by his falling out with Mr Hull, his execution of a will dated 5 March 2013 no party to these proceedings is prepared to propound, followed by the emergence of Mr Lawler as his attorney and Ms Coleman as his guardian.
As recorded by the Guardianship Tribunal in its Reasons for Decision published in support of its orders dated 21 June 2013, the proposal for replacement of Mr Hull as financial manager by Mr Lawler as an enduring attorney (appointed on 17 June 2013 between the time of the Tribunal's hearing on 29-30 May 2013 and the time of its orders dated 21 June 2013) emerged during the course of the hearing. Although the Tribunal preferred evidence of Associate Professor Rosenfeld over evidence of Dr Oldtree-Clark on an assessment of the deceased's capacity for self-management generally, it acquiesced in the common opinion of those doctors that the deceased had the capacity requisite for execution of an enduring power of attorney.
In revoking the financial management order affecting the deceased, to make way for the operation of the deceased's appointment of Mr Lawler as his attorney, the Tribunal acted upon the deceased's support for that approach in his addressing the Tribunal. It also took comfort from an undertaking given by Mr Lawler at the hearing that he would, forthwith and with expedition, make an appropriate application to the Tribunal if: (a) the deceased sought to revoke the power of attorney dated 17 June 2013; or (b) Mr Llewellyn acted in any material way prejudicial to his role as attorney for the deceased or contrary to the deceased's best interests.
That undertaking was expressly relied upon by Mr Lawler a year later when, incited by Mr Llewellyn to do so, the deceased purportedly revoked Mr Lawler's appointment as an attorney ostensibly in protest against Mr Lawler's purchase at an auction held on 28 June 2014 the Wombarra property.
Mr Llewellyn's incitement of the deceased in this was fuelled by his resentment towards Mr Lawler because of Mr Lawler's refusal (between 4-30 June 2014 or thereabouts) to allow the deceased's purchase of the Surfers Paradise unit intended for Mr Llewellyn to be completed in Mr Llewellyn's name, and Mr Lawler's attempts to limit Mr Llewellyn's expenditure on the deceased's account. Mr Llewellyn endeavoured to turn the deceased against Mr Lawler as a means of protecting his access to the deceased's wealth. As with Mr Hull before him, Mr Lawler found that any attempt to manage the deceased's affairs without interference from Mr Llewellyn or (to put the point another way) to stand between Mr Llewellyn and the deceased, was frustrated by lobbying of the deceased by Mr Llewellyn, from time to time aided by Mr Illek.
A fair inference from the events following the Guardianship Tribunal's authorisation of the new management regime on 21 June 2013 is that the deceased continued to be actively engaged in thinking about his testamentary arrangements as well as his future.
In the wake of the establishment of the management regime of 21 June 2013, the deceased executed a will dated 14 August 2013 which became a template for Arnold Bloch Leibler (who had, with senior counsel retained by them, appeared for the deceased before the Guardianship Tribunal in May-June 2013) in the preparation of a draft "interim will" in December 2013.
Arnold Bloch Leibler's preparation of a draft "interim will" for the deceased's consideration (at or about a time when both Dr Reid and Dr Oldtree Clark considered that he possessed testamentary capacity) is consistent with ongoing reflection by him about his testamentary arrangements.
It is not entirely clear why the deceased proceeded to execute wills (dated 11 February, 8 March and 17 December 2014), based on the Arnold Bloch Leibler template, without notice to Arnold Bloch Leibler. It may be that the deceased was encouraged by Mr Llewellyn, Ms Jackson or somebody else in his close circle to strike out on his own without further involvement of a solicitor, but I doubt that. Ms Jackson, at least, urged him to use the services of a solicitor, patently when she accompanied him to the offices of Arnold Bloch Leibler on 13 December 2013 and when she made opportunities later in 2014 for him to retain Mr Beazley. Mr Llewellyn, for his part, but for his own purposes, arranged for Messrs Fitzpatrick and Smark to be instructed in connection with the (first) codicil dated 10 July 2014. It is more likely that, armed with Arnold Bloch Leibler's draft as a template, which provided a structure within which his testamentary intentions could be accommodated, the deceased decided to act as his own lawyer, without incurring a liability for further professional fees.
He may have been minded to do this, in part, because, in early February 2014 he requested Arnold Bloch Leibler to act in "a separate matter" (so described by Ms Ford, without elaboration) only to have Arnold Bloch Leibler decline his instructions.
The evidence does not reveal the nature of that "separate matter". In the absence of evidence to the contrary, an available inference is that it may have related to the deceased's dealings with the NSW Bar Association about his entitlement, or otherwise, to a practising certificate. Mr Beazley acted for him in relation to that business between 24 February and 17 May 2014 or thereabouts.
It is not necessary to explore in detail precisely why the deceased did not return to Arnold Bloch Leibler to execute a settled form of will. The fact that Arnold Bloch Leibler declined his instructions in "a separate matter" (whatever that matter might have been) is no more than a factor which may, possibly, explain the deceased's go-it-alone attitude to will-making in February-March 2014 and tell against any unqualified attribution of influence over the deceased to any person in his execution of the wills dated 11 February and 8 March 2014.
The fact that Arnold Bloch Leibler prepared for the deceased a draft "interim will" might, in part, support attribution of a provisional character to the will dated 11 February 2014 pending further reflection by the deceased which culminated in the will dated 8 March 2014, executed with the formality of a contemporaneous assessment of his testamentary capacity by Dr Oldtree Clark.
2014 was a year of decision. During the course of the year the deceased executed five testamentary instruments (ranging from 11 February 2014 to 17 December 2014) and on 17 May 2014 he signed a letter to the NSW Bar Association announcing his retirement from the Bar. Arnold Bloch Leibler ceased to act for him in early 2014, and Mr Beazley acted for him until about May 2014 in dealing with the Bar Association. However, before Arnold Bloch Leibler lost contact with him, it procured a report from Dr Reid (dated 28 January 2014), in which Dr Oldtree-Clark appears to have acquiesced, to the effect that the deceased possessed testamentary capacity.
2014 commenced with the deceased contemplating a draft will prepared for him by Arnold Bloch Leibler and being subject to Mr Llewellyn's demands for preferment, a dramatic illustration of which was a confrontation of the deceased by an emotional Mr Llewellyn (supported by Mr Illek) on 15 January 2014.
2014 was a year in which the deceased came under increasing social pressure from Mr Llewellyn (supported by Mr Illek) to make increased provision for him, in terms of immediate income, a residence and testamentary provision. It was also a year in which Mr Lawler actively resisted Mr Llewellyn's pressure and, with the acquiescence of Ms Coleman as the deceased's guardian, both endeavoured to have the deceased acquire a (second) residence near him and Ms Jackson at Wombarra and encouraged development of the deceased's friendship with Ms Jackson.
Tension between Mr Llewellyn and Mr Lawler came to a head with Mr Lawler's purchase of the Wombarra property on 28 June 2014 (with the acquiescence of Ms Coleman and, despite protests engineered by Mr Llewellyn, the deceased) countered by agitation of the deceased by Mr Llewellyn (supported by Mr Illek), against the purchase. Mr Llewellyn represented to the deceased that Mr Lawler's application of $160,000.00 of his funds in payment of a deposit on the property was an act of theft; money taken without authority, "stolen". The deceased was thrown into a state of confusion by the active lobbying of Mr Llewellyn and Mr Lawler against each other and by a return to the Guardianship Division of NCAT.
The first codicil (dated 10 July 2014) was prepared by Messrs Fitzpatrick and Smark, and executed by the deceased, incited by Mr Llewellyn, in the midst of this confusion on the part of the deceased, a factor which may tell against its validity.
Kept abreast of developments by Mr Lawler, when Ms Coleman returned to Australia from an overseas trip on 3 July 2014 she took decisive action, the effect of which (supported by NCAT's endorsement of her guardianship on 19 August 2014) was to put management of the deceased's financial affairs in the hands of his trusted accountant, Mr Horder, as a financial manager; to limit the deceased's exposure to ongoing agitation by Mr Llewellyn and Mr Illek; to place the deceased's day-to-day care in the hands of Mr Hele as a trusted, medically qualified companion; and, incidentally, to confirm Ms Jackson's ongoing role as the deceased's companion and administrative assistant.
Ms Coleman's intervention, limiting the access of Messrs Llewellyn and Illek to the deceased from early August 2014, was motivated by a concern for the deceased's welfare in the context of: (a) Mr Llewellyn's incessant demands (from time to time supported by Mr Illek) for money, property and testamentary preferment; and (b) Mr Llewellyn's lobbying the deceased against his enduring attorney (Mr Lawler) and guardians (herself and, as an alternate, Mr Lawler). She was motivated by a concern for the deceased's quality of life, not a concern about his testamentary arrangements.
Nevertheless, her intervention did affect the course of the deceased's thinking about his testamentary arrangements. It did this: (a) by relieving him of the constant lobbying of Mr Llewellyn and the anxiety thereby caused to him; (b) by allowing Mr Hele as a constant companion, to calm the deceased's anxieties, reduce his alcohol intake, adjust his medication and enjoy a healthy diet and lifestyle; (c) by allowing the deceased to re-connect with members of his family and old friends without the de-stabilising involvement of Messrs Llewellyn and Illek; and (d) by facilitating the appointment of Mr Horder as the deceased's financial manager, thereby moderating the financial provision made from the estate of the deceased in favour of Mr Llewellyn.
Whether the deceased ceased partaking of alcohol altogether after Mr Hele's arrival as his full-time carer and companion on 11 July 2014 is not altogether clear. The evidence contains isolated references supportive of a finding that the deceased continued to partake of alcohol, from time to time, in the second half of 2014. However, it may be that alcohol was on those occasions served to a companion of the deceased, leaving him (as Mr Hele suggests) with apple juice or some other non-alcoholic alternative. Be that as it may, the evidence points unequivocally to a cessation of the deceased's former habit of regular bouts of heavy drinking. Mr Hele substantially, if not completely, curtailed the deceased's drinking.
The codicil dated 10 July 2014 was the last testamentary instrument executed by the deceased the preparation of which (to put the point neutrally) involved input by Mr Llewellyn. Although drafted by Mr Fitzpatrick, and settled by Mr Smark, the codicil was prepared and executed with the active encouragement of Mr Llewellyn at a time when he was engaged in a bitter conflict with Mr Lawler about management of the deceased's estate; Mr Llewellyn was pressing the deceased to marginalise Mr Lawler and, incidentally, Mr Lawler's partner Ms Jackson; proceedings involving management of the deceased's person and property were then the subject of a hot contest in NCAT; in the midst of that complex, contentious litigation the deceased was confused about what was happening; and, in attending to execution of the codicil, Mr Fitzpatrick did not take the deceased to the terms of the will dated 8 March 2014, ostensibly amended and confirmed by the codicil. In the absence of any falling out between the deceased and Ms Jackson, the codicil bears the character of an instrument promoted by Mr Llewellyn to strike at Mr Llewellyn's adversary, Mr Lawler.
As recorded by Dr Chalkley in his Report dated 15 August 2014, and in his notes of the previous day, the deceased responded to Dr Chalkley's question about claims on his estate by saying, inter alia, that he had made generous provision for the main people who had cared for him. He also provided to Dr Chalkley what appears to have been a considered response to Dr Chalkley's enquiry, at the same time (in response to a question addressed to him by Dr Chalkley) indicating, in an understated way, a regret that he had (by his first codicil dated 10 July 2014) removed Ms Jackson as an executor and an intention to restore her to that office. Mr Hele may have been in the company of Dr Chalkley and the deceased when that was said; Ms Jackson was not, nor was Mr Lawler.
Sometime in mid-2014 (possibly, I infer, in or about late August 2014) the deceased had an experience in dealing with Mr Llewellyn that contributed to a reassessment on his part of any obligation he may have owed to Mr Llewellyn. Accompanied by Ms Jackson as his driver, he attempted to visit Mr Llewellyn and Mr Llewellyn's partner Curtis at their Paddington home (rented for them by the deceased) only to be turned away by a foul-mouthed attack on him by Mr Llewellyn.
Shocked by that encounter, when they returned to their car the deceased told Ms Jackson that he proposed to support Mr Llewellyn no longer and that Mr Llewellyn could "get a job".
The idea that Mr Llewellyn should get a job, and support himself, rather than being financially dependent on the deceased was one articulated by the deceased on more than one occasion. It was echoed in what the deceased told Mr Hele on the evening of 17 December 2014 when Mr Hele queried the omission from the deceased's will of that date of any forgiveness of debts owed by Mr Llewellyn: "… he needs to learn to stand on his own two feet".
After granted relief from Mr Llewellyn's lobbying, and being advised by Mr Horder that prudence dictated that the purchase of the Wombarra property be completed (as it may have been, apparently, as late as 29 August 2014), the deceased came to enjoy excursions to the property with Mr Hele, by then his full-time companion and carer.
Read generously, the (second) codicil dated 8 October 2014 might be taken to provide confirmation of the regret expressed by the deceased to Dr Chalkley on 14 August 2014 about removal of Ms Jackson as an executor; confirmation of the general terms of the will dated 8 March 2014; and a precursor of the deceased's will dated 17 December 2014. Read literally, it contains too many clerical errors for the Court to be satisfied that the deceased knew and approved its terms, a fact reinforced by Mr Lawler's evidence that the document was prepared (at the insistence of the deceased) in a rush and without due consideration. Ms Jackson, a person who stood to benefit from the proposed codicil, refused to have anything to do with its preparation, leaving Mr Lawler to cope with the deceased's insistent demands for a codicil, and his own sense of inadequacy in drafting such a document, as best he could.
The barbeque held at the Wombarra property on 12 October 2014 was organised by Ms Jackson, in close consultation with the deceased, as an opportunity for the deceased to enjoy the company of family and friends, which he did. She did not act alone, or independently of the deceased, preoccupied as she was with her own troubles with the Health Services Union and a breakdown in her health. She acted as the deceased's administrative assistant, a domestic helper and companion, not as a controlling mind. The deceased was anxious to reconnect with family and friends. She helped him to do so.
That the deceased's attention was being given at that time to his testamentary arrangements is illustrated by the facts that: 1. on 8 October 2014 he executed the second codicil (prepared by Mr Lawler, says Mr Lawler, at the insistence of the deceased and without any confidence on his part as to his competence to draft a testamentary instrument); 2. On 12 October 2014 Mr Lawler invited Mr James Rofe to enter into a discussion about the deceased's testamentary arrangements; and 3. I infer, at about the same time, Mr Lawler spoke to Mr Hull in similar terms.
Between 11 July 2014 (when Mr Hele commenced living with the deceased as his full-time companion and carer) and 17 December 2014 (upon which date the deceased executed his last will) the deceased's lifestyle improved. His excessive intake of alcohol ceased. His medications were adjusted. He enjoyed a healthy diet and regular exercise. He experienced the calming influence of Mr Hele. He ceased to suffer the anxiety earlier experienced through regular agitation by Mr Llewellyn.
Over several weeks leading up to 17 December 2014 the deceased, with the administrative assistance of Ms Jackson, revised his will using as a template an electronic copy of the draft will prepared by Arnold Bloch Leibler in December 2013.
On 17 December 2014 the deceased attended upon Dr Oldtree Clark (who determined that he had testamentary capacity) and executed his last will in the presence of his carer and Dr Oldtree Clark. The deceased and his carer, accompanied by Ms Jackson, were conveyed to and from that appointment in a car driven by Mr Hele. Ms Jackson met Dr Oldtree Clark before and after his appointment with the deceased. She was not present when Dr Oldtree Clark examined the deceased or when the will was executed. Dr Oldtree Clark examined the deceased alone. Mr Hele's role was that of a chauffer. He did not attend Dr Oldtree Clark's premises.
On the evening of 17 December 2014, after dinner, the deceased discussed his will with Mr Hele who, that night, prepared a contemporaneous diary note of their discussion. The diary note records observations corroborative of evidence that the deceased had testamentary capacity, and that he knew and approved the contents of his will, when he executed the will dated 17 December 2014.
The deceased's pattern of will-making fell away after his execution of the will dated 17 December 2014. If any explanation for that be necessary, it can be found in a combination of factors: a sense of contentment with the terms of the will dated 17 December 2014 and his reengagement which members of the Rofe family implicit in those terms; the absence of exposure to ongoing agitation by Messrs Llewellyn and Illek; Mr Llewellyn's move to Queensland, settled in accommodation provided for him by the deceased; and a continuing decline in his health after his return from a holiday trip to the Philippines.
In any event, the deceased's pattern of will-making in 2014 was not quite as it at first sight appears. The deceased was not quite a casual, serial will-maker in 2014 when one examines the circumstances in which each testamentary instrument executed in 2014 was prepared. The will dated 11 February 2014 (prepared by Mr Illek, he says at the request of the deceased and typed by Mr Llewellyn) was, I infer, executed by the deceased as an interim measure at the urging of Mr Llewellyn at a time when the deceased was reflecting on the advices of Arnold Bloch Leibler. But for its exclusion of James Rofe due to a misunderstanding, he might well have remained satisfied with his will dated 8 March 2014. Each of the first codicil (dated 10 July 2014), the second codicil (dated 8 October 2014) and the will dated 17 December 2014 is a product of over-reaching behaviour on the part of Mr Llewellyn. The first codicil was executed in the midst of confusion arising from Mr Llewellyn's agitation for title to the Surfers Paradise unit to which he subsequently moved. The second codicil was a product of the deceased's anxiety to disown the first codicil. The will dated 17 December 2014 was the product of the deceased's release from Mr Llewellyn's agitation.
Although expressed in Mr Hele's characteristically unguarded language, there is at least a hint of objective truth in Mr Hele's observation to Mr Tim Murphy, in an email dated 24 August 2015, that the deceased's will dated 17 December 2014 served "to buy off David's distant relations … and to keep them happy".
That is an object which could fairly be attributed to the deceased. A single man, with substantial wealth but no immediate family of his own, might reasonably make provision for his extended family to deflect criticism from them of substantial gifts made to friends outside the family. Mr Hele's email is not evidence of a lack of independent thought on the part of the deceased or of a conspiracy on the part of others.

[34]

Introduction

Contextual facts having been explored, a search for the last will of the deceased as a free and a capable testator leads, in the first instance, to the deceased's will dated 17 December 2014.
Those who propound that will (the third to eighth and tenth defendants, a group including Mr Hele, Mr Jonathon Rofe and other members of the Rofe family) bear the ultimate onus of proving that the will was the last will of a free and capable testator.
Testamentary capacity, and the deceased's knowledge and approval of the will, having been put in issue, on reasonable grounds, they bear the onus of proving both elements affirmatively.
The involvement of Mr Hele and Ms Jackson in or about the preparation and execution of the will (coupled with the deceased's dementia) requires them, in proving the deceased's knowledge and approval of the will, to satisfy the Court of the righteousness of the transaction.
Although, for analytical purposes, separate consideration may be given to the questions of "testamentary capacity" and "knowledge and approval", evidence bearing upon one of those questions may equally bear on the other and, naturally, on the overarching question whether a particular testamentary instrument can properly be characterised as the last will of a free and capable testator. Care needs to be taken not to fall into the trap of concentrating on too narrow a view of the evidence and thereby losing sight of the ultimate question.
I am particularly conscious of that in the present proceedings because the parties have adduced a mass of evidence (much of which has not been the subject of direct reference in cross-examination or submissions) with a preoccupation on the shifting sands of personal relationships between people with an emotional commitment to the deceased, sometimes informed by self-interest.
Much of the medical evidence comprises medical records from "treating doctors" who saw the deceased between 2010-2012, or doctors or other healthcare professionals consulted in the context of proceedings in the Guardianship Tribunal or NCAT during the period between 2012-2014. Doctors Reid and Oldtree Clark stand out as medical professionals required to focus on testamentary capacity at a specific time and in the context of the deceased's will-making activities. Dr Chalkley's report dated 15 August 2014, prepared in anticipation of NCAT's hearing on 19 August 2014, is not far removed from the work of Doctors Reid and Oldtree Clark in so far as Dr Chalkley canvased questions bearing on testamentary capacity, apparently with knowledge of the deceased's codicil dated 10 July 2014.
No party has adduced any evidence from a medico-legal expert retained after the death of the deceased to review the deceased's testamentary capacity at times associated with the deceased's execution of a testamentary instrument. That is understandable once one has an appreciation of the mass of conflicting evidence adduced from lay witnesses, with an emphasis on relationship issues which serves at times as a distraction; but the nature of the competing cases presented to the Court for determination requires an understanding of this context.

[35]

The terms of the will dated 17 December 2014

In summary terms, the will dated 17 December 2014 nominated Mr Jonathon Rofe, Ms Jackson and Mr Horder as executors and trustees and made provision for the following beneficiaries: 1. Specific bequests of family heirlooms (a Longstaff portrait of the deceased's maternal grandmother, a silver tea dispenser, a portrait of the deceased himself and a Sid Long painting) were made, with one exception, to nieces and nephews of the deceased: Jonathon Rofe, Susan Erkinnen, Anne Stone and James Rofe; 2. The one exception was that the portrait of the deceased was given to Mr Llewellyn. 3. Pecuniary legacies were given to the following people (here listed in the order in which they appear in the will): 1. Timothy Shaun Murphy: $100,000. 2. Mr Hele: $100,000. 3. The deceased's god daughter Lilian Hull: $50,000. 4. The deceased's nephew, Dr Steven Rofe: $100,000. 5. The deceased's niece, Anne Stone: $100,000. 6. The deceased's nephew, James Rofe: $100,000. 7. The deceased's niece, Susan Erkinnen: $100,000. 8. The deceased's nephew, Scott Taylor: $100,000. 9. James Peade, a son of Mr Hull: $50,000. 10. Mr Llewellyn: $100,000. 11. The deceased's godson, David Stone: $500,000. 12. The deceased's godson, Andrew Fulton Rofe: $500,000. 13. Ms Coleman: $60,000. 14. Janette McKenzie: $30,000. 15. Ms Jackson: $100,000. 16. Oliver Peade (Hull): $50,000, to be held on trust for his use, maintenance and advancement. 17. Elaine Clark: $60,000, to be held on trust for her health care and accommodation expenses, payable at the discretion of the deceased's trustees. 1. Mr Hele was also given the deceased's "new motor vehicle" and the Wombarra property. 2. Mr Llewellyn was given the "Q1" Surfers Paradise home unit. 3. The deceased's residuary estate was divided into ten parts, distributed to the following nine people (in the order listed in the will, allowing two parts to Mr Hele and one part to each other beneficiary): 1. The deceased's niece Anne Stone. 2. The deceased's nephew James Rofe. 3. The deceased's niece Susan Erkinnen. 4. The deceased's nephew Scott Taylor. 5. The deceased's nephew Jonathon Rofe. 6. Ms Jackson. 7. Timothy Shaun Murphy. 8. Mr Hele. 9. Mr Llewellyn.
The will also included a range of fairly standard ancillary or machinery provisions, including a conferral of specific powers on the deceased's trustees. One of those powers was a power of appropriation granted, in terms, by reference to section 46 of the Administration and Probate Act 1958 (Vic).

[36]

Testamentary Capacity

An assessment of the deceased's testamentary capacity is to be made by reference to the criteria for which Banks v Goodfellow (1870) LR 5 QB 549 at 565 classically provides. Those who propound the will dated 17 December 2014 bear the onus of proving affirmatively that the deceased had capacity to make the will notwithstanding his dementia.
Dr Oldtree Clark. Dr Oldtree Clark's evidence is a convenient starting point for a consideration of the deceased's testamentary capacity, or otherwise, at the time he executed the will dated 17 December 2014. Dr Oldtree Clark examined the deceased at that time conscious of the solemnity of attesting the execution of a will. The fact that he insisted on being retained, and provided with a copy of the proposed will, by a solicitor (Mr Beazley) is indicative of a consciousness of a need for professional independence.
Dr Oldtree Clark appears to have examined the deceased, with a specific focus on questions of capacity, more than any other medical professional in the critical years, 2013-2014.
The deceased appears to have been comfortable with him and, from the tenor of Dr Oldtree Clark's evidence, I infer that Dr Oldtree Clark demonstrated a preparedness to engage patiently with him during consultations.
Dr Oldtree Clark appears to have had the confidence not only of the deceased himself but also of Mr Llewellyn, Mr Fitzgerald and Ms Jackson. Mr Llewellyn recommended Dr Oldtree Clark. Mr Fitzgerald tried unsuccessfully to retain him. Ms Jackson took the deceased to see him. Although NCAT in June 2013 preferred an opinion expressed by Associate Professor Rosenfeld over an opinion expressed by Dr Oldtree Clark, it expressed respect for both men.
Upon an assessment of Dr Oldtree Clark's evidence, and specifically upon a review of his Reports in light of his cross examination, I have given consideration to the possibility that he was preferred by the deceased, and particularly by Mr Llewellyn and Ms Jackson, because it was thought likely that he was predisposed to make a finding of capacity. Arguably, the opinions he expressed from time to time about the deceased's capacity were more empathetic than might be expected of a less generous personality.
The view that I have ultimately formed is that much of the criticism of Dr Oldtree Clark (however justified) is essentially superficial. Much of the criticism directed towards him is based upon the poor quality of his paperwork and what appears to have been laxity in the administration of his practice. Much reflects, also, the orientation of his practice towards the criminal or common law jurisdictions rather than the probate jurisdiction. Not a little of the criticism also reflects the passage of time (about 6 years) between the events the subject of Dr Oldtree Clark's evidence and the time he was called upon to be cross-examined.
Dr Oldtree Clark may not have explicitly applied the classic criteria enunciated in Banks v Goodfellow, but he did, in substance, satisfy himself of those criteria when he assessed that the deceased knew what he was doing in executing a will, that the will the subject of execution was what the deceased wanted to do with his estate, that the deceased's choices were reasonable, and that the deceased was not suffering from any delusions or unsound thinking in deciding to execute the will. In short, he satisfied himself that each will executed by the deceased and witnessed by him was the will of a free and capable testator.
The fact that Dr Oldtree Clark did not on 17 December 2014 administer to the deceased a mini mental state examination, or any other form of screening test, is not an impediment to acceptance of his assessment of the deceased's capacity. Dr Oldtree Clark was familiar with the deceased, having examined him on earlier occasions. He was aware of the nature of the deceased's illness. The due performance of his medical function did not necessitate the administration of a screening test, at best an imprecise guide to mental capacity.
My acceptance of the substance of Dr Oldtree Clark's evidence (to the effect that the deceased had testamentary capacity on both 8 March 2014 and 17 December 2014) does not relieve the Court of a need to examine other evidence.
Witnesses other than Dr Oldtree Clark. Of those who directly observed the deceased on 17 December 2014, we have evidence from Ms Jackson and Mr Hele. No evidence has been adduced from the carer of the deceased who, with Dr Oldtree Clark, witnessed the deceased's execution of the will dated 17 December 2014. No party has submitted that the absence of evidence from the carer is an impediment to a finding of testamentary capacity.
Ms Jackson. Ms Jackson acted as the deceased's administrative assistant and typist in preparation of the will dated 17 December 2014 over the preceding month or so, and in arranging for Mr Beazley's office to send a copy of the proposed will to Dr Oldtree Clark for execution on 17 December 2014.
In a car driven by Mr Hele, she accompanied the deceased and a carer to his appointment with Dr Oldtree Clark on 17 December 2014 and, in that company, accompanied him home from that appointment. She was not, however, present during Dr Oldtree Clark's interview with the deceased leading to execution of the will or at the time the will was executed.
To her observation, the deceased was up to the task of executing the will, conscious of the nature and effect of a will, and conscious of the claims on his bounty for which he wished to make provision. Her view was, and remains, that the deceased had testamentary capacity at the time he executed the will.
Although Ms Jackson had opportunities, on and before 17 December 2014, to influence the deceased's thinking about his testamentary arrangements, I am satisfied that she did not use those opportunities in any untoward way to deflect the deceased from his own independent course.
Although Ms Jackson was not in the immediate presence of the deceased when he discussed his will with Dr Oldtree Clark, and executed it, she was, to the knowledge of the deceased and Dr Oldtree Clark, in the near vicinity. She was also aware of the contents of the will because, during a period that commenced a short time after the barbeque of 12 October 2014 (probably in early November 2014) and continued up to the morning of 17 December 2014, she provided typing services for, and at the request of, the deceased as he revised his prospective will, based on an electronic copy of Arnold Bloch Leibler's draft. The deceased was an obsessive draftsman, prone to last minute tinkering with drafting details, and she assisted him administratively in the process of settling his final draft.
Her evidence is that, at the time the deceased attended upon Dr Oldtree Clark to execute the will dated 17 December 2014, he was coherent and knew what he was doing: "…on that particular day, because Gregg [Hele] had been living with him, he hadn't been drinking. He'd slept well, it was a nice, I remember it was a nice sunny day, it was just before Christmas and he was fine".
She gave evidence conceding that the deceased had good days and bad, good times and bad. According to her evidence, when things were good, the deceased was coherent and able to engage with his affairs. When they were bad, he was prone to be confused. Her evidence is that, at the time he attended upon Dr Oldtree Clark, he was in good form, not bad.
I accept her evidence as more likely than not to be factually correct. Her friendship with the deceased was mutually deep and meaningful. At a time when each of them felt in need of friendship, with their worlds collapsing about them, they drew comfort from their friendship.
Ms Jackson's primary motivation in dealing with the deceased was not a prospect of financial gain. I accept Ms Coleman's assessment of her as a provider of substantial, unremunerative assistance to the deceased. That she gave her evidence in a dignified and forthright manner, notwithstanding reasonably based but aggressive challenges to her credit, is consistent with a favourable assessment of her as a calming influence on the deceased.
I accept Ms Jackson's evidence that she more than once counselled the deceased, unsuccessfully, to return to Arnold Bloch Leibler to have them settle his will before he executed it. I accept also that he deliberately chose to proceed without the intervention of a lawyer, trusting his own prowess and preferring to pay no professional fees to anybody.
Mr Hele. No less than Ms Jackson, Mr Hele had opportunities to influence the course of the deceased's will making but, in my assessment, he respected the deceased's independence of mind and allowed him to act upon his own judgement as to his testamentary preferences. He was disappointed by the deceased's determination to make no testamentary provision for Mr Philip Rofe, but he accepted the deceased's decision about that. He was not directly involved in preparation of the will dated 17 December 2014. Nor did he attend upon Dr Oldtree Clark that day. His role was limited to that of a chauffeur, taking the deceased, his carer and Ms Jackson to their appointment with Dr Oldtree Clark and bringing them home again.
That said, he was sufficiently conscious of concerns about the deceased's capacity to quiz the deceased, after the event, on the evening of 17 December 2014, about the terms of the will of that date and to make, and keep, a diary note of their conversation. I accept the veracity of that note.
Mr Hele's note has particular importance in number of respects apart from the fact that it was taken and kept. First, it records an appreciation by the deceased of a change in the identity of his executors. Secondly, it supports Mr Hele's evidence that he felt a need to be satisfied that the deceased really wanted Ms Jackson (and Mr James Rofe) back in his will as residuary beneficiaries. Thirdly, it provides corroboration of the deceased's intention to reduce Mr Llewellyn's entitlements.
Mr Hele's confirmation that the deceased intended to omit provision for Mr Llewellyn's debts to be forgiven might be thought to have particular significance, given that Dr Oldtree Clark did not examine the deceased about differences in the respective terms of the deceased's wills dated 8 March 2014 and 17 December 2014. Dr Oldtree Clark was satisfied as to the deceased's capacity without undertaking that exercise. It is plausible that he may have been told by the deceased that the two wills were "essentially the same", because, in structure, they were. However, a change which Dr Oldtree could not have picked up without reference to the will dated 8 March 2014 was the omission from the will dated 17 December 2014 of forgiveness of Mr Llewellyn's debts. Mr Hele's questioning of the deceased about that change (which I accept did occur on the evening of 17 December 2014) provides additional support (if it be needed) for findings of both testamentary capacity and knowledge and approval.
The observation attributed to the deceased by Mr Hele that Mr Llewellyn "needs to learn to stand on his own two feet" is consistent with earlier, and later, observations by the deceased that Mr Llewellyn should "get a job". The largesse that the deceased had provided for Mr Llewellyn did not blind him to the desirability of Mr Llewellyn seeking employment. That fact, and his confirmation that Mr Llewellyn was getting under his will an apartment in Queensland, demonstrate a capacity on the part of the deceased to weigh up competing claims on his bounty and to mould his testamentary arrangements accordingly.
Given the evidence of Associate Professor Rosenfeld and Dr Reid as to the nature, and likely future course, of the deceased's vascular dementia, I do not regard Mr Hele's email dated 22 December 2014 as an impediment to a finding that the deceased's will dated 17 December 2014 was valid. The fact that the deceased, at some then proximate time, spoke in confused terms about his current home and his childhood home is a factor to be taken into account against validity of the will, but it is not decisive. The position remains that the deceased had good days and bad, good times and bad. On 18 December 2014, in the company of Mr Hele, he met with Mr Horder in what appears to have been an unexceptional meeting of his financial affairs. Within a short time of 22 December 2014 he was regarded by Mr Hele and Ms Coleman as well enough to travel to the Philippines for a holiday.
Other Observations of the Deceased. The evidence of Dr Oldtree Clark, Ms Jackson and Mr Hele is consistent with that of other witnesses who made observations of the deceased, not on 17 December 2014, but around that time.
Ms Coleman encouraged the deceased to go on an overseas trip because, to her observation, he was well enough to do so. To Mr Beazley's observation, he was lucid. Mr Wheelahan and Ms Stone engaged with him socially in circumstances in which he was actively involved in conversation on several topics. The evidence of Mr Herrmann, not challenged in cross examination, confirmed that the deceased was able to turn his mind actively to detailed discussions about prospective building work and planning laws.
Some of this evidence may need to be discounted as evidence of no more than social conversations, but not all of it. On the whole, it is consistent with the proposition that, on occasions, when at ease with his surroundings, the deceased remained able, from time to time throughout 2014, to engage in detailed discussions.
Mr Agius' evidence about the two occasions upon which, in the second half of 2014, he visited the deceased suggests that the deceased was not always able to initiate conversations; but it does not present an impediment to acceptance of the evidence of other observers that they encountered in the deceased an active conversationalist.
In my assessment, Dr Chalkley's notes of 14 August 2014, and his report of 15 August 2014, on balance provide support for a finding that at that time the deceased had testamentary capacity. Given the passage of time between mid-August and mid-December 2014, and the nature of the deceased's illness, care needs to be taken not to attribute too much significance to Dr Chalkley's observations of August 2014, but they do demonstrate an ability on the part of the deceased to think rationally about his testamentary arrangements, including an ability to identify his property and to weigh up claims on his bounty. Dr Chalkley's doubts about the deceased's capacity appear, largely, to have been a function of his focus on the deceased's capacity for self-management rather than on testamentary capacity.
A Finding of Testamentary Capacity. A finding of capacity to execute the will dated 17 December 2014 (which I make) is consistent with descriptions of the nature, and likely future course, of the deceased's dementia provided by Associate Professor Rosenfeld and Dr Reid. It is consistent, also, with evidence that the deceased's ability to engage with the ordinary affairs of life improved when, freed of anxiety associated with his experience of Messrs Llewellyn and Illek, he reaped the benefits of a healthier lifestyle than he had had, better regulation of his medicines, a calm and secure environment with a companion dedicated to his care and opportunities to re-engage with his family.
The deceased's capacity to recognise, and weigh, claims on his bounty is illustrated by a number of gifts made in the will dated 17 December 2014.
First, although he reduced the provision made for Mr Llewellyn, he did not eliminate it. Despite misgivings that he, or others, may have had about Mr Llewellyn, he did not abandon his controversial friend. As evidenced by Mr Hele's handwritten note, he had rational reasons for a reduction in the provision he made for Mr Llewellyn: Mr Llewellyn "needs to learn to stand on his own two feet" and "anyhow … he's getting the apartment".
Secondly, the increased provision made for members of the Rofe family is consistent with the deceased's longstanding pride in his nieces and nephews and their children, and his reengagement with family. Thirdly, the fact that, notwithstanding benefits conferred on other members of the Rofe family generally, the deceased declined to confer testamentary benefits on Philip Rofe is consistent with his longstanding reservations about Philip Rofe and a discriminating mind.
Fourthly, maintenance of provision made for Mr Hele as a major beneficiary is consistent with their longstanding and continuing close relationship. The fact that the deceased intended Mr Hele to get the Wombarra property is consistent with the nature of their relationship and, perhaps, tells against any suggestion (if made) that he might have been encouraged to give the property to his Wombarra neighbours, Mr Lawler and Ms Jackson.
Fifthly, restoration of the provision made for Ms Jackson in the deceased's will dated 8 March 2014 (not more, not less) is consistent with the nature of his relationship with Ms Jackson over an extended period, not limited to the time when he was actively engaged in preparing the will dated 17 December 2014.
Sixthly, his choice of executors is consistent with a change in his personal circumstances. Ms Jackson was restored to the office of executor, to which she was to be appointed by the will dated 8 March 2014. Mr Horder, the deceased's financial manager and accountant, was added as an executor, as was Mr Jonathon Rofe, a representative of the Rofe family. Mr Illek's "removal" as executor is consistent with the course of events that played out after 8 March 2014.
On the whole, the deceased's will dated 17 December 2014 is both rational on its face and responsive to the deceased's personal circumstances.
I have considered whether the multiplicity of testamentary instruments executed by the deceased within a short period of time is, of itself, or in combination with other facts, evidence of incapacity affecting the validity of the will dated 17 December 2014 or the wills executed on 11 February 2014 and 8 March 2014. In my opinion, it is not. Execution of those wills can be reasonably explained by reference to the deceased's attendance upon Arnold Bloch Leibler (to draft an interim will pending further consideration) and subsequent events. The deceased's perceived necessity for the will dated 17 December 2014, in particular, arose from a need to clarify his testamentary arrangements following resolution of disputation about management of his affairs in mid-2014, a reassessment of his relationship with Mr Llewellyn and his re-engagement with family.
Nor do I regard the fact that the deceased was in the habit of keeping his will folder close at hand, a factor, of itself, indicative of a want of capacity. If anything, it corroborates evidence that he was anxious to settle his testamentary arrangements in light of his current, and fluid, social circumstances

[37]

Knowledge and Approval

Upon a consideration of whether the deceased knew and approved the contents of the will dated 17 December 2014, I proceed on the basis that it is incumbent upon those who propound the will to prove affirmatively that the deceased knew and approved the contents of the document: Nock v Austin (1918) 25 CLR 519 at 528.
They bear that forensic burden because the circumstances in which the will was prepared and executed are sufficient to excite suspicion that its provisions may not have been fully known to and approved by the deceased. In summary, those circumstances are the deceased's progressive form of dementia; his dependency upon Ms Jackson and Mr Hele for companionship and care; their prospective interest in his estate as beneficiaries named in the will; their involvement, of one sort or another, in the process of the will being prepared and executed; execution of the will by the deceased without advice from an independent lawyer; the ongoing controversy surrounding management of the deceased's estate and person; and the fact that, according to the terms of the will, Ms Jackson was to be restored to the status of a residuary beneficiary and the interests of Mr Llewellyn (a person capable of characterisation as an adversary of Ms Jackson and Mr Hele) were adversely affected vis-à-vis the testamentary instruments of the deceased displaced by the will.
Mr Lawler may have been hovering in the background, supportive of Ms Jackson as his partner, but (after the family barbeque of 12 October 2014) he was not directly involved in the subsequent preparation and execution of the deceased's will dated 17 December 2014. The shadow of his presence is a factor to be taken into account in calling for a critical review of the circumstances in which that will came into being, but it does not rise higher than the involvement of Ms Jackson and Mr Hele.
The fact that the deceased had capacity to execute the will, that it was duly executed, that it was executed after the deceased's interview with Dr Oldtree Clark (an independent medical professional), that its terms were rational and responsive to the personal circumstances of the deceased and claims on his bounty, and that his legal training and experience equipped him to read and understand a formal instrument such as the will, are all factors to be taken into account in favour of a finding that the will's provisions were fully known to, and approved by, him. They are not, of themselves, decisive without reflection on other factors.
Those who oppose admission of the will to probate point to several factors which, they contend, militate against a finding of knowledge and approval. First, by reason of his dementia, the deceased was susceptible to influence, and his dependency upon Ms Jackson and Mr Hele for companionship and care exposed him to their influence in particular. Secondly, the fact that the will was not literally read over to the deceased by Dr Oldtree Clark "word for word" before its execution deprives the Court of an assurance that the deceased was aware of each and every provision of the will. Thirdly, the fact that the deceased executed a will which conferred on his executors a power by reference to Victorian, rather than NSW, legislation suggests, at least, that the deceased did not carefully read the entirety of the document. I accept that these are factors to be taken into account against a finding of knowledge and approval.
Upon an assessment whether the deceased did in fact know and approve the contents of the will, a central fact (as I find) is that the deceased was himself the author of the will, albeit that he called upon Ms Jackson to assist him in typing the will, and preceding drafts, based upon an electronic version of the draft prepared by Arnold Bloch Leibler a year earlier.
In my assessment, the deceased did not surrender his independent judgement to any person in making the will dated 17 December 2014. On the facts of the case, his understanding of the will, and his adoption of its contents by execution, did not depend upon a formal exposition, or explanation, of its terms by Dr Oldtree Clark or anybody else. The reduction in his contact with Messrs Llewellyn and Illek, and his reengagement with family, in the second half of 2014 provided him with space to reassess his priorities, which he did.
The care and attention given to the deceased after the arrival of Mr Hele on the scene on 11 July 2014, and the genuine friendship enjoyed by the deceased and Ms Jackson, reinforced by containment of the influence of Messrs Llewellyn and Illek over the deceased, certainly created conditions in which the deceased might naturally look more favourably upon Ms Jackson and Mr Hele and less favourably upon Mr Llewellyn. However, the creation of such conditions involved no impropriety on the part of those who assisted the deceased and, if anything, enhanced his capacity for independent judgement about his testamentary arrangements.
The provision made for Ms Jackson in the will dated 17 December 2014 was, in any event, on a par with that made for her in the will dated 8 March 2014, a will prepared by the deceased at a time when Mr Llewellyn was prominent in the deceased's company and actively engaged in attempts to influence the deceased's testamentary arrangements. The deceased's disclaimer of the codicil dated 10 July 2014 in his consultation with Dr Chalkley on 14 August 2014 provides an objective measure of the intention of the deceased, independently of Ms Jackson, to restore her to the position she occupied in his will dated 8 March 2014.
Mr Hele's close, loving and long relationship with the deceased, and improvements in the deceased's health under Mr Hele's care, provide an explanation (if any explanation be needed) of why it is that the deceased could reasonably have favoured Mr Hele in the will under consideration on 17 December 2014.
The fact that Ms Jackson and Mr Hele (amongst others, including Mr Lawler, Ms Coleman and Mr Horder) may have created conditions in which the deceased might naturally look favourably upon them is not of itself a reason for holding that he was unaware of what he was doing, or not acting freely and voluntarily, when he executed the will.
The fact that the deceased executed the will in a form which, in one of a number of provisions conferring powers on his trustees, referred to Victorian rather than NSW legislation is not altogether surprising. (Its draftsman, Mr Patterson, was a Victorian solicitor.) The fact that a similar reference in the will dated 8 March 2014 was qualified in the text of the will may support a characterisation of the reference as an error. However, it was, of itself, no more than a clerical error. It was, moreover, a clerical error that was not picked up by Arnold Bloch Leibler when they provided to the deceased their draft will that became a template for each of the wills respectively dated 8 March 2014 and 17 December 2014. It had no bearing upon substantive provisions of the will appointing executors and trustees or disposing of property. An experienced lawyer, conscious of the nature of provisions conferring powers on trustees, might well pass over their detail in reading such a will or, possibly, regard the will's reference to Victorian legislation as inconsequential, which it was.
Opponents of the deceased's wills dated 8 March 2014 and 17 December 2014 sought to apply to the deceased a standard of editorial perfection beyond the norm. I would place in that category the clerical error of 17 December 2014 that originated with Mr Patterson of Arnold Bloch Leibler in December 2013. Another example of the same type of high standard required of the deceased is a clerical error in a draft letter dated 23 December 2013 nominally addressed by the deceased to the NSW Bar Association (ostensibly drafted by the deceased, but perhaps not) which Mr Wheelahan deposes that he constructively discussed with the deceased on more than one occasion, by telephone, at about that time.
A submission was made that the misspelling of the word "counsel" as "council" in the ninth paragraph on the third page of the draft letter (a document comprising 21 paragraphs on 5 pages) provides a foundation for doubts about the deceased's capacity to make, read and understand a will. I accept that any silk might well be irritated by a reference to "Queen's council", but not that an apparent failure to pick up such an error grounds an inference adverse to the deceased if (as I assume) he passed over it without comment or correction.
In my assessment, cross examination of Ms Jackson as to what was or was not done with the original will dated 17 December 2014 after it was executed provided no foundation for a finding that the deceased lacked capacity to execute the will, did not know and approve its contents or surrendered custody of the original to Ms Jackson. It remained under his control, with photocopies made for the deceased's file and for later distribution by Ms Jackson to her co-executors. Ms Jackson, at that time, provided administrative assistance for the deceased generally. I discern nothing sinister in her handling of the will.
The fact that the deceased was able to discuss, and did discuss, the terms of the will with Mr Hele on the evening of 17 December 2014 provides confirmation (if any be needed) that he did know and approve the will's contents.
I find that the deceased not only had capacity to execute the will but that he knew and approved its contents. It expressed his testamentary intentions, freely and capably formed.

[40]

Validity of the Deceased's Will dated 17 December 2014

It is common ground between the parties to these proceedings that the deceased's will dated 17 December 2014 was duly executed. No challenge has been made to its formal validity.
For reasons here canvassed, I find that the deceased had capacity to execute the will and that he knew and approved its contents.
As has been noted, there is no foundation for impeaching the validity of the will on the grounds of undue influence or fraud.
Viewing the evidence as a whole, and taking into account these matters in particular, I find that the will dated 17 December 2014 was the last will of a free and capable testator. I am comfortably satisfied that it was so.
The deceased's dementia, its progressive nature, his medical susceptibility to influence, the social pressures to which he was subjected between 2010-2014, and the "suspicious circumstances" surrounding execution of the deceased's several wills (including the last one) executed during those years provide a factual matrix that has required close attention before any determination could be made as to the validity of the will dated 17 December 2014.
Having reviewed the evidence in detail, mindful of the onus on a person who propounds a will to prove that it was the last will of a free and capable testator, and mindful also of a need to be satisfied as to the righteousness of a transaction attended by suspicious circumstances, I am comfortably satisfied that the will dated 17 December 2014 is a will (the last will) of a free and capable testator; in short, a valid will.
Subject to allowing the parties an opportunity to make submissions about the identity of the person or persons to whom a grant of representation is to be made, I propose to admit the will dated 17 December 2014 to probate. Prima facie, a grant of probate should be made to the executors named in the will (Jonathon Rofe, Ms Jackson and Mr Horder) unless they have renounced probate and they adhere to their renunciation.

[41]

ALTERNATIVE FINDINGS

The Will dated 8 March 2014. Against the possibility of a successful appeal from orders admitting the will dated 17 December 2014 to probate, I record that, had I not held that will to be valid, I would have held the will dated 8 March 2014 (unqualified by either the first codicil dated 10 July 2014 or the second codicil dated 8 October 2014) to be the deceased's last valid testamentary instrument. I am comfortably satisfied that, as made, it was a valid will. On my findings, it was revoked by the will dated 17 December 2014.
The deceased's execution of the will dated 8 March 2014 was witnessed by Dr Oldtree Clark and his wife. Immediately before the time of execution of the will, Dr Oldtree Clark examined the deceased in order to satisfy himself (as he did) that the deceased had the requisite capacity to make the will. Dr Oldtree Clark's report dated 21 March 2014 records observations to the effect that the deceased showed no signs of a psychotic illness (that is, he suffered no hallucinations, he expressed no delusionary beliefs and his thought systems were normal); he was lucid, coherent and without signs of emotional distress or a depressive process; he was capable in his understanding of the nature and effect of a will; generally he understood the nature and extent of his finances and property, including the fact that Mr Lawler had his power of attorney; he comprehended the claims to which he ought to give effect; and he was reasonable in his intended dispositions.
In his cross examination, Dr Oldtree Clark recalled that the deceased was "a little bit agitated" at the time of execution of the will dated 8 March 2014, but that observation does not detract from the contemporaneous Report dated 21 March 2014.
Dr Oldtree Clark's opinion that the deceased had testamentary capacity at the time he executed the will dated 8 March 2014 is consistent with Dr Reid's report dated 28 January 2014.
The will dated 8 March 2014 was made at a time when, having had the benefit of advice from Arnold Bloch Leibler, the deceased was reflecting on his testamentary intentions. It was also a time when Mr Llewellyn (supported by Mr Illek) was active in attempting to influence the deceased's testamentary arrangements.
The will dated 8 March 2014 superseded a will dated 11 February 2014, in which some innovations appeared. In the earlier will the deceased abandoned the idea of establishing his own charitable foundation; he omitted a modest pecuniary legacy earlier intended for Mr Lawler; Ms Jackson was given the role of an executor, paired with Mr Illek. There were other adjustments.
The will dated 8 March 2014 reflects relatively modest developments from the will dated 11 February 2014, including elevation of Tim Murphy and Ms Jackson to the ranks of the deceased's residuary beneficiaries, and removal of Mr James Rofe from those ranks. Messrs Hele and Llewellyn were both well cared for.
The wills respectively dated 11 February 2014 and 8 March 2014 appear to have been prepared by the deceased with typing assistance provided by Mr Llewellyn. Ms Jackson drove the deceased to his appointment with Dr Oldtree Clark on 8 March 2014, but she appears not to have been present when Dr Oldtree Clark examined the deceased and witnessed his execution of the will that day.
Evidence supportive of a finding that Mr Llewellyn and Mr Illek were actively involved in pressing the deceased in early 2014 to make a will in terms favourable to Mr Llewellyn include contemporaneous diary notes prepared by Mr Hele on 15 and 17 January 2014. On the former date he overheard Mr Llewellyn and Mr Illek demanding that the deceased make further provision for Mr Llewellyn in his will, much to the agitation of the deceased. On the latter date, at the invitation of Mr Llewellyn, the deceased accompanied Mr Llewellyn and Mr Illek to lunch, returning in an agitated state, complaining (in a manner consistent with criticism by Mr Llewellyn) about Ms Ford (the Arnold Bloch Leibler solicitor), Mr Lawler, Ms Coleman and Ms Jackson until such time as Mr Hele calmed him down. Mr Hele's observation is that, when the deceased returned from lunch with Messrs Llewellyn and Illek, he was "obviously drunk".
I accept that, as he perceived himself to be, Mr Illek may have been a moderating influence on Mr Llewellyn; but (he says, at the request of the deceased) he was generally supportive of Mr Llewellyn. In this instance, I accept the veracity of Mr Hele's contemporaneous notes. Mr Illek may well have been a voice of moderation in the heated conversation overheard by Mr Hele, but a heated conversation between the deceased and Mr Llewellyn (including histrionics on the part of Mr Llewellyn) was not in itself unusual.
Mr Llewellyn was not content with the provision made for him in the deceased's will dated 14 August 2013: in substance, a legacy of $100,000, a little more than a 2/10th share of rest and residue, and a forgiveness of debts. He also wanted, at least, to acquire ownership of a residence for himself. That much he acquired (in the form of the Surfers Paradise unit) in the deceased's will dated 11 February 2014 (prepared in draft by Mr Illek at the request of the deceased and typed by Mr Llewellyn), and he improved his position in the will dated 8 March 2014.
Despite the pressure exerted on him by Messrs Llewellyn and Illek, in my assessment, the deceased, when sober and allowed space, was able to form his own view about what to do with his will. In my assessment, this is what he did on 8 March 2014 when he executed a will in the presence of Dr Oldtree Clark and Dr Oldtree Clark's wife. At that time, in what was an ongoing stormy relationship, the deceased continued to support Mr Llewellyn. At the same time (as he had disclosed to Mr Hele on or about 23 February 2014) he wanted to acknowledge his friendship with Ms Jackson by elevating her to the status of a residuary beneficiary. James Rofe was downgraded from the status of a residuary beneficiary to that of a legatee for what the deceased perceived (erroneously, as he later accepted) to be a slight. Other adjustments, less controversial, were made.
The will dated 8 March 2014 was in form rational and responsive to the claims on the bounty of the deceased then, reasonably recognised by him. No rank outsider was included in the will. In the language of Dr Oldtree Clark, the deceased was "reasonable" as to his intended dispositions.
As the original of the will dated 8 March 2014 is presently "lost", if the will were to be admitted to probate a grant would be made in respect of a copy of the will, limited till such time as the original may be found and made the subject of a grant. Although there is some suggestion (in the evidence of Ms Jackson and Mr Illek) that the deceased may have destroyed the original, I am comfortably satisfied that that did not occur. When called upon to state a position, no party made a contrary submission.
Mr Illek's evidence referred to a practice on the part of the deceased associated with the destruction of wills generally but, in my assessment, no such practice has been established. Ms Jackson's evidence suggested that the will dated 8 March 2014, specifically, had been torn up by the deceased but, on examination of that evidence, what appears to have been torn up was not the will itself, but a draft. The deceased's habit of constant revision of draft wills might reasonably have left an observer with an impression that he from time to time revoked a will by destruction; but I am satisfied that the will dated 8 March 2014 did not meet that fate. The deceased's acknowledged, routine maintenance of a folder in which he generally kept wills points in an opposite direction. After the deceased's death two photocopies of the will dated 8 March 2014 were found in his folder, unmarked by any suggestion that the will had been revoked by destruction of the original.
The First Codicil (dated 10 July 2014). I am comfortably satisfied that the "first codicil" (dated 10 July 2014) to the will dated 8 March 2014 is not a valid expression of the deceased's testamentary intentions. It was prepared, and executed, at a time when the deceased was in a state of high anxiety and confusion, instigated by Mr Llewellyn, associated with Mr Lawler's purchase of the Wombarra property and the deceased's purported revocation of Mr Lawler's appointment as an enduring attorney.
I find that the codicil is not a valid expression of the deceased's testamentary intentions. That is because (conscious of the seriousness of these findings and the Briginshaw standard of proof embodied in section 140 of the Evidence Act 1995 NSW): 1. I am not satisfied that the deceased had testamentary capacity throughout the time he purportedly gave instructions for the codicil, and executed it, notwithstanding Mr Fitzpatrick's opinion to the contrary; and 2. I am not satisfied that the deceased knew and approved the contents of the codicil, presented to him without any meaningful review of the terms of the will dated 8 March 2014 which was putatively the subject of amendment; but 3. I am affirmatively satisfied that the codicil is Mr Llewellyn's document, not a true expression of the deceased's testamentary intentions.
Although the codicil was drafted by Mr Fitzpatrick and settled by Mr Smark, and although its execution was witnessed by Mr Fitzpatrick and his wife, Mr Fitzpatrick's instructions appear to have been materially influenced by Mr Llewellyn as an active adversary of Mr Lawler. Mr Llewellyn was in close proximity when Mr Fitzpatrick, in person or via email, took instructions from the deceased. Mr Llewellyn maintained social pressure on the deceased between 27 June 2014 and 10 July 2014 (inclusive) to disengage from Mr Lawler and Ms Jackson and, as he viewed the codicil, to punish Mr Lawler for standing between himself and the deceased, limiting the nature and extent of his access to the deceased's wealth. When attending to the deceased's execution of the codicil, Mr Fitzpatrick did not lead the deceased through the will dated 8 March 2014, which was the subject of amendment. The brevity of the codicil, read without reference to the will, appears to have hidden from Mr Fitzpatrick the extent of the need to assess the deceased's capacity in a context broader than the bare terms of the codicil. Only recently instructed to act for the deceased, and presented with instructions through the prism of Mr Llewellyn, Mr Fitzpatrick was not fully alert to complexities that cast doubt upon the validity of the codicil.
In contemporaneous negotiations relating to the NCAT proceedings then current, the stridency of Mr Lawler and Ms Coleman in their criticism of the validity of the codicil and what they perceived to be Mr Llewellyn's malign influence on the deceased appears to have driven Mr Fitzpatrick, with the best of intentions but unwittingly, into the camp of Mr Llewellyn. Mr Llewellyn, for his part, appears to have been unable to moderate his financial claims on the deceased. He was driven by a sense of entitlement to believe that the deceased was obliged to provide him with ownership of a residence and income sufficient to fund an extravagant lifestyle.
Accepting that Mr Llewellyn's own mental health concerns may have skewed his judgement, the fact remains that his intervention in the affairs of the deceased, at a time when the deceased needed tranquillity, caused in the deceased deep anxiety and confusion from which he could escape only if allowed space to do so. Mr Smark, counsel retained by Mr Fitzpatrick, had grave reservations about the deceased's general mental capacity at about this time, which reservations cast doubt on the deceased's testamentary capacity.
Reservations about the deceased's testamentary capacity at the time he executed the codicil dated 10 July 2014 are not diminished by evidence of a recorded conversation, on 15 July 2014, shortly after execution of the codicil, between the deceased, Mr Lawler, Ms Coleman and Mr Hele. Some days after 10 July 2014 Mr Hele found a copy of the codicil on the deceased's desk and provided a copy to Mr Lawler, who initiated the conversation of 15 July 2014. In his final submissions, senior counsel for Mr Illek suggested that the conversation occurred on 10 July 2014. It was certainly close in time to the date of execution of the codicil, but the likelihood is that it took place on 15 July 2014, as deposed to by Mr Lawler and allowing for Mr Hele's arrival on the scene as the deceased's full-time companion and carer on 11 July 2014.
The principal purpose of the conversation, from the perspective of all participants other than perhaps the deceased, appears to have been to engineer a settlement about arrangements for protective management of the deceased's affairs. In the course of the conversation Mr Lawler offered to relinquish any role in management of the estate and canvassed alternative candidates for the role of a financial manager. In a manner perhaps reflective of his illness, the deceased reacted negatively to a number of proposals put to him. Mr Lawler also confronted him about the role of Messrs Llewellyn and Illek in the conduct of his affairs including retention of Messrs Fitzpatrick and Smark, about which he was vague. The conversation ranged far and wide, with an element of reminiscence included.
At the beginning of the conversation Mr Lawler confronted the deceased with a proposition that the codicil executed on 10 July 2014 had been executed to spite him. The following exchange occurred: "Mr Lawler: We have to settle this case, David. Mr Rofe: I know. But I am doing it for your sake, for Nick's sake and … Mr Lawler: Somebody said that you wrote a codicil cutting Kathy out of your Will to spite me. You know it doesn't spite me. Mr Rofe: Well, first of all … Mr Lawler: I have no interest in money. Mr Rofe: … You know what you should - learn to [unintelligible] who says that? Mr Lawler: Is it untrue? Mr Rofe: It's not true. Mr Lawler: Is it not true? Mr Rofe: I don't want to go round and make peace with everybody … Mr Lawler: So is that a lie, David you didn't sign such a codicil? Mr Rofe: I don't tell lies. Mr Lawler: Well, did you sign a codicil cutting her out or didn't you? You didn't - sorry, you've told me you didn't and you never tell lies. I'm sorry. Mr Rofe: No. What's happened to Nick? Ms Coleman: Nick might think that then. Mr Hele: And you think it's true? Mr Rofe: Because he sleeps at Ruth's feet. Mr Lawler: No, he's up helping Ruth with some of your work. Mr Rofe: No doubt he is. Mr Lawler: No, let's talk about settling. Mr Rofe: Well, I think … Mr Lawler: You know I wrote … I must bring you all the emails I've written to you because I tried to stop this happening; I wrote really … Mr Rofe: No you didn't. Mr Lawler: … personal emails to you … Mr Rofe: Well, I've never got them. Mr Lawler: … I rang you and I spoke to you. I recorded it - I've got the recordings - trying to stop this from happening and make it not happen thank you very much. Mr Rofe: Well, I didn't get them. I don't know and it's not that - I don't blame you because I think - I'm convinced something is not right with that bloody machine [a computer] I bought I'm saying."
Care needs to be taken not to place too much emphasis on this exchange or the conversation of which it formed part. Mr Lawler's opening gambit was confrontational in style. The deceased's denial of execution of the codicil might have been a reflex, defensive reaction. As the conversation occurred late in the day, it might also be that the deceased's sharpness of mind was blunted by fatigue. That said, he did actively participate in what was an ongoing conversation in a manner consistent with the proposition that the engagement of Messrs Fitzpatrick and Smark, and disputation about arrangements for management of his affairs, were largely a product of Mr Llewellyn's activities.
The deceased himself expressed reservations about the codicil when, independently of any party, he disclaimed Ms Jackson's removal as executor in conversation with Dr Chalkley on 14 August 2014. Too much cannot be made of the second codicil (dated 8 October 2014), given its deficiencies, but it too involved a disclaimer of the first codicil (dated 10 July 2014), as implicitly did the will dated 17 December 2014.
Mr Llewellyn's active involvement in causing Mr Fitzpatrick and Mr Smark to be retained to act for the deceased in contentious proceedings that caused confusion to the deceased, and in promoting the preparation and execution of the codicil as a means of striking at Mr Lawler, provide "suspicious circumstances" sufficient to cast doubt on the deceased's knowledge and approval, which doubt those who propound the codicil have not displaced.
If it be the case that the deceased did "know and approve" the contents of the codicil, his judgement in executing the will was, in my opinion, overborne by Mr Llewellyn's intervention in creating a state of confusion in the deceased's mind about the bona fides of Mr Lawler in the purchase of the Wombarra property, inducing the deceased to strike at Mr Lawler by diminishing Ms Jackson's participation in his testamentary affairs. This occurred at a time when there had been no falling out between the deceased and Ms Jackson personally. She appears to have done nothing on or about 10 July 2014 to warrant the deceased's substantial disavowal of her in his codicil. If she had done something to warrant disavowal, he appears to have offered no explanation for a decision nevertheless to retain her as a beneficiary with the prospect of a $50,000 legacy rather than simply to omit her entirely. The terms of the codicil are consistent with a desire on the part of Mr Llewellyn to strike at Ms Jackson as a means of punishing Mr Lawler for having stood between the deceased and himself. They do not sit comfortably with the deceased's friendship with Ms Jackson.
An email dated 3 July 2014 ostensibly sent by the deceased to Mr Fitzpatrick, as a means of providing instructions for preparation of the codicil, suggests that Mr Lawler had "inserted" Ms Jackson in his will dated 8 March 2014 as a means of "controlling" him "further." That assertion does not sit comfortably with the fact that Ms Jackson was first named as an executor, with Mr Illek, in the will dated 11 February 2014 which, on Mr Illek's evidence, was largely prepared by him on instructions given by the deceased personally. Given the deceased's general disinclination, if not inability, to type any form of document, the probability is that, although the deceased was in formal terms the author of the email dated 3 July 2014, it reflected the thinking of Mr Llewellyn.
Mr Llewellyn prided himself on "knowing what buttons to push" to get what he wanted from the deceased. He had a long history of demanding that the deceased make more and more provision for him. One example of this is the tantrum he threw on 15 January 2014 demanding that the deceased make further provision for him in his will. Another is his demand, in June 2014, that the Surfers Paradise home unit that the deceased was then involved in buying for him should be secured in his own name before the death of the deceased. He lobbied the deceased, against Mr Lawler, to have the deceased, purportedly, revoke Mr Lawler's power of attorney. He was instrumental in instructing Messrs Fitzpatrick and Smark. He was a hovering presence on 10 July 2014, when the deceased executed the first codicil. As his email of that date to Mr Fitzpatrick confirms, he sought then to shield the deceased from contact with others that evening.
By his involvement of lawyers to act for the deceased at this time, Mr Llewellyn acted with more subtlety than he did on earlier occasions in pressing his claims on the deceased. However, on this occasion, independently of the lawyers on retainer, he went too far in pressing his claims on the deceased. He procured the deceased's execution of the codicil by an exercise of undue influence. His domination of the deceased, at a time when the deceased was trapped in a fog of confusion caused by him, was not neutralised by his arrangement that instructions, ostensibly of the deceased, be given to lawyers unfamiliar with the many layered complexity of the deceased's personal relationships. The nexus between his domination of the deceased at that time and execution of the codicil was not broken by the formal retention, or the well-intentioned but not fully informed conduct, of those lawyers.
I am satisfied that the deceased gave instructions for, and executed, the codicil in a state of confusion, without fully appreciating the implications of what he was doing, in a misguided hope of finding peace of mind from Mr Llewellyn's constant agitation. The terms of the codicil rather express the intention of Mr Llewellyn that Ms Jackson be removed from the office of executor, diminished as a prospective beneficiary and marginalised, rather than any intention on the part of the deceased. That the codicil was not a true expression of the deceased's testamentary intentions is confirmed by his ongoing friendship with Ms Jackson and his implicit disavowal of the codicil when he was examined by Dr Chalkley on 14 August 2014; if not also in the terms of the second codicil (dated 8 October 2014) and in the terms of the will dated 17 December 2014.
The Second Codicil (dated 8 October 2014). Enough has been said of the second codicil (dated 8 October 2014) to explain a finding that it was not a valid testamentary instrument. Mr Lawler, who reluctantly drafted it under pressure from the deceased, disclaims it. Its clerical errors suggest a want of knowledge and approval on the part of the deceased, even if he had testamentary capacity at the time of its preparation and execution. Understandably, no party to these proceedings is prepared to propound it.
The Will dated 11 February 2014. If (contrary to my finding) the deceased's will dated 8 March 2014 was, as made, invalid, then a question arises as to the validity of the will dated 11 February 2014.
Doubt might be cast on the validity of that will by the active involvement of Messrs Llewellyn and Illek in its preparation, and by inclusion in its text of an introductory "commentary" which expressly disclaims Philip Rofe as a beneficiary. The fact of such a disclaimer in respect of a person unlikely to be eligible to make an application for family provision relief presents as an oddity. In any event, it is not entirely factually correct. It recites that Philip Rofe "has not been a beneficiary under any earlier Will which I have made". True it is that no provision had been made for Phillip after the deceased's will dated 10 August 2012 (and he had only a right to purchase the Sid Long painting in the wills dated 17 November 2011 and 10 August 2012) but he had been named as a residuary beneficiary in each of the wills dated 28 March 2006 and 18 February 2010.
The involvement of Messrs Llewellyn and Illek in preparation of the will is, of itself, sufficient to enliven concerns about whether the deceased (if he had testamentary capacity) knew and approved the contents of the will when he executed it. By its terms, Mr Llewellyn was first given the Surfers Paradise unit to which he moved in February 2015. Mr Illek continued to be an executor. Both men had implored the deceased in mid-January 2014 to make further testamentary provision for Mr Llewellyn. Although the deceased (and one imagines, Mr Llewellyn) had a copy of the draft will prepared by Arnold Bloch Leibler when the will dated 11 February 2014 was executed, the will dated 11 February 2014 did not (as did the wills dated 8 March 2014 and 17 December 2014) follow the Arnold Bloch Leibler template. This highlights the involvement of Messrs Llewellyn and Illek in the preparation of a will which appears to have increased the benefits of Mr Llewellyn.
Against that, the will dated 11 February 2014 named Ms Jackson (for the first time) as a co-executor, with Mr Illek. It also increased the provision made for Mr Hele and maintained Ms Jackson's $60,000 legacy, as well as making other adjustments. Mr James Rofe remained a pecuniary legatee and a residuary beneficiary, consistent with earlier wills; it was not until the will dated 8 March 2014 that he (until 17 December 2014) was removed as a residuary beneficiary.
Given: (a) the proximity of the dates of execution of the wills dated 11 February 2014 and 8 March 2014; (b) the urgent felt need of the deceased to revise his will dated 14 August 2013, as expressed to Arnold Bloch Leibler; (c) the provision to the deceased by Arnold Bloch Leibler of a draft will expressly characterised as an interim will, pending further instructions; (d) the ongoing consideration being given by the deceased to his testamentary arrangements; and (e) what appears to have been the deceased's disenchantment with Arnold Bloch Leibler when they declined in early 2014 to act for him in a different matter, a fair inference is that the deceased executed the will dated 11 February 2014 intending to execute another will when he had adapted the Arnold Bloch Leibler draft to his liking and made arrangements to execute the new will before a medical professional, as he did when he executed the will dated 8 March 2014 in the presence of Dr Oldtree Clark.
The operative provisions of the will dated 11 February 2014 (that is to say, ignoring the disclaimer of Philip Rofe in an introductory "commentary") appear to be regular. The deceased's execution of the will, in due form, was witnessed by two solicitors: Jeffrey Choy and Malcolm Nelson Johns. Mr Choy swore an affidavit of attesting witness in these proceedings, on which he was not cross examined.
Dr Reid was cross examined about his assessment of the deceased's capacity to execute the will dated 11 February 2014, bearing in mind that his most recent examination of the deceased was on 18 December 2013. That cross examination focused, for a time, on the specific question whether, having regard to the deceased's vascular dementia, he was likely to have testamentary capacity on 11 February 2014. Dr Reid's opinion was that, in the absence of some supervening factor (such as an infection causing delirium) the likelihood is that the deceased would have had capacity, having regard particularly to his "cognitive reserve" arising from familiarity with legal documents over many years.
In my assessment, the will dated 11 February 2014 was valid as made. It was regular in form, duly executed and responsive to the deceased's established social norms. On the evidence of Dr Reid, I accept that the deceased had testamentary capacity. From the form of the will, its due execution and the fact that its execution was witnessed by two independent solicitors, I infer that the deceased knew and approved its terms. In circumstances in which the terms of the will were consistent with the deceased's personal and family relationships at the time, and provision was made for both Mr Hele and Ms Jackson (amongst others) as well as for Mr Llewellyn, there is no foundation for a finding that the deceased's execution of the will was procured by undue influence on the part of Mr Llewellyn.
In my assessment, the will dated 11 February 2014 was, when made, the will of a free and capable testator. It duly expressed the deceased's testamentary intentions at that time.
More Remote Possibilities. I am comfortably satisfied that the deceased left as his last will the will dated 17 December 2014; alternatively, the will dated 8 March 2014; or alternatively, the will dated 11 February 2014. It is not necessary to venture further back than the will dated 11 February 2014. I reserve further consideration of earlier wills if need be.
Given the nature of the deceased's dementia as explained by Associate Professor Rosenfeld and Dr Reid, findings as to the validity or otherwise of earlier wills could not, without more, reflect on the validity or otherwise of the 2014 wills. The blanket submission of Mr Philip Rofe that the deceased lacked capacity to make any will after 2010 does not accord with reality or, for example, the express opinions of Dr Reid and Dr Oldtree Clark.

[44]

IDENTIFICATION OF THE DECEASED'S LEGAL PERSONAL REPRESENTATIVE(S)

The parties who propounded the Will dated 17 December 2014 (the third to eighth and 10th defendants, members of the Rofe family and Gregg Hele, with whom Katherine Jackson might be thought to have been aligned) invite the Court to make orders for probate of the Will to be granted to Jonathan Rofe (the 10th defendant), Ms Jackson (whose trustee in bankruptcy is the 13th defendant) and Robert Horder (the serving interim administrator of the deceased's estate), collectively the executors and trustees named in the Will.
Although, upon admission of the Will dated 17 December2014 to probate, Nick Illek (the plaintiff) has no standing to be heard as to the identity of the person, or persons, to be given a grant of representation, he supports the submission of Mr Llewellyn that, by reason of her recent criminal conviction for dishonesty, Ms Jackson is not a fit and proper person to be entrusted with the office of a co-executor of the deceased's estate.
Mr Illek's written submissions pass over, without comment, the deceased's nomination of Mr Jonathan Rofe as a co-executor. They invite the Court to limit its grant to one in favour of Mr Horder alone. Mr Llewellyn submits that the Court should make a grant in favour of Messrs Jonathan Rofe and Horder. In oral submissions, Mr Illek's counsel adapted his submissions to withdraw any suggestion of opposition to Mr Rofe.
Mr Philip Rofe (the second defendant), a party who (on the Court's findings) is without any beneficial interest in the deceased's estate, does not oppose a grant of representation to Mr Jonathan Rofe, Ms Jackson and Mr Horder.
In my opinion, the submissions of Messrs Illek and Llewellyn reflect a partisan opposition to Ms Jackson (seen by Mr Llewellyn, in particular, as an opponent) rather than an objective assessment of the case.
The deceased's choice of executors and trustees should be respected unless there is a strong reason for not doing so. Ms Jackson has the support of members of the Rofe family, and Mr Hele, who together have a greater beneficial entitlement to the deceased's estate than any other combination of beneficiaries. Having been discharged from her bankruptcy, she has no legal impediment to her occupation of the office of executor. Her criminal conviction is not, of itself, an impediment to her performance of executorial duties. She is at liberty and able to attend to estate business. One does not have to be a saint to serve as an executor. She has not been shown to have been dishonest in her dealings with the deceased, a man who was acutely aware of her controversial reputation. To decline to appoint her as a co-executor with Mr Philip Rofe and Mr Horder would be, in effect, to re-write the deceased's Will in a material respect. This, I refuse to do. There is no ground upon which the Court can reasonably pass over the deceased's chosen executors or interfere with his choice of executors by anticipation of problems in management of his estate.

[45]

COSTS ORDERS

Subject to rules of court, an award of costs is in the discretion of the Court: Civil Procedure Act 2005 NSW, section 98(1)(a).
Rule 42.1 of the Uniform Civil Procedure Rules 2005 NSW provides generally that, if the Court makes any order as to costs, it should order that "costs follow the event" unless it appears to the Court that some other order should be made as to the whole or any part of the costs.
It is commonly said, by reference to Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709, that in probate litigation recognition is given to two exceptions to the general principle that costs follow the event: 1. First, where a testator has, or those interested in the residue of an estate have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; and 2. Secondly, if the circumstances of the case led reasonably to investigation of the document propounded as a will, the costs may be left to be borne by those who respectively incurred them.
As demonstrated by White J in Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562 this summary of probate "exceptions" has its genesis in Mitchell v Gard (1863) 3 Sw&Tr 275 at 277; 164 ER 1280 at 1281, a decision which highlighted competing considerations of public policy which continue to call for attention. On the one hand, it is important that doubtful wills should not pass easily into proof by reason of the cost of opposing them. On the other hand, it is equally important that parties not be tempted into fruitless litigation by knowledge that their costs will be defrayed by others.
For present purposes, it is sufficient to extract paragraphs [4] - [5] of his Honour's judgment: "[4] It is well established that the principles applicable to the awarding of costs in probate litigation differ from those applicable to ordinary civil suits where the principle that costs follow the event usually means that the losing party pays the winning party's costs. [5] The reason for the difference is that in a probate suit the court is concerned to give effect to the last will of a free and capable testator or testatrix. There is a public interest in keeping faith with the wishes of a capable will-maker that requires an investigation into the validity of the propounded wills. A grant of probate in solemn form operates in rem, that is, it binds the world, or at least those affected persons who have notice of the proceedings. Irrespective of what the parties might want, the court will not pronounce against a will unless there is material to satisfy it that the deceased did not have capacity, or that there is some other reason why the will is invalid. A grant is not made or withheld solely by the consent of the parties. There is, therefore, a public interest in the incurring of some level of costs in cases where there is genuine doubt about the validity of a will."
His Honour's treatment of the topic included reference to the following observations by Giles JA and Brownie AJA in Perpetual Trustee Co. Ltd v Baker [1999] NSWCA 244 at [14]: "[14] The two [probate] exceptions tend to overlap. As was said by Santow J in In the estate of Moyle: Moyle v Moyle (18 June 1988, unreported), if a testator is by his mental frailty and other circumstances in a position where the circumstances reasonably call for investigation of the validity of the will "in one sense the testator, though usually with no sense of blameworthy fault, has by his or her conduct caused the litigation to occur". A party reasonably but unsuccessfully propounding or challenging the will, and so bringing about the necessary investigation, should no more have to bear his own costs than pay the costs of the other party. So it has been said that where the conduct and habits and mode of life of a testator have given ground for questioning his testamentary capacity the costs of the unsuccessful party should be paid out of the estate, as distinct from being left to be borne by that party (Davies v Gregory (1873) 3 P & D 28; Roe v Nix (1893) P 55; In the will of Millar (1908) VLR 682), and the costs of both sides in testamentary capacity cases have often been allowed out of the estate (In the will of Severs (1887) 13 VLR 572; Phillips v Dundas (Smith J, VSC 4 December 1995, unreported); Redroff v Miegoch (Santow J, NSWSC, 22 April 1996, unreported); re Ryan: Williams v Ryan (1998) VSC, 109; In the will of Ryan: Williams v Ryan (Byrne J, VSC, 23 October 1998, unreported); cf Middlebrook v Middlebrook (1963) 26 ALJR 216 where Dixon CJ and McTiernan, Taylor and Owen JJ ordered that the parties bear their own costs but Menzies J would have ordered that the costs be paid out of the estate)."
Ultimately the Court's costs orders must be adapted to the justice of the particular case, recognising that the two probate "exceptions" are not to be applied with mechanical rigidity, may overlap and may not operate fairly in a particular case. Together, they represent a guiding principle informing an exercise of the Court's discretion (Yazbek v Yazbek (No. 2) [2012] NSWSC 783 at [33]), not an absolute rule. A distinguishing feature of the present proceedings that highlights a need for flexibility in the administration of justice is the number of wills and codicils executed by the deceased during a prolonged period throughout which he manifested cognitive impairment, evolving testamentary intentions and unsettled, complex social relationships. This is a case of multiple competing testamentary instruments, not a case of a single contested will with clear adversarial lines.
In my opinion, the justice of the present case resonates most forcefully with the observations of the Court of Appeal in Perpetual Trustee Company Ltd v Baker: the "conduct and habits and mode of life" of the deceased gave "ground for questioning his testamentary capacity" in respect of the several wills and codicils executed by him in the period between 2010 - 2014. In those "dementia years" the deceased, for the most part, insisted upon acting as his own lawyer, engaged a range of people as assistants in his preparation and execution of testamentary instruments, fuelled speculation about his testamentary intentions and, wittingly or otherwise, invited controversy about disposition of his wealth. He was, in a sense, both the cause of the litigation and the reason why an extended investigation of his testamentary arrangements was necessary. In my opinion, on one basis or another, all parties should have their costs of the proceedings paid out of the deceased's estate.
In making this determination, I am conscious that each party's conduct of the proceedings is open to criticism. Collectively, all parties focussed too much attention on an exploration of the deceased's social relationships at the expense of a more focussed attention on his expression of testamentary intentions. This may have been a function of the role played by Mr Llewellyn in the deceased's life and the reactions of others to his interaction with the deceased.
Mr Illek might be said to have stepped outside his self-proclaimed role of a non-partisan "trustee" in his over-zealous opposition to the validity of the will dated 17 December 2014, his promotion of the first codicil (dated 10 July 2014) and his support for Mr Llewellyn vis-a-vis Mr Hele, Ms Jackson and the members of the Rofe family with whom they might be thought to have been aligned.
Mr Philip Rofe might be criticised for his blanket, undiscriminating allegations of testamentary incapacity, a want of knowledge and approval and undue influence in circumstances in which, to ground any interest in the deceased's estate, he had to persuade the Court to attribute invalidity to more than a few testamentary instruments and to discount medical evidence supporting findings of capacity.
The members of the Rofe family aligned with Mr Hele and Ms Jackson might be criticised because the joinder of so many of them as active parties in the proceedings was unnecessary for the purpose simply of propounding the Will dated 17 December 2014.
Mr Llewellyn might be criticised for his active participation in the proceedings for the principal purpose, he submits, of protecting his reputation from unwarranted criticism, only belatedly acknowledging a personal interest in opposition to the Will dated 17 December 2014 as compared with earlier testamentary instruments which afforded him a forgiveness of debts.
Despite reservations arising from a critical assessment of each party's forensic conduct, in my opinion the justice of the case requires that all costs be paid out of the estate of the deceased, recognising five categories of parties.
In the first category, Mr Illek and those who successively propounded the Will dated 17 December 2014 should have their costs assessed on the indemnity basis.
In the case of Mr Illek, that is because, at the invitation of the Court, his lawyers played a central administrative role in assembling court books, and attending to logistics and the like, necessary for the orderly conduct of complex proceedings and, despite my criticism of him as perhaps overreaching his role and aligning himself too closely with Mr Llewellyn, he did serve as a contradictor, drawing attention to matters of controversy which might otherwise have been overlooked.
In the case of those who successfully propounded the deceased's Will dated 17 December 2014, they should have indemnity costs because they have been found to have upheld the testamentary intentions of the deceased, and their joinder of several interested persons in that endeavour did not materially affect the scope of the evidence adduced or the conduct of the proceedings.
In the second category, Mr Philip Rofe and Mr Llewellyn should have their costs out of the estate assessed on the ordinary basis. They have not been vindicated in their contentions about the deceased's final testamentary intentions but, on balance, neither can they be said to have acted unreasonably in their conduct of the proceedings.
Although it availed him of no personal advantage, Mr Philip Rofe was instrumental in establishing the invalidity of the first codicil, a significant feature of the case in understanding the course of the deceased's will-making activities in the critical year, 2014. An understanding of what happened in 2014 required an understanding of what happened earlier, a contextual imperative.
Having been effectively excluded from the deceased's regular company in the second half of 2014, and having been the subject of sharp criticism by all parties to the proceedings save possibly Mr Illek, Mr Llewellyn was justified in exploring doubts about the validity of the Will dated 17 December 2014, and his lawyers' conduct of the proceedings was reasonably adapted to a determination of the real questions in dispute in the proceedings.
The third category of costs orders relates, with one exception, to those parties who filed a submitting appearance in the proceedings. Nobert Lipton (the ninth defendant, an executor named in earlier wills of the deceased), Elaine Clark (the 12th defendant, a beneficiary of the deceased) and Paul Leroy as trustee of the bankrupt estate of Ms Jackson (the third defendant) should receive recognition for such costs as they may have incurred in arranging their submitting appearance.
The one exception, a stand alone fourth category, is Mr Hull, (the first defendant) who, by filing a submitting appearance shortly before the final hearing of the proceedings, stepped back from the presentation of the case formerly advanced by him in common with Mr Philip Rofe, confining his role to that of a witness. In my opinion, his costs should be treated in substantially the same way as those of Mr Philip Rofe, allowing him the benefit of an order for assessment of his costs on the ordinary basis, not merely on the basis of a submitting appearance.
In the fifth category, a confirmatory costs order should be made in favour of Mr Horder in his capacity as interim administrator of the deceased's estate. In addition to his appearance in the proceedings as a witness, Mr Horder appeared before the Court by counsel (Mr CP Birtles) on 16 September 2020 to assist the Court in dealing with a question of legal professional privilege vis-à-vis documents produced on subpoena by Arnold Bloch Leibler. The costs of that appearance comprise an expense incurred by Mr Horder in administration of the deceased's estate. He is entitled to be indemnified for them from the deceased's estate. This should be confirmed by an express order against a risk of unwarranted controversy.
I do not accept Mr Llewellyn's submission that the burden of his costs should be borne (by means of a Bullock Order or a Sanderson Order) by Mr Philip Rofe. This, I apprehend, is another example of Mr Llewellyn's partisan opposition to a perceived enemy, rather than an objective assessment of the case. Mr Llewellyn lacks insight into his role in disrupting the affairs of the deceased and affecting the course of the deceased's will-making activities in the critical year culminating in execution of the Will dated 17 December 2014. Mr Rofe's participation in the proceedings facilitated a finding that the deceased's first codicil was invalid. Had the Will dated 17 December 2014 not been admitted to probate, the invalidity of the first codicil would have opened the way for admission of the Will dated 8 March 2014 to probate, unqualified by subsequent events.

[47]

THE COURT'S ORDERS

Having allowed the parties an opportunity to be heard as to the form of the orders to be made, and costs, I make the following orders to give effect to the reasons for judgment published as Estate Rofe [2021] NSWSC 257: 1. ORDER that the Will dated 17 December 2014 ("the Will") of David Fulton Rofe ("the deceased"), who died on 21 July 2017, be admitted to probate in solemn form. 2. NOTE that Jonathan Rofe, Katherine Jackson and Robert Horder, the exectors and trustees named in the Will ("the Executors"), inform the Court, by TJ Morahan of counsel, that they consent to a grant of probate of the Will in their favour and that they are ready, willing and able to perform the duties of the office of a legal personal representative of the deceased according to law. 3. ORDER that probate of the Will be granted to the Executors. 4. ORDER that the proceedings be referred to the Probate Registrar to complete the grant in accordance with the Probate Rules. 5. ORDER, subject to further order, that the appointment of Robert Horder as interim administrator of the estate of the deceased on 20 November 2017 (in the proceedings numbered 2017/00302064) continue in force until such time as the grant of probate in favour of the Executors issues to them. 6. ORDER that the costs of the plaintiff and the third, fourth, fifth, sixth, seventh, eighth and 10th defendants be paid out of the estate of the deceased on the indemnity basis. 7. ORDER that the costs of the first, second and 11th defendants be paid out of the estate of the deceased on the ordinary basis. 8. ORDER that the costs of the ninth, 12th and 13th defendants be paid out of the estate of the deceased on the basis of a submitting appearance. 9. ORDER that the costs of Robert Horder incurred in these proceedings as administrator of the estate of the deceased be paid out of the estate on the indemnity basis. 10. RESERVE for further consideration, in these or other proceedings, the question whether the 11th defendant has any (and, if so, what) liability to the estate of the deceased in debt. 11. ORDER that the proceedings be listed before Lindsay J on 30 July 2021 at 9.00am for such, if any, orders or directions as may be necessary or convenient for disposition of that question. 12. RESERVE to all interested persons liberty to apply for further or consequential orders in the working out of these orders. 13. ORDER that these orders be entered forthwith.

Parties

Applicant/Plaintiff:

Bailey

Respondent/Defendant:

Bailey

Legislation Cited (2)

Administration and Probate Act 1958(Vic)

Bankruptcy Act 1966(Cth)

Cases Cited (43)

23 NSWLR 116 Wingrove v Wingrove (1885) 11 PD 81 Yazbek v Yazbek (No. 2) [2012] NSWSC 783 Texts Cited: EV Williams, A Treatise on the Law of Executors and Administrators - Volume 1 (1832 & 1841 editions) Godolphin, The Orphan's Legacy, a testamentary abridgment, in Three parts. I. Of last wills and testaments. II. Of executors and administrators. III Of legacies and devises (first edition, 1673; fourth edition, 1701) MS Willmott and CP Birtles, "Testamentary Dispositions - Wills and Codicils" (2016) 43 Australian Bar Review 62 Category: Principal judgment Parties: Plaintiff: Ralph Nicklin Illek First Defendant: Brendan Hull Second Defendant: Philip Rofe Third Defendant: Gregg Hele Fourth Defendant: James Rofe Fifth Defendant: Anne Stone Sixth Defendant: Susan Erkinnen Seventh Defendant: David Stone Eighth Defendant: Scott Taylor Ninth Defendant: Nobert Lipton Tenth Defendant: Jonathan Rofe Eleventh Defendant: Nicholas Llewellyn Twelfth Defendant: Elaine Clark by her Tutor Elizabeth Foster Thirteenth Defendant: Paul Leroy as Trustee in the Bankrupt Estate of Katherine Jackson Representation: Counsel: Plaintiff: RD Wilson SC and S Chapple First Defendant: Submitting Appearance Second Defendant: L Ellison SC and MJ Heath Third to Eighth Defendants: TJ Morahan Ninth Defendant: Submitting Appearance Tenth Defendant: TJ Morahan Eleventh Defendant: N Confos Twelfth Defendant: Submitting Appearance Thirteenth Defendant: Submitting Appearance

[2021] WASC 77

[2004] VSCA 235

[2006] QCA 494

(1924) 34 CLR 558

(1998) 194 CLR 457

(2018) 97 NSWLR 328

(2019) 100 NSWLR 505

(1918) 25 CLR 519

(1993) 32 NSWLR 377

(1988) 14 NSWLR 698

(1995) 217 CLR 284

(1941) 66 CLR 277