Brokenshire v Equity Trustees Executors & Agency Company Ltd [1998] VSC 183

5. On 31 July 1996, a caveat was lodged on behalf of Alan Reginald Worts ("the caveator"). Subsequently, the caveator identified two grounds upon which he sought to oppose the grant of probate of the 1990 will:

11. By an earlier will dated 14 September 1987, the testatrix appointed her nephew Alan Reginald Worts (the caveator) as executor and trustee of her will. She gave a cutlery cabinet and its contents to her sister, Irene Mavis Worts. She gave a legacy of $50 to two of her nephews, the caveator and his brother Robert Sydney Worts. They were the children of her sister Irene Mavis Worts. Finally, she devised the rest of her estate to her brother, Alan Stuart Manley, and further provided that if he should predecease her the balance of the estate was to be paid and transferred to her nephews, the caveator and Robert Sydney Worts, in equal shares if both living at her death.

14. In the challenged will of 16 March 1990, she repeated the dispositions to her sister and brother. She changed the residuary gift, however, so that, in the event that her brother predeceased her, her estate, other than the cutlery cabinet and contents, would go to the Eaglehawk Uniting Church not to her nephews. She also did not maintain the two legacies of $50 to her nephews. Finally, the 1990 will differed in that the executors named were her brother, Alan Stuart Manley, and the plaintiff, not her nephew, the caveator.

18. At her death, the assets held by the testatrix comprised the sum of $30,805.69 held in two accounts with the Commonwealth Bank of Australia and furniture and household effects valued at $950. She also owned her home at 17 Barloa Road, Mont Albert valued for the executor at $200,000. She had no liabilities. The house property was acquired during her marriage.

22. There were no children of her marriage to Mr Brokenshire. At the time she made her 1990 will, her only immediate living relatives were her brother, the principal beneficiary and executor named in the 1990 will, and her sister, Irene. She was five years older than her sister and ten years older than her brother. Her brother lived with her at 17 Barloa Road and had done so for approximately 30 years, joining her after her husband died on 5 February 1962. Her sister lived in Colac. Both ultimately predeceased her. At the time of her death, her surviving relatives were the nephews who were the sons of her sister, Irene, and nephews who were the sons of her late husband's relatives and the respective children of the nephews.

26. It was common ground that the law requires that the Testatrix had sufficient mental capacity at the relevant time:

1. to comprehend the nature of what she was doing and its effects;

2. to comprehend the extent and character of the property with which she was dealing;

3. to comprehend and weigh the claims to which she ought to give effect

It is also relevant to consider whether there was a disorder of the mind which may have poisoned the "affections" of the testatrix, perverted her "sense of right" or prevented the exercise of her "natural faculties" which may have led to a disposal of her property which would not have been made if her "mind had been sound" (Banks v. Goodfellow (1870) LR 5 QB 549 at 565 see Bailey v Bailey.(1924) [1924] HCA 21; 34 CLR 558 at 570-2, Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 at 339, 343; In the Will of Wilson (1897) 23 VLR 197 at 199; Timbury v Coffey [1941] HCA 22; (1941) 66 CLR 277.) It is not enough that a delusion existed. It will be relevant if it had any influence on the dispositions made (Banks v. Goodfellow at 571).

33. It is important to bear in mind that the law does not require standards of mental power that might be regarded as ordinary standards. The test prescribed by the law sets the minimum standard to be satisfied for testamentary capacity to be found. In the leading case of Banks v. Goodfellow at 566, Cockburn, C.J. gave the judgment of the Court. In dealing with unsoundness of mind arising from "the decay of advancing age, as distinguished from mental derangement", he commented that (at 566):

"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 capacity in its different bearings, the power to make a will remain. It is enough if, to use the words of Sir Edward Williams, in his work on executors, 'the mental facilities retain sufficient strength fully to comprehend the testamentary act about to be done.'"

The Court then went on to refer to American authorities. The first was the case of Harridan v. Rowan, 3 Washington at 585, where the court, after referring to the usual three aspects, said

"It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new ."

The issue was taken up in the next case referred to Den v. Vancleve, 2 Southard, at 660, where it was stated

"By the terms 'a sound and disposing mind and memory', it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things and all those circumstances which enter into nature of a rational, fair and just treatment."

As to memory it was said in the next case referred to, Stevens v. Vancleve, 4 Washington, at 267,

"He must have memory; the man in whom the facility is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not able at all times to recollect the names, the persons, or the families of those with whom he has been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength or memory and vigour of intellect to make and to digest all parts of the contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing.... To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?" (See also Bailey v. Bailey, above, at 566,7.)

43. I am satisfied on the evidence of the attesting witness, Mrs Balas, that the 1990 will was duly executed. The caveator did not seek to argue otherwise. Thus the evidentiary onus shifts to the caveator to establish a lack of capacity. The caveator argues, on the issue of testamentary capacity, that there is evidence that the Testatrix was lacking capacity both before and after the making of the will. He relies upon authority that, in those circumstances, the burden of proving that she operated at a time of lucidity when making the will falls upon the propounder and that the "burden of proof is not a light one" (Re Munn [1943] SASR 304 at 307; Timbury v Coffey [1941] HCA 22; (1941) 66 CLR 277). The caveator also relies upon authority that supports the proposition that vigilant scrutiny is required by the court in the event of a testatrix being of an extreme age. In this instance, the Testatrix was aged 92 when she made her 1990 will (Re Hodges (1988) 14 NSWLR 698, 704-5, 707).

46. The caveator also argues that, where a person is overlooked who would have expected to have been favourably considered by the testatrix, the oversight raises a question of the competence of the testatrix (Banks v. Goodfellow, above; Bailey v. Bailey, above 571). Accepting that proposition, it must be remembered, however, that all are free to dispose of their property after death as they think fit even though the disposition may seem to be unfair or unreasonable or reflect a harsh judgement of possible beneficiaries. (Boughton v. Knight (1873) LR 3P.D. 64, Harwood v. Baker (1840) 3 MOO P.C. at 29 cited by Santow, J. in Moyle v. Moyle, N.S.W. Supreme Court, unreported 9.4.1998, LBC Information Services, at p.5). Whether the testamentary decision is caused by delusion or harsh judgment will be a matter of degree in all the circumstances (Walsh v. Legge, NSW Supreme Court, unreported, Cohen, J., 12 March 1997, LBC Information Services, at 5).

49. Counsel also referred to authority for the proposition that even if testamentary capacity is established, probate may be refused where the court is not satisfied that the testatrix knew and approved the contents of the will at the time she signed it. Thus the court has an overriding obligation not to grant probate

"without full and entire satisfaction that the instrument did express the real intentions of the deceased"

(Re Fuld's Estate No.(3); Hartley v. Fuld [1968] P.675, 698). The caveator in lodging his caveat, did not separately raise the issue of absence of knowledge and approval of the contents of the will. The propounder, however, has not sought to rely on that failure and the issue must be addressed.

54. As to the undue influence issue, it was common ground that the onus of proof lay on the caveator to prove that undue influence occurred and was exercised to affect the manner in which the testatrix disposed of her estate (Winter v. Crichton (1991) 23 NSWLR 116).

58. Counsel for the propounder submitted that, on the evidence, the will was validly executed. That issue was not disputed. He submitted further that, on its face, the will was rational in that it benefited the person that had the strongest moral claim, the brother of the testatrix. Further, the residuary gift was to a church with which the testatrix had had a long association and to a particular parish of that church with which the testatrix had an important association in her youth. He submitted that in those circumstances the onus was on the caveator to produce evidence to raise doubts about testamentary capacity.

61. The caveator responded by referring to a number of facts which he submitted should be accepted and which he argued raise such doubts.

(a) The testatrix was 92 years of age at the time she gave the instructions and made the will.

(b) The testatrix was suffering from severe dementia in 1992 and at least mild dementia at the time the instructions were given for the 1990 will and at the time it was executed. In particular, it is submitted that she was suffering short term memory problems, paranoid ideation, was confused and lacked insight into her situation.

(c) The testimony of Dr Wagner, a specialist called by the caveator should be accepted. His opinion was that the testatrix lacked testamentary capacity. In the alternative, there is no expert who is prepared to express the opinion that the testatrix had testamentary capacity.

(d) The circumstances surrounding the execution of the will raise doubts about the testatrix's capacity. It is not said that it was a case of anybody standing over the testatrix or the testatrix being overborne. It is said that the changes that were made were surprising. It is said that Mr Manley appears to have played a leading role in the matter. It was made with his assistance in that he accompanied her to the solicitor's office, he took the will back in an envelope for her to execute, he arranged for the witnesses. It is put that he was a very determined elderly man with very fixed views and suffering chronic paranoia and of dementia. It is put that the testatrix living with her brother at the premises was dependant upon him for her ability to continue to live in the house. It is submitted that it should be found that he dominated her. It is said further that her fear that he might leave and the presence of paranoid ideation and short term memory problems combined to damage her capacity to weigh up her testamentary decisions and resist her brother's influence.

(e) It is submitted that it was not rational for the testatrix to make the will in the manner she did appointing her brother executor in view of his chronic paranoia and signs of dementia.

(f) The removal of the nephews from the residuary gift cannot be explained and was irrational.

(g) The testatrix behaved irrationally at about that time. Reliance is placed on the refusal of "meals on wheels" and of recommended guard rails and other matters.

(h) If she wished to benefit the Eaglehawk Uniting Church, she would achieve that result only if her brother, who was ten years younger should die first. It is said that this points to a lack of understanding of the effect of the will.

67. Where doubt is raised on the evidence, a vigilant examination is required. In Worth v. Clasohm [1952] HCA 67; (1952) 86 CLR 439, at 453, Dixon C.J., Webb and Kitto JJ., said:

"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 felt by the court to be substantial enough to preclude the belief that a document propounded is the will of a testatrix who possess sound mind, memory and understanding at the time of its execution."

71. Whatever tactical arguments or manoeuvring the parties may seek to employ in this matter about burdens of proof, the legal burden of proof rests at all times with the propounder to establish testamentary capacity. The first question in this case is whether, after a vigilant examination of the whole of the evidence, I am satisfied of the testatrix's competence at the time of the execution of the will or, more accurately, in the circumstances of this case, at the time instructions were given (Timbury v Coffey, at 283; Landers v Landers [1914] HCA 74; (1914) 19 CLR 222 at 235,6). The caveator submitted that having regard to the above matters, the court cannot reach the degree of satisfaction required on that issue. The issue of knowledge and approval must also be addressed, as must the issue of undue influence.

75. It is common ground that in the late 1980's and early 1990's the physical health of the testatrix deteriorated. In particular her arthritis was a problem. It is also common ground that she became increasingly physically dependant on her brother Alan Manley in the late 1980's and early 1990's and he was called upon to do more work around the house and to attend to shopping and the like. It is also common ground that Alan Manley, at least in the latter half of the 1980's and onwards, held erroneous beliefs; for example, that there was extensive drug-trafficking in the street and at the school nearby and that an adjoining neighbour was involved. Finally, it is common ground that Mrs Brokenshire spent time in the Box Hill hospital from 28 March 1992 to 17 April 1992 and 18 May 1992 to 24 June 1992. Subsequently she was admitted to a nursing home in a state of significant dementia where she died.

78. I turn to the evidence relating to the making of the will itself and the testatrix's statements about her intentions and the making of the will.

Evidence about the making of the will and the testatrix's intentions and knowledge

82. Evidence was given by Kenneth McDonald Martin, a solicitor, who took the instructions for the will in 1990. He said he had been acting as Mrs Brokenshire's solicitor for between 20 and 30 years. He had not been acting for Mr Manley as long. He said that for the last ten years he had primarily practised in the field of wills and probate. Asked what the requirements of testamentary capacity were, he said an awareness of what she was doing, primarily, and knowledge of anyone who had a claim on her estate. He commented on the wide range of symptoms and variability of symptoms in someone with dementia. He said that if he attended anyone who, in his view was "suffering", he would refuse to do any business for them without a medical certificate. He said that with any testator you look for signs of mental incapacity. He did not accept the generalisation that with the onset of the latter years it becomes more likely that a person may suffer some degree of mental incapacity.

85. He deposed that Mrs Brokenshire and Mr Manley made an appointment to see him at 2:30 p.m. on 7 March, 1990. He saw them separately and he said that Mr Manley was not in the room when he took instructions from the testatrix. He said that when she attended she was well dressed and well groomed. She did not slur her words and she conversed normally with him. He said she recognised him straight away and was not confused or disorientated. He said her manner of conversation and demeanour was similar to her last visit about a year earlier when he had done her tax returns. He had been seeing her on an annual basis. He could discern no difference. He said there was nothing in her conduct or demeanour which raised an issue about her capacity in his mind. If there had been he would have required some form of confirming evidence. He said that the testatrix didn't look 92 and didn't act that old. He thought she was in her late 80's.

88. He said he had previously drafted a will for her and was aware that her estate under the earlier will was to go to Alan and Robert Worts in the event that Mr Manley died before her.

91. Mr Martin made a file note of the instructions he received from her. I note that the instructions record her full name and her address and postcode number and an instruction to revoke. It also records that her brother was to be appointed executor and Equity Trustees also. The file note records that she wanted to leave the cutlery cabinet and contents to her sister, Irene Mavis Worts and the residue of her estate to her brother, Mr Manley. In the event that he died before her, the note records that she wanted the residue of estate to go to the Eaglehawk Uniting Church.

94. He said she appointed her brother as executor and, because she had no-one in mind as a substitute executor, he suggested the Equity Trustees. He believed he suggested the brother as executor. It was his practice to do so where there was virtually only one beneficiary. He wasn't sure how much younger Mr Manley was. He confirmed that her late husband had been an employee of that company. He did not discuss her assets with her because he had known her a good many years and he knew roughly that her assets consisted of her home and some savings. He said he did not ask about family because he knew she had no immediate family apart from a sister and had at least two nephews. There may have been nieces. He did not explain to Mrs Brokenshire that if her sister predeceased her the legacy of the cutlery cabinet would lapse and go into residue. He did not tell her that, if Mr Manley survived her, then under his estate the property would go to the Lort Smith Hospital for Sick Animals. He said it would have been a breach of confidentiality. He did not know if he did tell her that the proceeds of her estate would not go to the Eaglehawk Uniting Church if her brother survived her. He believed that each was happy to leave it to the other's good judgment.

97. Mr Martin said in his affidavit that he raised with Mrs Brokenshire the deletion of the nephews from the will. He said that she was most emphatic on the point and said that she had no duty to her nephews and that they had no moral or legal claim on her estate. She referred to her connection with the Uniting Church. In oral evidence he said that when he queried her as to the gift to the Uniting Church at Eaglehawk she replied, "fairly tersely" "well, I owe nothing to my nephews". He said he did not pursue the point because she didn't seem that keen to state anything more. He said that if beneficiaries had been excluded who had a potential testator's family maintenance claim then he would have pressed the point more vigorously. In relation to the Uniting Church at Eaglehawk she said she had had a very long association with the Eaglehawk Church, going back to her very early days.

100. Having dealt with the will, he then went on to deal with her tax return, something he had done for a number of years. He was shown the tax return file and referred to the document in which the details provided by Mrs Brokenshire were recorded. She brought in her savings bank passbook and he put a couple of notes down where he had taken observations from the passbook and recorded it on the sheet. He recorded Building Society interest, bank interest, pension and then charitable donations. He believed she had receipts for the charitable donations in addition to the passbook. He believed the financial information would have come from the savings bank passbook. He mailed the tax return to her asking her to return it. He gave evidence that she did and that he forwarded it to the Tax Department on 10 April, 1990. He agreed that her tax matters were minor.

103. It is to be noted that Mr Martin concedes that he did not ask the testatrix questions to test her capacity. She was, however, with him on both matters for approximately 24 minutes. She was billed for two periods of 12 minutes in respect of the will and the tax return. He was not aware that there had been a bitter and protracted fight with a neighbour about tenants on a property nearby. He was not aware that Mrs Brokenshire had suffered significant debilitating physical illnesses such as diverticulitis. As to her mobility, he said that he had only seen her mobile for very short distances.

106. Mr Martin deposed that he handed the testatrix's will to Mr Manley on 15 March, 1990 for Mr Manley to take home to her for execution. He said that on 15 March 1990 he explained the requirements for formal execution of the will to Mr Manley. He said they normally had a printout to send with wills which were to be signed. He couldn't say specifically whether one was sent on this occasion. He was at the time happy for Mrs Brokenshire to arrange for execution of the will without his assistance. He had not suggested obtaining a medical certificate because he had no concern about her ability and capacity to execute her will. He said he wasn't troubled about giving Mrs Brokenshire's will to her brother to take to her. He would have instructed that it be read to her if he had had any doubt as to her capacity to read and understand the will herself. He believed he would have checked the execution of the will and checked Mrs Brokenshire's signature against the signature on the earlier will. He said comparison of the signatures would have been normal practice. He could not say how the original will was returned.

109. He also gave evidence as to the preparation of the will and tax return for Mr Manley. He could not say whether he took a statement of assets. He knew at the time that they were not extensive because he had no interest in the house and was in receipt of a pension. He did not know that Mr Manley had been to Pearce and Webster on 5 March, 1990 seeking advice about a will. Mr Manley did not tell him about a previous will. He said he saw him separately, on 7 March and later, on 15 March, when the will was executed by Mr Manley. He seemed mentally very well but physically he was becoming very frail. He said mentally he seemed to be unimpaired. He had no doubt handing him the will on 15 March, 1990 to take home for execution. He said that on 15 March, 1990 he was satisfied that Mr Manley had testamentary capacity and was fit to carry out the duties of an executor. At the same time, he pointed out that in most cases lay executors leave it to the solicitor to do all the work in any event. In this instance it was not going to be a complex estate. The property would be transferred to him and that would be it. He wasn't particularly concerned about the capacity of the executor. He was not aware of Mr Manley's allegations about people engaged in drug trafficking in Barloa Road or that he had accused someone of burying a young child in an allotment nearby. He was not aware of several reports to the police about drug trafficking or that he had taken precautions to prevent intruders entering the house where he lived.

112. As to the relationship, between Mrs Brokenshire and Mr Manley he thought that Mr Manley was the last person against whom any allegation of undue influence could be levelled. He thought it would rather be the other way around. He thought Mrs Brokenshire was more domineering in the home and referred to an example when he made a social visit and Mr Manley was required by his sister to make a cup of tea. He could see no coercion one way or the other by one against the other. He said there was nothing abnormal in the relationship that he could see on 7 March, 1990.

115. He said he last visited Mrs Brokenshire in 1992 or thereabouts. He said that from 1986 , on the occasions when he saw her, he saw no apparent difference in her demeanour. He said she always struck him as being very healthy. He thought her physical mobility was good in that she used to come into the city by taxi. He confirmed that both Mrs Brokenshire and Mr Manley seemed in good mental health when he saw them in 1990 and later at their home in about 1992. He believed Mrs Brokenshire may have had a walking stick. He didn't recall. There was nothing manifest about physical disability. In 1992 he said that he did not observe anything to suggest that she was suffering fairly advanced dementia. He spoke of her wanting to give him a painting. There was nothing to raise a suspicion in his mind. He avoided that gift coming to fruition. He thought she probably came to see him off at the door. He thought there was nothing abnormal about her grooming and there didn't appear to be anything dishevelled about the room that they were in. He did not recall any sense of neglect - smells etc. The visit in 1992 lasted about between 20 minutes and half an hour. They spoke over that time on things not of great importance. It was just a social occasion. He could not discern anything strange in the demeanour of either of them. He could not recall any discussion about neighbours or unmarked graves in backyards. He could not recall any evidence of devices to keep out intruders or any siege mentality.

118. I accept Mr Martin's evidence and suggest that it is of some significance that an experienced solicitor saw nothing untoward in the capacity of either Mrs Brokenshire or Mr Manley when they gave him instructions and one to two years later when he paid them a social visit. In the case of Mrs Brokenshire, it is also significant that she indicated that in her view, her nephews did not have a claim upon her. It is reasonable to proceed on the basis that that was a view she had formed since making her previous will and that that reason explained her deletion of them from her will. It is true that Mr Martin did not take steps to directly satisfy himself as to her testamentary capacity or the testamentary capacity of her brother. Nonetheless, Mrs Brokenshire, in particular, was with Mr Martin for approximately 24 minutes. Further, she and her brother had managed to negotiate their way into the city into his offices and managed to have her will properly executed and returned. From her conversation with Mr Martin it is clear that she knew she was making a will, that she was aware of the members of her immediate and extended family, had an awareness of her assets and that she decided that the bulk of her estate should go to her brother who was essentially without any assets. She gave instructions for the residuary gift and advanced a reason for it. His evidence tends to support the conclusion that she did have the necessary capacity. Both she and Mr Manley, however, may have deliberately or unwittingly concealed their deficiencies. They may have made a special effort to appear at their best. Plainly Mr Manley did not speak to Mr Martin about his concerns with his neighbours and drug trafficking. On the evidence, his dementia was, therefore, unlikely to be revealed. The failure of Mr Martin, therefore, to test their capacity, has the result that his evidence cannot itself resolve the question of their respective mental capacities.

121. Evidence was also given by the surviving attesting witness, Mrs Balas. Mrs Balas had worked for seven years as a legal secretary to Mr Ballard of Rodda Ballard and Vroland and had witnessed people's wills on other occasions. She knew that a person executing a will was required to have a certain amount of mental capacity for the will to be valid. Mrs Balas was an elderly person and somewhat frail physically. Mentally she seemed acute. Counsel for the caveator stated that his client did not attack the integrity of her evidence.

124. In her affidavit, she deposed that Mr Manley asked her and her husband to come to Mrs Brokenshire's home to witness the execution of her will. She said that approximately two to four weeks earlier Mrs Brokenshire had twice told her that she was remaking her will without saying why and had asked her and her husband if they would witness it.

127. Mrs Balas said that they came to the home on 16 March 1990 in the afternoon. They were greeted warmly and treated hospitably. She said that when they arrived Mr Manley opened the door and showed them into the room. She thought that Mr Manley had made his will because he had been into town. They engaged in casual conversation about families, neighbours, the garden and events of the day. Mrs Brokenshire was well groomed and presented. She participated coherently in the conversation that took place. In oral evidence Mrs Balas said that before the will was signed she supposed that she did most of the talking during the general conversation. She said that Mrs Brokenshire was natural and quite clear about everything. She mentioned the will when she thanked them for coming to sign it but did not discuss the contents of it. She said that Mrs Brokenshire didn't mention that she had gone to the solicitor's office. She just mentioned that her brother was having his will made there and arrangements were to be made for her to sign hers at home. She said she did not believe that the testatrix was disoriented or confused. She said that Mr Manley did not say anything while the will was executed. She said that she and her husband did not read the will. She said that Mrs Brokenshire referred to the document as her will in conversation with them. After the will was executed they moved to another room. Mrs Brokenshire and Mr Manley prepared tea. Mrs Brokenshire performed that task easily.

130. Mrs Balas in re-examination referred to rumours of a decline in the relationship with the Worts' nephews. Mrs Balas spoke of a rumour amongst the neighbours relating to the nephews. She recalled a conversation with Mrs Brokenshire in which she said that things had changed but could not recall when that conversation took place. As a result of that statement, she believed Mrs Brokenshire was disappointed in them but did not know the reason why. The conversation occurred when she was talking to Mrs Brokenshire and she had been looking at photos. She thought this occurred prior to the making the will but could not say when. She said she had heard the rumour from a neighbour, Mavis Collings.

133. I accept the above evidence of Mrs. Balas. Mrs Balas was someone with some experience as a legal secretary and in the execution of wills. From her evidence it seems that Mrs Brokenshire was well aware that she was changing her will and executing a will. She was also aware of the arrangements for the execution of both wills. There is further confirmation that Mrs Brokenshire believed that something had changed in the relationship with her nephews and that she was for some reason disappointed in them. Thus again a reason emerges for their deletion from the will. Again there is nothing in the evidence to suggest a lack of capacity on the part of Mrs Brokenshire. Nonetheless, on the evidence of Mrs Balas, it would have been possible in the course of ordinary conversation for Mrs Brokenshire to conceal some deficiencies in capacity that she may have had and Mrs Balas also did not test her capacity.

136. There is other evidence of statements of the testatrix which points to a change in the relationship between the testatrix and her two nephews and which also shows her awareness of her relations and assets.

139. Mr. Downing, a friend of the testatrix, deposed to a conversation some time in 1991 in which she told him that the home at 17 Barloa Road Mont Albert was hers and had been left to her by her husband. She went on to say that the "Worts" wanted to claim it and she was not going to let them.

142. Mr Downing, too, was elderly and frail. I comment later on his credibility as a witness. For the moment it is sufficient to say that I accept this evidence. Thus Mr Downing's evidence also reveals a knowledge of assets and of relatives and the existence of some problem in the relationship with the "Worts", probably in 1991.

145. Mr. Henson a nephew of the testatrix by marriage, deposed in his affidavit that some time during the 1980's he believed that Mrs Brokenshire had a falling out with the caveator and his brother. She had not talked about them a great deal previously but she stopped referring to them. If he and his wife raised their names, she said, "we don't talk about them". He deposed that from approximately 1989 onwards on at least two occasions, Mrs Brokenshire asked him to make sure that her home did not fall into the hands of a local solicitor who had wanted to buy the property and said that she and her brother were "looking after the place" for him. He believed she made that statement in 1989 and that she was then trying to decide what she would do about her property. He said he showed no interest in receiving the property from her and he assumed that as a result of that and because he did not need it and the other nephews did not need it, she decided to leave her assets somewhere where they could do some good, the Church. He said that was all surmise on his part.

148. In early 1990 he and his wife were visiting Mrs Brokenshire every month or two. He said that in early 1990 she told him that she was going to tidy up her affairs and make a new will. He said that he was not particularly interested in the matter and did not enquire as to the change that she had proposed to make. Some time afterwards she told him that she and her brother had made new wills. She told him that they had gone into the city with her brother by tram to see Mr Martin who she described as "young Mr Martin" and chuckled. Mr Henson said that when his aunt told him that she had gone to Mr Martin to change her will she did not repeat the statements about looking after the property for them.

151. Again Mrs Brokenshire, on that evidence, showed knowledge of her assets and family relationships. She also showed the intention to change her will in early 1990 and recollection of her visit by tram to see Mr Martin after the event showing a recollection of the making of the will at a later time and that she still had a capacity for short term memory.

Other evidence of lay witnesses called by propounder relevant to testamentary capacity

155. I turn to the evidence of the independent lay witnesses called by the propounder relevant to Mrs Brokenshire's mental capacity; Mrs Balas, Mr Downing and Mrs Kerr.

158. The first called was Mrs Balas. I have referred to some of her evidence in dealing with the circumstances at the time of the execution of the will, she being a witness to its execution. Mrs Balas had been friendly with Mrs Brokenshire since 1977. She would see her in the street and call upon her at her home. She used to see Mrs Brokenshire at least fortnightly prior to the execution of the will.

161. I have also referred to another independent lay witness called by the propounder, George Malcolm Downing. He and his wife knew the testatrix for about 12 years prior to her death. They met through the Mont Albert Uniting Church. He and his wife would see Mrs Brokenshire every Sunday. They took her to church until she ceased attending church, he said, in March 1991. In addition, they used to visit her at least once a week at her home. I accept that, in his oral evidence, Mr Downing was in error and confused as to the timing of Mrs Brokenshire's admission into hospital which he put as happening in 1991. He also was in error in his affidavit in stating that a conversation between Mrs Worts and his wife occurred after the testatrix's death. His wife had died in 1993. I therefore, approach is evidence with caution, particularly, his evidence about dates. His evidence about the behaviour of Mrs Brokenshire on those occasions when they were with her, however, should be accepted.

164. The other independent witness was Mrs Pamela Kerr. She met the deceased when Minister at the Uniting Church attended by the deceased. Mrs Kerr is presently Moderator General of the Uniting Church. I have included Mrs Kerr as an independent witness because it was not suggested in any way that she might be partisan in her evidence even though the church which she now represents as Moderator General might benefit. In fact, counsel for the caveator stated that there was no attack on her integrity as a witness. She commenced as a Minister of the Mont Albert Uniting Church in July 1988 and continued in that role until December 1993. She recalled, soon after she began her ministry a meeting of the Women's Group of the church which celebrated Mrs Brokenshire's 90th birthday. She said that in 1989 and 1990 she visited Mrs Brokenshire at her home at least three times a year. Her first visit was within three months of commencing her ministry. Mrs Brokenshire attended church regularly on Sunday mornings until about six months before she moved into the nursing home. She would stay for morning tea after the service and sit and talk to other parishioners. She also regularly attended the Church's Women's Group meetings, which occurred approximately once a month, until shortly before she went into hospital.

167. These three witnesses gave evidence about Mrs Brokenshire's physical and mental capacity and the relationship between her and Mr Manley. They confirmed what was in essence common ground that in her last years she became increasingly dependent upon Mr Manley for physical assistance and in particular for shopping and activities around the house such as making tea for guests. She was also dependent upon neighbours like Mr and Mrs Balas to be taken to see her doctor.

170. The picture that emerges from their evidence is that until approximately Christmas of 1991 Mrs Brokenshire always appeared well groomed and well presented. The house was very clean and tidy and Mrs Brokenshire herself appeared to be very alert and appeared to have a good memory prior to about that time.

173. Mrs Balas said that she found the testatrix to be a very lively and intelligent individual and said that she did not at any time see Mrs Brokenshire acting strangely, confused or disorientated as to her surroundings or the people to whom she was talking.

176. Mrs Brokenshire's activities outside the home were focused on the church. The Downings used to drive her to church. Mr. Downing said that she never forgot about going to church. He said that she knew what was going on and knew all the names of the members of the congregation. Mr Downing spoke of her staying after church for a cup of tea and how she would make little jokes with them and comment on the absence of people she knew from church and talk about the service and sermon. He said that in conversation she was an active participant and never had any trouble answering questions or in recognising people.

179. Mrs Kerr gave evidence of speaking with Mrs Brokenshire about her early life at Eaglehawk, her father's job with the railways and about other people in the church. She recalled that Mrs Brokenshire would ask about people in the congregation who were sick or who had not been to church. She seemed to be aware of the illnesses of individual people such as Mrs Downing who was diagnosed with breast cancer. She talked about her garden of which she was proud and her cat "Mitty". She said that whenever she saw Mrs Brokenshire prior to the end of 1991 she was always recognised immediately by her and that she answered questions coherently and they conducted a normal conversation. Mrs Kerr said that Mrs Brokenshire had been able to keep dates in her mind of church functions and would sometimes apologise for not being able to be present at future events. She spoke also of Mrs Brokenshire staying for morning tea after the Sunday service and sitting and talking with other practitioners. She enjoyed herself and was active and coherent in conversation with other parishioners. She said that she tended to talk about personal matters and acquaintances rather than religious issues. She did not discuss sermons with her. She believed that for Mrs Brokenshire the church was one of her great loves in her life. She spoke little of her family apart from her childhood family and her childhood experiences in Eaglehawk. She did mention a sister although she did not feature largely in the conversation. She did not talk about nephews or their children. She said that in relation to the Women's Group at the church, Mrs Brokenshire was usually a passive participant so far as the business of any meeting was concerned but would engage in discussion and conversation after the meeting and talked well with the other members. She was not an organiser but was a regular supporter and enjoyed the social side of the functions. Mrs Kerr said that she remembered Mrs Brokenshire prior to late 1991 as a lively and healthy person for her age. Her first recollection of her having any illness was when she went into hospital in early 1992.

182. As to changes in Mrs Brokenshire's mental and physical condition and the state of the home, it is to be noted that Mrs Balas noticed a change in Mrs Brokenshire at about Easter of 1991. The basis for that view appears to have been an incident that occurred at Easter when she and her husband visited Mr Manley and Mrs Brokenshire with gifts. They were met at the door by Mr Manley and Mrs Brokenshire and he told them that he did not want a present and he asked them not to call. She said that about this time she thought Mrs Brokenshire became quieter and appeared to have become depressed about her brother's condition and her increasing dependence upon him because of her physical frailty. They did not visit Mrs Brokenshire after the Easter incident.

185. Mrs Kerr did not notice any change in the testatrix until Christmas 1991 when a marked decline in her health commenced. She gave evidence that in a very short space of time Mrs Brokenshire became vague and often poorly dressed in dirty clothes when she saw her. She said the home was smelly and unpleasant to visit. She said that it was at about that time, after Christmas 1991, that the testatrix began to agree with her brothers allegations about the neighbours. She said prior to Christmas 1991 she had had no concerns about Mrs Brokenshire's ability to cope with living at home. In the first half of 1992, however, she contacted Mrs Brokenshire's doctor to discuss what could be done. From the time of her deterioration she thought that Mrs Brokenshire became slower and less able to deal with what was happening in her presence. That deterioration appeared to become even more marked with her admission to the Box Hill hospital. Mrs Kerr said that there was a fairly marked difference in conversation before and after the admission to hospital and also in the way she dressed and kept herself. After she had returned from hospital Mrs Kerr would arrive to find her dressed in an under slip or a fairly dirty jacket and the house became smelly. She said it was a marked contrast and after she went into hospital it became very difficult to hold a conversation with her. By the time she was admitted to the nursing home she was fairly difficult to communicate with and would often be anxious about her surroundings and be quite agitated. Mrs Kerr would talk to her about people and she would not always know who she was talking about which was in marked contrast to her previous state.

188. Mr Downing's evidence once corrected for his confusion about dates generally confirmed Mrs Kerr's evidence about Mrs Brokenshire's progress. He did note, however, that about 18 months prior to Mrs Brokenshire going to hospital a problem arose about her underclothing. It appeared that she would dispose of them somewhere and they could not be found. His wife used to buy her a lot of underclothes .At that time he described the house as still rather clean and tidy.

191. As to her relationship with her brother Mr Manley, the picture that emerges from the evidence of these witnesses is that Mrs Brokenshire prior to her marked deterioration appeared to be aware of the fact that some of her brother's ideas were divorced from reality. She would not criticise her brother but would humour him and, to avoid embarrassment to her and to him, would organise that he would go and make the tea or pick lemons, for example, for Mrs Kerr. Mrs Balas gave evidence that Mrs Brokenshire tended to defer to his opinions. It is clear on the evidence however, that when it came to decisions affecting her, Mrs Brokenshire would assert herself. For example, when Mr Manley removed her cat "Mitty", the testatrix was so upset about it that the next day Mr Manley was forced to take a tram and collect the cat and bring her back home where she stayed. That incident occurred prior to the execution of the will. In 1989 according to Mrs Balas, Mr Manley had wanted Mrs Brokenshire to go into a nursing home but Mrs Brokenshire had stood her ground and refused to go. The picture that emerges is that she treated Mr Manley more like a son than a brother and in a motherly fashion. That was Mr Downing's view and he said that he never saw Mr Manley behaving in a hostile manner towards her or acting in an overbearing manner towards her.

194. The other relevant lay witness called by the propounder who gave evidence on these matters was Keith George Henson. Mr Henson was a nephew on Mr Brokenshire's husband's side of the family.

197. Mr Henson gave evidence about the appearance and behaviour of Mrs Brokenshire and her mental capacity prior to and at the relevant times. He gave evidence about the relationship between her and her brother Mr Manley and evidence about Mr Manley's problems. His evidence was attacked by counsel for the caveator through cross-examination in which counsel attempted to suggest that Mr. Henson had an axe to grind with the caveator because he believed the house had been paid for by his uncle Mr Brokenshire and he was disappointed that he and his brother had not received the benefit of the estate when he might have expected it in light of what his aunt had said to him. He was also challenged as to the reason why he rang the solicitors after the death of the testatrix to find out what the will said. I think it likely as to the latter that he did want to find out whether he had benefited or not. I am also satisfied that he did and does have a degree of animosity towards the propounder and his brother but in my view it derives from his anger at the caveator and his brother attempting to challenge their aunt's testamentary capacity and seeking to defeat her wishes. I am satisfied that he did not allow that animosity to affect his evidence as to the above matters.

200. Significantly the picture he paints of the capacities of the testatrix and her brother and the relationship between them broadly matches that painted by Mrs Balas, Mr Downing and Mrs Kerr. I note an additional piece of evidence contained in his affidavit in which he deposed that at the hearing on 29 July 1992 before the Guardianship and Administration Tribunal, the Tribunal asked "Who owns the property?" referring to 17 Barloa Road, and that Mrs Brokenshire replied that her name was "on the title." That statement has not been contradicted in any evidence adduced for the caveator. It is of interest and some significance, that at a time when Mrs Brokenshire was so enfeebled that an application had to be made to the Guardianship and Administration Board that she was still aware of the property that she owned. He also gave evidence of seeing the testatrix and Mr Manley going through the bills on the dining room table in 1990 and deciding which should be paid.

203. From the evidence of these witnesses, it may be said that Mrs Brokenshire, at the time she gave instructions for her will and at the time she executed it, appeared to be an alert and intelligent person with a reasonable memory. She was keeping her home neat and tidy and coping at home with the physical assistance of her brother. She was of sufficient capacity to appreciate that, at times, his behaviour was abnormal and would attempt to cover up that behaviour and distract him. On the basis of the evidence of these witnesses, it may be said that the relationship between them was that of a mother and son or, perhaps, big sister and younger brother. It is likely in light of the above evidence that the management of the household was conducted by Mrs Brokenshire and it seems that, in 1990 at any rate, it was being managed reasonably well. The other significant fact to emerge from this evidence is that those witnesses who kept in contact with Mrs Brokenshire through 1991 and 1992, Mr Downing, Mrs Kerr and Mr Henson, all commented on what a marked and significant decline occurred in her mental and physical health and capacity following a fall and admission to hospital in 1992. This fact, if accepted, as I do, is of significance in considering the expert evidence which was called to which I will refer later.

206. On the basis of the evidence to which I have referred to this point, there would, I think, be little doubt that the testatrix had testamentary capacity at the time she gave instructions and executed her will. The caveator, however, relies upon lay evidence comprising his own evidence, evidence of his brother and evidence of his wife. He also relies upon the medical records concerning the health of the testatrix prior to and subsequent to the making of the will and that of expert witnesses. I turn to that evidence.

Testamentary capacity - the caveator's lay evidence

210. The caveator Alan Reginald Worts filed an affidavit and gave oral evidence. He referred to the closeness of the relationship he and his brother enjoyed with the testatrix in their childhood, the testatrix having no children of her own. She was also very close to their mother, Irene Worts. This, he said, was evidenced by the fact that she wrote regularly to his mother and spoke regularly on the telephone. He gave evidence that the correspondence continued right up until his mother's death in August of 1991. He said that personal contact with the testatrix and his uncle occurred at least twice a month until March 1990 when he and his wife and family moved to Possum Creek in northern New South Wales. The contact with his aunt, the testatrix, and uncle was not like that with friends and he put this down to their old age. He said that, when he visited, he did so with his wife Astrid. He would call in and drop her off. Later he said that he was always with his wife and "invariably" his mother. In addition to visiting, they rang to see if they were all right from time to time. He said that the 1990 will was a surprise to him in part because he had been told of the content of the 1987 will by the testatrix but was told nothing of the 1990 will. He referred to the decline in the state of repair in the property and that in 1994 various renovations were carried out. On the evidence, however, there is no basis for finding that he and his brother or their families did anything of significance to assist the testatrix and her brother in maintaining the house in the late 1980's and early 1990. Alan Worts said that he accepted their assurances that they were "okay".

213. He said in oral evidence that there was a gradual decline in the testatrix's mental capacity from 1985 to 1990. He spoke of changes in conversation with her on the telephone in that she was much less communicative on the phone as the late 1980's wore on. He spoke of her appearance deteriorating in the late 1980's alleging that he would find her dressed in night clothes rather than day clothes and not appearing her usual smart self. He also said that in the late 1980's she started to appear confused. At the same time he conceded that her deafness may have had something to do with that appearance and conceded that he could not point to anything that she did which might have given rise to a conclusion that she was confused.

216. In his evidence he tried to maintain that Allan Manley, the testatrix's brother, achieved a situation of mental dominance over the testatrix. This assertion is in dispute.

219. He maintained that his uncle made the decisions for both of them during the late 1980's and early 1990's. One example proffered was the failure of his aunt and uncle to attend the funeral of his mother in August/September of 1991. Accepting that his uncle did not wish to go to his mother's funeral, the testatrix may also have not wanted to go. She may have felt it would be too distressing. He asserted that his uncle "gave away" the deceased's jewellery and china and furniture and tools which had "disappeared" by 7 August 1992. He assumed that the deceased did not agree with those dispositions but there is no evidence to support that assumption. It is possible, for example, that they were sold or given to friends. Another alleged example of control was his removal of the testatrix's cat "Mitty" - something she compelled him to rectify. Reference was also made to his uncle's attempt to force the testatrix to go into a nursing home. Again he failed. He made vague allegations of manipulative behaviour on the part of his uncle, while asserting that his uncle was "off his tree".

222. The caveator's evidence must be approached with caution. It must be borne in mind that he suffered a severe motor accident and, as he conceded, this had affected his memory capacity, particularly when under stress. It is also relevant that he was convicted in 1992 of serious dishonesty offences. The charges were laid on 20 May 1990 by the A.S.C They concerned 16 counts of theft from clients who had invested money with him. He was convicted and sentenced to three and a half years imprisonment. The amount involved was $475,000.00 of which $360,000.00 remains outstanding. He appealed unsuccessfully against the convictions. He maintains, however, that he was not guilty. He also gave evidence of having destroyed the correspondence that passed between his mother and the testatrix and doing so at a time when he was challenging the will on the grounds of lack of testamentary capacity. He said that he thought that they were not relevant - at best a disingenuous response. His counsel later informed the court that he had not in fact destroyed the letters. It seems that his wife Astrid Worts saved them. The documents, nonetheless, have not been produced in this trial and I will deal with the issues that that raises later in these reasons.

225. There is also independent and strong evidence which demonstrates that Mr Worts' evidence about his aunt's condition is wrong. He has, no doubt, in part, with the passage of time, transposed his recollection of observations into the late 1980's which were observations more appropriate to 1991 or 1992. I refer, for example, to his assertions that his aunt became largely house bound in the late 1980's. This was plainly not so. He had to concede that she continued regularly to go to church once a week and to her doctor. There was, of course, her trip into the city to see Mr Martin in 1990. His allegations about her decline in appearance in the late 1980's is also clearly contradicted by the independent evidence to which I have referred. His assertion of a serious decline in her capacity and that of his uncle in the late 1980's is also inconsistent with the lack of assistance and attention given by him and the rest of his family to them. If it was as bad as he suggested, it is remarkable that he and his wife and brother did so little. I think it likely, in any event, his capacity to observe in late 1989 and in 1990 would have been severely compromised by the enormous pressure he was under. It seems that he was selling assets in late 1989. His dealer's licence was revoked on 29 October 1989. There was publicity of the criminal allegations in the Geelong Advertiser in November 1989. Thus it would be surprising if he had been able to maintain contact or contact of any quality in the latter part of 1989 or early 1990. When he did, his mind would have been on other things. I note that he was unable to say anything of detail about the Christmas 1989 function. I am satisfied also that he was not as close in his relationship with his aunt in the late 1980's as he would like to suggest. I refer in particular to the episode of the cat "Mitty". As stated above, the cat, having been removed to the Lort Smith Animal Hospital, was retrieved by his uncle. Mr Worts, however, had proceeded under the impression that "Mitty" never returned. He found out about the return of the cat from Mrs Balas' "statement". This raises serious doubts as to the extent and quality of his visits to his aunt from the late 1980's onwards.

228. Robert Sidney Worts, the other nephew who was a beneficiary under the earlier will, also gave evidence. He deposed to a close relationship with the testatrix and her brother stating that they treated him and Alan Worts as if they were their own children. He said in his affidavit that he kept in contact with both his aunt and uncle although not as much as his brother. In the course of his oral evidence it emerged that in reality from 1986 onwards the frequency of his visits declined significantly to something of the order of three to four times a year and the visits were described by him as generally "fleeting".

231. In his affidavit he spoke of his uncle making the decisions and becoming aggressive in the late 1980's. In his oral evidence he gave examples of what might be called aggressive language. He also said that he thought his uncle always got his own way. He said that he was treated like the little brother, that he was, of his two older sisters. He gave as example his uncle getting his way when his uncle did not want to visit Colac. An example of aggression he gave was "you're taking too long with lunch" to which his aunt might reply "his lordship has spoken". He also put forward as an example, the refusal to come to their mother's funeral. His oral evidence of the telephone conversation, however, does not lead to that conclusion unless it be assumed that the testatrix wanted to go but chose not to do so in deference to her brother. He conceded that she was the "bookeeper" and kept and maintained thorough records including records of all furniture until 1989. He conceded that she had a thorough knowledge of her assets up to 1989.

234. In his oral evidence he identified a period commencing in about the middle of 1988 when he believed he noticed changes in the testatrix's mental condition with her becoming confused. He agreed that while he maintained that Mrs Brokenshire wasn't thinking clearly or rationally in early to mid 1988, there was no specific event on which he could actually fix a deterioration. He said that it could have commenced earlier. He appeared to rely in part upon a statement of his mother that, in mid 1988, the testatrix had written to her to say not to put Uncle Allan's name on any of the mail. He said that his mother then advanced the notion that his aunt might be thinking that she was living in sin. He said he thought that a bit odd because they had been living together for thirty years. He also suspected that another fact may have been that his mother had wanted her brother to live with her. Mr Worts used this as an example of his aunt not thinking clearly.

237. He gave evidence about the Christmas party in 1989 - a few months before the making of the 1990 will. He said that he and his brother and their families took hampers with them for the Christmas meal. He said that his aunt had great difficulty moving. She had great pain in her ankles and spent her time sitting on a chair in the back door while they sat outside. Her legs were swollen. His description of the Christmas party is one of a most uncomfortable occasion. He described it as a very "ordinary" lunch. He said the patience of the children was stretched. He said "we were all in our own group anyway". I assume by this he meant the two families didn't mix. He said the conversation was very basic - about the weather and so on. There were some thirteen people present. He gave evidence that during the course of the meal she told the children not to look over the fence because of drug dealer's next door. He said that, on that occasion, they all wanted to know what had happened to the fernery which had existed beside the house and their aunt and uncle told them that it had been removed because of drug pushers using it to run up and down that side of the house. He regarded this as a particularly irrational explanation. He said that up till then she had quietly told them to ignore Mr Manley's comments. He said that he wondered, in comparison, why they hadn't fixed up the problem with the toilet. He said there were not necessarily drainage problems but the toilet floor had collapsed and a wall had pushed out. It had been damaged for many years. It was a serious problem. He said that he did not offer to fix it. You had to go down two stairs to get into it and at Christmas 1989 there was an horrific smell in the toilet. He was anxious to leave because of the smell of the toilet. He said he could not use it. It just was not the right environment. He said he was glad to get his family out of there. He agreed that Mrs Brokenshire continued to live there until 1992 and nothing was done about the toilet.

240. He said he too was surprised by the will. He gave evidence of finding an executed copy of it in a wood box beside the fire in the testatrix's home in 1992. He offered his own explanation for the change in the wills linking it to an incident that occurred in early 1990. His evidence was that his mother had stayed with the testatrix in March of 1990 prior to the 15th March. On her return to Colac she found in her bag some financial papers belonging to her sister. They were returned and were subsequently found in the testatrix's papers marked in her handwriting "received 15 March 1990". His evidence was that the relationship between his mother and the testatrix "crashed" and did not resume from that point. He gave evidence of attempting a visit with his mother later that year which was unsuccessful because of the behaviour of Alan Manley. He later visited his aunt with his wife and daughter who had just completed her university year. He suggested that the taking of the documents may have lead his aunt and uncle into placing his mother in the group of thieves with which the uncle was particularly concerned. He suggested that that falling out extended to the nephews of the "thief". At the same time he said that his aunt was not a vindictive person. He also gave evidence pointing to a degree of rivalry between the two sisters about the person with whom Alan Manley should stay. He said this existed at the same time as the incident of March 1990 over the financial papers. He also gave evidence that as far as the testatrix was concerned both nephews were very well off and very successful business men.

243. Mr Robert Sidney Worts presented in the witness box as a very confident person. It seemed to me that he was over-confident about the accuracy of his recollection. Further, his visits were too infrequent and too fleeting in my view for him to be able to form any sound view about the state of health, particularly the mental health of his aunt.

246. As to his hypothesis about the relationship crashing as between the testatrix and his mother and, therefore, affecting the attitude of the testatrix towards the children of her sister, that evidence is inconsistent with the evidence of his brother that they continued to correspond with each other up until the death of the sister. The caveator has not produced that correspondence. The caveator himself, and the caveator's wife Astrid Worts, did not give evidence suggesting the relationship crashed after that event. In all the circumstances, I have come to the conclusion that Mr Sidney Worts has read more into this situation than existed and if he perceived a strained relationship with his aunt it was to do with other things.

249. The examples he gives of alleged confused behaviour are at best equivocal. As to the alleged request of the testatrix that the brother's name not appear on any mail, it was his mother that gave him the information and it is questionable how reliable that information was. If that was in fact what the testatrix had asked, there may well have been a simple explanation for such a request; the uncle was at this time obsessed with the idea that drug trafficking was going on in the street. He may not have wanted his name on mail. In any event I think it significant that Mr Robert Sidney Worts is unable to give a substantial number of examples of confused behaviour or unusual behaviour. The only other example he could point to was her behaviour at the Christmas lunch. He said that the testatrix had directed the children not to look over the fence because there were drug traffickers next door. Assuming this to be correct, and no one else gave evidence to that effect and none of the children were called, the testatrix's behaviour is explicable on the basis she knew that her brother could become difficult if the children persisted in that behaviour. This may also explain her apparent acceptance of the reason for the destruction of the fernery. Alternatively, she may well have started to share his thoughts at that time. I will deal with that issue later. As to the smelly state of the toilet, this may have been an indication that they were beginning to have difficulty looking after themselves. On the other hand, her notation "received 15 March 1990" suggests a person maintaining a systematic approach to her affairs. His evidence does not assist the caveator.

252. Astrid Katherine Worts, the wife of the caveator deposed to a close relationship between the testatrix and the caveator's mother and his uncle. She deposed that there was regular contact between the caveator and the testatrix and the uncle but did not give details. She said that Alan Manley became dictatorial in the late 1980's. She gave evidence of visiting them herself noting that if her husband was in Melbourne on business he would drive her to the testatrix and uncle and she would stay there for a period. He would pick her up and take her home. In dealing with the 1989 Christmas, she said that the testatrix was not as bad as she had seen her. She said she had been visiting previously and found the testatrix still in bed at 12:30 to 1:00 pm and the testatrix would say she was having a bit of a rest that day. I note that Mrs Worts was referring to physical and not mental capacity problem. At the Christmas lunch, she said the testatrix got up from a chair a few times to come inside to show them where things were kept in the kitchen. She said that on this day, the testatrix didn't make much conversation and that it was Alan Manley who did all the talking. She said she didn't talk much and "wasn't her usual self". She described her as not being confused but being very frail. Physically she was having problems with swollen ankles and arthritis in the knees. She was at that stage 91. She said that the testatrix had not had a problem in recognising relatives in 1989 including the Christmas party.

255. She confirmed the evidence of Mr Robert Sidney Worts that there was a major problem with the toilet on the occasion of the Christmas party in 1989 - notwithstanding that the party continued for some hours and nothing was done about it. Mrs Worts said she did not want to embarrass the testatrix. She said the toilet needed a thorough clean. At the same time she said that she didn't look at it. She said that she visited a day or two after Christmas and cleaned the toilet and went shopping. She did the cleaning of the toilet very quickly. She also confirmed that the cracked flooring in the toilet continued for a significant period of time. As at Christmas 1989 she described the house as being tidy but not as clean as it used to be and her evidence was that that was the situation thereafter. She gave evidence that "in the end" the testatrix didn't care. When tested on this assertion it appeared that she meant that that was the case from 1989 onwards but it was unclear on what she based the assertion. She disagreed with Mrs Balas' evidence that at no time did she ever see her acting strangely or confused or disoriented as to her surroundings or the people to whom she was talking. She referred to the testatrix starting to agree with her brother in 1989. She referred to an example , one that was raised by no one else, namely, a statement made by the testatrix that their phone was being tapped. As an example of a decline in memory she said that in 1989 or 1990, while they were still living at Geelong, she visited with some avocados from South Australia and that the testatrix did not know what the avocado was.

258. She said that she believed that the testatrix and the uncle were struggling from mid 1989 and were really beyond it by mid 1990. I note again that nothing significant was done by the nephews to assist. The explanation she advanced was the fierce independence of the testatrix and her brother. It appeared from her evidence, however, that she was able to give them some help so that there was scope for the nephews themselves to give her some help. For example, Mrs Astrid Worts gave evidence that she herself did on occasions help in cleaning the house, cleaning the refrigerator and cleaning the toilet and doing some washing and ironing.

261. She spoke about the health of the testatrix deteriorating. She spoke about her just sitting and smiling and becoming slower when she visited her prior to their departure to Possum Creek in April of 1990. She said that there was a deterioration in the period between December 1989 and April 1990. She claimed that by 1990 and 1991 she was saying the same sort of things as Alan Manley about drug taking.

264. Generally, it seems to me that her recollection of the testatrix's capacities in the 1989 to 1990 period has become inaccurate. It does not accord with the realities. In particular, I note that she said in evidence that she was surprised that the aunt and uncle were managing their own affairs including paying their bills through 1989, 1990 and 1991 and surprised to hear that the testatrix continued to go to church through that period. She also said that she did not believe that the testatrix had gone to the solicitor's office in 1990. These matters point to her having, over time, taken a view of the situation of the testatrix that did not accord with reality. That having been said, I note that she conceded that the testatrix was in a terrible state in 1992 when she was in the Box Hill hospital. She and her husband had only seen the testatrix some four or five times in the intervening period after their departure to Possum Creek. It is significant that for all her reservations about the testatrix's condition in 1989 and 1990, she saw a dramatic difference in the testatrix in 1992.

267. Thus reviewing the evidence of the caveator, his wife and his brother there is little to cast doubt on Mrs Brokenshire's testamentary capacity other than the suggestion of paranoid thoughts about neighbours and phone tapping and a possible decline in the cleanliness of the house based, in particular, on the state of the toilet at Christmas 1989 and an example of memory loss about avocados. In any event, I regard the evidence of the three witnesses as lacking in reliability. At the same time, their evidence, if accepted, points to a lack of close direct contact between the nephews and their aunt and a lack of assistance, particularly in comparison with that given by Astrid Worts. This occurred at a time when their aunt and uncle were struggling to look after themselves and their home. Their proud independence may be the justification offered for the failure to do more to assist but I am satisfied that neither nephew put that independence to the test by themselves offering assistance. Astrid Worts did on a few occasions and her help was accepted.

270. I turn to other evidence relied upon by the caveator. In particular, there is the evidence of the testatrix's doctor and evidence of a geriatric assessment of the testatrix that occurred four months after the execution of the will.

Testamentary capacity - Evidence of the testatrix's treating doctor

274. Evidence was given by Dr. Neil, the general practitioner of the testatrix at the relevant time. The caveator relies on Dr. Neil's records to support his case that the testatrix was suffering short-term memory problems, paranoid thoughts and mild dementia at the time she executed the will. Dr. Neil was Mrs Brokenshire's doctor from May 1981 to January, 1992. In January, 1992 she was attended by Dr. Davidson, a partner in the same practice and a few months later by Dr. Bennie of the same practice.

277. Dr. Neil is no longer a young man and appeared in the witness box to be somewhat confused and to have difficulty recalling detail. He had originally expressed the opinion that the testatrix lacked testamentary capacity. After discussion prior to trial with the lawyers acting for the propounder, during which it was pointed out to him that one can have testamentary capacity although there may be defects, for example, in short term memory, he then expressed the opinion that she did have testamentary capacity. Since then he has reverted to his original opinion. I note that Dr. Neil based his conclusion that she lacked capacity upon the assumption by him that at the relevant time her mind was confused and the task was a complex one. The latter was incorrect. As to confusion, he said that she had trouble keeping appointments but his records suggest that she seemed to have kept appointments every month through 1989 and, in 1990, up to September 1990. He said that she could remember why she came to the surgery but tended to forget his instructions. When this began is unclear. Counsel for the caveator conceded that his evidence had to be treated with some reservation. In my view this was a proper concession. Little reliance can be placed on Dr. Neil's present recollection or his present opinions as to the condition of the testatrix. In particular, in concluding that she lacked capacity, he had to concede that he had failed to consider the referral he prepared in June 1990 to Dr. Hum and the Camberwell Day Health Centre for assessment of Mrs Brokenshire by a geriatric team. He said that when he wrote the referral to Dr. Hum he had referred to his notes. I will refer later to the referral in more detail.

280. Dr. Neil in reality could do no more than rely upon the notes he had taken and they reveal the following relevant information:

"19.4.84 - `Memory failing.' 16.11.84 14.12.84 (Visits, no entry of relevance) 6.2.85 - `Memory not so good.' 6.3.85; 17.4.85; 27.5.85; 20.6.85; 5.7.85; 31.7.85; 25.9.85; 6.11.85; 11.12.85; 9.1.86; 20.2.86; 9.4.86; 15.7.86 (Visits, no entry of relevance). (Note, throughout the foregoing period there are references to problems with balance and some falls. Those references continue.) 31.7.86; 14.8.86; 16.10.86; 3.11.86; 12.12.86; 26.2.87; 21.7.87; 22.10.87. (No entry of relevance) 15.12.87 - After referring to balance not being good `Memory not too good.' 22.8.88; 24.10.88; 5.12.88; 6.2.89; 18.1.89 (No entry of relevance) 3.4.89 - `Distressed by neighbours.' 27.4.89; 1.5.89; 13.6.89; 11.7.89; 8.8.89; 6.9.89 (No entry of relevance) 17.10.89 - `Goes to sleep if she sits down...' 28.11.89 8.1.90 - `ISQ- .BP 140/80 - M "Tick" (meaning the symbol), Chest "Tick" 26.2.90 - `Corn paired away (sole of left foot) BP 130/80' 26.3.90 - `Burn to L. thigh - BP 140/80 - Ankles swollen.' 17.4.90 - `Burn healed BP 130/84' 15.5.90 - `Fell and strained right shoulder M. Chest "Tick" - BP 140/80' 18.6.90 - `Had another fall. Refused Lasix tablet BP 140/80 M Chest. Order XX.'"

From the above it seems that Dr. Neill noted short term memory problems on few occasions.

285. She saw Dr. Neil on 24 July, 1990 and 21 August, 1990 and 18 September, 1990. In the case of the last appointment there is reference to her balance being poor. There was then no further visit until 26 June, 1991 where there is a note that she fell near her bed but there was no injury.

288. On 22 June, 1990, three months after the will was executed, Dr. Neil prepared a referral to the Camberwell Day Health Centre for geriatric assessment. This referral is of particular significance. The pro-forma document he filled out required certain information to be supplied. The first section of information supplied indicated that Mrs Brokenshire was not confined to bed, was continent and amenable to reason and was not in need of help with feeding, dressing, showering or walking. The next section dealt with mental condition. In that section Dr. Neil wrote,

"Very alert and not at all confused but fiercely independent and rather paranoid about her neighbours throwing things over their fence and throwing things at the cat."

The next section dealt with "physical condition/investigations". In that he wrote,

":Becoming increasingly unbalanced BP 150/80 - Heart `Tick' - Chest `Tick' - Oedema X."

The next section dealt with "diagnoses/management/medication:" In that he wrote,

"Refuses medication for swollen ankles - was on Diazide then Lasix. On no medication at present."

The next section asked for reasons for referral and required him to identify a list of problems, namely "medical, social or psychological". He marked "social", and did not mark "medical" or "psychological". In that section he wrote:

"Patient frequently loses her balance and falls at home or while shopping. Lives with brother who is also quite frail. I have recommended that she moves into hostel type accommodation but she is reluctant at present, but I would be grateful for your help, advice."

298. The propounder gains minimal assistance from the few references in Dr. Neil's notes to memory loss and the reference to "distressed by neighbours" on 3 April 1989. They are very few. I suggest, however, that the best evidence available about his assessment of the testatrix is to be found in the referral to Camberwell Day Health Centre. From that, it is clear that he thought she was being "rather paranoid" about her neighbours but was satisfied that she was "very alert and not at all confused". His reason for referral was not medical or psychological but social.

301. Dr. Neil knew the testatrix better than the personnel who saw her at the Camberwell Day Health Centre. His description of the testatrix was of a person who still had testamentary capacity.

Testamentary capacity - the geriatric assessment

305. Dr. Hum, a geriatric specialist, saw the testatrix at the Camberwell Day Hospital on 1 July 1990 for the purpose of a geriatric assessment. Mrs Balfe, a social worker who was involved with Mrs Brokenshire in July, 1990 also gave evidence.

308. Dr. Hum has been qualified as a medical practitioner since 1986 and has worked in the area of geriatric medicine since 1989. He has a Diploma in Geriatric Medicine from North West Hospital. He was obtaining or had just obtained that diploma when he saw Mrs Brokenshire.

311. Dr. Hum interviewed Mrs Brokenshire to assess both her physical mobility and her mental status. He performed part of the Folstein Mini Mental State Test on her. She achieved a score of 19 or 20 out of a possible 23. He used this as a guide for his assessment. He noted that she correctly answered the following questions:

"(a) What was the date? (b) What was her address? (c) Where was she? (d) What State she was in?"

She was also able to comprehend three words and immediately repeat them to him, to count back from 100 by seven to 65, to draw a hexagon, to write a simple sentence and follow a two stage command.

316. In his affidavit he commented that she was reasonably alert and orientated but had poor short term memory recall. In evidence he explained that that conclusion was based upon the fact that she was given three words to comprehend, remember and immediately repeat - for example, "orange, table, car". Having done that she was then told that she would be asked a little later to repeat the same three words. In the mean time she would be asked to do another test. That test was the count back from 100 by sevens to 65. This involved a series of mental arithmetic exercises at the end of which she was asked to recall the three words. She did the mental arithmetic successfully but failed to recall the words. His opinion of poor short term memory was based on that failure.

319. On 3 July, 1990 Dr. Hum wrote to Dr. Neil. He described Mrs Brokenshire as someone who presented with a

"history of poor balance, occasional falls, paranoid ideation and mild memory loss. Although I found her to be reasonably alert and oriented, she did display poor insight ..."

He referred to the results of the Folstein Mini Mental State Test. He found nothing remarkable in the physical check that he conducted. Later in the letter he said,

"To determine whether she has early dementia or an acute onchronic confusional status, I feel she needs a dementia screen to exclude a reversible cause."

He also recommended further assessment by the therapists at the Camberwell Day Hospital to assess the health and status of her brother. He had referred her to the occupational therapist, a speech therapist and a social worker for further sorting out of her cognitive status and social circumstances.

326. The dementia screening tests were done. Those tests were designed to identify any possible biochemical conditions which might be causing an altered mental state; that is, confusion. The results were within the normal range.

329. On 5 October, 1990 he again wrote to Dr. Neil indicating that Mrs Brokenshire had been discharged from the Camberwell Day Hospital. He commented

"She is a difficult lady to assess because of her fierce independence and poor short term memory and lack of insight into her problems."

He referred to a visit by the occupational therapist on 2 August, 1990 in the course of which Mrs Brokenshire was reluctant to have aids installed "with her paranoid ideation being quite noticeable". He commented that she agreed to a grab rail being installed by the bath, but refused rails down the steps into the toilet area. She had also been reluctant to attend the hospital for either physiotherapy or occupational therapy. He referred to her having a significant hearing loss. She attended only once for a fitting of the hearing aid and was reluctant to attend again.

334. In his affidavit he deposed that by reason of his examination of Mrs Brokenshire he had formed the opinion that she was probably suffering from mild to moderate dementia of the Alzheimer's type. He could not be more specific than that having seen her only the once. He deposed that a person suffering from dementia of that type of a mild to moderate range is not automatically incapable of looking after their financial and other affairs and that such a person often retains sufficient skills to continue to manage their own affairs. Under questioning, he said that he could not say with confidence that the testatrix had the necessary capacity in March 1990. His reason for saying that appeared to be that he had not specifically tested her. I note also that he was not invited to take into account the lay evidence about the testatrix's condition.

337. The original notes made by Dr. Hum were also produced. Amongst other things they recorded, "Poor historian", "Paranoid ideation according to neighbour and GP", "Forgetful, leaves stove on, keys in house" "Independent .../showering/ toiletry", "Continent,. does own cooking". Dr. Hum said he based his statement of "Paranoid ideation" on the basis of Dr. Neil's referral and the occupational therapist comments. His "mild to moderate dementia" assessment was based on paranoid ideation and the short term memory loss. His reference to "poor historian" he said, would have been made to record that he did not believe he had obtained a complete history. He could not recall the details. He believed he would has sought information from her about recent falls and possibly the alleged paranoid ideation. I note that he did not consider the possibility that she may not have wanted to answer such questions. At the same time he relied at least in part on her skills as a "historian" in recording her past history as "Nil Significant".

340. Records of the Camberwell Day Hospital were produced. Some were made by a Mrs Balfe who gave evidence. Others were made by other people and the precise intent and meaning of their comments could not be verified. Generally, the notes confirm that Mrs Brokenshire and Mr Manley were managing everyday tasks without outside help and that Mrs Brokenshire was having problems with her balance. Other information was included.

343. A record was prepared by a person named Ludvik who was a "S.P.". He or she noted that Mrs Brokenshire was referred to

The note goes on to comment that Mrs Brokenshire had "a significant hearing loss .." She was fitted with a hearing aid but, finding it uncomfortable, declined to use it. The comment was made:

"Mrs Brokenshire lip reads well and her loss only becomes marked when she loses visual contact."

"This need to be formally assessed. She has not noticed a great change but feels that her poor memory of messages is due to her hearing loss. Insight is generally poor."

Formal testing of memory and cognition was recommended as was further work on the hearing aid.

354. On the 13th July 1990 an unnamed occupational therapist saw Mrs Brokenshire and made progress notes. He or she noted:

The comment was again made that assessment was required of cognitive state.

361. On about 18 July 1990 there was a home visit by a social worker, Mrs Balfe. The purpose of the visit was to assess her social situation. Certain entries were made which are relevant. As to the household it was described as follows:

"the house was very tidy and organised in a methodical and systematic way - the garden was neat (lawns are mown professionally every two weeks) and the pots on the front veranda well tended. "

She noted that the responsibility for shopping and organising community support lay with the brother. The note refers to support from neighbours and the church but that she also had neighbours with whom she had difficulties. It noted that

"she and her brother are quite paranoid about activities which go on in the school ground opposite e.g they are concerned about drug dealing."

"Mrs B. has some obvious STM problems. E.g. did not remember my arranged visit, failed to come to CDH on appointed day, cannot recall street names but is also a strong minded and independent woman who does not see the need for treatment at CDH or outside interventions. According to her brother she is becoming more muddled. Over the past months she has been confused about appointments and arrangements and there has been tension between them as a result."

She noted that Mrs Brokenshire was adamant that she could cope at home and didn't need any help but agreed to a trial of meals-on-wheels.

370. The notes record that on 31 July 1990 Mrs Brokenshire rang to cancel an appointment. The notes record:

"repeated remarks about problems following PT last time but did not want to be discharged. Says she will call in some time and explain - `can't say it over the phone'."

On 31 July 1990, the person named Ludvik noted that Mrs Brokenshire had only attended once since the initial assessment and expressed disappointment that she had been reluctant to attend again. Ludvik had hoped it seems, to assist with the hearing aid and assess memory. On 1 August 1990 Mrs Balfe noted a telephone call to Mrs Brokenshire in which Mrs Brokenshire said that meals-on-wheels had been "quite successful" but that she did not think that she would "continue them after this week". The note goes on to say "I tried to arrange H.V. with OT but Mrs B did not quite understand the arrangements". She noted that she planned to visit on Thursday and would ring on the morning of the visit. A home visit occurred on 6 August 1990 involving an occupational therapist named Dunlop and Mrs Balfe. The note made by Dunlop records

"Mrs Brokenshire lives with her brother in a neat uncluttered house in Mont Albert. Mrs Brokenshire was reluctant to have aids installed (paranoid ideation noticeable) - agreed for one x 18" grab rail to be installed beside bath"

Mrs Balfe said in evidence that she did not know the basis for the reference to paranoid ideation and had no evidence of it herself on that visit. The note then records that the step down to the toilet appeared to be an unsafe area but "rails were refused". It also noted

"Mrs Brokenshire is reluctant to attend CDH for therapy. She is an independent woman with obvious confusion. Her present living arrangements will require further monitoring. Refer S/W."

Dunlop recorded later, on 15 August 1990, that the Camberwell City Council had rung to advise that the extra rail had in fact been installed in the toilet. The notes record an entry by Mrs Balfe of a telephone call to Dr. Neil on 23 August 1990. She recorded that.

"He realises that Mrs B is difficult to assist because of her fierce independence and lack of insight into her problems."

"encourage her to seek advice from R.D.N.S. Continence Service re her urinary incontinence."

She said in evidence that she thought it logical to assume that either she or the occupational therapist had detected the smell of urine in the house but had no recollection of it. The notes record that she outlined to Dr. Neil concerns about hearing, installation of rails, refusal of physiotherapy and confusion and memory problems "which had been obvious in CDH dealings with Mrs B". She referred to the termination of meals-on-wheels. The notes recorded that because of her refusal to come to CDH no further contact would occur and that Mrs Brokenshire was discharged.

383. Turning generally to Mrs Balfe's oral evidence she said that she graduated with a Bachelor of Arts and Diploma of Social Studies from the University of Melbourne in 1969 and has worked on and off ever since as a social worker. Asked what recollections she had she said she remembered the visit to the house but she didn't remember Mrs Brokenshire very clearly. She was referred to exhibit C21, a note she had prepared from her file for the solicitors for the caveator. The note picked out items from the material I have referred to above. Her recollection was that, on the home visit, they sat in the sitting room and walked into the kitchen and admired some pot plants. She said the occupational therapist went into the bedroom and bathroom at a subsequent visit. She said she sat with Mr Manley while the occupational therapist looked at the bathroom, toilet and bedroom. She said that she assumed that the reference by the brother to her being "muddled" was a reference to organisational details - remembering Day Hospital appointments. That was how she understood what she had written. In cross-examination, she said she could not recall whether the brother seemed to be in better mental condition than the testatrix. She visited with the occupational therapist on the 6 August 1990 but did not make any notes of her own. She said that the notes essentially accorded with her views but she didn't have any evidence on the visit of paranoid ideation referred to by the occupational therapist and did not recall to what that referred. In cross-examination, she said that she could not recall the precise difficulties experienced with neighbours to which Mrs Brokenshire had referred. They could have been different from the concerns expressed about activities in the school yard. She could not say if it was the brother who spoke about those activities rather than Mrs Brokenshire. She said she did not know when or why meals-on-wheels were stopped. She thought that her note of the conversation with Dr. Neil reflected what he said but she would not have noted it if she hadn't agreed with it. As to lack of insight, she said, in evidence in chief, that a person lacking insight is unable to assess in a rational way the needs that he or she might have in the circumstances. In cross-examination she said that a reference to "lack of insight" could mean that Mrs Brokenshire did not acknowledge that the problems existed or that there was some denial of the problem. She said it could be either. She agreed that denial is a phenomena common amongst people of all ages. She agreed that what she and the others may describe as denial could simply be a choice not to make use of the services that were offered. Asked whether Mrs Brokenshire was able to understand what she was saying, she said that that was difficult to comment on from "this distance of time" and that she also did have a hearing problem. The reference to her forgetting a visit was the first home visit.

386. She did not think there could be a rational reason for refusing the rail to the toilet. I note that it was subsequently installed. She said putting the hand rails in was not expensive (for the bathroom - approximately $20). The client paid for the installation and the rail was provided by the hospital. She said she could not recall a smell in the rear area of the house or in the toilet.

389. In assessing the material in the above notes, it must be remembered that only Mrs Balfe was called to give evidence. Her evidence does not materially advance matters. The other personnel were not called. While the record of their actual observations of physical phenomena might be thought to be reasonably accurate, their opinions about her mental capacities are a different matter. It is unclear to what extent they were reporting their own opinions or repeating that of others when noting issues such as confusion, lack of insight or paranoid ideation**.** The perceptions of each would have been influenced by what they had read in the referral and the file. They appear to have relied upon Mr Manley's comment that his sister was "muddled" without considering the reliability of his perceptions. Reliance may also have been placed on the notes concerning a failure to "recall street names". The notes, however, do not record what questions were asked and, thus, how significant this failure in fact was. About three weeks earlier she had given her address to Dr. Hum. In assessing this evidence, another issue is the difficulty of knowing what the people making the assessments and notes meant by the terms they used. The occupational therapist and social worker would have been looking for signs of paranoid ideation and, on one view, their conclusion as to its existence was based upon a refusal to have the aids suggested. The refusal, however, may have may have simply reflected a fierce independence - as may have been the case with the alleged "lack of insight". There may have been a failure to allow for her hearing difficulties in assessing her mental capacity and other explanations too readily assumed. If she seemed confused and paranoid, a factor may have been the stress caused by the attention of a number of different professionals, their intrusion into their life and fear for her future and that of her brother. Another factor may have been poor hearing. I note, that despite her alleged difficulties, there was no adverse comment about the state of the house. In fact the comments made about that were very positive.

392. Ultimately, the most reliable contemporaneous record of an assessment of Mrs Brokenshire's mental capacity is that in the referral of Dr. Neil. He knew the testatrix well. He would have noted anything significant for the purpose of the geriatric assessment. He identified some paranoid ideation about neighbours but no confusion and described the testatrix as alert.

395. I turn to other issues raised by the caveator as demonstrating a lack of mental capacity.

Other capacity issues - The will in the wood box

399. A duly executed duplicate original of the 1990 will was found amongst newspapers in a wood box by the fire by members of the Worts family in 1992. There is no evidence, however, as to how it got there and when it got there. It tells us nothing of the capacity of the testatrix in early 1990.

Other capacity issues - Appointing her brother executor

403. The appointment of her brother as executor is said to demonstrate a lack of capacity. It occurred at a time when he had for some time revealed an obsessive, apparently paranoid, fixation about drug trafficking and criminal activity in the area. There is evidence to support the conclusion that that fixation had continued for some years prior to the making of the will and that the testatrix was aware of the fixation. There is also evidence that he gave away some things. At the same time it is also clear that the testatrix had been able to rely upon him to carry out many of the physical tasks required in the home and to go from the home to the shops for shopping purposes and to pay bills. It is also clear that her brother more than adequately carried out the tasks given to him by Mr Martin in taking the will back to her for execution, helping organise the execution, and having it returned to Mr Martin. In addition, in his dealings with Mr Martin he said and did nothing to alert Mr Martin to any deficiencies while adequately instructing him. It would also seem that Mr Manley, on the evidence of Astrid Worts, was quite persuasive when talking about his drug trafficking concerns and other like matters and it may well be that to a certain degree the testatrix accepted as accurate what he said. There is some support for that in the evidence suggesting that she was repeating the paranoid thoughts to some extent at about the relevant time or a little later.

406. It is not unreasonable to conclude that, while the testatrix would have been aware that her brother had this problem, his behaviour otherwise in 1990 was not such as to cause her concern that he would not be able to perform the role of executor. In particular, it needs to be borne in mind that little would need to be done in that role. The house was to be transferred into his name. Accepting the situation as I have described it, she also was advised by Mr Martin to appoint him as executor. In those circumstances it does not appear to me to be an irrational decision. At best for the caveator there is a degree of lack of judgment but not such as to cast doubt upon the capacity of the testatrix.

Other capacity issues - the removal of the nephews from the will

410. The other matter advanced was the alleged irrationality of removing the two nephews, the children of her sister, her only blood relatives apart from their own children, from the residuary gift and substituting the Eaglehawk Uniting Church for them.

413. It does seem on the evidence that something occurred to cause the testatrix to reconsider her dispositions and that such events occurred between 1987 and 1990. There is evidence to suggest that during the period 1987 to 1990 the testatrix at various times was reviewing the disposition of her estate and changing her mind from time to time. I refer, for example, to the comment to Mr Henson that she was looking after the property for him and his brother. I refer also to the comment to Astrid Worts about the two great nieces living at the property.

416. There are several possible plausible and rational explanations for the ultimate change of mind. Firstly, it is clear that Robert Sidney Worts had decreased the frequency and quality of the contact he had with the testatrix and her brother in that period and in particular from 1986 onwards. This, on its own, may have provided the catalyst for her to rethink her residuary gift. Further, notwithstanding the assertions of Alan Worts and his wife, one must have doubts about the extent and quality of the visiting by them during that period and, in particular, that of Alan Worts. I refer again, for example, to the fact that it seems that Alan Worts was not aware, nor was his wife, that the cat Mitty, having been taken away was shortly afterwards returned and resided with the testatrix for some time. Next, Robert Sidney Worts would have been seen by the testatrix to be a very successful business man. She would have seen Alan Worts as either a very successful business man or as someone who had been accused of serious acts of dishonesty and who was not being honest with them about his problems. Next, it is plausible that despite her fierce independence and her reluctance to accept assistance, she was disappointed that, as she and her brother found it more difficult to cope, there was no increase in visits or practical assistance from the nephews. If the house was falling into disrepair as is alleged, might she have hoped and expected that her nephews and their children themselves would have come to help? Might she not have been disappointed that offers were not made? It may also be said that from the testatrix's point of view, from 1987 onwards she had more contact and support from the church and her neighbours who were church goers than she did from the nephews. On the evidence the Uniting Church arguably had a greater moral claim on her bounty than the adult male children of her sister. When one adds to that the fact that the Eaglehawk Uniting Church had apparently been a very important part of her youth, it is not surprising, that she made the residuary gift that she did. It must also be borne in mind that the gift was a residuary gift and the primary gift was to her brother who was ten years younger than she was. There are thus plausible reasons which would explain the choices made by the testatrix and it is likely that one or more of the above factors caused the change of heart of the testatrix. Her decision may, therefore, be seen to be rational.

419. Counsel for the caveator also submitted that the way she dealt with the residuary gift showed a lack of understanding of the operation of the will and therefore a lack of capacity. It was put that she was "emphatic" that the residuary gift go to the Church and yet, did nothing to ensure that that happened if she died before her brother. The evidence does not support the conclusion that she was "emphatic" that the Church benefit. That was her wish if the choice was hers. The argument also assumes that she would not have approved the estate going to the Lort Smith Animal Hospital. I do not, however, see why she would not have countenanced her estate going to that hospital in view of the fact that she plainly had a strong attachment to animals such as the cat "Mitty".

422. In conclusion, I note that the incident of the papers in March 1990 referred to by Robert Sydney Worts did not cause the change. The testatrix and Irene Worts maintained their contact afterwards and the gift of the cutlery and cabinet was maintained. In any event the changes to the will were mooted by the testatrix prior to that event.

Other capacity issues - cancelling meals on wheels

426. The evidence establishes that the testatrix and her brother did accept meals on wheels for a short period of time but cancelled it. It is suggested that this showed a degree of irrationality. There can, however, be other sensible explanations. For example, they may have believed they could provide themselves with better meals. Mrs Kerr gave an example of a less than adequate meal which she observed being delivered by the meals on wheels organisation.

429. I turn to the expert testimony called by both parties.

Testamentary capacity - Evidence of expert consultants

433. Two expert witnesses were called, one by each party. The propounder called Dr. Lloyd and the caveator, Dr. Wagner. Dr. Lloyd's final opinion was that it could not be demonstrated that the testatrix lacked testamentary capacity. Thus he was not prepared to say that she did have the necessary capacity but left the issue open. Dr. Wagner expressed the opinion that she did not have testamentary capacity.

436. Dr. Lloyd is a specialist neuropsychiatrist. From 1972 to 1992 he was the clinical director of a new psychiatric centre, Mont Park Medical Centre, and from 1975 to 1992 was Director of the Neuropsychiatric Services Office of Psychiatric Services. Since 1992 he has been head of the Neuropsychiatric Unit at the Royal Melbourne Hospital. He holds honorary positions at St Vincent's Hospital and Fairfield Hospital. He lectures at Melbourne and Monash Universities on dementia and works with post graduate students in that area.

439. Dr. Wagner is a fellow of the Royal Australian College of Physicians and a member of the Cardiac Society of Australia and New Zealand. He is a consultant physician and cardiologist who has been in medical practice for 43 years. A large part of his practice involves patients that are older than 75 years. In oral evidence he said he would see a patient who was suffering from dementia at least once a week.

442. While not doubting the skill and competence of Dr. Wagner, it must be accepted that Dr. Lloyd's qualifications are significantly superior where issues of dementia are to be considered.

445. In assessing their evidence, I also note that both doctors had to deal with the problem that they were asked to consider material of which they were not aware at the time they formed their opinions. I was more impressed with the way Dr. Lloyd handled that problem. Dr. Lloyd stated in his affidavit that, based on materials supplied to him, in his opinion, Mrs Brokenshire retained testamentary capacity at the time her will was drawn up and executed in March 1990. As a result of other matters being drawn to his attention, Dr. Lloyd modified his opinion to one that it could not be demonstrated that she did not have the capacity - in other words, he left the question open. Dr. Wagner on the other hand maintained that she did not have the necessary capacity. It emerged, however, that he had not read or had ignored the referral by Dr. Neil to Dr. Hum. Having had it drawn to his attention in evidence he agreed that it could not be reconciled with his opinion. He did not, however, show any doubt about his opinion.

448. In assessing Dr. Wagner's opinion, I note also that he based his opinion in part on statistics as to the prevalence of dementia in persons over 90. In light of the evidence of Dr. Hum, Dr. Lloyd and Dr. Wagner, however, the statistical material is variable and imprecise. At best gives a figure for the percentage of people with dementia without any information about the degree of the dementia concerned. That is the critical question in this case. In my view, he placed too much reliance on statistical material at the expense of evidence relating to the specific case. Dr. Wagner's opinion was also based in part on the rejection of the possibility of a sudden acceleration of the dementia in 1992. This involved the rejection of the evidence of a number of witnesses of the significant and accelerated decline that occurred in 1992. I refer to the evidence of Mr Downing, Mr Henson, Mrs Kerr, Mrs Balas and to a lesser extent, Mrs Worts. In my view, that evidence should be accepted. I am satisfied that there was a sudden accelerated deterioration in the mental condition of the testatrix in the first half of 1992. The inability of medical experts to diagnose the precise cause does not detract from the fact that it occurred. One cannot, therefore, as Dr. Wagner did, reason back to an earlier date on the basis that, because there was severe dementia in 1992 then there must have been significant dementia in 1990. I note also that he relied upon Dr. Hum's comment of "poor short term memory recall" without knowing or establishing the basis for the comment. At the same time, he said he found some of the results of the tests administered by Dr. Hum surprising. They also did not cause him to qualify or moderate his opinion. He persisted in his view that the dementia at the time of the testing by Dr. Hum would have been at the moderate end of the mild to moderate spectrum.

451. For the above reasons his opinion about the testatrix's testamentary capacity should be rejected.

454. Both witnesses also gave evidence about the nature and consequences of dementia. For similar reasons, I prefer the evidence of Dr. Lloyd about the nature and consequences of dementia. In particular, I accept the following:

1. A person can have dementia and paranoid ideation and still have testamentary capacity. The presence of the former does not necessarily negate testamentary capacity.

2. There can be catastrophic and sudden deterioration in the condition of the dementia.

3. Paranoid ideation can be discreet. It tends to relate to specific and discreet areas. Thus the fact that the testatrix may have shown a degree of paranoid ideation in relation to neighbours did not mean that she had any such paranoid ideation in relation to family members.

4. Paranoid ideation is often a suspiciousness, a doubt, which is amenable to reason or to challenge. A delusional belief is a fixed illogical belief which is not challenged or questioned by the patient.

5. A patient may have delusional beliefs, may have hallucinations, may have a psychotic disorder but still be quite capable of identifying what they own and who might have a claim on their bounty. The presence of psychotic ideation and delusional beliefs do not preclude the person having reason in other areas.

6. With short term memory deficiencies it is possible to remember current events and plans if they are linked in some way to long term memory items and particularly when they are seen by the person to be important.

463. Dr. Lloyd's credibility was challenged on the basis that he had rejected the evidence of the Worts' family and done so in a matter of a few lines in his affidavit. What he said in his affidavit was that he noted the contents of their affidavits and it was his opinion that

"they provide little information to form any opinion about the state of mind or testamentary capacity of Mrs Brokenshire on 16 March 1990."

467. Asked to explain his reasoning further he said that the main affidavit was that of Alan Worts. He said that it deposed to a good relationship in early years and there was little reason to question that. He referred to the contents of the affidavit and how much of the material referred to the behaviour of Alan Manley. He noted the suggestions that Mrs Brokenshire had become increasingly dependent but he didn't think that that would necessarily cover the mental cognitive functions. He said there was no specific mention of Mrs Brokenshire showing significant memory loss such as failure to recognise and so on. He said the remainder of the affidavit referred to subsequent findings well after the date. He said one of the exhibits was a hand written letter from Mrs Brokenshire which was very fluent, the date was 31 August 1987. There was reference in the affidavit also to considerable deterioration in the house between 1990 and 1992 but generally he said at the critical time he couldn't find anything that assisted him to come to a conclusion on the mental capacity of Mrs Brokenshire. He said that the memory loss had been reported but there was no evidence in July 1990 of a gross dementing syndrome. He said going back four months one would expect it to be less severe.

470. Counsel for the caveator also criticised Dr. Lloyd for in effect being biased in making a choice between the affidavit material. This I think is unwarranted in that he, like Dr. Wagner, was given most of the affidavit material and was asked to express an opinion on the ultimate issue - testamentary capacity. Inevitably he had to decide what weight to attach to the material. It seems to me that the affidavits of Robert Sydney Worts, Astrid Katherine Worts and Alan Reginald Worts did in fact provide little information upon which to form an opinion as to testamentary capacity at the critical date. Thus his approach to that affidavit material did not reveal a bias on his part. Further, in my view, his objectivity was shown after he was made aware of the failure of the solicitor to explore capacity in detail. He had proceeded on the basis that that had occurred. He modified his position to one that testamentary incapacity could not be shown. As noted above, Dr. Wagner by contrast when his attention was drawn to, in particular, the referral by Dr. Neil to Dr. Hum did not show any doubt in his opinion.

473. As to specific evidence concerning Mrs Brokenshire, I have noted that she obtained a very good score of 19 or 20 out of a possible 23 or 24. According to Dr. Lloyd, assuming similar performance in other items she would have had a normal score. The failure to complete the test detracted from it being used as a basis for concluding that she had dementia. Similarly, other tests could have been done to check the cognitive functioning of the frontal lobes which were of more significance as far as testamentary capacity were concerned. He agreed that the appointment of the brother as executor was not a rational decision. He expressed that view on the basis that, while he had not considered the capacity of the brother, he expected that the brother's dementia would have been apparent to the solicitor if questioning had occurred. As noted above, it appears that it was not.

476. Dr. Wagner said in his evidence that an examination of correspondence and other writing of the testatrix could be valuable evidence on the question of testamentary capacity. This proposition is plainly correct. There is some correspondence in evidence. I have mentioned the letter written in 1987 exhibited to Alan Worts' affidavit. It is well written and clear, showing memory capacity and logical thought. Another document of relevance is one of the two notes written by Irene to her sister returning the papers that in error found her way into her handbag in early March 1990. Mrs Brokenshire had written on one of the two notes "received 15/3/90". This at least pointed to a systematic approach being taken to her affairs at that time. Mr Henson also produced a 1989 Christmas card which bore the writing of Mrs Brokenshire. The writing is clear and well set out. In her own hand she wrote "Margaret, Keith and family" and after the card's Christmas greeting, "with love from Jean and Alan" and records her address, postcode and the date, "17.12.89". On the previous Christmas, Mr and Mrs Henson apparently left a gift for Mrs Brokenshire and her brother which prompted Mrs Brokenshire to write, in the same clear hand, on 15 January 1989 as follows:

" 15/1/89 Dear Keith and Margaret, Thank you for remembering us at Xmas. We were sorry to miss you on your way to spend a few days break at your holiday house. For us, '88 proved hectic. Usually, we are not absent at the same time. It may have been the day we had a 9:30 appointment. All the best for `89 Love from Auntie Jean and Alan"

480. I have referred to the fact that Alan Worts in the course of his evidence said that he had found correspondence from the testatrix to his mother written up until the date of his mothers death in August 1991. In his evidence he said that he had thrown it out because he did not think it of any relevance. He had those letters in his possession at the time he was contemplating challenging the will. Counsel for the caveator subsequently informed the court that Astrid Worts had kept a box containing the correspondence and it was stored somewhere with other boxes. Mrs Astrid Worts did not give any evidence about the letters but did not give any evidence to contradict counsel's statement. The clear and strong inference is open that such correspondence exists and I draw that inference. Applying the rule in Jones v. Dunkel, the inference should be drawn that such documents did not assist the case for the caveator. The letters are relevant to at least two issues. One is the question of whether there was a break down in the relationship between the sisters which might explain the change in the wills. The other issue is, of course, the issue of testamentary capacity. The failure to produce these documents enable more readily to be drawn the inference that that relationship was not harmed and that the testatrix did have testamentary capacity. (Transport Industries v. Longmuir [1997] 1 VR 125).

484. The will for which the testatrix gave instructions was relatively simple. She had few assets to pass on. There were few choices that she had to consider.

487. There is evidence, which I accept, from Mr Martin and Mrs Balas that at the time of giving instructions and at the time of executing the will she was aware of what she was doing and was aware of her asset position. She also had an awareness at the relevant times of her next of kin who might have a claim on her bounty. She also said to Mr Henson and Mrs Balas that she was intending to make a will prior to doing so. She was aware that she was cutting out her nephews. After the event, she recalled making the will and recalled going to Mr Martin's office. I note that in 1989 at the Christmas party she knew the location of things in the house and she and her brother had organised presents. She recognised the family members. Four months later, in July 1990, she remembered the date, where she lived, where she was and the State she lived in. She was able to carry out a difficult mental calculation, although in this she may have been aided by the fact that she had been a bookkeeper. Even in July 1992, she remembered that she owned the house at 17 Barloa Road.

490. I am satisfied that she and her brother were able to function satisfactorily together in the home for a considerable period of time after the will was executed and that she was the manager. It is significant, for example, that all bills had been paid up until about April 1992 when Mr Robert Sidney Worts was appointed as guardian, save and except for a few bills which had been outstanding for some months. Together, as a team with her as manager, they had been able to organise their lives quite satisfactorily for a considerable period of time after the execution of the will.

493. While the evidence of Mr Martin and of Mrs Balas, Mrs Kemp and Mr Downing does not contain examples of conduct which would directly establish all aspects of testamentary capacity, nonetheless, they demonstrate a consistent pattern of a person who was well groomed, conversed easily and lived in a tidy and clean house at the relevant time. I note that Dr. Wagner accepted, and it was common ground, that personal appearance and the condition of the home are highly relevant to the issue of mental capacity. She regularly attended church and the church Women's Group and never betrayed any lack of mental capacity on those occasions. She was always ready to be driven to church functions, remembered details of the congregation, recognised people and remembered future commitments. While of course it is possible for persons with dementia and short term memory problems to conceal their difficulties, it is significant I suggest that none of those people could point to any such difficulties. She also was aware that at least some of her brother's ideas were divorced from reality and had the mental capacity to use diversionary tactics to minimise embarrassment for all.

496. Accepting that there probably was some form of mild dementia at the relevant time, what must be determined is how that dementia manifested itself and affected the testatrix. I am satisfied that it manifested itself in some ideas described as paranoid ideation and some minor short term memory problems. The former related to criminal activities of neighbours and to possible phone tapping. It did not relate to any family matters. Her short term memory problems appear to have related to the keeping of appointments and possibly following doctor's instructions. Even then her problems may in part have been related to her poor hearing. I am satisfied that the testatrix was otherwise alert and not confused at the relevant time. There is no evidence that she was confused in any way about matters central to her life and in particular to matters which were dependent in part on long term memory. As to the alleged lack of insight, denial fuelled by her fierce independence is the more likely explanation.

499. As to the alleged examples of irrational behaviour, I have dealt with them in some detail above. It is sufficient at this point to note that I have come to the conclusion that the appointment of her brother as executor on the advice of Mr Martin does not point to an irrational decision but at best, from the caveator's point of view, points to a lack of judgment perhaps. Secondly, on the evidence, the removal of the nephews from her will is capable of rational explanation, as is the residuary gift that was made.

502. As to the evidence of the expert witnesses, for reasons I have advanced I believe the evidence of Dr. Wagner should be rejected both as to theory and as to the likely mental capacity of the testatrix at the relevant time. The other experts, Dr. Hum and Dr. Lloyd ultimately left open the question of whether the testatrix lacked testamentary capacity.

505. Finally, by way of summary I refer again to the fact that a potentially very valuable piece of evidence has been withheld by the caveator from consideration in these proceedings. I refer to the letters written by the testatrix in 1990 and 1991 to her sister. I am satisfied that that correspondence is available and that the absence of it has not been satisfactorily explained. Applying the rule in Jones v. Dunkel one may, therefore, more readily draw the inference open on the evidence that the testatrix did have testamentary capacity at the time she gave instructions for the 1990 will and at the time she executed it.

508. After careful and vigilant examination of the whole of the evidence, I am satisfied that the testatrix did in all the circumstances have testamentary capacity in all the required aspects both when she gave instructions and when she executed the will. I am also satisfied that she knew and approved the contents of the will.

512. The caveator's case is essentially a circumstantial case. Counsel referred to the circumstance that the testatrix on the evidence suffered at least mild dementia which included symptoms of forgetfulness and paranoid ideation. He relied upon evidence of Alan Manley in 1989 attempting to have her admitted to a nursing home. He relied upon the growing physical dependence of the testatrix on her brother to enable her to continue to live at home. He referred to the fact that Mr Manley organised the making of the will and its execution and went with her to the solicitors to have the new will prepared. Counsel also submitted that she was subjected to his "carrying on" about drug trafficking and neighbours to the point that she had begun to accept his beliefs. Counsel also referred to the high handed action he took in removing the cat. Counsel submitted that in combination these factors led to a situation of undue influence resulting in the removal of the caveator and his brother from the testatrix's will.

515. In the course of argument I put to counsel the question whether the foregoing merely pointed to an opportunity to influence and ask what the evidence was of the exercise of that influence. He responded saying that that conclusion was to be drawn from the circumstances; his presence when the will was signed, his organisation of the witnesses to come to the premises and witness the signing. I assume he would add to that the change to the will. Also reference should be made to the fact that in his will made in 1990 he changed his testamentary dispositions to exclude Alan Worts and his family.

518. I find the case put forward unconvincing. I am satisfied that at the relevant time the testatrix and her brother Mr Manley lived, at best from the caveator's point of view, in a situation of equal power and that in fact it was the testatrix as the elder sister who exercised ultimate control. I am also satisfied that Mr Manley was in no position to dictate to her as to the dispositions of her estate. He was dependent upon her and if there was anything that he wanted her to do she had the ultimate power because she could deny him accommodation if she wished and exclude him from her will. It is true that she was physically dependent upon him but he was also dependent upon her. Further there is nothing to suggest that Mr Manley at the relevant time held any feelings of animosity towards the nephew concerned. His hostility was directed to perceived drug dealers and neighbours not to members of the family. The claim of undue influence is not made out.

522. For the forgoing reasons I am satisfied that the testatrix had testamentary capacity and knew and approved the contents of her will at the relevant time. In addition, the caveator has not made out his case of undue influence.