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[2010] WASC 367
Supreme Court of WA
2010-12-09
Dr J, Simmonds J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : BROWN -v- WADE [2010] WASC 367
MATTER : Probate of the wills of WILLIAM JAMES WADE late of 'Greenville Stud', Wickepin Road, Narrogin, Western Australia, Deceased
BETWEEN : MICHAEL BROWN As Executor of the Will of WILLIAM JAMES WADE
KATHLEEN IVY WADE As Executor of the Will of WILLIAM JAMES WADE
Wills - Probate - Whether testator had testamentary capacity - Testator an elderly person in frail condition - Medical and non-medical evidence - Proper approach to evidence
Wills - Probate - Whether testator knew and approved of contents of will
Wills - Probate - Whether testamentary undue influence - Standard of proof for case resting on circumstantial evidence - Whether standard met
Wills - Probate - Revocation of will - Whether capacity to revoke will - Medical and non-medical evidence - Proper approach to evidence
Wills Act 1970 (WA), s 15, s 36
Plaintiff's claim for probate of will in solemn form made out
Bailey v Bailey [1924] VicLawRp 45; [1924] VLR 294; (1924) 34 CLR 558
Barndon v Chelvanayagam [2006] WASC 118
Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152
Birmingham v Renfrew [1937] VicLawRp 70; [1937] VLR 327; [1937] ALR 520; (1937) 57 CLR 666
Bool v Bool [1941] St R Qd 26
Boyse v Rossborough [1854] EngR 252; (1857) 6 HL Cas 1; (1857) 10 ER 1192
Briginshaw v Briginshaw [1938] HCA 34; [1938] ALR 334; (1938) 60 CLR 336
Bull v Fulton [1942] HCA 13; [1942] ALR 221; (1942) 66 CLR 295
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Fisher v Kay [2010] WASCA 160
Grainger v Williams [2009] WASCA 60
Hayden v Bond [2003] WASC 96
Jones v Dunkel [1959] HCA 8; [1959] ALR 367; (1959) 101 CLR 298
Kantor v Vosahlo [2004] VSCA 235
Kerr v Badran [2004] NSWSC 735
Le Cras v Perpetual Trustee Co Ltd; sub nom Re Resch's Will Trusts [1967] UKPC 1; [1969] 1 AC 514; [1967] 3 All ER 915; [1968] 3 WLR 1153
Luxton v Vines [1952] HCA 19; [1952] ALR 308; (1952) 85 CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170
Nicholson v Knaggs [2009] VSC 64
Nock v Austin [1918] HCA 73; (1918) 25 CLR 519
O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916
Public Trustee (in and for the State of Western Australia) v Anglican Homes Inc [2007] WASC 204
Public Trustee v Till [2001] 2 NZLR 508
Re Richards [1911] VicLawRp 57; [1911] VLR 284
Revie v Druitt [2005] NSWSC 902
Robertson v Smith [1998] 4 VR 165
Roebuck v Smoje [2000] WASC 312
Ryan v Public Trustee [2000] 1 NZLR 700
The Public Trustee v Elderfield; Re Estate of Poole (Unreported; NSWSC (Young J); Lib No 118125 of 1994; 26 April 1996)
West Australian Trustees Ltd v Poland (Unreported, WASC (Kennedy J), Library No 7000, 6 January 1988)
Wingrove v Wingrove (1885) 11 PD 81; (1885) 50 JP 56
Winter v Crichton (1991) 23 NSWLR 116
Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439; (1952) 26 ALJR 626
1 These are the reasons for judgment in the trial of an action for probate of a will. William James Wade died on 18 July 2006. His widow is Kathleen Ivey Wade.
2 Mr Wade had made a will dated 21 February 2006 (the Will of 21 February 2006). It is not contested that this was, when made, a valid will.
3 Subsequently, Mr Wade signed a document dated 6 June 2006 purporting to be a will which revoked all of his 'former wills and testamentary dispositions' (the purported Will of 6 June 2006). Michael Brown is the husband of Kaye Lynette Brown, the eldest daughter of Mrs Wade by a previous marriage, and he is named as one of the executors of the February 2006 will, but not of the purported Will of 6 June 2006. In that capacity he brings the present proceedings. I refer to Mr Brown as Mr Brown or the plaintiff. Mrs Brown is one of the beneficiaries under the Will of 21 February 2006 and the purported Will of 6 June 2006, but has a substantially lesser beneficial interest under the latter.
4 Mrs Wade is named as one of the executors of the purported Will of 6 June 2006, but not of the Will of 21 February 2006. She is also one of the beneficiaries under the Will of 21 February 2006 and the purported Will of 6 June 2006; however, she has a substantially greater beneficial interest under the latter. Mrs Wade in her capacity as an executor of the purported Will of 6 June 2006 is the first defendant in these proceedings, and as one of its beneficiaries is the second defendant. I refer to Mrs Wade as Mrs Wade or the defendant.
5 The plaintiff brought this action seeking probate of the Will of 21 February 2006. He says Mr Wade did not know and approve of the contents of the purported Will of 6 June 2006 and lacked testamentary capacity at the time he executed it. Even if he had such knowledge, gave such approval and had such capacity, the plaintiff says the purported Will of 6 June 2006 should not be admitted to probate because Helen Elaine Lewis, another daughter of Mrs Wade by her previous marriage, together with her husband, Ray Lewis, procured the execution of the document by their undue influence. The plaintiff further says that in any event on 13 July 2006, Mr Wade revoked the purported Will of 6 June 2006 and revived the Will of 21 February 2006.
6 Mrs Wade seeks probate of the purported Will of 6 June 2006. She denies the lack of testamentary capacity and the lack of knowledge and approval Mr Brown asserts. She also says that on 13 July 2006, Mr Wade lacked the capacity to revoke the purported Will of 6 June 2006.
8 The first issue is whether or not the purported Will of 6 June 2006 should not be admitted to probate on the basis that Mr Wade lacked testamentary capacity at the relevant time, or did not know or approve of its contents.
9 The second issue, arising only if the resolution of the first issue is 'No' is whether or not the execution of the purported Will of 6 June 2006 was procured by the undue influence of Mrs Helen and Mr Ray Lewis.
10 The third issue arises only if the resolution of the second issue is 'No'. The issue then is whether or not the purported Will of 6 June 2006 was revoked.
11 I will first provide a background to these issues. That background represents facts and circumstances that are not in contest.
12 Then I will deal with each issue in turn, setting out the applicable law, considering the relevant evidence, and describing my findings and the reasons for them.
13 Mr Wade was born on 24 May 1920. Throughout most of his life he was a farmer in the Narrogin area in Western Australia.
14 Mr Wade farmed two properties, each made up of lands under a number of titles. Both farming properties were on the Williams-Kondinin Road. There was in evidence (exhibit 50) a coloured plan that showed the two farming properties and dealings with portions of them over the period beginning at about the time Mr Wade made a will in August 1995, and ending at the date of his death, in July 2006. There were no additions to the farming properties over that period, but a number of dealings sold portions of them. One farming property was called Merribah and all of the sales were of portions of that farming property. The evidence indicates that Mr Wade's two farming properties were the bulk of his assets at all material times.
15 During at least a part of that period, Mr Wade was a partner in a farming partnership with Mrs Wade, named WJ & KI Wade, which was in respect of all or a part of his farming business at the relevant times.
16 Mr Wade's farming business had run at a loss for the 10 years ending with his death.
17 Mr Wade also owned, for a period at least, a brood mare and stud sheep.
18 Merribah, at its largest extent, comprised a number of Williams Locations or portions of them in a number of titles and forming an area of land around a School Reserve, all to the north of the Williams-Kondinin Road, except for one piece of land running south from it.
19 In mid-1997, Mr Wade sold the piece of Merribah running south from the Williams-Kondinin Road to persons who do not feature in these proceedings.
20 In or about November 2000, Mr Wade completed the sale of another piece of Merribah, forming the western-most portion of that farming property, to Leslie Gordon Gambrell and his wife, Rhonda Nicole Gambrell. The Gambrells were referred to by some of the witnesses in these proceedings as, respectively, Les and Nikki. Mr Gambrell had worked for Mr Wade on his farming properties beginning at least 10 years earlier. Mrs Gambrell did the books for Mr Wade's farming business in the period up to his death. In 1994 or 1995, Mr Wade had approached the Gambrells, offering to build a house for them on a portion of Merribah. He provided the money for the house, and the Gambrells contributed labour and material to the project. Thereafter the Gambrells lived rent free in that house and the portion of land on which it was built remained at all material times part of Merribah.
21 Mr Wade's final sale of a part of Merribah over the period in question was of pieces of land surrounding the School Reserve to the north and east, and extending south to the Williams-Kondinin Road. The sale was in February 2005, and was to Mr and Mrs Brown. In February 2006 the Browns sold most of their farmlands, not including the pieces of land they had bought from Mr Wade in February 2005.
22 The other farming property was called Greenville. Greenville was mostly to the south east of Merribah, on both sides of the Williams-Kondinin Road. Greenville comprised a number of Williams Locations in a number of titles. The house in which Mr Wade lived with Mrs Wade after their marriage was located in Greenville.
23 Mr Wade's estate at his death included Greenville and the balance remaining of Merribah.
24 Mr Wade had a sister, Patricia Shipley. Mr Wade was married twice. The first marriage was to Jean McGellin, who died in or about 1990. There were no children of this marriage.
25 On 6 February 1993, Mr Wade married Mrs Wade, then a widow. At that time she had three daughters from her previous marriage: Mrs Brown; Dale Lorraine Bergin (Mrs Bergin) who is married to Rex Bergin; and Mrs Lewis. There were no children of Mr Wade's second marriage.
Background: Mr Wade's eight wills prior to the Will of 21 February 2006
26 Mr Wade made or purported to make ten wills from 15 August 1995 to 6 June 2006, leaving aside the effect of the purported revocation of the purported Will of 6 June 2006. I deal with the first eight wills here. I deal separately with the Will of 21 February 2006 and the purported Will of 6 June 2006. For all of the wills I only outline the dispositive and closely related provisions. For each, I will briefly summarise the principal effects of the will and then outline its provisions in more detail.
27 As will be seen, counsel for the plaintiff laid particular emphasis on what he described as patterns in the first nine wills made by Mr Wade.
28 All the wills described revoked all previous wills of Mr Wade.
29 The earliest will, that of 15 August 1995, provided that Mrs Wade and Mr Brown would be the executors. It gave certain farmlands (apparently being Merribah) to the Gambrells, if they survived Mrs Wade, with a life interest in her favour. Mrs Wade was also given certain other interests, including, if she survived Mr Wade, the remainder of his farmlands. Provision was also made for Mrs Lewis, Mrs Bergin and Mrs Brown, if they survived Mr Wade.
30 The 15 August 1995 Will provided for a life interest for Mrs Wade in the lands the subject of three specified Williams Locations, being respectively the lands in three specified certificates of title, apparently comprising Merribah as it was at that time. The Gambrells were given a right of first refusal if it were decided to lease those farmlands. Those farmlands were given to such of the Gambrells as should be living at the time of Mrs Wade's death, and, if both survived her, in equal shares. The remainder of Mr Wade's farmlands, apparently Greenville, was given to Mrs Wade, but if she predeceased Mr Wade, to his sister, Mrs Shipley. The Gambrells were given a right of first refusal if it were decided to sell or lease those remaining farmlands. Certain persons named as friends were given a named brood mare and Mr Wade's interest in her progeny; and certain other named persons, not members of Mr Wade's family or the Gambrells, were given Mr Wade's interest in any other racing horses.
31 From his residuary estate, Mrs Wade was given his farming partnership interest or interests. The Gambrells were given a right of first refusal if it were decided to sell assets of that partnership or those partnerships. Also from Mr Wade's residuary estate, such of his stepdaughters (Mrs Lewis, Mrs Bergin and Mrs Brown) as should survive him, and, if more than one, in equal shares, was given the beneficial interest in $30,000. The balance then remaining of the residuary estate was given to Mrs Wade.
32 The 20 August 1996 Will, like the 15 August 1995 Will, provided that Mrs Wade and Mr Brown would be the executors. The 20 August 2006 Will made reduced provision for the Gambrells and greater provision for Mrs Wade. The same provision was made for Mr Wade's stepdaughters as under the 15 August 1995 Will.
33 The 20 August 1996 Will provided that portions of two named Williams Locations, respectively being parts of two specified certificates of title, representing a total area of approximately 200 acres, apparently part of Merribah as it was at that time, together with 200 flock ewes, were given to such of the Gambrells as should survive Mr Wade, and if both survived him in equal shares. This bequest appears to have included lands on which the house the Gambrells occupied stood.
34 The remainder of Mr Wade's farmlands was given to Mrs Wade without any express requirement for her to survive Mr Wade and without provision for Mrs Shipley. The Gambrells were given a right of first refusal if Mrs Wade decided to sell or lease those remaining farmlands.
35 There were the same provisions as in the 15 August 1995 Will for the brood mare, her progeny, and Mr Wade's interest in any other racing horses. The provisions for Mr Wade's residuary estate were the same as in the 15 August 1995 Will, for his stepdaughters and for Mrs Wade, but without separate provision for his farming partnership interest or interests.
36 The 28 November 1997 Will, like the 15 August 1995 Will and the 20 August 1996 Will, provided that Mrs Wade and Mr Brown would be the executors. The 28 November 1997 Will made similar but further reduced provision for the Gambrells, and similar provision for Mrs Wade as the previous two wills, and the same provision was made for Mr Wade's stepdaughters.
37 The 28 November 1997 Will provided that portions of the same two specified Williams Locations, respectively being parts of the same two specified certificates of title as in the 20 August 2006 Will, but described as representing a reduced total area of approximately 80 acres, together with 200 flock ewes, were to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares. This area appears to have included lands on which the house the Gambrells occupied stood.
38 The remainder of the dispositions of the 28 November 1997 Will, including provisions for disposition of the brood mare, her progeny and Mr Wade's interest in any other racing horses, a right of first refusal for the Gambrells and the dispositions in respect of the residuary estate, were in the same terms as the corresponding dispositions in the 20 August 1996 Will.
39 Unlike the two previous Wills, the 11 November 1999 Will provided that Joseph Leong and Mr Brown would be the executors. Mr Leong was in an accounting practice in Narrogin and, after the retirement in 1993 of his partner in that practice, received instructions from Mr Wade on accounting and taxation matters with respect to his farming activities and the farming partnership. Unlike any of the previous wills, the 11 November 1999 Will made separate provisions for the Merribah and Greenville farmlands. Larger provision was made by the 11 November 1999 Will for the Gambrells and similar, but not identical, provision was made for Mrs Wade. Substantially different provisions were made for Mr Wade's stepdaughters, with different provision for Mrs Bergin compared with those for Mrs Lewis and Mrs Brown.
40 The 11 November 1999 Will provided that portions of the same two specified Williams Locations as in the corresponding provision in the previous two wills, now referred to as being together comprised in a specified lot in a specified plan (Lot 7 on Plan 23298) and without any reference to total area, were to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares. It may be noted that, on the uncontradicted evidence of Mrs Gambrell, at about this time, Mr Wade had subdivided the land on which the house the Gambrells occupied, telling Mrs Gambrell that this was to facilitate the transfer of the land to them following his death.
41 The 11 November 1999 Will also provided that specified parts or portions of Williams Locations, being respectively parts or the whole of the lands comprised in specified certificates of title, together specified as representing the balance of Merribah, other than the part disposed of to the Gambrells as I have just indicated, and a part disposed of as I will shortly indicate, were to go to Mrs Wade for her life and, after her death, to Mrs Shipley for her life if she survived Mrs Wade and, after the death of the survivor of Mr and Mrs Wade and Mrs Shipley, to such of the Gambrells as should then be surviving, and if, both survived, in equal shares.
42 The Gambrells were given an option to lease the balance of Merribah during the lifetimes of Mrs Wade and Mrs Shipley if they survived Mr Wade; and if the Gambrells exercised that option they were to be given 200 flock ewes.
43 The 11 November 1999 Will also provided that Mr Wade's real estate known as Greenville, described as specified Williams Locations and a portion of another, respectively being lands comprised in specified certificates of title, as well as a part of Merribah being specified Williams Locations and being the land comprised in a specified certificate of title, were to go to Mrs Wade for life or until the sale of Greenville, whichever was the earlier. During Mrs Wade's lifetime if she survived Mr Wade, Mrs Bergin was to have the option to lease Greenville excluding the residence, yard and outbuildings occupied by Mr and Mrs Wade and subject to the stud sheep, until they were sold, being run on Greenville. If Mrs Bergin exercised the option she was to be given 200 flock ewes.
44 If Mrs Wade sold Greenville then 40% of the proceeds were to go to Mrs Wade, 40% to Mrs Bergin, 10% to Mrs Lewis and 10% to Mrs Brown. If Greenville was not sold during Mrs Wade's lifetime, then on the death of the survivor of Mr Wade and Mrs Wade, Greenville was to go to Mrs Bergin subject to her paying $25,000 to each of Mrs Lewis and Mrs Brown.
45 The 11 November 1999 Will provided that within six months of Mr Wade's death, his interest in the stud sheep was to be sold and, after payment of debts and expenses, the balance was to go to Mrs Wade. There was the same provision as in the previous three wills for the brood mare and her progeny. The residuary estate was given to Mrs Wade without the other provisions in respect of the residuary estate found in the previous will.
46 The 17 April 2000 Will, like the 11 November 1999 Will, provided for the appointment of Mr Leong and Mr Brown as the executors. Compared with the previous will, similar, but not identical, provisions were made for the Gambrells and for Mrs Wade and Mr Wade's stepdaughters. The 17 April 2000 Will, unlike any of the previous wills, also provided for the children of the stepdaughters.
47 The 17 April 2000 Will provided that the same lot as in the corresponding provision in the 11 November 1999 Will (Lot 7 on Plan 23298) was to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares. However, this was subject to payment of a weekly sum to Mrs Wade for the rest of her life, and the Gambrells were not to sell the land before her death.
48 The 17 April 2000 Will provided that the balance of Merribah, described as the same Williams Locations and portions of Williams Locations that was described as the balance of Merribah in the 11 November 1999 Will, with the exception of one Williams Location and a portion of another, was to be given for life to Mrs Wade. After the death of the survivor of Mr and Mrs Wade, specified Williams Locations and portions of Williams Locations from the balance of Merribah were given to such of the Gambrells as should then be surviving, and if, both survived, in equal shares, to Mrs Brown and to Mrs Lewis (including a portion of a Williams Location omitted from the description of the balance of Merribah).
49 The Gambrells were given an option to lease the balance of Merribah during the lifetime of Mrs Wade if she survived Mr Wade, and if they exercised that option, they were to be given 100 flock ewes.
50 The 17 April 2000 Will provided that the Williams Location omitted from the description of the balance of Merribah, was to be sold and the proceeds used to pay the debt owing to Elders at Mr Wade's death and the balance, if any, was to be an accretion to his residuary estate.
51 The 17 April 2000 Will provided that Greenville, described as the same Williams Locations and portions of Williams Locations as in the 11 November 1999 Will, was to go to Mrs Wade for life, and on the death of the survivor of Mr and Mrs Wade, to Mrs Bergin subject to her paying $25,000 to each of Mrs Lewis and Mrs Brown. During Mrs Wade's lifetime if she survived Mr Wade, Mrs Bergin was to have the same option to lease Greenville as in the 11 November 1999 Will, and if she exercised it she was to have 100 flock ewes.
52 The 17 April 2000 Will provided for the sale of the stud sheep and the disposition of the proceeds in very much the same terms as the 11 November 1999 Will, except that Mr Gambrell was given the organisation of the sale.
53 The 17 April 2000 Will provided that any sheep remaining after the other dispositions referred to, as well as farm plant and equipment in any partnership of which Mr Wade was a partner at his death, was to go to Mrs Wade for life with the Gambrells and Mrs Bergin to have options to lease one half each if they exercised their respective options to lease the balance of Merribah and to lease Greenville. On the death of the survivor of Mr Wade and Mrs Wade, the sheep and the farm plant and equipment were to go as to one half to such of the Gambrells as should then be surviving, and, if both survived, in equal shares, and the other half to Mrs Bergin.
54 There was the same provision in the 17 April 2000 Will as in the previous four wills for the brood mare and her progeny.
55 The 17 April 2000 Will gave the residuary estate to Mrs Wade in the same terms as the previous will.
56 Finally, the 17 April 2000 Will provided that if any of Mr Wade's stepdaughters died before him or before attaining a vested interest then such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.
57 The 5 February 2001 Will, the first of two in that year, like the previous two wills, provided for the appointment of Mr Leong and Mr Brown as the executors. However, the 5 February 2001 Will was much simpler than any of the previous wills. By comparison with the previous two wills, it made lesser provisions for the Gambrells and Mrs Wade, and equal provisions for the stepdaughters.
58 The 5 February 2001 Will provided that the same Lot as in the corresponding provisions in the 11 November 1999 Will and the 17 April 2000 Will (Lot 7 on Plan 23298) was to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares, but without provision for any payment to Mrs Wade or direction not to sell.
59 The 5 February 2001 Will provided that the residuary estate was to go to Mrs Wade for life, and then to such of Mr Wade's stepdaughters as should then be living and, if more than one, in equal shares. There was the same provision for the children of the stepdaughters as in the 17 April 2000 Will.
60 The 19 March 2001 Will, the second of 2001 like the previous three wills, provided for the appointment of Mr Leong and Mr Brown as the executors. The 19 March 2001 Will, like the 5 February 2001 Will, was relatively simple, but made greater provision for the Gambrells, correspondingly lesser provision for Mrs Wade, lesser provision for Mrs Lewis and correspondingly greater provisions for Mrs Bergin and Mrs Brown.
61 The 19 March 2001 Will provided that the same lot as in the corresponding provisions in the previous three wills (Lot 7 on Plan 23298) was to be given to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares, but without provision for any payment to Mrs Wade or direction not to sell. However, there was also a bequest to the Gambrells in the same terms in respect of the other parts of Merribah that had been given to them by the 17 April 2000 Will, but not by the 5 February 2001 Will (Lots 5 and 6 on Plan 23298), and with the addition of another Williams Location (Williams Location 295) referred to in the 11 November 1999 Will as forming part of the balance of Merribah, but not given them by any previous will, but not including one Williams Location that the 17 April 2000 Will had given them (Williams Location 235).
62 The 19 March 2001 Will provided that $50,000 was to go to Mrs Lewis, and the residuary estate to Mrs Wade for life and on her death to such of Mrs Brown and Mrs Bergin as should then be living and, if more than one, in equal shares. The 19 March 2001 Will also provided that if Mrs Brown or Mrs Bergin died before Mr Wade or before attaining a vested interest, then such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.
63 The 24 January 2002 Will, like the previous four wills, provided for the appointment of Mr Leong and Mr Brown as the executors. The 24 January 2002 Will, like the previous three wills, was relatively simple, but made lesser provision for the Gambrells than the 19 March 2001 Will, but greater provision for them than the 5 February 2001 Will. Compared with the 19 March 2001 Will, the 24 January 2002 Will made correspondingly greater provision for Mrs Wade, no provision for Mrs Lewis and correspondingly greater provision for Mrs Brown and Mrs Bergin.
64 The 24 January 2002 Will provided the same bequest to the Gambrells as the previous will, but not including Williams Location 295 (that is, it provided a bequest to them of Lots 5, 6 and 7 on Plan 23298).
65 The 24 January 2002 Will made no bequest to Mrs Lewis.
66 The 24 January 2002 Will made the same provisions for the residuary estate and for the children of Mrs Brown and Mrs Bergin as in the previous will.
67 Mr Wade did not make another will until the Will of 21 February 2006.
68 As I have indicated, it was not in contest that the Will of 21 February 2006 was valid when made. It was also not in contest that, if the Will of 21 February 2006 was not effectually revoked by the purported Will of 6 June 2006, or it was revived on 13 July 2006, it should be admitted to probate.
69 The Will of 21 February 2006, like the previous eight wills, revoked all previous wills of Mr Wade, and like the previous five wills it provided for the appointment of Mr Leong and Mr Brown as the executors.
70 It will be seen that in its dispositions to the Gambrells, Mrs Wade and Mr Wade's stepdaughters, it more closely resembles the 5 February 2001 Will, the earlier of the two wills of that year, than it does any of the other previous wills.
71 The Will of 21 February 2006, like the previous five wills, made a bequest of Lot 7 on Plan 23298 to such of the Gambrells as should survive Mr Wade, and if both survived him in equal shares, but like the previous three wills, without any provision for payments to Mrs Wade or a direction not to sell. The Will of 21 February 2006 also provided that of Mr Wade's interest in the partnership WJ & KI Wade, one half of the poll merino sheep in the partnership was given in specie to the Gambrells, with the balance of the partnership interest forming part of Mr Wade's residuary estate. There was no further provision for the Gambrells.
72 The Will of 21 February 2006, like the previous three wills, provided that Mrs Wade took a life interest in Mr Wade's residuary estate. There was no further provision for Mrs Wade.
73 The Will of 21 February 2006 provided that on Mrs Wade's death, there was to be a gift of $100,000 to Mrs Lewis; lands being the whole of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, apparently representing the balance of Merribah as it was then, were to go to Mrs Brown; lands being the whole of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, apparently representing Greenville, were to go to Mrs Bergin; and the residue of the estate then remaining was to go to such of Mrs Lewis, Mrs Bergin and Mrs Brown as had survived Mr Wade and were then living and, if more than one, in equal shares.
74 The Will of 21 February 2006, like the previous two wills, provided that if Mrs Brown or Mrs Bergin died before Mr Wade, or before attaining a vested interest, then such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.
Background: the purported Will of 6 June 2006
75 I will describe the events following the Will of 21 February 2006, culminating in the execution of the purported Will of 6 June 2006, as well as some further events occurring before the execution of the Will of 21 February 2006 when I consider, in later sections of these reasons, the parties' submissions and the evidence relating to the matters of the capacity of Mr Wade to make the purported Will of 6 June 2006. For now I will describe the principal provisions of that document.
76 The purported Will of 6 June 2006, like the previous nine wills of Mr Wade, revoked all of his previous wills.
77 Unlike any of the previous nine wills, the purported Will of 6 June 2006 provided that Mr Leong and Mrs Wade would be the executors.
78 Unlike any of the previous nine wills, the purported Will of 6 June 2006 provided for a bequest of $10,000 to a named granddaughter of Mrs Wade, who it was common ground was a daughter of Mrs Lewis.
79 Unlike any of the previous nine wills, the purported Will of 6 June 2006 provided that after only that one disposition, the residue of Mr Wade's estate went to Mrs Wade, if she survived him.
80 Unlike any of the previous wills, the purported Will of 6 June 2006 provided that in the circumstance that Mrs Wade did not survive Mr Wade, the remaining dispositions were made:
(1) a bequest of Lot 7 on Plan 23298 to such of the Gambrells as should survive Mr Wade, and, if both survived him, in equal shares, but without any provision for payments to (the estate of) Mrs Wade or a direction not to sell. There was no further provision for the Gambrells. This was the first will under which provision for the Gambrells was made contingent on Mrs Wade pre-deceasing Mr Wade.
(2) a bequest to Mrs Bergin of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, corresponding to what appears to be the balance of Merribah that had been bequeathed to Mrs Brown by the Will of 21 February 2006.
(3) a bequest to Mrs Lewis of the lands comprised in certain specified certificates of title and also specified by lot or Williams Location numbers, corresponding to what appears to be Greenville that had been bequeathed to Mrs Bergin by the Will of 21 February 2006, but with one lot so bequeathed to Mrs Bergin not included in that bequest to Mrs Lewis, being Lot 1 on Diagram 7088. It is not in contest that a codicil to the purported Will of 6 June 2006 was subsequently prepared to bequeath Lot 1 to Mrs Lewis; however, the codicil was never executed.
(4) the residue then remaining was to go to such of Mrs Lewis, Mrs Bergin and Mrs Brown as had survived Mr Wade, and, if more than one, in equal shares.
(5) Finally, in the circumstance that Mrs Wade did not survive Mr Wade and any of Mr Wade's stepdaughters died before him or before attaining a vested interest, then the purported Will of 6 June 2006 provided that such of their children as should survive him or be born after him and attain the age of 18 years old should take what would have been their mother's share.
81 I will consider the events following the execution of the purported Will of 6 June 2006, culminating in the purported revocation of that will on 13 July 2006, later in these reasons.
82 I turn now to the issues in this case. I begin by outlining the general principles applicable to admission of a will to probate.
The general principles applicable to admission of a will to probate
83 I did not understand the applicable principles discussed in this section of my judgment, to be in issue.
84 To be admitted to probate as the last will of an alleged testator, an instrument must be shown to be the will of the alleged testator. This entails the party propounding the instrument as the alleged testator's will establishing that the alleged testator had capacity at the relevant time to make a will, that the alleged testator had the intention by the instrument to make a will, and that the alleged testator knew and approved of the contents of the instrument. See Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed) (1989) [301]; Bailey v Bailey [1924] VicLawRp 45; [1924] VLR 294; (1924) 34 CLR 558, 570 (Isaacs J); Le Cras v Perpetual Trustee Co Ltd; sub nom Re Resch's Will Trusts [1967] UKPC 1; [1969] 1 AC 514; [1967] 3 All ER 915; [1968] 3 WLR 1153, 547 (PC NSW); and Fisher v Kay [2010] WASCA 160.
85 Presumptions that there was such capacity, such intention and such knowledge and approval, arise from due execution of the instrument as a will: Fisher [85] (Owen JA, Buss and Murphy JJA agreeing) and authorities there cited. There is a presumption of due execution if a will, regular on its face, bears the signature of a testator and two witnesses: Fisher [83].
86 It was not in contest that the purported Will of 6 June 2006 gave rise to the presumption of due execution. In any event, I consider due execution was established on the evidence as to execution of the purported Will of 6 June 2006 that I review below.
87 There was no issue on the pleadings or otherwise as to testamentary intention, and in any event in my view the evidence as to the execution of the purported Will of 6 June 2006 established that intention.
88 In addition, the assent to the instrument may be vitiated by undue influence of another on the alleged testator or by any fraud. The burden in relation to these issues, as opposed to the preceding ones, lies on those seeking to impeach the instrument as a will. See Hardingham, Neave & Ford, (2nd ed) [301], [312] and [314]. There was no issue on the pleading or in submissions as to fraud, although the plaintiff in submissions pointed to the form of the purported Will of 2006 as, it was submitted, masking the changes the instrument made to the pattern of provisions in the previous wills. However, I understood this submission to be pressed as going to testamentary capacity and knowledge and approval of the instrument, and I will return to it briefly in those contexts.
89 I consider first the law applicable the issue of testamentary capacity before turning to the evidence and making my findings on that evidence.
90 I then deal with the issues of knowledge and approval and undue influence.
Testamentary capacity in this case: the law applicable
91 I did not understand the applicable principles to be in issue.
92 I take the following, from Roebuck v Smoje [2000] WASC 312 [87] (Hasluck J) to be a sufficient general statement of the law as to the meaning of testamentary capacity:
In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ said at 565 that in order to exercise the power of disposition by the execution of a Will a testator must understand the nature of the act and its effects; understand the extent of the property of which he is disposing; be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. The mere fact that the testator was eccentric or was subject to one or more delusions is not, of itself, sufficient.
93 This statement draws on Banks v Goodfellow (1870) LR5QB 549, 565 (Cockburn CJ), which is the 'classical exposition' (Hardingham, Neave & Ford, (2nd ed) [306]); and see Public Trustee (in and for the State of Western Australia) v Anglican Homes Inc [2007] WASC 204 [15] (Beech J). All four aspects must be present for there to be testamentary capacity: see Public Trustee [15].
94 In the case of the plaintiff, the first and second aspects of testamentary capacity were said to be of particular significance.
95 In relation to the first aspect, that of understanding the 'nature of the act and its effects' (Roebuck [87]), I note the following, from Nicholson v Knaggs [2009] VSC 64 [97] (Vickery J):
However, in comprehending the nature of what the testator was doing, and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is plainly not necessary. However, it does need to be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.
96 I take from that passage that it is not sufficient an alleged testator was capable of understanding the nature of the act of making a will. The alleged testator must be capable of understanding the 'practical effect' of the 'central clauses' in the instrument propounded as his will.
97 In relation to the second aspect of testamentary capacity, that of understanding 'the extent of the property of which he is disposing' (Roebuck [87]), I note the following from Nicholson [99], quoting from Kerr v Badran [2004] NSWSC 735 [49] (Windeyer J) as follows:
As to understanding the nature and extent of a testator's property, a recent statement by Windeyer J in Kerr v Badran is instructive in the contemporary context:
'In dealing with the Banks v Goodfellow test it is, I think necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at an advanced age, problems which arise with age such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing 'the extent' of the estate is considered. This does not necessarily mean knowledge of each particular assets or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life.'
98 I take from this that it is not necessary an alleged testator with substantial real estate assets had sufficient mental capacity to understand the detail as to them, such as their addresses or values; but his uncertainty as whether or not he still owned the substantial real estate assets of which the purported will disposed would point to lack of testamentary capacity.
99 As to the date as at which testamentary capacity must have existed it is established that if the testator had capacity at the time he gave instructions for his will to the solicitor, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see Hardingham, Neave & Ford (2nd ed) [308]; and Roebuck [86]. Where, however, the instructions were not given by the testator directly to the solicitor, the law appears to be that the relevant date is that of the execution of the will, unless the court can be satisfied there is no ground for suspicion, and there are unambiguous instructions to the intermediary clearly understood by that person and faithful reporting of the instructions correctly understood by the solicitor: Hardingham, Neave & Ford, (2nd ed) [308]; and Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152, 168 - 169.
100 In this case it is common ground that Mr Wade did not give such instructions, but rather they were given by Mr Lewis. In respect of Mr Lewis, there is the ground of suspicion that, about one month after the execution of the purported Will of 6 June 2006, he approached a solicitor to attend to the implementation of an agreement for Mr Lewis to take a transfer with Mrs Lewis from Mrs Wade of certain of the farmlands she was to take under that will. I return to that approach and related evidence later in these reasons. It further appears to be common ground that Mr Lewis gave the instructions for the purported Will of 6 June 2006 on or about 2 June 2006 (see exhibit 45, a record of a meeting which Mr Lewis attended with the solicitor who took his instructions).
101 However, there is no clear evidence as to when Mr Wade communicated his wishes to Mr Lewis on which those instructions were based, nor of the terms in which those wishes were expressed, other than what had been reported by Mr Lewis himself, that Mr Wade believed he had made a 'mistake' in his previous will and he wished to 'correct it by bequeathing this land' to Mrs Wade (see exhibit 95, an email to the solicitor from an officer in the firm of accountants used by Mr Lewis). On that evidence, it does not seem to me that I am in a position to refer to any other date than the date of execution of the purported Will of 6 June 2006 as that for the establishment of Mr Wade's testamentary capacity. Nor was the contrary strongly pressed on me.
102 I have said that there is a presumption of testamentary capacity that arose from the due execution of the purported Will of 6 June 2006. However, when the evidence as a whole is sufficient to throw a doubt upon the alleged testator's testamentary capacity, then there is no room for the presumption to operate and 'the question is whether, on the whole of the evidence, the plaintiff has discharged its onus as to the testator's capacity': Public Trustee [19] referring to Bull v Fulton [1942] HCA 13; [1942] ALR 221; (1942) 66 CLR 295, 343 (Williams J).
103 In this case, as I will indicate, the evidence as a whole is sufficient to throw a doubt upon the alleged testator's capacity. That doubt arises in particular from the following evidence:
(1) the evidence of those present at the execution of the purported Will of 6 June 2006, other than Mrs Wade, being the attesting witnesses to the purported Will of 6 June 2006, and of Mr Leong, who summarised to Mr Wade its central clauses;
(2) the evidence of Mr Wade's exchange with the solicitor who had prepared a number of his previous wills for him, and who saw him on 24 May 2006, when he indicated a wish make a new will;
(4) the nature of the changes to Mr Wade's previous testamentary arrangements when considered with the other three bodies of evidence.
104 Further reason to doubt is supplied by the change in the way Mr Wade made the purported Will of 6 June 2006, when that change is considered with the evidence in (4).
105 I conclude that on the evidence referred to, considered with the relevant evidence as a whole, the defendant, as the proponent of the purported Will of 6 June 2006, has not discharged her onus as to Mr Wade's capacity.
106 In arriving at these conclusions, I note the guidance from the following authorities.
107 In Nicholson [41], Vickery J said this:
In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.
108 In Roebuck [92], Hasluck J said this referring to the judgment of Isaacs J in Bailey:
Isaacs J said further that in order to displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was, in fact, exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. While the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions. Where instructions for a Will are given on a day antecedent to its execution, the former is by long established law the crucial date.
109 Finally, as to the terms of the purported Will of 6 June 2006, I note the following from Brown v McEnroe (1890) 11 NSWR Eq 134, 138 (Owen J, CJ in Eq):
Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide. When once the Court is satisfied that the testator was of sound and disposing mind, and understood the contents of his will, it will not consider the nature of the dispositions made, nor take into consideration any injustice or cruelty that may be apparent. Such injustice or cruelty is only a circumstance to be considered in ascertaining the soundness or unsoundness of the testator's mind, but is no ground for setting aside the will of a capable testator.
110 I consider that the reference in Brown v McEnroe to 'fuller and clearer evidence' should be understood, not as one to a 'particular species of proof to satisfy the onus', but rather to the need, when the doubt as to capacity arises such that the presumption of capacity can no longer be relied upon, to establish by 'clear and satisfactory proof' that the testator had capacity. See Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, 528 (Isaacs J, on the presumption of knowledge and approval, returned to below). The standard of proof is the ordinary civil standard of the balance of probabilities. However, in approaching the question whether that burden is discharged, the court must exercise the 'caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence': Kantor v Vosahlo [2004] VSCA 235 [22], quoted in Nicholson [92]: see also [93] - [94] (on testamentary capacity) and Roebuck [93] (on knowledge and approval).
111 I also note the following, from Bool v Bool [1941] St R Qd 26, 39 (Full Ct, Macrossan SPJ) quoted with approval in Nicholson [573]:
A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.
112 I consider those two authorities indicate that a great change of testamentary disposition that is unexplained, particularly where the departure is from a pattern of prior testamentary dispositions which indicates those for whom the testator considers himself morally bound to provide, requires fuller and clearer evidence of testamentary capacity.
113 I turn now to the evidence of the four kinds referred to, as well as other evidence to which the parties drew my attention as bearing on Mr Wade's testamentary capacity.
The evidence of those present at the execution of the purported Will of 6 June 2006
114 In the late afternoon of 6 June 2006, the purported Will of 6 June 2006 was executed at the office of Mr Leong in Narrogin. At 4.30 pm, Mrs Lewis had brought Mr and Mrs Wade to that office and had left. Mr Leong had in the presence of two employees of his practice, who served as the attesting witnesses, as well as of Mrs Wade, provided an explanation of the instrument to Mr Wade. Mr Wade had then signed the instrument on all of its pages after Mr Leong had corrected a misspelling of his name in it, and each of the two attesting witnesses then added their signatures to that of Mr Wade.
115 The only persons present during these events, apart from Mr Wade, were Mrs Wade; Mr Leong; and the two attesting witnesses, Leonie Marie Holtfreter and Philip Kiam Beng Ong. All of those last four gave evidence at the trial.
116 For reasons which will become apparent, I leave aside for the time being Mrs Wade's evidence as to those events.
117 I note in particular the evidence of Mr Leong, Ms Holtfreter and Mr Ong, as to the nature of Mr Leong's explanation of the purported Will of 6 June 2006; as to the response of Mr Wade when he was told that the Gambrells might miss out on the lands provided for them under that instrument; and as to whether Mr Wade showed any sign of uncertainty concerning the extent of the estate of which the instrument would dispose.
118 I find the evidence establishes that Mr Leong had read out word-for-word some, but not all, of the contents of the purported Will of 6 June 2006.
119 Mr Leong's evidence was that he explained the instrument 'on a clause-by-clause basis of the main provisions' but 'did not read each clause word-for-word'; however, he 'explained each clause to Bill and sought his confirmation that it was what he wanted' (witness statement, exhibit 85 [19]; see also [22] and [36]). In the course of so doing he read some clauses out word-for-word while for others he provided a 'general outline' (cross-examination, ts 585). His evidence was also that he did not read out or summarise the rest of the instrument coming after the clause for the substitution, for any of Mr Wade's stepdaughters who predeceased him, of their children; this was other than to say to Mr Wade that the clauses 'provided various powers to the trustees' (exhibit 85 [35], [36]; see also ts 589).
120 Mr Ong, when asked in cross-examination whether or not Mr Leong read out every clause of the instrument or 'read out' a summary of each one, replied:
- - - The relevant section, not every one.
Not every clause - - - Not every clause but only the relevant section to explain to - what that clause mean (ts 557).
121 Mrs Holtfreter's evidence was that Mr Leong 'read through the main provisions of the new will' (witness statement, exhibit 43 [18]).
122 I also find the evidence establishes that, in the course of describing to Mr Wade the contents of the instrument, Mr Leong explained to Mr Wade the possibility that the Gambrells might not get farmlands from Mr Wade's estate if he predeceased his wife, to which Mr Wade reacted with some concern. I further find that Mr Wade presented to the three witnesses as not having understood that possibility, despite repetition by Mr Leong of that explanation.
123 Mr Leong's evidence was that, when he explained to Mr Wade that if Mrs Wade died before him certain farmlands would go to the Gambrells, Mr Wade replied with words to the effect he 'always wanted to give them that land', adding the land consisted of '73 acres and a building' and the Gambrells had 'been loyal and good employees for many years and I always wanted to reward them' (exhibit 85 [24]). Mr Leong then said to Mr Wade that if he died before Mrs Wade 'the Gambrells may not get the 73 acres because Kath's will decides who gets what', at which 'Bill looked concerned', and Mrs Wade said words to the effect that 'The Gambrells are only employees and have been well paid and well looked after' (exhibit 85 [25]).
124 Mr Leong then asked Mr Wade three times if it was his intention to leave everything to Mrs Wade except for $10,000 to Ms Lewis, to which Mr Wade responded 'Yes', after which Mr Leong said to Mr Wade that 'everything was left to [Mrs Wade] she could deal with all of the properties in her own will', to which he responded by saying 'Yes' (exhibit 85 [26] - [28]).
125 In his cross-examination, Mr Leong testified as to this final exchange as follows (ts 588):
And did you repeat what you'd said that if everything went to Kath that the Gambrells might miss out?---Yes, I repeat that question to him the Gambrells may still not get the land, right, if everything go to Kathleen and she can deal with all the land - or not (indistinct) that she can deal with everything. All the problems, whatever associated with it.
And what if anything did Mr Wade say to that?---He thought about it, and he still a bit confused, but I ask again, right. Eventually he nodded his head.
And you took a nod to mean what?---To mean that it's a yes. Whether or not he comprehend it I don't know.
126 While Mr Leong's evidence was that Mr Wade 'seemed to be very clear in his mind that he would leave everything except $10,000 to [Mrs Wade]' (exhibit 85 [32]), his evidence was also that 'I could not tell whether Bill understood fully that the Gambrells may miss out on the 73 acres' (exhibit 85 [33]).
127 His evidence was also that he returned to the topic on going through the instrument 'a second time' (exhibit 85 [37]), again telling Mr Wade 'that everything would go to [Mrs Wade] and that there was a possibility the Gambrells won't get any land' (exhibit 85 [38]). Mr Wade's response to that was on Mr Leong's evidence as follows (exhibit 85 [39]):
Bill hesitated and said words to the effect of 'I want to give the Gambrells some land as they are long-term employees'.
128 Mr Leong's evidence of the ensuing exchange was as follows (exhibit 85 [40] - [41]):
I again explained to Bill that Kath may deal with the land as she wishes and it is up to her to decide. Bill responded by saying 'Yes' or nodding his head.
I then said to Bill word [sic] to the effect of 'Do you want to proceed with signing the will?' Bill said 'Yes'.
129 In cross-examination, Mr Leong was asked to state whether he was concerned that Mr Wade at the point of signing the purported Will of 6 June 2006 was still concerned in relation to the possibility that the Gambrells might miss out and, if so, what was the basis for Mr Leong's concern. Mr Leong testified as follows (ts 592):
- - - Concern that what he say - the first thing he say about it is it's Gambrell's land that he was concerned about, that he wanted Gambrells to get the land and he didn't expect the will can preclude Mr Gambrell from getting the land.
When did he say that?---When I mention that if he die first everything will go to Kath and Mrs Kath Wade's will will decide who will get what and the Gambrells may not get the land.
Did he say that again at about the time he signed the will?---No, because he probably didn't remember.
130 I took from this evidence that Mr Wade's repeated reference to the Gambrells getting the farmland, notwithstanding him repeatedly being told that they might not, gave rise to Mr Leong's concern that he testified to, a concern that existed at the point of Mr Wade signing the purported Will of 6 June 2006. That concern existed even though Mr Wade had not said, or otherwise indicated, anything further on the matter at the later point.
131 Mr Ong's evidence was of Mr Wade saying 'that Les Gambrell had been a very good employee all of the time and he wanted to reward him', and when Mr Leong explained to Mr Wade that 'if he signs the will he will be giving all of the farms to Mrs Wade and it may not go to that employee', Mr Wade was 'showing concern' (witness statement, exhibit 82 [14]). Mr Ong testified in cross-examination that, when Mr Leong said that, Mr Wade showed 'confusion' by indicating 'just that he wanted to mention something about the rewarding to this worker' (Mr Gambrell) (ts 557). Mr Ong also testified that Mr Wade signed the purported Will of 6 June 2006 notwithstanding that confusion, as well as his confusion with respect to his lands, to which I come next. Mr Ong so testified as follows, after he had had his attention drawn to the file note dated 6 June 2006 (exhibit 83) which he had prepared following the signing of the instrument (ts 568 - 569):
How can you say in your notes that he was very clear in his mind to leave everything, except 10,000 to Emma Lewis, to Kathleen, if he's confused about the - - -?---Because of all the confusion he still signed the will.
He still signed - - -?---I mean I'm sure he's clear in his mind to - - -
Your last sentence in your note?---Yes.
Says, 'He probably did not understand the implications of the 73 acres that the Gambrells may miss out'?---Yes. Probably he doesn't understand, that's why he still signed the will.
132 At the same time I note that Mr Ong testified that Mr Wade had not said anything at the point of signing the purported Will of 6 June 2006 that caused Mr Ong to say in his witness statement (exhibit 82) that Mr Wade 'probably did not understand the implications of the 73 acres that the Gambrells may miss out' (re-examination, ts 571). However, in my view, Mr Ong's evidence taken as a whole was of his belief as to Mr Wade's lack of understanding at the point of signature of the instrument, and this belief was because of the terms of Mr Wade's response to Mr Leong's explanation.
133 Ms Holtfreter's evidence was that when Mr Leong read out the terms of the gift of the land to Mr Gambrell, Mr Wade spoke 'about how he wanted Les to have the land mentioning 70 acres' (witness statement, exhibit 43 [20], [21]). Her evidence was also that Mr Leong then explained 'on a number of occasions' that, if Mr Wade died before Mrs Wade, everything except $10,000 would go to Mrs Wade, to which Mr Wade replied, although Mrs Holtfreter was uncertain whether or not the reply was 'yes' (exhibit 43 [23], [24]). Mrs Holtfreter was cross-examined as to whether she had any reason to believe Mr Wade did not understand Mrs Wade would get all of the estate except for $10,000 if Mr Wade predeceased her, and her attention was drawn to her other evidence that when Mr Wade said he wanted Mr Gambrell to have the land, Mrs Wade had shaken her head, and said 'quietly' that Mr Gambrell was paid a good wage and his accounts were paid for (exhibit 43 [22]). She testified as follows (ts 297, emphasis added):
You had no reason to believe on that day, 6 June, that Mr Wade did not understand that the effect of the will was that all of his estate would pass to Mrs Wade except for a $10,000 bequest to Emma Lewis?---Yes.
You had no reason to believe that he - he understood that, didn't he? You had no reason to believe that he didn't understand that?---Only that he kept on talking about Les.
Yes, but Mrs Wade made clear that as far as she was concerned Les had been looked after by pay and whatever?---That's what she - I don't think that Bill heard her, Mr Wade heard her, because she didn't say it all that loud.
So what caused you to feel discomfort about what you observed on 6 June was you didn't know if Mr Wade appreciated that if Mrs Wade inherited his entire estate the Gambrells might miss out?---Yes, that's right.
And it wasn't anything to do with Mr Wade's capacity to understand that he was giving everything to his wife save for the $10,000 bequest to Emma Lewis. They were unrelated issues. Isn't that correct?---Yes.
134 I have noted Mrs Holtfreter's evidence that she did not think Mr Wade had heard Mrs Wade's words as 'she didn't say it all that loud', as well as the evidence from Mr Leong (see ts 585), which might indicate that Mr Wade and Mrs Wade were not sitting directly alongside one another. I also note that Mr Leong's evidence was that he heard Mrs Wade's words, as I have indicated, which might tend to indicate they would have been audible to Mr Wade. However, there was also evidence from a medical report on an examination of Mr Wade on 20 June 2006, by a Dr Clarnette, a medical report to which I return below, that Mr Wade was 'hard of hearing' (exhibit 73).
135 I understood Mrs Holtfreter's evidence to be to that, because of Mr Wade's repeated references to Mr Gambrell, she did not know if Mr Wade understood the possible implication for the Gambrells of the disposition to Mrs Wade, notwithstanding that Mr Leong had explained to Mr Wade on several occasions that Mrs Wade would get everything after the bequest of $10,000.
136 Counsel for the defendant in closing oral submissions addressed the repeated references by Mr Wade as to be explained by the fact that provision for the Gambrells had been in his mind for many years. However, counsel submitted, when Mrs Wade had said the Gambrells had been looked after by pay and otherwise, Mr Wade should be seen to have accepted that. On the evidence of both Mr Leong (exhibit 85 [25]) and Mrs Holtfreter (exhibit 43 [22]), I accept that Mrs Wade said words to that effect when the possibility of the Gambrells missing out came up. Counsel put it to me that it was in the natural course of human experience to expect those words to have been directed to Mr Wade, and, given where he was sitting in the room relative to Mrs Wade, it was likely he had heard them.
137 While I accept that it was likely Mrs Wade directed those words to Mr Wade, and accepting arguendo against the evidence of Mrs Holtfreter above, that Mr Wade heard those words notwithstanding the evidence he was hard of hearing, I note that it was the evidence of Mr Leong that, subsequently in his exchanges with Mr Wade and before he signed the purported Will of 6 June 2006, as I have indicated, Mr Wade said, in response to Mr Leong telling him there was the possibility the Gambrells would not get any land, that he wanted 'to give the Gambrells some land as they are long-term employees' (exhibit 85 [39]).
138 It seems to me that the evidence of Mr Wade's persistence in making a response of this kind after the repeated advice of Mr Leong, and after hearing what Mrs Wade had to say, if he had heard that, was a matter going to show a lack of understanding of the effect of a central provision in the instrument.
139 I should add that Mr Wade's persistence, while also nodding after Mr Leong's repeated explanations, might be explained by the structure of the purported Will of 6 June 2006, as put to me by counsel for the plaintiff. That structure had points of similarity to previous wills to the extent it did provide for the Gambrells. I would add that in that respect, it was unlike the proposed will which was discussed with Ms Everett at the meeting of 24 May 2006, under which Mrs Wade would take all of Mr Wade's estate absolutely. I consider this meeting below. The way in which the purported Will of 6 June 2006 provided for the Gambrells was, however, unlike any of the previous wills, as I have indicated and will return to below. Whether or not that was the source of Mr Wade's confusion, it seems to me that the evidence establishes that Mr Wade did not understand that change from his previous wills.
140 I do not consider that I am in a position to address the possibility, also put to me by counsel for the plaintiff, that the responses by Mr Wade might also be explained by the 'Noddy syndrome' in the elderly. I was referred to the discussion of this syndrome in Nicholson [382], [383], as follows:
Dr Lloyd drew attention to the syndrome of 'gratuitous concurrence' in elderly patients, which he described as the 'Noddy syndrome'. This may arise where an elderly person will agree with questions put to him or her in order to placate, comply with, or ingratiate themselves with a person in authority, in this case the lawyer conducting the interview. It may also occur when the elderly person seeks out of embarrassment to mask their incapacity to understand what to the lawyer appears to be a simple concept, or simply to avoid causing what is perceived by the testator to be a problem.
An analogy may be drawn with the widely recognised tendency for some Indigenous Aboriginal witnesses to adopt this approach. In R v Anunga [(1976) 11 ALR 412 at 414] Foster J explained the propensity in the following terms:
'[M]ost Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman.'
141 However, in this case I do not have medical evidence of the kind to which Vickery J referred in Nicholson. Nor is it apparent to me that I am in a position to take judicial notice of the syndrome described, as I am not satisfied the syndrome is notorious in the sense required for judicial notice to be taken of it: see Heydon JD, Cross on Evidence (8th ed, Australia) (LexisNexis 2010) [3015]. Nor is it apparent that the syndrome is part of the teachings of the ordinary experience of life: see Cross on Evidence [3200] - [3285] on such teachings being employed in decision making in the courts.
142 I should add that I do not give any significant weight to the fact that the three independent witnesses allowed Mr Wade to sign. All of them, it seems to me, had indicated that they had doubts as to his understanding of purported Will of 6 June 2006, in this respect and also the respect I will next discuss. However, it is accepted law that where there are doubts as to the capacity of a testator, the will may still be made, but appropriate records should be kept so that the matter can be determined in the appropriate proceedings: see Ryan v Public Trustee [2000] 1 NZLR 700, 718 (Ellis J); and Public Trustee v Till [2001] 2 NZLR 508 [18], [19] (Randerson J).
143 As to any signs of uncertainty Mr Wade showed as to the extent of the estate of which the purported Will of 6 June 2006 would dispose, I find that Mr Wade showed persistent confusion as to dispositions of farmlands in that will, as he was uncertain as to whether or not he had previously disposed of the farmlands to which those dispositions related. Those farmlands were the bulk, or at least a substantial part, of his estate.
144 Mr Leong's evidence was that when he explained to Mr Wade that after the gift of the $10,000 and the payment of debts and expenses by his executors the rest of the estate 'including farmlands' would go to Mrs Wade, Mr Wade 'appeared to be confused as he thought the farmlands had already been transferred but he could not be sure to whom', although when Mr Leong asked him about this, Mr Wade could not remember signing any transfer documents (exhibit 85, [22], [23]). Mr Leong also testified that it was when he summarised the gift that the instrument made to Mrs Bergin of the farmlands which as I have indicated earlier comprised the remainder of Merribah, Mr Wade 'began - seems to be confused, because according to my note he thought that all the land has been sold' (ts 588). The 'note' Mr Leong was referring to was the notes dated 8 June 2006 that Mr Leong prepared concerning the events at the signing of the purported Will of 6 June 2006 (exhibit 86). The matter was pursued in the cross-examination as follows (ts 588 - 589):
Yes, he thought it had been transferred?---Yes, and I was a bit sort of uncertain that is the case or not, so I asked him if he had signed any documents regarding transfer of land and he couldn't be sure.
He couldn't be sure?---Yes, he couldn't be sure.
What did you do next?---Then I had to check to see if - just refer back to my note there.
Yes?---Yes. On 427, page 427, note number 3, so I said, 'Leave the rest, including farmlands, to Kath?' He nodded his head and then I made a note that he appeared to be confused as he thought the farmlands had already been transferred.
Mm'hm?---So I checked with Bill to confirm that he didn't sign any transfer and sell farmlands, that all farmlands are still in his name.
What, if any, response did he make to that?---I think he was still confused; but then I know that there's no sale because in doing the tax it would have shown up if there was any sale.
145 I have referred to previous dispositions of portions of Merribah, including a sale to Mr and Mrs Brown in early 2005. I further note Mr Leong's evidence that Mr Wade did not recognise the location numbers mentioned in the purported Will of 6 June 2006 (ts 589). However, in my view, Mr Leong's evidence goes beyond matters of understanding as to the details of the farmland constituents of Mr Wade's estate. Mr Leong's evidence of Mr Wade's confusion arising out of his erroneous belief he had already disposed of the farmland holdings of which the purported Will of 6 June 2006 would dispose goes to show Mr Wade's lack of understanding of the extent of his estate. That belief, on Mr Leong's evidence, did not change when, under further questioning by Mr Leong, Mr Wade admitted he could not be sure whether or not he had signed any transfer documents.
146 Mrs Holtfreter's evidence as to these matters included the following (witness statement, exhibit 43 [24], [25] and [26]):
Finally, Bill said something to the effect of that he was confused about where certain parcels of his land were, and if they had already been transferred. I can't remember the exact words, but I do remember that this was unexpected in the context of the conversation.
I heard [Mr Leong] ask Bill whether he had signed any transfers of land, and Bill replied 'no'.
After that, they executed the Will.
147 Mr Ong's evidence was that 'Mr Wade showed some confusion particularly about the farms to go to Mrs Wade and Mr Leong explained to him the effect of the will' and that 'Mr Wade showed some confusion about whether he had sold some of his farmlands' (witness statement, exhibit 82 [10], [11]). Mr Ong elaborated slightly on this evidence in cross-examination as follows (ts 558):
In paragraph 11 of your statement you've said Mr Wade showed some confusion about whether he had sold some of his farmlands. How did Mr Wade show some confusion in regard to the sale of the farmlands?---He said, 'Oh, has that been sold?' He say - he said, 'Has that land been sold?' That's why he was confused. He thought he - he thought some of the land been sold.
What happened next?---That's why he say - - -
And what happened next?---He just - some concern, that's all what - - -
148 Mr Ong's evidence was also that Mr Leong 'asked if Mr Wade remember signing anything regarding the transfer of farmlands' and that Mr Leong 'explained about the farmlands that had been sold' (exhibit 82 [12]). The reference to that explanation is difficult to reconcile with Mr Leong's evidence, which, as has been seen, was that his records showed no sales; indeed, Mr Leong testified that the transfer of portions of Merribah to Mr Brown had not gone 'through our office' (cross-examination, ts 589). However, Mr Ong maintained his evidence in respect of Mr Leong's explanation as to lands sold while acknowledging it did not appear in Mr Ong's notes dated 6 June 2006 (exhibit 83) (cross-examination, ts 559 - 563).
149 At the same time, Mr Ong also testified that Mr Wade's being 'confused in regard to whether some land had been transferred to others' was part of 'all the confusion' to which he was still subject when he signed the purported Will of 6 June 2006 (cross-examination, ts 568).
150 In relation to the evidence of Mr Leong, Mr Ong and Mrs Holtfreter, counsel for the plaintiff directed my attention to the evidence of Mr Leong that on 8 June 2006 he had suggested to the other two that they create notes about the signing of the purported Will of 6 June 2006. On 8 June 2006, he had prepared his own note (exhibit 86) when Mrs Holtfreter had stated to him she had concerns about the signing (cross-examination, ts 592 - 593). He testified that that was the only time he had made such a suggestion in 50 to 100 will signings he had been involved in, and the first time witnesses he had used had prepared notes and 'expressed concern' (ts 593). He further testified that, when he made the suggestion to Mrs Holtfreter, she had indicated she had already made such a note (ts 593): that note dated 7 June 2006 was exhibit 41. I have previously referred to Mr Ong's note (exhibit 83), the date on which, 6 June 2006, which Mr Ong testified was the date on which he compiled that note (examination-in-chief, ts 553), is inconsistent with Mr Leong's evidence.
151 In my view I should not draw anything of significance from Mr Leong's evidence as to the circumstances under which the file notes were prepared. Those circumstances at most indicate that Mr Leong and Mrs Holtfreter had significant concerns as to what happened at the signing of the purported Will of 6 June 2006. However, it is the nature and bases of the concerns on evidence before me that are of significance to me.
152 That nature and those bases as I have reviewed them above, in my view, at the least tend to throw a substantial doubt upon Mr Wade's testamentary capacity by reference to his capacity to understand the 'practical effect' of the 'central clauses' (Nicholson [97]; see also Roebuck [87]) of the purported Will of 6 June 2006 in respect of the disposition of the farmlands, which under the instrument the Gambrells took only if Mrs Wade predeceased Mr Wade but which otherwise went to Mrs Wade. That nature and those bases, in my view, also at the least tend to throw a substantial doubt upon Mr Wade's testamentary capacity by reference to his capacity to understand 'the extent of the property of which he is disposing' (Roebuck [87]; see also Kerr [72]), being his substantial farmlands.
153 However, this conclusion must be subject to my evaluation of the evidence of Mrs Wade, who was the other person, present at the time of signing of the purported Will of 6 June 2006, apart from Mr Wade, Mr Leong, Mrs Holtfreter and Mr Ong.
154 Mrs Wade's evidence was that Mr Leong 'read through all the will with Bill' (witness statement, exhibit 76 [37]), and in her testimony she appeared to state that he did not repeat any of that reading out (cross-examination, ts 528). This evidence is inconsistent with that of all of the other witnesses
155 Mrs Wade's evidence was also that Mr Wade 'was very clear about things that day and at the signing of the will' (exhibit 76 [38]), and when she was asked whether or not he showed any confusion 'at all' she responded (cross-examination, ts 529) 'No, not a bit'. She testified as to any mention to Mr Wade that the Gambrells might not get the farmlands referred to in the instrument, and as to whether Mr Wade showed any confusion as to his farmlands, as follows (ts 529):
When Joseph was explaining it to you, did it come up anywhere that the Gambrells might not get their land, the 70 acres?---No.
It never came up?---No.
...
Did Bill become confused about whether some land had been transferred?---No, he didn't say anything to me about it.
He didn't say anything at the signing of the will about not knowing whether some parcels had been transferred to others?---No, he just listened to him and Joseph stopped every now and then. He said, 'Is this right, Bill?' and he says yes.
156 That body of evidence, as to the lack of any indication by Mr Wade at any point of any confusion in relation to the effects and coverage of the purported Will of 6 June 2006, is also inconsistent with the evidence of all of the other witnesses.
157 I would not accept Mrs Wade's evidence in these respects in preference to that of the other witnesses, the independence of none of whom is in contest before me. Mrs Wade gave her evidence with confidence; however, I must note that she gave confident evidence that was clearly self-contradictory at one point, concerning whether she was helped by Mr Lewis, as follows (cross-examination, ts 497):
Did Bill Wade ever say to you that Ray Lewis exerted too much influence?---I don't - well, Ray's never helped me.
But did Bill ever say words of that kind to you, that Ray exerted too much influence over you?---No, he did not.
Never?---No. And I don't know how I'd get on without him, really.
158 It became evident to me, from her evidence in the present context, and other evidence I will reach below of a meeting with a solicitor on 24 May 2006, that her evidence could not always be taken as reliable in matters of particular relevance to her case in these proceedings. I have noted for this purpose that on the day before the trial, I appointed a guardian ad litem for Mrs Wade on the finding that she lacked the capacity to instruct her solicitors in these proceedings. That finding was based in part at least on evidence as to her difficulties then in recalling matters, a number of which she was present in relation to the purported revocation of the purported Will of 6 June 2006. While that appointment does not of itself mean her evidence should not be accepted, I am of the view that it is a reason for me to approach her testimony at the trial, including her adoption of her witness statement (exhibit 76), with caution.
159 I turn now to the evidence of Mr Wade's exchanges with a solicitor on 24 May 2006.
The evidence of Mr Wade's exchanges with the solicitor on 24 May 2006
160 On 24 May 2006 there was a meeting at the offices of WL & KJ Everett, solicitors, in Narrogin, concerning the preparation of wills for Mr and Mrs Wade. That firm was a partnership of Kylie Jane Everett and her father William Leslie Everett formed on 1 July 1995. The firm had prepared all of Mr Wade's wills, except the purported Will of 6 June 2006: the 15 August 1995 Will, the 5 February 2001 Will, the 19 March 2001 Will and the 24 February 2002 Will were prepared by Mr Everett, while all of the others, including that of 21 February 2006, were prepared by Ms Everett. The firm had not previously prepared any will for Mrs Wade.
161 Present at the meeting of 24 May 2006 were Mr and Mrs Wade, Mr Lewis and Ms Everett. The only evidence I had as to this meeting was that of Mrs Wade and Ms Everett.
162 Ms Everett's evidence of the meeting was that it occurred in three parts or sections, although as will become apparent there was a fourth part.
163 The first part involved all four persons, Ms Everett, Mr and Mrs Wade and Mr Lewis.
164 Ms Everett's evidence was that Mr Wade 'looked very frail physically but he was very pleasant' (ts 219).
165 Her evidence was that at the commencement of the meeting, Mr Lewis produced a piece of paper on which handwritten matter appeared. A copy of that piece of paper is exhibit 37. It is common ground that the handwriting was not that of Mr Wade. The handwritten matter was:
I leave the whole of my estate both real and personal of whatever nature and wherever situated to my spouse Kathleen Ivy Wade.
I appoint my spouse KI Wade and my accountant Joseph Chiu Chiong Leong or the survivor of them as my executor and trustee of my will and my estate.
166 Ms Everett testified that neither Mr Wade nor Mrs Wade could see what was on the piece of paper, and Mr Lewis did not permit Mr Wade to read the piece of paper first. Ms Everett testified that Mr Lewis said that what was on the piece of paper was what Mr Wade wanted in his will. She testified as to what ensued as follows (ts 219, 221)
I remember Bill saying that that was okay because he and Kathleen had agreed to make identical wills, so that on the death of the survivor of them, obviously they had both agreed that the beneficiaries in each of their wills were to be the same. Kath appeared to be listening and nodding her head at this. Ray Lewis told me that everything was to go to mum first. I remember he said that because Bill never referred to Kath as mum and Bill said, 'Yes, that's right,' because Kath had agreed to give everything or the farm, when she dies, to the same people as he wanted to have it. The conversation was ongoing, took quite a while.
...
Yes?---Now, where was I up to? Yes, Ray said everything was to go to mum first. A little while later in the conversation Bill said that Les and Nicky were to get their blocks when he died, which was obviously contrary to everything going to mum first. I think he also said that Ray had promised to pay out the Elders debt and that was about 180,000. Then I think he mentioned that if Kath had the farm she had to have restrictions on her use of it. Ray Lewis then told Bill that there was to be no restrictions on the use of the farmland by Kath. I'm pretty sure Ray Lewis told Bill - and Kath as well told Bill that they didn't want him leaving any land to Les and Nicky.
SIMMONDS J: I'm sorry, who said this?---Ray Lewis and Kath both told Bill that they didn't want Bill to leave any land to Les and Nicky, that they thought that if he gave them some money that would be - they told him that he should give them just some money, not land, but he said, no, he wanted them to have the land. Then he mentioned that he wanted Kath to have a life interest and now power of sale.
167 After refreshing her memory from notes she prepared on the day of the meeting (exhibit 38), Ms Everett further testified as to the first part of it as follows (ts 224 - 226):
Yes, I have read the notes of the first section of the meeting when all three people were there with me and the other things which happened were that I was told that Bill wanted Joseph and Kath to act jointly as executors. Joseph Leong is Bill's accountant; that Les would be running the farm - that it was intended that Les would be running the farm; that Kath knew all of what was going on because it was half hers. I'm not sure what that meant. Also Ray told me that the references to Helen getting any money were coming out because she was going to be getting one-third of the farm. She was going to get Greenville and Ray was going to pay all the Elders debts which were about 180,000 and that Kay and Dale would between them inherit Mirraba [sic]. This was to happen after the death of Kath and this was to be the identical provisions in each of their wills because, of course, Ray had said that Bill was going to leave everything to mum first. So these were the provisions that they were saying were to be in both their wills after the death of the survivor of them. Obviously they would only be operative if Bill were to die first.
There was also - he wanted $10,000 to be given to Emma Lewis. Emma was the daughter of Helen and Ray Lewis. The farming partnership and the rest and residue were to be split equally between the girls. The amount of money that Ray told Bill to give Les instead of farmland was to be $50,000 but Bill refused to do that. He said on his death he wanted that farmland to go to Les and Nicky. That was the first section of the meeting.
168 Ms Everett testified that, in that part of the meeting, Mr Wade echoed Mr Lewis's reference to Mrs Lewis taking farmland (ts 226).
169 Ms Everett testified that at the conclusion of the first part of the meeting she spoke with the parties as follows (ts 221):
I said to them all that where there was some doubt as to whether there was capacity or any undue influence that I had an obligation to interview the parties separately, or alone, and I asked Ray Lewis and Kathleen to wait in the reception room of my office while I spoke to Bill on his own.
170 She testified that in the second part of the meeting, in which she spoke with Mr Wade on his own, there was the following exchange (ts 221):
Bill said something to me like, 'Oh, Ray Lewis isn't such a bad fellow. He buys me fish and chips.' I think he also said, 'He promised to pay the debt off, my debt off.' I asked Bill if he was doing a new will voluntarily and he said he was. He said again that Kath had promised to make a new will exactly the same as his so that it was all right. I said to him, 'Do you know that Kath could change her will?' and he said, 'No. She has promised to make the same will as I do.' I said to him again, once or twice, very slowly, 'But are you aware that Kath can change any will that she makes?' He said to me, 'Well, that's not what I want then.'
171 Ms Everett also testified that, during the second part of the meeting, Mr Wade also referred to the medical certificates previously obtained for him in respect of previous wills.
172 She testified that on prior occasions when she had prepared a will for Mr Wade, she had been provided with 'two-line' letters from doctors certifying as to his capacity to make a will. She had written to Mr Wade's general practitioner on one occasion, which had resulted in a letter from a Dr Wong dated 22 September 1999 (exhibit 12). However, on the other occasions when she had been provided with letters, Mr Wade had obtained them (cross-examination, ts 271). The most recent of the letters was from a Dr van der Merwe dated 15 February 2006 (exhibit 32), in connection with the preparation of what became the Will of 21 February 2006. In that letter, Dr van der Merwe stated that Mr Wade 'IS of sound mind, and is able to to [sic], comprehensively, in my opinion, construct the necessary documentation required, in a last will and testament' (exhibit 32 capitalisation in the original).
173 In the second part of the meeting of 24 May 2006, Ms Everett testified that Mr Wade had said as to the matter of medical certificates (ts 222):
He said, 'You know those doctors' certificates? Some days - these days I wouldn't get one,' but he said to me, 'I will have to wait until I have a good day before I can sign a new will' and he told me he had just been in hospital and had had two operations and had just got out of hospital, so I told Ray Lewis that I wasn't happy with doing a new will for Bill in those circumstances.
174 The reference to the 'two operations' appears to have been to operations at the St John of God Hospital, Subiaco, he had had in connection with the removal of his gall bladder, during his admission there between 18 April and 8 May 2006. I return to those operations and that admission below.
175 After Ms Everett refreshed her memory from her file notes (exhibit 38), she testified as to this aspect of the second part of the meeting as follows (examination-in-chief, ts 226):
Yes, and he also said before he could sign any new will he would have to wait for a day until he felt capable of doing it and he said that he wasn't capable on some days and wouldn't get a doctor's certificate. Nevertheless I asked him to go and see if he could get a doctor's certificate and he said that he would speak to Dr Seton.
176 Dr Seton was another general practitioner in the medical practice in Narrogin in which Dr Wong and Dr van der Merwe worked.
177 Ms Everett testified that the third part of the meeting occurred after she had told Mr Lewis she 'wasn't happy with doing a new will for [Mr Wade] in those circumstances' (ts 222). She testified as to that part of the meeting as follows (ts 222):
Then I had to meet with Kath alone. I think it was intended by Ray Lewis that I should prepare a will for Kath as well, so I asked Kath if she was doing a new will voluntarily and she said she was, that nobody in her family had asked her to do a will, and then she started to talk about leaving money to the girls so there was no talk by her of doing a will in terms identical to Bill's at all. I said to Kath, 'I have never done any work for you before. You have always had your will done by somebody else.' She said that her solicitor who had always drawn wills for her was Peter Huston and I asked her wouldn't she be more comfortable if she went back to him and asked him to do a new will for her and she said that, yes, she would prefer that he drew her will for her, that he was an old friend of hers and that she would be happier if she didn't take that work away from him, so we left that meeting on the basis that she would speak to her own solicitor about doing a new will if she wished to. They left the office then. I didn't ever speak to Bill again.
178 After Ms Everett refreshed her memory from her file notes (exhibit 38), she testified further as to that part of the meeting as follows (ts 226):
That wasn't a long meeting because as soon as Kath said that she would prefer Peter Huston to make a new will I didn't need to take things any further. Just before she said that, she said that in her will she was going to leave the girls $100,000 each, not any farmland. By the girls she meant Kay, Helen and Dale, who were her three daughters.
179 However, Ms Everett also testified, after refreshing her memory from her file notes (exhibit 38), that at the end of third part of the meeting she had a conversation with Mr Lewis and Mrs Wade as follows (ts 227):
But looking at my overall file notes I see that I did speak at the end to Ray and Kath and I can see that what was told to me by Ray then - and this was at the conclusion of the whole meeting - was that the farm was in a financial mess and that Kath, his mother-in-law, wanted to know where she stood and that she would be happier with the farm in her own name and then if it was in her name she would leave it to Helen.
Right?---And that she wanted to live on that farm for the rest of her life and that's pretty well it.
180 It may be seen that Ms Everett's evidence was that she had received inconsistent descriptions of what was to be in Mr Wade's will (as to the provisions for the Gambrells and as to any restrictions on Mrs Wade's interest in the farmlands left to her by that will) and as to what was to be in Mrs Wade's will (as to its provision of money instead of any farmlands for her daughters).
181 Ms Everett testified that she reached the conclusion at the meeting of 24 May 2006 that Mr Wade lacked the capacity to make a will (re-examination, ts 279). Her evidence indicates, in my view, that this conclusion was based on five matters:
(1) Mr Wade did not understand that if he left all of his estate to Mrs Wade it did not matter what the rest of his will said, at least if he died before her (cross-examination, ts 262): this I understood as concerning the reference by Mr Wade (ts 226) to farmlands Mrs Wade was to take subsequently being taken by her daughter Mrs Lewis, apparently pursuant to the agreement between himself and Mrs Wade;
(2) While Ms Everett explained more than once that Mrs Wade could change her will even if it were initially in exactly the same terms as his will, and although she thought he understood the point, she was of the view in fact it was 'hard to say' he understood (cross-examination ts 264);
(3) Mr Wade's behaviour at the meeting was 'radically different' from his 'normal demeanour' in his previous meetings with Ms Everett concerning wills: in the previous meetings he had come with 'a very clear knowledge of what was in his current will and exactly the changes that he wanted to it' (cross-examination, ts 266);
(4) Ms Everett was satisfied Mr Wade did not know what he wanted in his new will (re-examination, ts 275); and
(5) Mr Wade's statement that he considered he would not then be able to get a certificate as to his capacity (re-examination, ts 279).
182 Counsel for the defendant put to me that in fact on Ms Everett's own evidence, Mr Wade did understand Mrs Wade could change her will, which went to an understanding that, if he left all of his estate to his wife and she survived him, then it would not matter what the rest of his will said. This was shown, it was submitted, when he said that, if Mrs Wade could change her will after his death, 'In that case I don't want to do it' (cross-examination, ts 265).
183 However, I note what Ms Everett said in response to this proposition when it was put to her (ts 265):
Look, I can only say what I said before and I'm not sure that he understood much at all of what was going on that day. I really don't think he did.
184 I took this as indicating that, particularly in the context of the five matters I have listed, she did not understand the words Mr Wade used as indicating he had clearly understood what had been said to him.
185 It was also put to Ms Everett in cross-examination that Mr Wade understood the general effect of a will, as a disposition of property effective only on death, and her evidence as to whether he had that understanding was not easy to follow. I agree that she appeared to indicate both that he did not have that understanding (cross-examination, ts 261) and that he did (cross-examination, ts 262), including once in the same answer (cross-examination, ts 262). However, I consider she made clear what she meant by the understanding he lacked in the following exchange (ts 262):
So on what basis do you proffer the - do you advance the proposition that he didn't understand the nature and effect of a will?---He didn't understand that if the words in your will are 'I give everything to my wife' then you can no longer - and she survives you, then the rest of your will is irrelevant. He didn't understand that.
But you're not suggesting that Mr Wade on this day in May 2006 didn't understand that he could make a document which would govern the disposition of his assets after death? You're not suggesting that, are you?---No.
So he did know the nature and effect - he did understand the nature and effect of a will?---Well, that's a legal conclusion. I'm simply saying that what he didn't understand was the wording. If the wording in the first paragraph is, 'I leave everything to my wife,' what he didn't understand was that the agreement that he had with Kath, that they would both then leave things in a certain manner amongst her daughters - he didn't understand that that wouldn't follow if he had that as a first paragraph.
186 That is, Ms Everett's evidence was that he did not understand that a will so expressed would not provide for the disposition of his assets in conformity with what he believed he had agreed with Mrs Wade.
187 For the defendant, it was also put to me that none of the matters of the differences between Mr Wade's normal condition and his condition at the meeting of 24 May 2006 was a basis to find Mr Wade lacked capacity. The fact that, as was common ground, he had undergone significant surgery in April 2006, he was physically affected and he was not at his best, did not mean he lacked testamentary capacity.
188 I accept that the matters so referred to do not of themselves, singly or in combination, necessarily indicate lack of testamentary capacity in any aspect. However, at least in combination, they are capable of arousing the suspicion of the court and inducing it to require the proponents of a will executed by a testator in that condition to adduce independent evidence of testamentary capacity: Hardingham, Neave & Ford, (2nd ed) [306].
189 Further, I accept that Mr Wade's prior level of understanding of his prior wills and of his estate, which on Ms Everett's evidence included exactly what was in those wills, and the locations of the lands making up his estate (re-examination, ts 276), is not on the authorities on testamentary capacity I reviewed above the minimum required for any aspect of such capacity. However, I consider I should see Ms Everett's impression of an evident reduction in Mr Wade's understanding in both respects as a factor arousing her concern at the lack of clarity in Mr Wade's wishes for a new will. Such lack of clarity is in my view capable of indicating that Mr Wade lacked the capacity to understand the effect of a will that left Mr Wade's estate to Mrs Wade absolutely.
190 Counsel for the defendant also put to me that I should approach Ms Everett's evidence with caution for four reasons. One reason was her evidence as to her view of Mr Lewis. I was directed to the following cross-examination (ts 243, 267, emphases added to reflect the submissions to me):
As a result of your interactions with the late Mr Wade over the years between 1995 and 2006, let's say, and on the basis of what he said to you about Ray Lewis, did you form the opinion that Ray Lewis was untrustworthy?---I have no knowledge of Mr Lewis from my own dealings with him. I have never had any dealings with him. I can only tell you what Bill told me about him.
No, no. I understand what you have been told. I am asking whether as a result of what Mr Wade told you about Mr Lewis you formed the opinion that Mr Lewis was untrustworthy?---I don't think I did really. I don't think I had an opinion one way or the other about Mr Lewis.
...
... you said in paragraph 164 of your statement, 'Ray, who was dictating what Bill and Kath should do,' didn't you?---Yes, the instructions were coming from Ray.
Yes, and that suggests to me that you regarded him as an interloper. Is that correct?---I thought it was - - -
No, is it correct or not, that you regarded him as an interloper, someone who was meddling in matters that had nothing to do with him? Is that how you regarded Ray Lewis?---No.
Did you regard him as someone who was untrustworthy and who had now weaseled his way into Mr Wade's good books and was seeking to take advantage of the situation?---I think that that was one of the options that I had in mind at the time, yes, yes.
That was at the forefront of your mind, wasn't it?----Yes. It was very - - -
191 However, I consider I should note as well the immediately following exchange (ts 267):
No, you have answered the question. You said yes. Thank you. That was at the forefront of your mind?---Well, not the forefront.
As a result of that, you set out to be, and I put this to you with the greatest of respect, deliberately obstructive in giving effect to the instructions of Mr and Mrs Wade who were with you at the time. Is that correct?---No, I wanted to be extremely careful.
192 I consider Ms Everett's evidence was that she had entertained, as a possibility of significance to how she proceeded at the meeting, that Mr Lewis was acting in the terms of the proposition put to her, with which she had agreed as she indicated. That her manner of proceedings at the meeting was affected by that possibility is indicated, in my view, by her proceeding to meet separately with each of Mr Wade and Mrs Wade. I would not draw from Ms Everett's evidence to which my attention was drawn, or indeed her other evidence, that Ms Everett's evidence as to what occurred at that meeting should be questioned because she had so entertained the possibility that Mr Lewis was untrustworthy and was seeking to take advantage of the situation.
193 I should add that Ms Everett impressed me as a witness who sought to tell the truth and whose recollection could generally be trusted, even although her evidence was not always completely clear, as I have indicated. That assessment in part derives from the alignment between her evidence as to Mr Wade's repeated reference to his wish to provide for the Gambrells and the evidence from Mr Leong, Mrs Holtfreter and Mr Ong previously referred to as to the same sentiments Mr Wade had later expressed at Mr Leong's offices on 6 June 2006.
194 What I took to be a related submission for the defendant to the previous one was that Ms Everett had in fact been disconcerted by the instructions she initially received at the 24 May 2006 meeting. As I understood the submission, she was sufficiently disconcerted that she decided not to act on those instructions. Her evidence that she had concluded Mr Wade was incompetent, and it was for that reason she did not take instructions that day, should therefore be rejected, apparently as a subsequent rationalisation. For the purpose of this submission my attention was directed to the evidence of Ms Everett that at the stage when she received the 'initial instructions' she had not formed the view Mr Wade was not 'competent' (cross-examination, ts 258), and that she made a note to herself in her file notes (exhibit 38) at that stage that 'want them to be mutual wills' and yet had not advised any of those present as to making mutual wills. This was notwithstanding that in her evidence, she agreed the initial instructions called for her to give advice about the nature 'only if he was competent' (ts 258).
195 I accept that on one view of the 'initial instructions', apparently the view of Mr Wade, with some support from Mr Lewis, at least before there were indications as to Mr Wade's wishes to provide for the Gambrells and for restrictions on Mrs Wade's use of the farmlands, what was proposed were 'mutual wills' as that is understood in the law. By such an arrangement, each of the parties is to make a will in the agreed terms which they each agree to maintain. An example would be an agreement between two parties whereby, in return for each receiving the agreed benefits under the other's will, each party's will is to leave their estate to the other absolutely if the other survives them; and, if the other does not, then to the same agreed residual beneficiaries: see Birmingham v Renfrew [1937] VicLawRp 70; [1937] VLR 327; [1937] ALR 520; (1937) 57 CLR 666, discussed in Hardingham, Neave & Ford, (2nd ed) [1213], which explains that
[t]he effect of the agreement was to bind each party to refrain from altering his or her will without the knowledge of the other and on the death of one without revoking, the survivor would have no right to revoke.
196 However, in my view, I should not discount Ms Everett's evidence as to what occurred at the meeting of 24 May 2006 on the present account. Her explanation for not giving advice as to mutual wills was that, while the initial instructions caused her to consider mutual wills were a possibility, as matters advanced at the meeting it 'became apparent that that's not what they were referring to at all' (re-examination, ts 273). That was because of the lack of 'identicalness' (re-examination, ts 272) in what the parties intended for their respective wills, notwithstanding what Mr Wade said was his agreement with Mrs Wade (examination-in-chief, ts 219). This lack of identicalness emerged from what Mr Wade said on the one hand, and Mr Lewis and Mrs Wade said on the other, about provisions for the Gambrells, and about restrictions on Mrs Wade's use of the farmlands (examination-in-chief, ts 221; re-examination ts 275), as well as what Mrs Wade said when she met with Ms Everett in the third part of the meeting (re-examination, ts 277, 279).
197 Ms Everett's evidence was also that she began to form the opinion that Mr Wade, and indeed Mrs Wade, lacked the 'capacity' to understand what a mutual will was (cross-examination ts 255, 261). I consider I can take account in evaluating Ms Everett's evidence in that last respect of the complexity attending mutual wills, as putting particular demands on the understanding of a testator: see Hardingham, Neave and Ford, (2nd ed) [1213].
198 I particularly note the following from Ms Everett's evidence (cross-examination, ts 254 - 255):
Can you tell me why you didn't mention mutual wills to those persons who, it seemed to me, were giving you instructions that called for an explanation of mutual wills?---Yes. I wrote the word 'mutual wills' down but I wasn't sure that that's exactly what they wanted and, as you know, if that's what they wanted you would have to make sure that's what they wanted. You would have to explain to them what mutual wills were. The reason I didn't was because as that conversation went on, Mr Lewis was telling me what was to go in the will and it became evident pretty early on that there was conflict there between what Mr Wade wanted and what Mr Lewis wanted in the will. We didn't get round to discussing that.
Also, Mr Wade didn't seem to understand when I spoke to him in isolation - he didn't seem to understand the concept of Kath being able to change her will, so I didn't think he had the comprehension that he could understand what a mutual will was. Then, of course, when Kath Wade came in and decided that she wanted her own solicitor to do her will, it would have been appropriate then for him to contact me about mutual wills if that had been what they actually wanted, so whilst I made the note about it, I didn't think that they had the capacity to understand what it was and I wasn't sure from what they were telling me that that was actually what they wanted.
199 This explanation in my view represents a coherent and plausible account which is consistent with Ms Everett's other evidence of the bases of the formation of her opinion as to Mr Wade's competence.
200 Counsel for the defendant put to me that Ms Everett's evidence as to competence should be assessed with her evidence that Mr Wade knew the instructions Ms Everett had been given were for a 'big change' to or a 'significant departure' from his previous will (cross-examination, ts 253). Mr Wade also stated to her that he was not happy with his current will (cross-examination ts 268), he had 'turned against' Mrs Brown (cross-examination, ts 253) and Mrs Bergin and Mrs Lewis were both helping Mrs Wade (cross-examination, ts 253). Mr Wade had also said, as I have previously considered, in response to being told by Ms Everett on two occasions that Mrs Wade could make a new will after his death, 'In that case I don't want to do it' (cross-examination, ts 265). All of this, counsel said, demonstrated that Mr Wade had capacity, in that, as I understood the submission, Mr Wade was aware of and able to assess changes to his previous will (the Will of 21 February 2006), he was able to articulate circumstances with a bearing on its content and he had come to an understanding of the difficulty for the achievement of his wishes represented by Mrs Wade having an ability to change her will after his death.
201 I accept that evidence of such awareness, abilities and understanding would go to show capacity, to be weighed with the other matters which I have indicated were, in my view, the bases of Ms Everett's opinion as to incapacity. However, in my view the evidence calls into question the levels of Mr Wade's awareness, abilities and understanding being the levels the submission relies upon.
202 As to his level of awareness of and ability to assess changes in his prior will, it was undoubtedly the case that the will the subject of the instructions in the handwritten note (exhibit 37), in giving his estate to Mrs Wade without limitation or restriction, would indeed represent a big change on the Will of 21 February 2006. However, I note Ms Everett's evidence that she understood his intention that that will would have provisions for the three stepdaughters, and his understanding as to Mrs Wade making an identical will in that respect. I particularly note Ms Everett's evidence as follows (re-examination, ts 277 - 278, emphasis added):
The discussion about mutual - because I wrote 'mutual will' in my notes is not indicative that that's the way that they said they wanted it. It wasn't. They said or Ray Lewis said he wanted for Bill to leave everything to mum in the first instance and that mum wanted to make a similar or identical will. Well, it was obvious when I spoke to her alone that she had no intention of making a similar or identical will. It was obvious when I spoke to Bill alone that he didn't understand that or he didn't comprehend that she might not do so or, even if she did so, that she might not change it herself. He was as always concerned that the gift over provisions that he wanted were to be valid. So the whole basis of this new will that he was going to make was still that the stepdaughters got the land in the proportions and he was very concerned to make sure that they wouldn't be cut out, as it were, by Kath. He still wanted them to have - that's why when he said it was a big change, it wouldn't have been a big change really if Kath had then gone on and made an identical will.
203 I consider that on the evidence the levels of Mr Wade's awareness and ability to assess changes were shown to be questionable.
204 As to his ability to articulate circumstances with a bearing on content, it was not clear from the evidence of Ms Everett that Mr Wade had articulated those circumstances in that connection. Ms Everett testified she did not know whether or not he had articulated them in that connection (cross-examination, ts 253) and her evidence was also that, as I have just indicated, it was not evident that the three stepdaughters would be treated differently under the combination of Mr Wade's proposed will and his understanding of Mrs Wade's will (ts 278).
205 As to Mr Wade's having come to an understanding of the difficulty, if Mrs Wade had the ability to change her will after his death, in achieving what he was 'concerned' to achieve as just described, I have already described my view of Ms Everett's evidence, taken as a whole, that it was her conclusion it was hard for her to say if he had that understanding, notwithstanding those words. I have also described the bases for that conclusion.
206 Counsel for the defendant also put to me that I should take account of the fact that until about six months before trial, Ms Everett was the solicitor for the plaintiff in these proceedings.
207 I do not doubt that such a role might well colour such a person's recollections. However, while I do not exclude the possibility of subconscious effects of that kind, I consider Ms Everett was as I have indicated a generally careful witness. I consider from the way in which she gave her evidence that she was one who could generally be relied upon to do what she could to guard against colourations of her recollections of the kind described.
208 I would thus accept the evidence of Ms Everett without a substantial discount.
209 Moreover, I consider that her evidence going to the exchanges that occurred in the first part of meeting of 24 May 2006 while Mr Lewis was present is more readily to be accepted, given the failure of the defendant to call Mr Lewis, as I will explain below. However, as I will also explain, I would accept that evidence even without taking account of that failure.
210 I turn now to the evidence of Mrs Wade as to the meeting of 24 May 2006. Mrs Wade's evidence-in-chief on the meeting of 24 May 2006 was as follows (witness statement, exhibit 76 [30], [31]):
On Wednesday 24 May 2006, it was Bill's birthday. Ray took us in to Kylie Everett because Helen couldn't. Kylie asked us all what we wanted to do, Ray said he was only there because Bill had asked him to take him to Narrogin to change his will. We all went into Kylie's office. Kylie asked Bill why he wanted to change his will. Bill said he wanted to leave it to me. Then she asked Ray and I to wait outside while she interviewed Bill.
Kylie Everett came out of her office and said that Bill had 3 different ideas. She asked me to go into her office. She asked me if I was there under duress and I said no. She suggested that we do a cross over will. After a short discussion she advised me to seek my own legal advice.
211 It may be noted that this evidence, so far as it goes, has points of agreement with and difference from that of Ms Everett.
212 The principal points of agreement, in my view, are that Mr Wade wanted to change his will, that Ms Everett was of the view after meeting him separately that Mr Wade was unclear as to what he wanted in his will, and Ms Everett advised Mrs Wade to seek her own advice.
213 The principal points of difference are that there is no mention in Mrs Wade's evidence of Mr Lewis participating in the meeting while she was present - indeed in her cross-examination she confirmed that Mr Lewis did not do any of the talking (ts 523) and Mr Lewis did not hand Ms Everett a note (ts 523); and that, on Mrs Wade's evidence, when Ms Everett met with Mrs Wade separately, the former 'suggested that we do a cross over will' [31], while Ms Everett's evidence was that she did not address that matter with any of those present at the meeting, as has been seen.
214 The first point of difference is hard to understand on the unchallenged evidence of Ms Everett that Mr Lewis handed exhibit 37 to her. The second point of difference is made hard to understand on the cross-examination of Mrs Wade in which the following exchange occurred (ts 526):
Okay. What if anything did you say to Kylie about your will?---About my will - I didn't say I had a will to her I don't think. She didn't ask me about it. A will only comes once in a few years to us. I suppose it's a ---
215 In my view, Mrs Wade's recollection of the meeting of 24 May 2006, where it conflicts with that of Ms Everett, cannot be relied upon.
216 I should note that Mr Lewis was not a witness in this case. Counsel for the plaintiff put to me that on the principles in Jones v Dunkel [1959] HCA 8; [1959] ALR 367; (1959) 101 CLR 298 I should take that into account in deciding whether to accept Ms Everett's evidence as to what happened in those parts of the meeting in which Mr Lewis was present. There was no explanation for the defendant's failure to call him.
217 I will consider below whether the failure to call Mr Lewis in respect of other matters than the meeting of 24 May 2006 engaged those principles.
218 As to the failure to call Mr Lewis in respect of the present matters, given that what happened at the meeting of 24 May 2006 was in issue on the pleadings and the differences between the evidence of Ms Everett and Mrs Wade, it is not evident to me that the failure to call Mr Lewis could be readily explained on the basis that Mr Lewis would merely have been giving cumulative evidence as to the meeting of 24 May 2006. See on cumulative evidence Heydon, JD Cross on Evidence (8th Aust ed, 2010) [1215]. Further, given the unchallenged evidence I will reach below of Mr Lewis's provision of instructions for the purported Will of 6 June 2006, I consider it reasonable to have expected the defendant to call Mr Lewis: see O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, 929 (FC), cited in Heydon [1215].
219 For the foregoing reasons, I consider that I can take account of the defendant's failure to call Mr Lewis in deciding whether to accept the evidence of Ms Everett as to the meeting of 24 May 2006. However, I should add that I would accept her evidence even without such account being taken, for the reasons I have previously given.
220 I consider Ms Everett's evidence to establish that Mr Wade on 24 May 2006 lacked the capacity to understand the nature and effect of a central provision of the will he had indicated he was prepared to enter into. That provision was the provision for his estate to go to Mrs Wade absolutely should she survive him. However, this evidence was not of his capacity on 6 June 2006; furthermore this evidence tended to indicate his capacity was prone to fluctuate. This evidence needs to be weighed accordingly in relation to the issue of concern to me, his capacity on 6 June 2006. However, I consider it can be weighed with the other three kinds of evidence to which I have referred.
222 Testimony was given by three medical witnesses, one called by the plaintiff and two called by the defendant. In addition, there was a substantial body of documentary evidence admitted into evidence by consent. This evidence was in the form of reports and other medical records for Mr Wade on which the principal medical witnesses relied in providing their opinions as to his mental capacity in June 2006.
223 There was no contest that these witnesses were qualified to offer the opinions they did on the basis of facts observed, or assumed that were admissibly established, and that it had been shown how the field in which they were expert applied to those facts so as to produce those opinions. See Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85] (Heydon JA), referred to in Grainger v Williams [2009] WASCA 60 [53], and see also [54] (Martin CJ). However, there is one matter in this regard to which I will return.
224 The medical witness called by the plaintiff was Dr Roger William Warne. His curriculum vitae describing his qualification and experience was exhibit 74. Exhibit 74 shows that since 1991 Dr Warne has been a physician in geriatric medicine in the Department of Geriatric Medicine, Royal Perth Hospital.
226 Dr Warne's four reports and his other evidence referred to reports and other medical records for Mr Wade compiled by others. Dr Warne never saw him.
227 The reports and other medical records to which Dr Warne's evidence referred included principally the following:
228 The reports and medical records on Mr Wade to which the evidence of Dr Warne referred also included a report dated 23 June 2006 from a Dr Roger Clarnette after Dr Clarnette saw him on 20 June 2006 (exhibit 73). Dr Clarnette had been asked by a doctor in the Earl Street Medical Clinic to see Mr Wade during his admission to the Narrogin Regional Hospital: see the letter dated 16 June 2006 from Dr Robert Seton to Dr Clarnette (exhibit 72). It was common ground that Dr Clarnette was a consultant geriatrician.
229 In addition, in the instructions for what became his third report, Dr Warne was told that when Mr Wade signed the purported Will of 6 June 2006 '[h]is accountant noticed that Mr Wade was confused when he signed the Will' and '[t]he Witnesses made contemporaneous notes that Mr Wade was confused' (exhibit 69, letter dated 23 March 2009 from Dwyer Durack Lawyers to Dr Warne). Dr Warne's third report (exhibit 70) appears to refer to this matter where it says '[i]mpaired mental status is recognised by the Accountant and Witnesses'. However, I note that in cross-examination, Dr Warne testified as follows (ts 463):
In forming an opinion about Mr Wade's testamentary capacity on 6 June 2006 have you had any regard to the evidence or what was intended to be evidence of the witnesses who were present on the day?---I still can't follow what you're - - -
In forming an opinion about Mr Wade's capacity on 6 June 2006 have you had any regard to the evidence or intended evidence of persons who were present when the will was signed?---I don't think so, no, I can only say what - - -
Thank you, you've answered the question?---Yes.
230 This evidence was not returned to. However, it was not suggested to Dr Warne that he was contradicting his earlier report, and I consider that his response went to the evidence or intended evidence of the 'persons who were present when the will was signed', rather than what he had earlier been told about what the accountant and witnesses had noticed. At the same time, I consider that this exchange tends to confirm what Dr Warne appeared to indicate in his third report, namely, that the importance he attached to what those present when the purported Will of 6 June 2006 noticed was as matter tending to confirm the opinion he had formed on other grounds.
231 One of the two medical witnesses called by the defendant was Dr Hendrik Jacobus Gildenhuys. Dr Gildenhuys had been a physician in the Earl Street Medical Clinic and he had seen Mr Wade on 14 June 2006. Dr Gildenhuys was also the admitting doctor at Narrogin Regional Hospital when Mr Wade was admitted on 2 July 2006, and had seen him throughout the stay following that admission. Dr Gildenhuys' examination-in-chief included his undated witness statement exhibit 79. Dr Warne's evidence refers to observations of Mr Wade by Dr Gildenhuys when he saw him on 14 June 2006, observations which appear in the evidence of Dr Gildenhuys (exhibit 79) but not in the notes of his 14 June 2006 consultation appearing in the records of the Earl Street Medical Clinic (exhibit 92).
232 The other medical witness called by the defendant was Dr Claudio Nick De Felice. Dr De Felice described his qualifications and experience as part of his report on Mr Wade dated 4 December 2008, and that report forms part of exhibit 66. This description shows Dr De Felice is a consultant psychiatrist who is a member of the Faculty of Psychiatry of Old Age of the Royal Australian and New Zealand College of Psychiatrists; and since 1994 he has been in full-time private practice in general adult psychiatry with a particular interest in the psychiatry of old age and the psychiatry of palliative care. Counsel for the plaintiff put to me that I should give greater weight to the evidence of Dr Warne than to the evidence of Dr De Felice, as the former was a geriatrician who dealt exclusively with old people the age of Mr Wade, while the patients in the latter's practice were made up of about 20% elderly people. However, I also note Dr De Felice's unchallenged evidence that (cross-examination, ts 613):
I also do some consultation liaison work at St John of God Hospital where I would not infrequently see sometimes elders patients with delirium or dementia or problems like that.
233 On Dr De Felice's evidence as to the practice of a geriatrician as well as Dr Warne's evidence, I accept that Dr Warne's most recent practice has involved only or predominantly elderly persons, while Dr De Felice's most recent practice has not. In weighing their evidence, I have taken account, as I will indicate, that it is likely on the durations of their respective recent practices Dr Warne had had the opportunity to observe more elderly patients than Dr De Felice.
234 Dr De Felice prepared a report on Mr Wade, dated 4 December 2008, which forms part of exhibit 66. His report and other evidence referred to reports and other medical records on Mr Wade, including those listed for Dr Warne (exhibits 92, 90, 93, 81, 94, 73, 72 and 91). Dr De Felice, like Dr Warne, but unlike Dr Gildenhuys, never saw Mr Wade.
235 Dr De Felice's report and other evidence, unlike the evidence of Dr Warne, do not refer to any observations of Mr Wade by Dr Gildenhuys not appearing in the records of the Earl Street Medical Clinic (exhibit 92).
236 Further, Dr De Felice confirmed that his opinion was exclusively based on the reports and other medical records for Mr Wade provided to him, so confirming in the following exchange in which he had his attention drawn to a statement appearing in the third report of Dr Warne part of which I have previously quoted (cross-examination, ts 631):
Dr Warne said at paragraph 2, 'The situation is entirely consistent with acute confusion in the presence of likely chronic confusion resulting from impaired mental status as a result of the dementing process. Impaired mental status is recognised by the account of the witnesses.' He relates this to matters outside of the notes. You confine your analysis just to what is recorded in the notes, don't you?---Your Honour, I do confine my analysis to what's recorded in the notes. I am not sure that Dr Warne didn't do anything different than that.
237 As I have indicated, and will return to, Dr Warne did in fact go beyond the notes.
238 Of the three medical witnesses, only Dr Warne and Dr De Felice provided opinions as to Mr Wade's mental capacity at 6 June 2006. Their opinions largely diverged, as I will now indicate. They were each cross-examined on one another's report or reports, and neither indicated they would change their opinions as expressed in them. However, in my view their opinions converged to the extent of showing a reasonable basis on which Mr Wade might have lacked testamentary capacity at the time of the execution of the purported Will of 6 June 2006; at the same time, I am satisfied on all of the medical evidence that the matter cannot be put higher than that.
239 Dr Warne's opinion in his first report (exhibit 64) was that Mr Wade
when he made the will on 6 June 2006 ... more likely than not did not have the ability to:
(i) be aware of the extent of his estate that he had to dispose of,
(ii) was not fully of the persons or persons he wished to benefit,
(iii) was unaware of the extent of the benefit,
(iv) was unable to give consideration to those persons who would in the ordinary course be beneficiaries pursuant to the Will he was making.
240 His first report based this opinion on the matter with which he had then been supplied, principally the medical record for Mr Wade from the Earl Street Medical Clinic in Narrogin (exhibit 92), and in particular what 'careful reflection of the notes reveals'. What the notes revealed on that reflection was 'the GP has had concern for Mr Wades mental frailty for some while', which was shown by repeated prescriptions for him of a 'major tranquillizer haloperidol 0.5 mg tds'. The reference to 'tds' appears on the evidence before me to be to three times per day. The prescription appears in the first report to be identified as treatment of Mr Wade after the 'concerns' were 'first recognized' in the GP entry of Friday 5 July 2005, when Mr Wade 'presented to the GP with Severe mood swings associated with aggression'. His first report also refers to prescriptions of haloperidol on 20 June 2005, 30 August 2005, 2 September 2005 and 26 May 2005. The earliest of these does not easily align with the previous portion of his opinion, although he was not questioned as to that matter.
241 I also have other difficulty with some parts of Dr Warne's evidence as to the prescription of haloperidol in that previous portion of his opinion. There is a record in exhibit 92 of a prescription of haloperidol (by what it is common ground was a trade name, 'Serenace') on 5 August 2005, following a visit by Mr Wade to a doctor in the Earl Street Medical Clinic that appears to have occurred on 3 August 2005. That visit appears to have occurred after a report as to Mr Wade on 29 July 2005 without an indication as to the source for that report: the notes of that report in exhibit 92 referred to 'Severe moodswings with aggression'. That report appears to have resulted in Mr Wade being brought in for the visit of 3 August 2005, and the notes for that visit in exhibit 92 include 'Good conversation. Clear mind and relevant conversation'.
242 Dr Warne had his attention drawn to these matters in his cross-examination, and appeared to accept them as far as they went, while adding that it was 'quite remarkable' on the notes for the visit of 3 August 2005 that haloperidol was prescribed, a prescription he characterised as 'an excessively high dose', adding 'I wish to stress, what happens in medical notes, lots of things aren't put in' (ts 451 - 452).
243 I note in respect of the prescription of haloperidol on 5 August 2005 that Dr De Felice in his report (part of exhibit 66) says this:
It is unclear as to why he prescribed this medication because the entry of 3 August 2005 doesn't indicate any clear psychiatric symptoms or disorder.
244 It was common ground between Dr Warne and Dr De Felice that haloperidol is a major tranquiliser and that it is prescribed for psychiatric conditions of the kind that were described in the report of 29 July 2005 in terms of severe mood swings and aggression. It was Dr Warne's evidence that haloperidol is 'useful in the management of acute confusional states commonly resulting from infections in the elderly', and by this it appears he was indicating that it was a 'marker for impairment of mental status' (third report, exhibit 70). Dr De Felice does not in his evidence comment on such a use, although as I will note below his evidence was that there is only limited evidence in the records on which his opinion was based of any confusional state in Mr Wade prior to 14 June 2006, and no evidence indicating such a state at the execution of the purported Will of 6 June 2006.
245 It was also common ground between Dr Warne and Dr De Felice that the use of haloperidol can lead to mental state changes in the elderly of a kind representing disturbances of their cognition. It also appears to have been common ground that those effects can take several weeks after the initiation of treatment by that drug to become manifest. It was Dr Warne's evidence that the effects might take much longer to become manifest in the elderly with renal failure because the drug is not cleared from the patient as rapidly; Dr De Felice in his evidence did not address this aspect of the use of haloperidol. There is some evidence of renal dysfunction for Mr Wade which I will reach below.
246 I should add that it was common ground that Mr Wade was not given haloperidol during his stay in the St John of God Hospital, Subiaco, from 18 April - 8 May 2006. It was not in contest that on the pharmacy records (exhibit 90) Mr Wade had taken haloperidol following the prescription of 5 August 2005 until that admission. It was accepted that Dr Warne's evidence that Mr Wade was not given haloperidol during his stay in Narrogin Regional Hospital from 22 February - 1 March 2006 was, as Dr De Felice in his evidence pointed out, in error, on the records for that stay (exhibit 93). The last note of a prescription for haloperidol in the records of Earl Street Medical Clinic (exhibit 92) was shown as 26 May 2006; however, the records from Maxwell's pharmacy (exhibit 90) do not show any prescription for haloperidol being filled after 28 March 2006, while the former records show that on 16 May 2006 Maxwell's rang the Earl Street Medical Clinic to indicate that they were concerned Mr Wade was 'not taking correct medication'.
247 Only Dr De Felice commented on the pharmacy records in respect of the lack of an entry for haloperidol after 28 March 2006, and his evidence was that it was possible that haloperidol had been supplied by other means, such as another pharmacy, and that Mr Wade had doses of haloperidol remaining from prior supplies. However, Dr De Felice added that 'just because a doctor prescribes a medication doesn't mean it's always complied with' (cross-examination, ts 622). I did not have any evidence from either Dr Warne or Dr De Felice as to the significance of a pattern of use of haloperidol that continued up until the admission to St John of God, Subiaco, on 18 April 2006, but may not have resumed after his discharge on 8 May 2006 until, as was common ground, Mr Wade was given haloperidol during part of his admission to Narrogin Regional Hospital, from 14 June 2006 until he was taken off it on 20 June 2006.
248 There was also a difference between the evidence of Dr Warne and Dr De Felice as to the significance of the quantity of haloperidol prescribed for Mr Wade. Dr Warne considered that 0.5 mg three times a day was an 'excessively high dose', as I have indicated. However, Dr De Felice's evidence was that 'in the elderly .5 milligrams twice or three times a day is about the sort of dose that is used' (cross-examination, ts 623), while acknowledging that 'Dr Warne might have a different opinion about that' (ts 624). In relation to this contest on a matter of expert opinion, I would accept that of Dr Warne, on the basis of his greater experience of elderly patients to which I have earlier referred, notwithstanding some difficulties I had with Dr Warne's evidence in other respects as I will indicate below.
249 However, Dr De Felice's opinion with respect to the significance of haloperidol was that it was 'not all that relevant to Mr Wade's mental state' (cross-examination, ts 619). He based his opinion in that respect particularly on the lack of any 'cognitive disturbance' shown in the records for Mr Wade's stay in Narrogin Regional Hospital between 22 February 2006 and 1 March 2006 (exhibit 93) when he was taking haloperidol (ts 620). Although Dr Warne's evidence was that in the notes of that stay he thought 'there was some saying there he wasn't quite as good mentally as he might have been', he added that 'I can't remember' (ts 453); and I note that there is nothing in those notes (exhibit 93) which refers to Mr Wade's mental state in those or similar terms. However, Dr Warne was not taken to the notes to indicate where in them he would identify what he described, and I do not consider I am in a position to resolve this difference in the evidence of the two experts other than to note the difficulty in finding in the notes the indication Mr Wade was not 'quite as good mentally as he might have been' that Dr Warne thought was there.
250 Dr De Felice's report (in exhibit 66) also referred to the lack of anything in the medical records 'through the latter part of 2005 and the early part of 2006 to indicate that the use of such medication was affecting Mr Wade's cognition', while '[e]ven if it was affecting his cognitive function in June 2006, there is no evidence that Haloperidol 0.5 mg TDS was affecting Mr Wade's cognitive function such that he did not have testamentary capacity'. Dr Warne, in cross-examination, was taken to this part of Dr De Felice's report, and he acknowledged that 'it is quite right to say there is nothing recorded as such' (ts 467). However, he also testified, apparently as to inferring from that lack of evidence that it was likely Mr Wade was not suffering any effect on his cognitive function such he did not have testamentary capacity, that any such inference would be wrong because of 'this business of recent memory and carefully searching for cognitive dysfunction' (ts 468).
251 Dr Warne's evidence as to his opinion in his first report was that it was 'further confirmed' by the additional information he was given for the purposes of his second, third and fourth reports. By this further confirmation, Dr Warne appeared to me to refer to information of other drugs than haloperidol prescribed for Mr Wade in May 2006, and the nature and seriousness of the conditions for which he was hospitalised at Narrogin Regional Hospital between 14 February and 1 March 2006 and at St John of God, Subiaco, between 18 April and 8 May 2006.
252 It was Dr Warne's evidence that Mr Wade was hospitalised on both occasions with 'acute cholecystitis' or 'acute and chronic cholecystitis', while on the more recent occasion also with a form of intermittent fever because of cholecystitis. It was Dr De Felice's evidence that Mr Wade was hospitalised on the earlier occasion with 'chest pain, during which he presumably had some sort of cardiac problem' (ts 629), while on the more recent occasion at St John of God, Subiaco, he was hospitalised when 'severely ill' for 'acute chronic cholecystitis' (ts 620). The evidence of both witnesses was that during the St John of God, Subiaco, stay Mr Wade received a cholecystectomy, which involved the removal of his gall bladder in a more substantial surgical procedure than originally anticipated, followed by a further surgical procedure for arterial bleeding, after which on Dr De Felice's unchallenged evidence there was a further complication involving a 'very serious infection' (ts 629). The evidence of Dr De Felice was that a 'few entries' from 'early 20 April' 2006 in the notes from St John of God, Subiaco reported Mr Wade suffered from confusion (ts 629), but there was no indication in those notes of any such difficulties towards the end of his stay. This evidence is supported by the notes for that stay (exhibit 81), although Dr Warne's attention was not directed to these portions of the notes.
253 As to other drugs than haloperidol that were prescribed for Mr Wade in May 2006, it was common ground between both Dr Warne and Dr De Felice that one or more of the visits by Mr Wade to the Earl Street Medical Clinic in that month were shown as for cholecystitis, among other things, while I note that the records from the Clinic (exhibit 92) show there were three such visits, on 22, 26 and 30 May 2006.
254 On the visit on 22 May 2006, when the other reason shown for the visit was diarrhoea, those notes show the drug 'uremide', which it appears it was common ground was also called 'frusemide', was prescribed; it was not in contest between Dr Warne and Dr De Felice that the pharmacy record (exhibit 90) shows that on 25 May 2006 a prescription for that drug was filled. It was common ground that frusemide is a diuretic.
255 On the visit on 26 May 2006, when the other reason shown for the visit was 'insomnia - chronic', Serenace was prescribed, as I have already indicated, together with Temazepam, which Dr De Felice refers to as a 'sedative medication' (exhibit 66), a proposition with which Dr Warne does not disagree.
256 On the visit on 30 May 2006, when there was no other reason shown for the visit than cholecystitis, the drug 'keflex', which it was common ground was the antibiotic cephalexin, was prescribed. Dr De Felice commented that he was unsure how one could have cholecystitis after the removal of a gall bladder, and therefore why the notes recorded cholecystitis; however, his evidence indicates that in any event the cephalexin would have been given to Mr Wade for an 'infection'.
257 Dr Warne's evidence in his third report (exhibit 70) was that 'diuretic therapy can cause renal function to deteriorate, pre renal uraemia, and that this might impair mental function ie delirium', while
[a]n infection requiring antibiotic therapy could certainly impair Mr Wade's cognitive function to be sufficient to cast doubt on Mr Wade's testamentary capacity on 6 June 2006 when he made his last Will.
258 In cross-examination there was the following exchange with Dr De Felice about these two matters (ts 632):
- - - and what Dr Warne is saying in this report, at page 410, is the combination of the diuretic with the antibiotic could mean that he could loose too much fluid and that could add to his mental impairment. It could dry him out too much and that could cause, in a person of Mr Wade's age, further confusion?---Your Honour, it could. That it could is not - I don't have a question with the fact of whether it could, but I think that from the evidence that I have before me I can't conclude that it did do that, and certainly by when he was admitted to hospital he was obviously sick enough at that time that it might well have - and actually from the notes it indicates that he did have some confusion, so I've got no problem with that. The question is, you know, what was happening on 6 June and, your Honour, from the notes I can't conclude that there's evidence that it actually did do the things that Dr Warne alleges.
259 The reference to the admission to hospital appears to be the admission on 14 June 2006 to Narrogin Regional Hospital.
260 Dr Warne's evidence as to the relevance of the conditions that led to Mr Wade's stays in Narrogin Regional Hospital between 22 February and 1 March 2006 and in St John of God, Subiaco, between 18 April and 8 May 2006 included this, in which he referred also to the prescriptions for haloperidol (cross-examination, ts 469):
In your first report I think you referred to haloperidol as being often prescribed for people suffering sunset syndrome?---That's right.
Which is a mildly delusional illness. Is that correct?---No. What I was trying to demonstrate was as you get older, there's a concept of brain failure. When I was a chest registrar at Charles Gairdner, people would come in with a lungful of pus but not be confused, but an older person may come to hospital with an infected toenail and be quite confused and off the planet. In this case you've got a man who has had longstanding gallstones and certainly in his last period of life had two attacks of well documented acute and chronic cholecystitis. What I was trying to document is one of the issues that there are insults going on, quite major insults but haloperidol is a relatively minor insult but it would affect his cognition, sorry, likely to affect his cognition. Now, going back to sunset syndrome, sunset syndrome means that as your brain reserve goes off with time, then you are more likely to have become confused with a very minor insult. In sunset syndrome, what it means to say is your brain reserve is so bad or so impaired that the change of day makes you confused. If you put your eye into a bath of warm, sort of springwater, if we plug our eyes up, plug our ears up, after 24 hours we would be quite confused and have hallucinations and so sunset syndrome means that it's a commonly observed thing that during the day as the sun goes down, in fact elderly people become much more confused and agitated. One of the physiological responses to this lack of information is to move more, so you get the syndrome of picking at the bedclothes. I think in ancient Greek it was probably (indistinct) or something like that, but the point is that haloperidol is - the dosage for this man was that it really reflects something was going on in him and it's borne out by the other history we have.
261 In re-examination he was taken to his conclusion in his fourth report (exhibit 70) in which he commented on the notes relating to the conditions that led to the two stays, and in particular the stay at St John of God, Subiaco, as follows (ts 479 - 480):
Can you tell the court what your conclusion here is in regard to taking the - after seeing those medical reports for those two admissions to hospital?---What I said was, my opinion is that both medical records demonstrate that Mr Wade was taking significant doses of haloperidol prior to his admission in February and that he was severely ill during his St John of God admission. The point was he was so ill - is such an insult in a frail man that his confusional state could have lasted for a period of four to six weeks, which it can do, following his initial presentation to hospital.
Say he came out on 8 May, did it extend to four to six weeks after that?---It was certainly four weeks, four to six weeks, probably longer than six weeks but delirium - the thing is that confusional states - if you test elderly people's recent memory, they can - it takes a long while for them to sometimes improve. It just reflects underlying brain - lack of brain reserve and my concern clinically is sometimes - if irrevocable decisions are made on someone who is frail at that time, then in fact in four to six weeks time they might get as bit better.
When Dr Gildenhuys first saw Mr Wade on 14 June he said he was confused and mistook him for someone else?---That's right.
Are you able to say to the court whether the confusion from the operation at St John of God might have continued that long?---I think it could well have done. It wouldn't be uncommon, put it that way and certainly he was on a major tranquilliser as well which may have improved it or may not but, again, it's depending on the dose taken. So I think there was evidence to say that it was still having effects on his mental state.
262 The reference to what Dr Gildenhuys said of Mr Wade when he 'first saw' Mr Wade appears to be to an observation which came to form part of his evidence as follows (examination-in-chief, ts 541 reading from his undated witness statement exhibit 79):
I first met Mr Wade at the Earl Street Clinic in about late June 2006. The clinic records provided to me show my attendance on Mr Wade on 14 June 2006 and that date is consistent with my recollection. I recall that it was a week or two after he had had a gall bladder operation. At that meeting Mr Wade appeared to me to be confused because he mistook me for someone else he had known for a long time although we had never met.
263 Dr Gildenhuys acknowledged that the meeting might have been more than 'a week or two after' the gall bladder operation (cross-examination, ts 545).
264 However, I also note the testimony of Dr Gildenhuys as to whether or not he could relate that observed state back to 6 June 2006 (cross-examination, ts 548):
The questions I wanted to ask you were do you think that Mr Wade's confusion related back to the gall bladder operation that occurred on 18 May 2006?---I don't think so, or I didn't think so at that time.
You didn't think so. Are you able to put any date on - you saw him on 14 June and he was confused?---Yes.
Is there any way that you can put a time on it of how long he has been confused?---No.
265 I note that the reference in the question to '18 May 2006' was an error, as it was common ground that the operation at the St John of God, Subiaco, to remove Mr Wade's gall bladder had occurred on 18 April 2006.
266 I also note that the record from the Earl Street Medical Centre (exhibit 92) for the visit with Dr Gildenhuys on 14 June 2006 refers to the reason for the visit as 'CCF', which it was common ground was congestive cardiac failure, and makes no reference to the confusion Dr Gildenhuys referred to in his evidence.
267 Dr Warne also testified in general terms as to the effects of drugs and infection on the mental state of some one like Mr Wade and on the possible effects of the drugs which Mr Wade had received and infections which Mr Wade had suffered as follows (cross-examination, ts 473 - 474):
Do you agree with me that the general literature on cephalaxin does not reveal any side effects which would in any way suggest - be suggested to affect mental capacity?---That is true, unless sometimes - not in this situation - there are some situations where cephalosporins can cause renal impairment and renal failure, but not directly by themselves usually. The issue is that the commonest two reasons why you might - an elderly person may not be quite so mentally competent would be either infections or drugs.
Yes. Would you agree that if Mr Wade was a rare person who was affected, mentally affected, by the antibiotics, that the probability is that the supervising doctor would have recognised that and changed the antibiotics?---I don't think the doctors would have at any time felt the cephalexin could in fact have caused him to be more confused. The point is that infections are a common cause of delirium. In coming through casualty there are two major reasons. Either people have got infections, urinary tract infections, chest infections, gall bladder, what you will, and then drug therapy. In general you could say that the (indistinct) coming to a physician tends to be more likely to be infection and maybe to (indistinct) more likely to be to drug therapy perhaps, but those are two very common - sorry, drugs and infections are common causes of acute confusion in older persons and Mr Wade had evidence of both.
268 In cross-examination there was also the following exchange with Dr De Felice with respect to the matters of haloperidol, infections, other drugs and the illnesses that had taken Mr Wade to Narrogin Regional Hospital between 22 February and 1 March 2006 and to St John of God, Subiaco, between 18 April and 8 May 2006 (ts 629 - 630):
HOCKLEY, DR: The question being, do you agree with what Dr Warne, in the evidence that he's given which I've just tried to outline and summarise to you, what - are you able to comment on it?---Yes. Your Honour, there are - if I can sort of put it this way, as I see it - three strands that Dr Warne has pursued. One is that haloperidol affected Mr Wade's mental state. The other is that illness - let's say be it infection or congestive cardiac failure or whatever affected Mr Wade's mental state. And the third is that the medications that he had other than haloperidol affected his mental state. And the proposition in that regard is that the person's - the capacity of the person's brain, your Honour, to tolerate these insults is such that with a small amount of medication, with a small infection, with a not severe illness or with other medications, the person will then have confusion; that is, their mental state will be affected because their brain capacity is reduced, presumably from some illness such as an underlying dementia. As I understand it, your question goes to that proposition.
Yes, yes?---And what I think is, although that might be an absolutely reasonable conclusion in elderly people who have reduced cerebral reserve, the point that I'd make is that in February 2006 in an admission during which he had chest pain, during which he presumably had some sort of cardiac problem, during which he also had haloperidol, there was no evidence, there was no recorded documentation of confusion or an affect on Mr Wade's mental health. Secondly, even in St John of God Hospital, after the man had had, your Honour, a cholecystectomy, turned into an open cholecystectomy, followed by theatre a couple of days later for an arterial bleed, followed by complications including I think an infection, and from the notes it also said that he had ischaemic hepatitis and other things, so here is a very serious infection. The most those notes from St John of God Hospital indicate is that on three or four days, at about the early 20 April, Mr Wade was noted to be confused on those days, and I would put it that that wasn't a minor infection, that was a major insult to the brain, and Mr Wade had morphine at the time as well, and even so, there are only a few entries recording this man's cognitive status being disturbed, so the proposition to me that Mr Wade had a dementia indicating reduced cerebral function, your Honour, that by its definition is spanning time on which these acute things intervene to lead to occasional or even sometimes prolonged confusion, enough to affect his mental capacity so he can't give testamentary capacity, I don't see evidence in the notes of that. So on 26 May, although Mr Wade was prescribed cephalex, your Honour, for a likely infection, that infection was nowhere near as severe as the ones that he had even in St John of God Hospital, which led to his admission, and I can't see any reason that one would doubt his mental state because at any rate, it wasn't questioned even in the notes. One can give your Honour the proposition that this might be the case, and that in elderly people it might occur, and yes, that is true, but the question is whether it occurred in Mr Wade, your Honour, and I can't see evidence in the documentation that that is the case.
269 I would understand Dr De Felice's reference to the matter of Mr Wade's 'mental state' not being 'questioned even in the notes' to be to the absence of any indications of any references to that state, or at least of any reference to a lasting impairment, as opposed to the short-term one the result of the operations he underwent and the drugs he received during his stay in St John of God, Subiaco. As I have indicated, Dr De Felice referred elsewhere in this evidence to the notes in the record of that stay (exhibit 81) as to Mr Wade's confusion, early in that stay and for a relatively short period.
270 Dr De Felice noted in particular in his report (exhibit 66) that the records of the Earl Street Medical Clinic (exhibit 92) for a visit on 15 February 2006 included 'doing well. Nice conversation ... just need letter to certify he is sane to do own business', to which Dr Warne's attention was drawn in his cross-examination (ts 453). It was this visit that resulted in the letter from Dr van der Merwe certifying that Mr Wade was 'of sound mind' and was able to 'comprehensively, in my opinion, construct the necessary documentation required, in a last will and testament' previously referred to (exhibit 32). It was at this point that Dr Warne directed attention to Mr Wade's admission to Narrogin Regional Hospital on 22 February 2006, for 'gall bladder problems', when Mr Wade was 'very sick' (ts 454). However, I should also note that on the previous day Mr Wade made the Will of 21 February 2006, in respect of which it was common ground between the plaintiff and the defendant that Mr Wade had testamentary capacity, a matter of which Dr Warne testified he was unaware (ts 463).
271 Dr De Felice's report also refers to the notes of a visit on 3 March 2006 by Mr Wade with Dr Seton of the Earl Street Medical Clinic that record 'long chat re options and recent pacing, and Cholecystitis', as apparently indicating 'Dr Seton had sufficient confidence in Mr Wade's mental health to be able to discuss such issues with him' (exhibit 66). When this indication was put to Dr Warne he agreed that was 'reasonable' (cross-examination, ts 455).
272 Dr De Felice also noted in his report (part of exhibit 66) that the records of the Earl Street Medical Clinic (exhibit 92) indicate for 16 May 2006 the contact by Maxwell's Pharmacy regarding their concern that Mr Wade was not taking his 'correct medication' to which I previously referred, which Dr De Felice characterised as the 'first entry' that led him 'to any question of problems in Mr Wade's mental state'. However, his report added that whatever question that may have led to, there is a note of a visit on 22 May 2006 by Mr Wade with Dr Seton of the Clinic indicating 'a long chat re meds, and continuing treatment', as well as 'AMND looking well'. Dr De Felice could not explain the reference to 'AMND', which I consider likely was a typographical error. Dr De Felice's report characterises the note of this visit as containing 'no suggestion ... as to any cognitive dysfunction, let alone such dysfunction sufficient to have called into question Mr Wade's testamentary capacity'.
273 Dr Warne had his attention drawn to these matters, culminating in this exchange (cross-examination, ts 457):
There is no record in those notes of cognitive dysfunction?---Not in his notes but ---
274 Dr De Felice also noted in particular in his report (exhibit 66) that the records of the Earl Street Medical Clinic (exhibit 92) for a visit on 6 June 2006 at 4:54 pm (which is to say shortly after the execution of the purported Will of 6 June 2006) only list insomnia as the reason for the visit, with Dr De Felice adding 'without any other concern raised about Mr Wade's mental health'. Dr Warne also had his attention directed to this part of Dr De Felice's report, in respect of which Dr Warne noted this was a 'reasonable call' (ts 458).
275 It should also be noted, however, that as I have indicated Dr De Felice had not taken account of what the accountant, Mr Leong, and the witnesses, Mrs Holtfreter and Mr Ong, had said they had observed at the execution of the purported Will of 6 June 2006. Nor also as I have previously indicated did his evidence refer to what Dr Gildenhuys had observed as to Mr Wade's mental state on 14 June 2006, an observation to which Dr Warne's attention was directed as I have indicated.
276 Both Dr Warne and Dr De Felice agreed that the hospital records for Mr Wade's stay in Narrogin Regional Hospital from 2 July 2006 until his death on 18 July 2006 showed, in the terms of Dr De Felice's report (exhibit 66) 'evidence of cognitive impairment sufficient to conclude that he did not have testamentary capacity at that time'. I return to this evidence below when I consider the issue of Mr Wade's testamentary capacity at 13 July 2006, the time of the purported revocation of his purported Will of 6 June 2006. However, there is no equivalent agreement with respect to what Dr De Felice recognised as some reason to question Mr Wade's mental capacity earlier.
277 Dr De Felice's evidence was that by the time Mr Wade was seen by Dr Clarnette on 20 June 2006, the consultation reported in his letter of 23 June 2006 (exhibit 73), 'there certainly was a question as to Mr Wade's mental capacity, sufficient to raise the issue of his testamentary capacity' (cross-examination, ts 626). Dr De Felice also noted in his report (exhibit 66) that Dr Seton's letter dated 16 June 2006 requesting this consultation (exhibit 72), following a visit from Mr Wade that day the reason for which was given as 'dementia' (exhibit 92), referred to Mr Wade being in a 'current state of semi dementia' and that 'he has deteriorated significantly'. Dr De Felice further noted that Dr Clarnette in his letter had reported Mr Wade had a score of nought out of three on a word recall test.
278 At the same time, Dr De Felice noted in Dr Clarnette's letter (exhibit 73) 'the evidence for the fact that he probably did have testamentary capacity, notwithstanding that one can't be definitive that he did have such capacity in the absence of certain questions having been asked' (exhibit 66). That evidence, as it appeared in the letter (exhibit 73), was that Mr Wade 'gave a good history of recent events' (apparently a reference to Mr Wade telling Dr Clarnette 'that his Solicitor has prepared a new Will and he has signed it' and 'that his accountant is his executor'); he 'was able to recall my name during the interview'; he scored 24 out of 30 on the standardised Mini Mental State Examination; and he 'appeared to have a good understanding of his affairs'. Dr De Felice had also noted in Dr Clarnette's letter its report that Mr Wade's 'overall condition improved ... and he was feeling much better' (exhibit 66).
279 Dr De Felice's report associates the reason to question Mr Wade's capacity in mid-June 2006 with Mr Wade's apparent development of congestive cardiac failure, which he describes as having developed then. His report refers Mr Wade's word recall result as reported by Dr Clarnette to his physical condition associated with that illness, which Dr De Felice took it led to his admission to hospital at that time.
280 Dr Warne does not indicate his opinion as to when Mr Wade first suffered from congestive cardiac failure. However, he testified as to the association of the signs of mental disturbance evident in Mr Wade with congestive cardiac failure as follows (cross-examination, ts 463):
Do you agree, Dr Warne, that the mental disturbance, however it's described, that was evident in Mr Wade after 14 or 16 June was most likely related to delirium precipitated by cardiac failure? ---I don't actually. I think that's one the reasons, but I think you have to look back in time and to what other illnesses he had, and I think there is evidence that his mental state wasn't quite so well in February. That was an acute on - maybe underlying thing, and again I think you have to say that doing his severe operation, he was a changed man when he came out because of the severity, and I would think that if he - put it this way. In my opinion, if we did his mental state by like an MOC at that time after he came out of hospital from St John of Gods then in fact we would see deficits there, so the evidence for me clinically is that it certainly was pre-existing, it just got worse.
281 I have previously referred to the difficulties with Dr Warne's evidence as to Mr Wade's mental state in February, being his continuance on haloperidol during his stay in Narrogin Regional Hospital from 22 February 2006 to 1 March 2006 and finding in the records for that visit (exhibit 93) the basis for his reference to 'evidence that his mental state wasn't quite so well in February'.
282 Further Dr Warne testified, as to the significance of the Mini Mental State Examination (or MMSE) score, 'some people would say that the MMSE of 24 to 30 was abnormal and indicated that he had significant cognitive dysfunction' (cross-examination, ts 461).
283 Dr De Felice's evidence as to that significance is not altogether easy to understand. His report, as I have indicated, appears to count that score as part of 'the evidence for the fact that he probably did have testamentary capacity'. However, at one point in his cross-examination he said this (ts 627):
What are you able to tell the court of a figure of 24 out of 30? Is that a good score, a bad score or - - -?---It's a score that indicates cognitive dysfunction, so by 20 June when this test was done, there's no doubt that there are some indicators of cognitive dysfunction.
284 The explanation for the apparent discordance appeared to lie in evidence later in his cross-examination as follows (ts 631):
In actual fact, using the mini mental state examination, Folstein, who is the man who originated the mini mental state examination - what he said was that the cut-off for impaired cognition was a score of 23 on the mini mental state examination. Now, although that - that might be the case in the population that Folstein looked at, it isn't necessarily taken as gospel and the reality is someone can have impaired cognition and have a mini mental state better than that, that's true, but to get 24 out of 30, when he's in hospital on 20 June after having an infection, with haloperidol, with a severe infection enough to land him in hospital, to get a score of 24 out of 30, I would suggest is a pretty good score in that context and not indicative of dementia spanning the last, let's say, 12 or 18 months.
285 Dr De Felice described his opinion as to Mr Wade's testamentary capacity on 6 June 2006 in his report (exhibit 66) as follows (bold face in the original):
I can't be definitive to say that he did have such capacity, but in my opinion there is no reason to doubt it. That is, I think he probably did have testamentary capacity on 6 June 2006.
The reason I can't be clear about this is because there is no documentation in any of the documents provided of the matters that lead to the definitive conclusion that Mr Wade had testamentary capacity. That is, there is no clear documentation of Mr Wade's understanding of his estate. There is no clear documentation as to Mr Wade's understanding of the beneficiaries who might have a claim to his estate, or any past dealings that might influence the disposition of his estate. Also, the relevant wills are not provided, for example the Will of 6 June 2006, and the preceding (and subsequent?) wills. So I don't have a history of what changes were made from the previous Will, or the reasons for them. Although Dr Clarnette identifies that Mr Wade 'appeared to have a good understanding of his affairs', the information about his estate and beneficiaries is not specifically recorded so as to enable the definitive conclusion that Mr Wade did have testamentary capacity.
...
In short then, although I cannot definitively state that Mr Wade did have testamentary capacity on 6 June 2006, I don't think that whatever cognitive deficits that were present on that date were sufficient to have called his testamentary capacity into question, and I see no reason to question his capacity till probably 14 June, a week later, when he apparently developed congestive cardiac failure.
...
In my opinion, Mr Wade might well have suffered from dementia emerging through 2006, but it certainly wasn't significant enough that his GPs noted this, despite making enquiries as to his mental health from 2005. Furthermore, the cognitive disturbances of mid-June 2006 are likely to be indicative of a degree of delirium precipitated by congestive cardiac failure.
286 In my view this opinion accepts the possibility of the lack of testamentary capacity, on the bases on which Dr Warne relies, of drugs received and infection or illness which Mr Wade suffered at material times which intervened on a pre-existing dementia or other impairment of mental status. However, Dr De Felice concludes that it is likely that Mr Wade had testamentary capacity on 6 June 2006, on two bases.
287 One basis is the absence of any matter in the medical records clearly indicating the possible presence of a level of cognitive dysfunction sufficient to call into question testamentary capacity before the letter from Dr Seton to Dr Clarnette of 16 June 2006 (exhibit 72). This was 'despite [doctors he saw] making enquiries as to his mental health from 2005', which was not explored in his evidence and which I consider referred for 2006 to the notes I reach below. This absence is with the exception of the reports of confusion in the record of Mr Wade's stay in St John of God, Subiaco, which Dr De Felice accounted for as I have explained.
288 However, Dr De Felice did not point to, nor could I find, anything in the medical records representing the report of an inquiry specifically directed to the possibility and level of any underlying cognitive dysfunction other than the note of the visit with the general practitioner Dr van der Merwe of 15 February 2006 which resulted in his letter of that date (exhibit 32); the record of the visit with Dr Seton of 16 June 2006 appearing in his letter of that date (exhibit 72); and the record of the visit with the specialist Dr Clarnette of 20 June 2006 appearing in his report dated 23 June 2006 (exhibit 73). In my view Dr De Felice's evidence does not rise to the point of an opinion that the doctors whom Mr Wade saw in the other settings could be expected to have conducted an inquiry of that sort had there been any sign of cognitive dysfunction. Indeed, the evidence of the notes from St John of God, Subiaco, and of Dr Gildenhuys in respect of their observations of signs of confusion in Mr Wade, which did not include in either case any indication they conducted such an inquiry, would tend to the contrary.
289 At the same time, I note what appears to be the other basis of Dr De Felice's opinion. That basis as it appears in Dr De Felice's report (exhibit 66) is the 'various points at which the GP comments on Mr Wade's mental state quite favourably through the early part of 2006', which appears to be a reference to the notes of the 15 February 2006 and 3 March 2006 meetings, and may also be to the notes of the 22 May 2006 meeting. However, there were no similar notes for any subsequent meeting. In my view, in the light of the references (in exhibit 92) to cholecystitis in the visits of 22, 26 and 30 May 2006, the drug prescription of 26 May 2006 and Dr Seton's reference in his letter of 16 June 2006 (exhibit 72) to Mr Wade as having 'deteriorated, significantly', those notes of earlier observations, none of which were made on or about 6 June 2006, are only of limited value. Further, I note that it was the evidence of both Dr Warne and Dr De Felice that any delirium associated with drugs and physical illness could be 'fluctuant' (Dr Warne, cross-examination, ts 460); or there could be 'occasional or even prolonged confusion, enough to affect his mental capacity' from such influences on 'dementia indicating reduced cerebral function' (Dr De Felice, cross-examination, ts 629, 630).
290 I should add that relevant medical evidence from those treating Mr Wade at the time with respect to his mental capacity as at about 6 June 2006 would be entitled to significant weight. I note in this respect from Revie v Druitt [2005] NSWSC 902 [34] (Windeyer J) that:
lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased. (emphasis added)
291 However, for the reasons I have given, I consider the medical evidence I have of those treating Mr Wade at about 6 June 2006 is not of great assistance to me.
292 Further, I note that Dr De Felice accepted that he had not relied on any matter outside the medical notes. He also accepted that the medical notes, at least other than those from St John of God, Subiaco, might not be as 'comprehensive' as they could have been. I also note that in respect of the basis for the prescription of haloperidol in August 2005 both Dr Warne and Dr De Felice noted the difficulty in understanding the records of the Earl Street Medical Clinic (exhibit 92), Dr De Felice indicated the difficulty in understanding the entries for cholecystitis in those records after the removal of Mr Wade's gall bladder, and there was the lack of any reference in those records to Dr Gildenhuys' observation of Mr Wade's confusion at the visit on 14 June 2006.
293 I conclude that there is insufficient basis in the evidence on which Dr De Felice's opinion rests to find that it was likely Mr Wade had testamentary capacity on 6 June 2006.
294 At the same time, I consider that there is insufficient basis in the medical records for Dr Warne's opinion that it was likely Mr Wade lacked that capacity. There is a basis in those records for concluding that not long prior to 6 June 2006 drugs had been received and infection or illness suffered capable of intervening on a pre-existing dementia or other impairment of mental status to produce a lack of testamentary capacity, a matter which I consider Dr De Felice's evidence acknowledged as I have indicated. Moreover, there was on Dr Warne's evidence not commented on by Dr De Felice a 'marker' of impaired mental status in the prescription of haloperidol and the evidence of impaired mental status from Dr Seton and Dr Clarnette about 10 to 14 days after the execution of the purported Will of 6 June 2006. While I accept, as counsel for the defendant put to me, that Dr Warne's evidence was frequently characterised by a particular concern to explain the basis for his opinion as to competence rather than to answer the questions put to him, and this may have led him to err as to what the notes showed as I have indicated, I do not consider I have reason to doubt his expertise in relation to matters such as what prescription of haloperidol for the elderly might signify.
295 However, as Dr De Felice's evidence emphasised, there was no clear indication in the medical records before 16 June 2006 that a lack of testamentary capacity had been produced as Dr Warne described, which I consider Dr Warne acknowledged as I have indicated. And there was Dr De Felice's evidence of congestive cardiac failure as the agent that caused that impairment, being a condition that on his evidence had arisen after 6 June 2006. Dr Warne's evidence does not go to the date that condition arose.
296 I should add that Dr Warne's opinion that Mr Wade likely lacked testamentary capacity on 6 June 2006 appeared to me to depend primarily upon what Dr Warne believed should be drawn from the medical records in the drugs received and infection and illness suffered by Mr Wade, rather than on the matter outside the medical records, of the matter of what the accountant and the witnesses to the execution of the purported Will of 6 June 2006 noticed or what Dr Gildenhuys observed on 14 June 2006, to both of which Dr Warne's evidence also referred. As between those last two matters, Dr Warne appeared to me to place greater emphasis in his evidence on Dr Gildenhuys' observation. However, Dr Gildenhuys himself testified, as I have indicated, that he could not relate what he observed to Mr Wade's condition at an earlier time, and it was not clear to me on what basis Dr Warne was able to do so other than his view of the medical records.
297 I conclude that the medical evidence gives a reason to doubt Mr Wade's testamentary capacity; but without the evidence in the previous two categories it is not a substantial reason to doubt that capacity.
298 I turn then to the terms of the purported Will of 6 June 2006.
The nature of the changes made to previous testamentary arrangements
299 Counsel for the defendant put to me that the changes to the previous testamentary arrangements made by the Will of 21 February 2006 were the provision for the replacement of Mr Brown as one of the executors by Mrs Wade; the absolute interest in the whole of Mr Wade's estate to Mrs Wade if Mrs Wade survived Mr Wade, saving one gift to a daughter of Mrs Lewis; and the lack of any provision for the Gambrells, unless Mr Wade survived Mrs Wade.
300 Counsel for the plaintiff described these as 'fundamentally different' features of the purported Will of 6 June 2006 compared with the 'earlier ones'. I took the second change to refer me to the lack of provision for any of the stepdaughters, unless Mr Wade survived Mrs Wade. I took the submission to be that all three changes called for explanation (Bool (39)), which was not forthcoming; while this was particularly so for the second and third changes. Those were ones indicating that no inadequate or unfair provision was made for persons whom the pattern indicated the testator considered he ought to make provision for, calling for fuller and clearer evidence of the testator's capacity (Brown v McEnroe (138)), which was not provided.
301 In my view, the second and third changes represent reasons for doubting Mr Wade's testamentary capacity at the time of execution of the purported Will of 6 June 2006. However, the first does not, as there appears in the evidence to be a reason for the change.
302 From the provisions of the nine wills preceding the purported Will of 6 June 2006, it will be seen that there was a considerable variety in provisions. There were only two constants, apart from provision for Mrs Wade. One was the appointment of Mr Brown as one of the two executors. The other was the making of a provision of farm land for the Gambrells and a provision in cash, farmland or a share of the residuary estate, or some combination of these, for the stepdaughters, in both cases not dependent on Mrs Wade not surviving Mr Wade. This is with the partial exception of the first will, that of 15 August 1995, under which the provision for the Gambrells lapsed if Mrs Wade survived Mr Wade, and she survived both of the Gambrells.
303 It may be noted that under the first five of Mr Wade's wills - the Will of 15 August 1995; the Will of 20 August 1996; the Will of 28 November 1997; the Will of 11 November 1999; and the Will of 17 April 2000 - Mrs Wade took an absolute interest, as the beneficiary of the residuary estate but with provision for the stepdaughters. This was through cash amounts only, until the Will of 11 November 1999 and the Will of 17 April 2000, under both of which certain farmlands were bequeathed to one or more of the stepdaughters if they survived Mrs Wade, with provision also for cash payments under certain conditions.
304 Under the remaining four wills - the Will of 5 February 2001; the Will of 19 March 2001; the Will of 24 January 2002; and the Will of 21 February 2006 - Mrs Wade took a life interest only, with provisions for the stepdaughters, or at least two them, of a share in the residuary estate after Mrs Wade's death, of farmlands and of such a share, or of cash and of such a share. It is notable that under the Will of 24 January 2002, no provision of any kind was made for Mrs Lewis.
305 It seems to me from this pattern that 'no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty' (Brown (138)) in the lack of provision for the Gambrells and of provision for any of the stepdaughters, in both cases unless Mrs Wade predeceased Mr Wade. This pattern also indicates that lack of provision represents a 'great change of testamentary disposition' which calls for an 'explanation' (Bool (39)).
306 There was no indication in the evidence that Mr Wade had ceased to be concerned to provide for the Gambrells. Indeed, as I have described, there are indications in the evidence of the execution of the purported Will of 6 June 2006 that are strongly to the contrary. I consider that in those circumstances the 'great' unexplained departure from the previous constant pattern called for 'fuller and clearer evidence of capacity' (Brown v McEnroe (138)).
307 As to the lack of provision for any of the stepdaughters, there is no indication Mr Wade had ceased to be concerned for them, with the possible exception of Mrs Brown, in respect of whom there is the evidence of Ms Everett that at her meeting alone with Mr Wade on 24 May 2006 he had indicated he had 'turned against' her (cross-examination, ts 253). However, Ms Everett's evidence was also that Mr Wade at the same meeting told her Mrs Lewis and Mrs Bergin were helping Mrs Wade, which I would take as an indication that Mr Wade at that time at least was concerned for those two stepdaughters (ts 253). There was no explanation why the purported Will of 6 June 2006 would make the departure indicated from the pattern of all of the previous wills in respect of all of the stepdaughters, and this 'great' unexplained departure also called for 'fuller and clearer evidence of capacity'.
308 I leave aside the matter of the removal of Mr Brown as an executor which in my view, because of its departure from the constant pattern of the previous wills, also represents a 'great' departure from them. However, for reasons which I will consider below, I consider there is an explanation for the departure which removes that call.
309 Counsel for the plaintiff also referred me to two other matters which he said pointed to a lack of testamentary capacity in Mr Wade at the relevant time. One was the method of the preparation of the purported Will of 6 June 2006; the other was Mr Wade's treatment of Mr and Mrs Brown in view of the reasons there might have been for that treatment.
310 Counsel for the plaintiff laid emphasis on the method of preparation of the purported Will of 6 June 2006 as representing a departure from the method of preparation of the previous wills. It was not in contest that Mr Wade did not give instructions to his usual solicitor, but rather those instructions had been given by another, Mr Lewis, to another firm of solicitors, Stables Scott, in Perth. It seems to me that an unexplained departure of that kind would also, in suitable circumstances, call for fuller and clearer evidence of capacity. Such circumstances would, it seems to me, include an unexplained 'great' change from provisions of the immediately preceding wills: see Nicholson [573]; and Bool (39).
311 As to the departure from the way in which Mr Wade had previously made his wills, there was no direct evidence going to explain that departure. In the context of Mr Wade's physical health at the time, as indicated on all of the medical evidence, a departure from the pattern of Mr Wade's involvement in giving instructions to Ms Everett's firm of solicitors might be explained as assistance to him in such a physically weakened condition. However, in the absence of evidence from Mr Lewis as to why Mr Wade's will had been prepared in the way it had, it seems to me that change, at least when considered with the unexplained departures from the constant testamentary dispositions in the previous wills previously referred to, called for fuller and clearer evidence of his capacity.
312 As to the treatment of Mr and Mrs Brown, I was directed again to the non-appointment of Mr Brown as an executor of the purported Will of 6 June 2006; I was also directed to the failure to provide for Mrs Brown except by way of a share in the residuary estate, and that only in the event Mr Wade survived Mrs Wade. The residuary estate would be that portion of Mr Wade's estate remaining after the dispositions of Greenville to Mrs Lewis, and of Merribah to the Gambrells and to Mrs Bergin, with the exception of one lot comprising Greenville which was the subject of the codicil to the purported Will of 6 June 2006, bequeathing that lot to Mrs Lewis. That codicil, as I have indicated, was never executed.
313 As to the non-appointment of Mr Brown, there was no evidence of a direct explanation of this from Mr Wade. However, counsel for the plaintiff directed my attention to the evidence of Mr Brown (in his witness statement, exhibit 48 [85] - [88]) that Mr Wade was upset that in February 2006 the Browns had sold most of their remaining farm lands. Mr Brown's evidence was that Mr Wade did not seem to understand that they were not leaving the district for some time, 'although I explained it to him several times' (exhibit 48 [86]). Counsel put it to me this reaction was 'irrational', which I took to be a submission that Mr Wade suffered from an insane delusion which poisoned his affections, perverted his sense of right or prevented the exercise of his natural faculties such that he lacked testamentary capacity: see Banks (565). In the leading authority of Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439; (1952) 26 ALJR 626, 449 (Dixon CJ, Webb & Kitto JJ) an insane delusion has been defined
as 'a belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual's education and surroundings': Halsbury, Laws of England (2nd ed), vol 21, p 273 (note); and, again, as 'a fixed and incorrigible false belief which the victim could not be reasoned out of'. Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, at p 339.
314 However, it is not apparent to me that the nature of Mr Wade's belief is one that has been shown to be an insane delusion as so defined. Viewing matters as at 6 June 2006, it seems to me that Mr Wade had a reasonable foundation for his concern that in the near future the Browns would move out of the district, as they did, in December 2007. Further, it seems to me that there was a further basis for Mr Wade's concern which emerges from the evidence I reach next, which was that Mr Wade had sold pieces of his farmlands to the Browns in February 2005 on the basis those pieces of land would stay in the family. Mr Wade might well have invested with considerable significance the resale of most of the Browns' farmlands about one year later.
315 There was also evidence, from Mrs Wade, that Mr Wade was convinced he had sold the pieces of his farmland to the Browns in February 2005 for much less than a fair price. Counsel for the plaintiff put to me that this was an irrational belief in view of the unchallenged evidence of Mr Brown that the sale had been instigated by Mr Wade to enable him to retire debt and he wanted to sell it to the Browns to keep the property in the family, and of unchallenged valuation evidence that the property was sold at an appropriate price. However, it seems to me that this belief cannot readily be shown to be an insane delusion without evidence that efforts were made to reason Mr Wade out of that belief: see Worth (449). There is no evidence of such efforts here.
316 As to the provision for Mrs Brown, counsel for the plaintiff directed me to the evidence that I have already discussed in relation to Mr Brown as well as other evidence of disagreements between Mr Wade and Mrs Brown. Those disagreements were over an incident in which Mr Wade had wanted Mrs Brown to drive him to hospital when on Mrs Brown's evidence she was unwell; over sitting with Mrs Brown in Mr Brown's absence looking at a budget for Mr Wade's farm Mr Brown had prepared; and over advice he said he had received from Mr Brown to sell ewes, advice with which Mr Wade strongly disagreed. It is not clear to me that the evidence on any of these accounts singly or in combination is sufficient to show an insane delusion as defined, without evidence which I lacked as to what efforts were made to reason with Mr Wade. Further, as counsel for the plaintiff conceded, there was also evidence from which it could be concluded that these disagreements had not in fact occurred or had not had a lasting impact on Mr Wade.
317 I conclude that I should not draw from the treatment of Mr and Mrs Brown any reason to doubt Mr Wade's testamentary capacity.
318 In my view the combination of the evidence of those present at the execution of the purported Will of 6 June 2006, other than Mrs Wade; the evidence of Mr Wade's exchange with the solicitor who had prepared a number of his previous wills for him and who saw him on 24 May 2006; the evidence of the medical experts; the unexplained great changes to the testamentary dispositions of all of the previous wills made by the purported Will of 6 June 2006; and the unexplained change from his previous way of making his wills represented by the way Mr Wade made the purported Will of 6 June 2006 provides a reason to doubt Mr Wade's testamentary capacity on that date. I consider that when that evidence is considered with all of the other relevant evidence in the trial, which I consider to be the evidence which I reviewed in the previous sections of these reasons as part of my consideration of the matters giving rise to the doubt referred to, the defendant has not discharged her onus as to the testator's capacity.
319 I would therefore conclude that the purported Will of 6 June 2006 should not be admitted to probate. On the parties' positions in the action, this means that the Will of 21 February 2006 should be admitted to probate.
320 However, I consider I should address the remaining challenges to the purported Will of 6 June 2006, in deference to the argument addressed to me on them, and in case I am in error in finding that the defendant had not discharged her onus as to Mr Wade's capacity.
Knowledge and approval of the purported Will of 6 June 2006
321 As I have previously explained, the law is that a presumption of knowledge and approval of a will arises from the presumption of due execution, and the latter presumption applies in this case. However, the presumption of knowledge and approval does not apply where the evidence as a whole is sufficient to cast a doubt that the testator knew and approved of the contents of the will, and the question, in similar terms to that in a case of testamentary capacity, is whether the propounder of the will has discharged its onus as to such knowledge and approval. See Nock (528) (Isaacs J) and Robertson v Smith [1998] 4 VR 165, 173 - 174 (Tadgell JA; Phillips & Kenny JJA concurring). The question as to whether or not that onus has been discharged is, as I earlier indicated, to be approached in the same way, by reference to the requirement for 'clear and satisfactory proof' of knowledge and approval (Nock (528)) calling for the caution appropriate to the circumstances (Roebuck [95]), as for the issue of testamentary capacity.
322 The evidence of those present at the execution of the purported Will of 6 June 2006, leaving aside the evidence of Mrs Wade for the reasons I have previously given, is in my view sufficient to raise a doubt that Mr Wade knew of or approved the contents to the extent they conferred a benefit on the Gambrells that depended on Mr Wade surviving Mrs Wade, notwithstanding that Mr Leong read out to or summarised for Mr Wade the principal provisions of the purported Will of 6 June 2006, including its provisions relating to that benefit, and indeed addressed that matter repeatedly.
323 Counsel for the plaintiff also referred me to the principle in Nock (528) that
[t]he circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v Butlin [1838] EngR 1056; 2 Moo PCC 480 and Fulton v Andrew LR 7 HL 448; per Lord Shaw in Low v Guthrie (1909) AC 278, at p 284).
324 Although Mr Lewis, who gave the instructions for the preparation of the purported Will of 6 June 2006, was not a beneficiary under it, I took counsel to be directing my attention to evidence in the form of a letter dated 6 July 2006 from the accountant for Mr Lewis to the firm of solicitors which prepared the purported Will of 6 June 2006 in which they were asked to prepare the documents to give effect to what is referred to as an agreement between Mrs Wade and Mr Lewis (exhibit 47). That agreement is described as one for the transfer for $300,000 to Mr and Mrs Lewis of various farming assets, of which upon the death of Mr Wade Mrs Wade would become sole owner, including various farming lands. There is some evidence, in the form of a file note by Mr Lewis' solicitor of 2 June 2006 (exhibit 45), that a transfer of Mr Wade's farmland had been contemplated at that date. There is also evidence from Mr Brown, which was not challenged, that he considered the total value of Mr Wade's farmlands as at February/March 2005 to be about $1.7 million, although Mr Brown's qualifications to express such an opinion, let alone the basis for that opinion, does not emerge from the evidence. However, even ignoring that evidence as to value, I consider the agreement against that background would represent a benefit which would arouse the suspicion in Nock. Mrs Wade in her evidence denied that any such agreement had been entered into (cross-examination, ts 516). I have earlier indicated my reservations as to her evidence. There is also evidence in the file note Ms Everett compiled of the meeting of 24 May 2006 that Mrs Wade told her then that she would give 'her 1/2' to Mr Lewis, although this was not put to Mrs Wade in cross-examination. I was also directed to evidence in the file notes Ms Everett compiled of meetings with Mr Wade commencing 1 September 2009 in connection with the preparation of wills, which it was said showed Mr Wade believed that, in the event Mrs Wade inherited Mr Wade's estate, it would eventually belong to Mr and Mrs Lewis. See exhibits 10, 11, 14, 16, 17, 19, 20, 22, 28 and 31. However, I am unable to extract from those notes such a showing.
325 At the same time, whether or not Mrs Wade's denial should be accepted, it seems to me that the evidence in exhibit 47 is of a benefit Mr Lewis expected to receive dependent upon the operation of the purported Will of 6 June 2006 and Mrs Wade's survival of Mr Wade. There was no other direct evidence as to what if anything Mr Lewis expected in that regard, and Mr Lewis did not give evidence where it seems to me that failure engaged Jones v Dunkel. On the principles associated with that case, the inference I would draw is his evidence would not have assisted the defendant's case. In those circumstances I consider the suspicion to which Nock (528) referred is aroused.
326 In any event, when the evidence of those present at the execution of the purported Will of 6 June 2006 is considered with all of the other relevant evidence in the trial, which is the evidence which I reviewed earlier in these reasons as part of my consideration of the evidence of those so present, I conclude that the defendant has not discharged the onus as to knowledge and approval.
327 I reach this conclusion without reliance on the form of the purported Will of 6 June 2006, which on the submissions for the plaintiff as I understood them may have caused Mr Wade's lack of knowledge and understanding of the document's contents in the respects I have identified. That is because I consider that lack has been established otherwise as I have indicated.
328 In my view, that conclusion is sufficient to prevent the propounding of the purported Will of 6 June 2006. It was not put to me that if I arrived at such a conclusion that there could be a severance of the portion of the purported Will of 6 June 2006 of which Mr Wade did not know or approve: see on severance Hardingham, Neave & Ford, (2nd ed) [305]. In any event, it is not clear to me that the purported Will of 6 June 2006 is severable for this purpose.
Testamentary undue influence and the purported Will of 6 June 2006
330 I have already indicated that the onus of proof of testamentary undue influence is on those seeking to impeach the will said to be affected by it, here the plaintiff. The commonly referred to judicial explanations of such undue influence are those from the directions to the jury in Hall v Hall (1868) LR1P&D 481, 482 (Sir JP Wilde) and Wingrove v Wingrove (1885) 11 PD 81; (1885) 50 JP 56, 82 - 83 (Sir J Hannen): see Hardingham, Neave & Ford, (2nd ed) [311].
331 In Hall (482) the following appears, as quoted in Hardingham, Neave & Ford, 2nd ed [311]:
To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's.
332 In Wingrove (82 - 83) the following appears, again as quoted in Hardingham, Neave & Ford ( 2nd ed) [311]:
... [I]t is not because one person has unbounded influence over another that therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word ... To be undue influence in the eye of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you [that is by the influence of a designing woman or a roguish companion] to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence.
333 Testamentary undue influence will not be presumed from a relationship of confidence between a testator and a beneficiary: Winter v Crichton (1991) 23 NSWLR 116, 121 (Powell J). However, testamentary undue influence may be established by circumstantial evidence; at the same time the following appears to be well established in such a case, as stated in Winter (122), referring to Wingrove and to Boyse v Rossborough [1854] EngR 252; (1857) 6 HL Cas 1; (1857) 10 ER 1192:
... where what is relied upon is a purely circumstantial case, such as is illustrated by the particulars in this case, the duty of the defendant goes further than merely establishing the circumstances from which it is sought to have the inference drawn. Thus, in Wingrove v Wingrove (at 83) Sir James Hannen P concluded his charge to the jury with the following:
'There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.'
So, too, in Boyse v Rossborough (at 51; 1212):
'... The most I can find, if indeed that can be found, is evidence to show that the act done was consistent with the hypothesis of undue influence; that the instrument, though apparently the expression of his genuine will, might in truth have been executed only in compliance with the threats or commands of his wife, or that he had been led to execute it by unfounded prejudices artfully instilled into or cherished in his mind by his wife against those who would otherwise have been the probable objects of his bounty.
But in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.'
334 There has been a question raised whether in a case where circumstantial evidence is depended upon for a finding of testamentary undue influence, the inference is to be drawn according to a standard that equates with or may even go beyond the criminal standard: see Nicholson [112] - [119] (referring to authorities). However, it seems to me that the better view on the authorities in this country is that the inference is to be drawn according to the civil standard: see Bool (45); and see Nicholson [120] - [121] and [125]. That means that where direct evidence is not available it will be enough if the circumstances in evidence give rise to 'a reasonable and definite inference' of testamentary undue influence, in the sense that (from Luxton v Vines [1952] HCA 19; [1952] ALR 308; (1952) 85 CLR 352, 358, Dixon, Fullagar & Kitto JJ, itself not a testamentary undue influence case, but as quoted in this context in Nicholson [122]):
they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise. [Citations omitted]
335 Here the plaintiff's case is a circumstantial one, in my view. I am unable to see any direct evidence of the exercise of testamentary undue influence in the matter relied upon by counsel for the plaintiff as such evidence, being the evidence of the agreement by Mrs Wade to transfer farmlands to Mr and Mrs Lewis and its background to which I have previously referred. The pleaded particulars from which a more probable inference in favour of testamentary undue influence of Mr and Mrs Lewis on Mr Wade is to be drawn were their care of him prior to his signing the purported Will of 6 June 2006; his age and frailty at that time; the change in the testamentary dispositions relative to those of the Will of 21 February 2006 made by the purported Will of 6 June 2006 in favour of Mrs Lewis and against Mrs Brown; the fact that instructions for the purported Will of 6 June 2006 came from Mr Lewis; the condition of Mr Wade at the meeting with Ms Everett on 24 May 2006; Mr Wade's failure, when he met alone with Ms Everett, to confirm the instructions for the will that were given by Mr Lewis and Mr Wade's description of different provisions; and Mr Wade's conduct, which I reach below, in seeking to revoke the purported Will of 6 June 2006.
336 The plaintiff's case at the trial rested heavily on the evidence of the position of power Mr and Mrs Lewis had which would have enabled them to overbear Mr Wade's will; on the circumstantial evidence of the exercise of that power I will reach below; and the circumstantial evidence of the obtaining of the execution of the purported Will of 6 June 2006 thereby. A showing of such power exercised with that effect would establish testamentary undue influence: Hayden v Bond [2003] WASC 96 [61] (Barker J), quoting from West Australian Trustees Ltd v Poland (Unreported, WASC (Kennedy J), Library No 7000, 6 January 1988).
337 As to the evidence of the position of power to overbear Mr Wade's will, the plaintiff relied on the unchallenged evidence from Mrs Gambrell that Mrs Wade and Mrs Lewis were constantly with Mr Wade after his discharge from hospital on 8 May 2006 following Mr Wade's gall bladder operation; and the evidence of Mrs Gambrell, Mr Gambrell and Mr Brown that Mr Wade had become frailer after that operation. It was not in contest that after that operation Mr Wade became increasingly dependent on Mrs Wade and Mrs Lewis, who moved in to live with Mr and Mrs Wade to help look after him. It was also suggested that Mr Wade's dependence on Mr and Mrs Lewis included an economic aspect, and I was directed to evidence Mr Wade was concerned about his financial position at about the time when on 7 June 2006 a cheque shown as a loan from Mr Lewis for $100,000 was banked in the partnership bank account for Mr and Mrs Wade, after Mr Wade had indicated Mr Lewis had provided him with such an amount. See the witness statement of Mrs Gambrell which was her examination-in-chief in the trial (exhibit 55 [40]); the copy of the bank statement for the partnership WJ & KI Wade 1 June 2006 - 28 June 2006 (exhibit 56); and the letter dated 6 July 2006 (exhibit 47). I consider this to be evidence that Mr Wade did indeed come to have a measure of financial dependence on Mr and Mrs Lewis.
338 A position of power sufficient to overbear the will of a person is of course not sufficient for testamentary undue influence. And the nature of the carer relationship in this case might go to explain an increased provision for Mrs Wade and indeed, on the evidence in the instructions of 6 July 2006 (exhibit 47), through Mrs Lewis's provision for Mr and Mrs Wade, as a 'sentiment of gratitude for past services' (Hall (482)).
339 As to the exercise of the power to overbear Mr Wade's will with the effect of obtaining the purported Will of 6 June 2006, the plaintiff relied on the evidence of the response of Mr Wade to the instructions for a will put forward by Mr Lewis at the meeting with Ms Everett of 24 May 2006, and the contents of the purported Will of 6 June 2006 executed a short time later. These contents reflected a set of arrangements, in their contingent provision for the Gambrells, in their unrestricted provision for Mrs Wade and in their failure to make provision for his stepdaughters if Mrs Wade survived Mr Wade, that were at odds with the sentiments expressed that short time earlier. Further, the $100,000 referred to was paid into the partnership account a day after execution of the purported Will of 6 June 2006 (see exhibit 56).
340 In assessing this body of evidence to determine whether or not to conclude the inference of testamentary undue influence should be drawn at the civil standard, I have noted the approach for such an assessment referred to in Nicholson where Vickery J considered and quoted from Briginshaw v Briginshaw [1938] HCA 34; [1938] ALR 334; (1938) 60 CLR 336, 362 (Dixon J) and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170, 450 (Mason CJ, Brennan, Deane and Gaudron JJ). In Nicholson Vickery J said this at [128] - [130] (footnotes omitted):
To this should be added the approach laid down in Briginshaw v Briginshaw where Dixon J said:
'But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'
More recently, the majority (Mason CJ, Brennan, Deane & Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, crystallized the Briginshaw approach in the following statement:
'[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.'
341 I consider that is the approach I must follow, applied to all of the relevant evidence, including that evidence I have referred to: see Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ & Mason J), quoted in Nicholson [123]. In doing so I have taken account of the fact that Mr and Mrs Lewis were not present at the execution of the purported Will of 6 June 2006, as counsel for the defendant reminded me. However, I have also noted that Mrs Wade was present at that time, in respect of whom I have referred to the evidence for her provision for Mr and Mrs Lewis; and I have also taken account of the evidence which I will shortly reach that not long after the execution of the purported Will of 6 June 2006, Mr Wade expressed in strong terms his concerns about it, that it was 'not my will'. While that latter evidence needs to be weighed with the evidence which I will also shortly reach that Mr Wade lacked testamentary capacity at that time, I consider that concern so expressed goes to the present issue.
342 I conclude that the plaintiff has discharged his onus of proof as to testamentary undue influence in relation to the purported Will of 6 June 2006. I have particularly noted for that purpose the evidence on which the case for the plaintiff heavily relied. That conclusion is sufficient to prevent the propounding of the purported Will of 6 June 2006. It was not put to me that if I arrived at such a conclusion there could be a severance of that portion of that will due to the undue influence: see on severance in this context Hardingham, Neave & Ford (2nd ed) [313]. In any event, it is not clear to me that the purported Will of 6 June 2006 is severable for that purpose.
343 I turn now to the matter of revocation of the purported Will of 6 June 2006.
Revocation of the purported Will of 6 June 2006: background
344 In order to deal with the issues in relation to this challenge to the purported Will of 6 June 2006, I need to describe the relevant background to and conduct said to constitute the revocation. The description that follows is not in contest, except as indicated.
345 On 14 June 2006, eight days after the execution of the purported Will of 6 June 2006, Mr Wade was admitted to Narrogin Regional Hospital following episodes of vomiting. He was discharged and returned home on 26 June 2006.
346 On 2 July 2006 Mr Wade was re-admitted to Narrogin Regional Hospital, again following episodes of vomiting. After his admission on this occasion, Mr Brown went to see Mr Wade at the Hospital after Mr Brown had been told Mr Wade wanted to see him urgently. Mr Wade told Mr Brown that he had made a new will, but he had not signed it, and he asked Mr Brown to get the will for him. After ascertaining from Mr Wade where he might find the will, Mr Brown ultimately obtained from that source a copy of the purported Will of 6 June 2006 (the first copy of the purported Will of 6 June 2006). The source was the Narrogin offices of the firm of accountants which Mr Lewis used. Mr Wade took the first copy of the purported Will of 6 June 2006 to Mr Wade. Mr Wade indicated to him that the first copy of the purported Will of 6 June 2006 was not what he wanted. Mr Wade told Mr Brown to write on the final (execution) page of the document 'Please cancel this will' and Mr Wade signed, but did not date, that page so endorsed. There were no endorsements of a witness or witnesses to this signature. The evidence does not clearly indicate the date of this signing.
347 Mr Brown's evidence was that he obtained advice from the firm of accountants from which he had obtained the first copy of the purported Will of 6 June 2006 that what Mr Wade had done was not sufficient; as a result Mr Brown consulted Ms Everett. Ms Everett's evidence was that when Mr Brown contacted her he said Mr Wade wanted to revoke his new will but did not know where it was kept, and Mr Brown had asked her if she could do a new will for Mr Wade, to which she replied she did not want to do this as she had already taken the view Mr Wade was incapable of making a will. Her evidence was that that view was the result of her view as to Mr Wade's capacity formed at the time of the 24 May 2006 meeting.
348 However, it is common ground that notwithstanding that view, Ms Everett told Mr Brown that one way of dealing with the will to which Mr Wade objected was to have each page marked as having been revoked and to have this revocation witnessed by independent persons. Mr Brown obtained another copy of the purported Will of 6 June 2006 from the firm of accountants (the second copy of the purported Will of 6 June 2006). Mrs Brown wrote on the second last page of that document, after the final clause, the words 'I do not recall signing this will and it is not what I want, and I confirm that my previous will is still valid' (the legend). There is no contest that a copy of the second copy of the purported Will of 6 June 2006, with the legend and the crossings out and signings I will now reach, was identified as exhibit 42 by Mrs Sally Higgins, one of the two witnesses to the signatures of Mr Wade on the second copy of the purported Will of 6 June 2006, in her evidence.
349 On 13 July 2006, Mr and Mrs Brown went to visit Mr Wade at his room in the Narrogin Regional Hospital. At about 5.15 pm, Mrs Higgins joined them by arrangement made by Mrs Brown. Mrs Higgins was the Mayor of Narrogin and a Justice of the Peace. Mr Brown gave Mrs Higgins the second copy of the purported Will of 6 June 2006, and she noted the legend, but also that there were no other original markings. After Mr and Mrs Brown had left the room, and Mrs Higgins had had a conversation with Mr Wade, she arranged for Mrs Brown to contact another Justice of the Peace, Mr Michael Harris, to have him come to Mr Wade's room to witness, with Mrs Higgins, Mr Wade sign the second copy of the purported Will of 6 June 2006.
350 Mr Harris was a retired certified practising accountant who had practised in Narrogin. About 15 minutes after he had been contacted, Mr Harris arrived, and following an exchange between him, Mrs Higgins and Mr Wade, Mrs Higgins drew a diagonal line across each page of the second copy of the purported Will of 6 June 2006 except the last page, which was an inadvertent omission. The last page was the execution page of the purported Will of 6 June 2006.
351 Mr Wade then signed each of the pages along the diagonal line, and Mrs Higgins and Mr Harris added their signatures alongside his, followed in the case of Mrs Higgins by the initials 'JP' and her Justice of the Peace number, and in the case of Mr Harris the initials 'JP', only. Mr Wade also signed the second last page of the second copy of the purported Will of 6 June 2006, his signature appearing alongside the handwritten word 'signature', which appears beneath the handwritten entry '13th July 2006' appearing alongside the handwritten word 'Date', which in turn appears under the legend.
352 Mrs Higgins and Mr Harris each signed beneath Mr Wade's signature, their signatures each appearing alongside the handwritten word 'witness'. There is no evidence as to how the 'Date' word with its entry, and the 'signature' and 'witness' words, were added. Mrs Higgins and Mr Harris about the same time noticed that a diagonal line had not been put across the last page of the second copy of the purported Will of 6 June 2006. Mrs Higgins proceeded to draw such a line across that page, and she and Mr Harris witnessed Mr Wade's signature there.
353 Following the completion of these signings, Mrs Higgins called Mr and Mrs Brown into the room and handed the second copy of the purported Will of 6 June 2006 to them. Mr Wade thanked Mrs Higgins and Mr Harris for coming and they left the room.
354 On 18 July 2006 Mr Wade died in Narrogin Regional Hospital.
355 The contest between the parties in relation to the revocation of the purported Will of 6 June 2006 was whether or not Mr Wade had the capacity to revoke on 13 July 2006. There was no contest that if he had such capacity his witnessed signatures on the second copy of the purported Will of 6 June 2006 were sufficient to work a revocation of the purported Will of 6 June 2006 under Wills Act 1970 (WA) s 15 read, if necessary, with s 36, as that Act was at 13 July 2006. Also, although the matter was argued at the commencement of the trial, it was not finally in contest that if Mr Wade had such capacity the second copy of the purported Will of 6 June 2006 so signed and witnessed was sufficient to revive the Will of 21 February 2006. On the revival of revoked wills, see Barndon v Chelvanayagam [2006] WASC 118 [67] - [69] (E M Heenan J).
Revocation of the purported Will of 6 June 2006: law applicable to capacity
356 To revoke a will, as a general proposition a person must have the 'same degree of mental capacity' as for the making of a will: The Public Trustee v Elderfield; Re Estate of Poole (Unreported; NSWSC (Young J); Lib No 118125 of 1994; 26 April 1996) BC9601658 at 4, referring to Re Richards [1911] VicLawRp 57; [1911] VLR 284, 287 (A'Beckett J), while acknowledging that in Re Richards the proposition applied 'generally speaking'. As I read Poole, the qualification did not apply to a revocation of the whole of the will, as here; in any event the parties appear to have accepted the applicable law in terms corresponding to the terms of the general proposition. I have previously described the required aspects for testamentary capacity.
357 Further, it was not in contest that the burden of proof of the capacity to revoke was on the plaintiff, as the party seeking to rely upon the revocation.
Revocation of the purported Will of 6 June 2006: the evidence and my finding as to capacity
358 The evidence relied upon by the plaintiff in relation to capacity was that of Mrs Higgins and Mr Harris, both of whom testified; there was reference also to the evidence of Mr Brown. The defendant particularly directed my attention to the medical evidence, especially that of Dr Warne and Dr De Felice. On the entirety of the evidence, I have concluded that the plaintiff has not discharged his burden of proof as to capacity.
359 In my view the strongest evidence of capacity came from Mrs Higgins (witness statement, exhibit 59). Her evidence was that she knew Mr Wade 'well', and indeed had known him for 38 years. In her conversation with him before having Mr Harris brought to the Hospital, she had read out to Mr Wade the entirety of the second copy of the purported Will of 6 June 2006, during which he 'appeared to be quite upset'; and when she finished he had said he did not want the will, adding 'it was not my will' and that his solicitor was Ms Everett (exhibit 59 [32] - [33]). Mrs Higgins told him she could see his signature on the will, and he must have signed it, to which he replied he could not remember signing it.
360 When Mr Harris arrived, she told Mr Harris, in Mr Wade's presence, that the will was not what he wanted and he wanted a previous will to replace it, a will prepared by Ms Everett. Mr Wade said that the will was not his and said he wanted to sign the second copy of the purported Will of 6 June 2006. He did so by way of response to Mr Harris when he asked Mr Wade whether what he wanted was what Mrs Higgins had told Mr Harris. Mr Wade was 'coherent' and 'appeared to understand what [Mr] Harris had told him' (exhibit 59 [51]).
361 Mrs Higgins had been aware when she came to see Mr Wade that there were 'rumours ... going around Narrogin' which caused her to be 'sure that there would be Court action about Bill's will' and which also caused her to 'make very sure that I was satisfied that he understood what he was doing, and that he rationally and truly wished to revoke the Will' (exhibit 59 [64], [65]).
362 The cross-examination of Mrs Higgins included the following (ts 409, 412, 415):
Did you know before 13 July 2006 anything about wills Mr Wade may have made that were to confer some benefit upon Mr and Mrs Gambrell?---No, only that Mr Wade had always told me he wanted to look after his boy, his boy that had been better than any son could have been to him.
Are they words that he had said to you before 13 July?---Yes.
He had previously said to you - this is well before 13 July?---Yes.
That he wanted to look after Mr Gambrell who was like a son to him?---That's right.
Words to that effect?---That's right.
So when you went to the hospital on 13 July you had the belief that Mr Wade's prior intentions had been that he wanted to make provision in his will for the Gambrells. Is that correct?---Well, I didn't really know that, no. I didn't know the content of any of Mr Wade's wills.
You had the belief that Mr Wade had told you he wanted to do something for the Gambrells?---He said that he wanted to look after his son.
Yes, all right, and you also had the belief that Ray Lewis was trying to get his hands on Bill Wade's property?---Yes, and so did Mr Wade have that belief.
...
The question was, although Mr Wade said to you on 13 July 2006 that he could not remember signing the will, you simply ignored that as relevant to his capacity. Is that correct?---That is correct.
And is that because when you went to the hospital you had a preconceived view that Mr Wade had been railroaded into signing a document some days or weeks before?---No, that is not correct.
Then can you tell me why you ignored that comment?---I had known Mr Wade for 38 years and I made the judgment call that what Mr Wade was saying to me was quite coherent. He knew exactly what he was saying and exactly what he was doing, so I made the call in conjunction with another JP that we would strike out the will and carry out Mr Wade's wishes and to me he was as perfectly normal as he had been every other day of those 38 years that I knew him.
...
Yes, but you were satisfied without making any inquiry of any medical staff. That's correct, isn't it?---I didn't make any inquiries, no.
Mrs Higgins, did you make no inquiry of the medical staff because you didn't want anyone to tell you that Mr Wade didn't have capacity?---No, that's not correct.
Mrs Higgins, can you give me another explanation as to why, in the middle of a hospital on 13 July 2006, with a gentleman who was elderly, you didn't see fit to ask any of the medical staff if he had the capacity to sign a document?---As I said previously, I knew Mr Wade very well, and he was the same Bill Wade that I'd always known, so I didn't deem it necessary to go and seek guidance or advice from medical staff. He was quite coherent and he knew exactly what he was doing.
Mrs Higgins, how could he be coherent when he couldn't remember signing the document he wished to revoke which had been signed on 6 June 2006?---Because he was very angry about that document.
363 I further note Mrs Higgins's evidence that, in addition to her being 'very aware' of the responsibility of her position as a Justice of the Peace since 1995 not to witness a document which a person lacked the capacity to sign, she felt she was 'there for Bill', for whom she had 'tremendous respect', and she wanted to 'ensure that what he wanted was done' (exhibit 59 [66], [67]).
364 In my view of her evidence there are the indications in the cross-examination just quoted and the other evidence just referred to that, while her opinion as to Mr Wade's capacity was honestly held, she regarded the strength of Mr Wade's views of the purported Will of 6 June 2006 as the measure of his capacity. I also note for this purpose the following from her cross-examination (ts 408, 416 - 417):
When you went to the Narrogin Hospital on 13 July 2006, did you have a belief that Ray Lewis was trying to get Bill Wade's farm?---I probably did believe that, yes.
Yes, and not only did you believe it but you also believed that there was something wrong about it, didn't you?---No, I didn't. I mean, I wasn't a beneficiary. It really wasn't my concern. I was there for Mr Wade, and Mr Wade was concerned.
...
Yes, so he wasn't coherent, was he?---He was coherent, he was very coherent and he knew exactly what he was doing. He was very angry. He was angry that family members had gone behind his back and had another will drawn up and that he'd been made to sign it under duress and he wanted it struck out.
Mrs Higgins, the statement you've just made was full of emotion and reflective of your perception of what occurred. Is that correct?---That is my recollection of what occurred.
What you said then was laden with emotion, wasn't it?---Well, maybe. I was very fond of Mr Wade.
And your perception was and remains that people - family members - some members of his family had gone behind his back and somehow tricked him into signing a will on 6 June 2006. Is that correct?---I don't know if it was family members that went behind his back. I don't know who had the will drawn up.
Sorry, I thought you just said family members?---Other people.
Other people?---And I don't know they were. I don't know who instructed lawyers to draw up the will that Mr Wade did not want to stand.
Mrs Higgins, let me put it in other words then. Your perception was, when you went to the hospital on 13 July 2006, that some people had gone behind his back and tricked him into signing a will on 6 June 2006. Is that correct?---Yes.
I'm sorry, I couldn't hear you?---Yes.
Thank you. And that's still your perception, isn't it?---Yes, it is.
And your judgment is that the just outcome of this case is that the will made on 6 June 2006 should be set aside?---That's correct.
365 Later in Mrs Higgins's testimony she stated she had not gone into Mr Wade's room with the opinion that some people had gone behind his back and tricked him into signing the purported Will of 6 June 2006, but had been told this by Mr Wade in the room. However, she also conceded this was difficult to square with her earlier answer just quoted about her 'perception' at that time.
366 Mrs Higgins prepared notes of what occurred, from the time on 13 July 2006 she was contacted to come to Mr Wade's room to the end of the visit, and the notes were in evidence as exhibit 60. They indicate that after she read out the second copy of the purported Will of 6 June 2006 Mr Wade told her he was upset that his 'loyal employee', Mr Gambrell, should receive what he had 'previously bequeathed him', and was 'adamant' that a stepson-in-law, Mr Lewis, should not get what Mr Wade had 'worked all his life for'.
367 Mrs Higgins was not asked any questions as to whether she had made any specific inquiries of Mr Wade to ascertain his testamentary capacity, by asking what he understood the document she read out to provide in respect of Mr Gambrell, what his estate was or who his intended beneficiaries were. However, I have previously referred to her evidence that she did not make any inquiries of medical staff at the Narrogin Regional Hospital as to his condition. Further, there is no indication in her witness statement (exhibit 59), her notes (exhibit 60) or her other evidence that she made any other inquiries, or relied on any other matters than what Mr Wade had said after she read out the second copy of the purported Will of 6 June 2006 and before Mr Higgins came into the room, with his continued strongly put objection thereafter that it was not his will. She relied on those matters, in the light of her prior acquaintance with Mr Wade, as sufficient to reassure her he had capacity.
368 In view of Mr Wade's condition at the time, including that he could not remember signing the will to which he strongly objected, these matters in my view were not without significance; but they also were not, taken together, a weighty basis for her opinion as to Mr Wade's capacity at that time.
369 Mr Harris' evidence (witness statement, exhibit 61) was that he did not know Mr Wade well. He had first met Mr Wade in Narrogin some years previously, and would always speak to him if he met him in the street. Mr Harris in his evidence confirmed that he had asked Mr Wade if what Mrs Higgins had explained to Mr Harris in Mr Wade's presence as I have indicated was what Mr Wade wanted, and Mr Wade 'appeared to understand', adding 'it all seems very complicated' (exhibit 61 [25]). Mr Harris witnessed the signing of the second copy of the purported Will of 6 June 2006 as he believed Mr Wade was 'aware of what he was doing at the time', and while Mr Wade was 'obviously very ill' at the same time 'he appeared coherent' (exhibit 61 [39], [40]).
370 Mr Harris' evidence was that his opinion rested on Mr Wade's response to him as just described; Mr Wade's 'appropriate facial responses' to what Mr Higgins said to Mr Wade; Mr Wade's response 'not what I want' when Mr Harris and Mrs Higgins noticed that none of them had signed any indication of revocation on the last page of the second copy of the purported Will of 6 June 2006 and Mr Harris again asked Mr Wade if he knew by signing he would be effectively revoking his will and requesting that a previous will prepared by Ms Everett apply; Mr Wade's statement he recalled playing tennis with Mr Harris' father; and Mr Wade addressing Mr Harris by his Christian name on three occasions in the room.
371 However, while I consider Mr Harris, like Mrs Higgins, honestly believed Mr Wade had capacity, I also note that like Mrs Higgins he did not ask any of the medical staff in the Hospital if Mr Wade had capacity. Nor did Mr Harris ask Mr Wade what he did want in his will, what assets he had and who the beneficiaries were who might receive bequests under his will. I consider that the bases on which Mr Harris' opinion as to Mr Wade's capacity rested were, while not without significance, of even lesser weight than those on which Mrs Higgins' opinion rested.
372 Mr Brown's evidence as to Mr Wade's capacity on 13 July 2006 was of a different kind from that of Mrs Higgins or Mr Harris. Mr Brown's evidence was as follows (cross examination, ts 333 - 335, 343 and 355):
So did you think that Mr Wade on 13 July wasn't capable of making a will as well?---He was up and down a lot and there were times when I think he was and there were times when I think he wasn't.
On 13 July immediately before he signed, as far as you know, the instrument of revocation witnessed by Sally Higgins and Mr Harris did you think that Mr Wade was competent to make a new will?---I thought when I left the room that he was in good form and that he was having a better day.
...
Did you ask any of the medical practitioners around the hospital about Mr Wade's capacity to make a will on that day?---No.
Is there a reason that you didn't ask any of the doctors whether he was capable on that day?---No, I was just operating under what Mr Wade asked me to do.
Did you not ask the doctors about Mr Wade's capacity to make a will on 13 July because you didn't want to know the answer?---Not at all.
Isn't it the case that you didn't ask any of the doctors because the answer they may have given you was that Mr Wade was incapable, so it was easier not to ask the question?---No, I wasn't thinking that way. I knew he was up and down all the time.
...
And wasn't the way to deal with that to ask one of the doctors who must have been about the hospital on 13 July at some time if they could give you any information about Mr Wade's capacity? Wasn't that just something obvious you should have done?---Perhaps it was, but I didn't think of it.
Let me put it to you, Mr Brown, that you thought of it but you decided not to do it because you didn't want to know the answer?---No, no, I knew his capacity was very limited. It was fluctuating.
His capacity was very limited?---It was very limited from time to time, but it was fluctuating.
Mr Wade's capacity was in fact so limited that he couldn't remember making the will?---That is true.
Yes?---No, I beg your pardon, he couldn't remember signing a will. He could remember making a will.
What's the difference between signing a will and making a will, Mr Brown?---I don't know. He just said to me, "I've made a new will but I haven't signed it yet. Could you get me a copy?"
So he couldn't remember signing the will?---That's right.
...
So that was a good day for Mr Wade, was it?---No, I didn't say 'day.' I said when I first met him he seemed to be pretty good.
...
---We didn't see him for very long.
Mr Brown, isn't it obvious from the nursing notes that Mr Wade was not in a good condition on 13 July and even you knew that?---I knew that he'd been fluctuating and he wasn't - - -
You knew he wasn't in good condition and you didn't care. You just wanted this document signed, didn't you?---No, not at all.
...
Mr Brown, isn't it the case that on 13 July you didn't ask any of the doctors at Narrogin Hospital about Bill Wade's capacity to sign a revocation of his will. That's correct, isn't it?---That's correct, yes.
And the reason you didn't do that is because you didn't want to know the answer?---No, I didn't. I was leaving it to the JPs. That was their job, not mine.
Their job to sort out whether he had testamentary capacity?---Yes. They were the ones doing the witness.
So it wasn't an issue where you need medical advice?---I didn't feel it was my position to do that.
Didn't you?---No.
373 I consider Mr Brown's evidence was at most he did not consider Mr Wade lacked capacity, but that he left the determination of that matter to the witnesses to his signature on the second copy of the purported Will of 6 June 2006. Further, I consider Mr Brown's evidence was that Mr Wade's capacity was 'very limited', and his condition was fluctuating, although on 13 July 2006 when Mr Brown left him in his room he was 'in good form' and he was having 'a better day'.
375 Dr Warne agreed with the proposition put to him that as at 13 July 2006, after Mr Wade had been seen by Dr Clarnette, Mr Wade 'in all likelihood was so disabled by illness or infirmity that he wasn't in a proper condition to make a will' (cross-examination, ts 447). I have previously referred to Dr Clarnette's report compiled after seeing Mr Wade on 20 June 2006 (exhibit 73) and following a request from Dr Seton, the general practitioner who had previously dealt with Mr Wade, in Dr Seton's letter dated 16 June 2006 (see exhibit 72) referring to Mr Wade's 'current state of semi-dementia'. I have also previously referred to Dr Warne's use of that report and that letter.
376 Dr De Felice's evidence based on the hospital records for Mr Wade's admission to the Narrogin Regional Hospital on 2 July 2006 (exhibit 91) was as follows, from his report (exhibit 66):
The hospital records of July 2007 [sic] lead me to conclude that Mr Wade probably did not have testamentary capacity at that time. The only entry that leads me to perhaps think that he may have had such a capacity was the 'Falls Risk Assessment Tools' in the hospital records from the bundle dated 13 July 2007 [sic] in which on 2 July 2006 Mr Wade was considered to be 'orientated to time, place and person'. Having said that, the 'General Assessment on Admission' form of the same date concludes that Mr Wade was 'sleepy, not well orientated to time', so this does seem a contradiction. I suspect that through the July 2006 admission Mr Wade was demonstrating evidence of delirium. Not only did he have whatever medical conditions were of relevance, but he also showed evidence of sleep disturbance, fluctuating conscious level, restlessness and confusion, these being probable symptoms of delirium. So, in my opinion, Mr Wade did not have testamentary capacity through his admission in July 2007 [sic], probably because the illness that led to his death on 18 July 2006 was probably present from early July and so was affecting his mental state during his admission.
377 I also note the evidence of Dr Gildenhuys, who admitted Mr Wade to Narrogin Regional Hospital on 2 July 2006, and who saw him usually twice a day during Mr Wade's ensuing stay, as to Mr Wade's mental state during that stay. Dr Gildenhuys' evidence was that (examination-in-chief, ts 542, reading from his witness statement exhibit 79):
While Mr Wade was in hospital I saw him usually twice a day when I did my rounds. Although I never completed a mini mental or other cognitive test with Mr Wade, I recall clearly that he was at all times very confused. I based that conclusion on my observations that on most visits we were unable to manage a meaningful conversation.
Consistently with my recollection the hospital dates show -
Consistently with my recollection the hospital notes show that on 6 July 2006 we attempted but were unable to complete a mini mental test. One or two times Mr Wade demonstrated a limited amount of sense, but even on his good moments he still appeared to be a victim of memory loss and some level of dementia.
378 I consider this evidence of Dr Gildenhuys, and that in the notes from Narrogin Regional Hospital (exhibit 91) to which Dr De Felice refers to be of considerable assistance to me: see Revie [34].
379 I have noted, as counsel for the plaintiff urged on me, the evidence that Dr Clarnette in his report recommended Mr Wade no longer receive haloperidol, the possible effects of which on Mr Wade's mental state I have previously considered. I have previously noted that it was common ground that on 20 June 2006 Mr Wade was taken off haloperidol during his stay in Narrogin Regional Hospital for the period 14 to 26 June 2006. However, I also note in the hospital records for the later admission, from 2 July 2006 in exhibit 91, that on 7 July 2006 he appears to have been given that drug, with the entry also for that date 'haloperidol may be given 12/24'. However that may be, I do not draw from the evidence counsel pressed on me sufficient reason to conclude Mr Wade could be expected on that account to have been likely to have greater capacity after Dr Clarnette's report. That is in view of the other medical evidence as to his condition on and following his 2 July 2006 admission to which Dr De Felice refers.
380 On my consideration of all of the evidence referred to in this section of my reasons, I have concluded that the plaintiff has not discharged his burden of proof that Mr Wade had the required capacity on 13 July 2006 to revoke the purported Will of 6 June 2006. As Nicholson [41] indicates, in the passage I quoted earlier, the evidence of the expert witnesses, 'while not without weight, cannot be decisive'; rather the court 'must judge the issue from the facts disclosed by the entire body of evidence'. That body includes the contemporaneous medical reports and records on which the opinions of Dr Warne and Dr De Felice rested and the evidence of Dr Gildenhuys, as well as the other evidence of Mr Wade's condition at the time, including that from Mr Brown.
381 I have already referred to the evidence of both Dr De Felice and Dr Warne as to the relevance to Mr Wade's testamentary capacity of his physical condition, in respect of his congestive cardiac failure which it was common ground was present at the time of the admission to Narrogin Regional Hospital on 2 July 2006. In my view, the evidence of these kinds weighs heavily against a conclusion Mr Wade had testamentary capacity as described in the authorities on such capacity I referred to in relation to the capacity to make the purported Will of 6 June 2006. Such capacity was, as I have indicated, what was required for its revocation. I do not consider the opinions of Mrs Higgins and Mr Harris as to Mr Wade's capacity considered with the bases on which they rested outweigh that other evidence.
382 I therefore conclude that, had the defendant as propounder of the purported Will of 6 June 2006 discharged the burden of proof that Mr Wade had testamentary capacity to make it, the purported revocation of 13 July 2006 would not have been effective.
383 For these reasons I have concluded that probate should not be granted of the purported Will of 6 June 2006, but should be granted of the Will of 21 February 2006.
384 I will hear from the parties as to the orders to be made to give effect to these conclusions.
(1924) 34 CLR 558
(1937) 57 CLR 666
(1938) 60 CLR 336
(1942) 66 CLR 295
(1984) 153 CLR 521
(1959) 101 CLR 298
(1952) 85 CLR 352
(2001) 52 NSWLR 705
(1992) 110 ALR 449
(1992) 67 ALJR 170
(1918) 25 CLR 519
(1991) 23 NSWLR 116
(1952) 86 CLR 439
(1952) 26 ALJR 626