Chant v Curcuruto; Chant v Curcuruto

Procedural Matters

1. The Plaintiffs filed the Statement of Claim in Ken's proceedings on 13 April 2018, and one in Irene's proceedings on 18 April 2018. They filed an amended Statement of Claim, in each of Ken's, and Irene's, proceedings, on 11 July 2019, and a further amended Statement of Claim in each of the proceedings on 1 June 2020. The last document was the final emendation of their claims in each of the proceedings. (The Plaintiffs' pleadings in each matter were essentially in the same form.)
2. The Defendants filed a Defence and Statement of Cross-Claim in each of Ken's, and Irene's, proceedings, on 7 June 2018; a Defence to the amended Statement of Claim, in each of the proceedings, on 1 August 2019; and a Defence to the further amended Statement of Claim, in each of the proceedings, on 10 June 2020. The last document was the final emendation of their defence to the Plaintiffs' claims in each of the proceedings. (The pleadings in each matter were essentially in the same form.)
3. Although not admitted in the pleadings, I am satisfied that Ken's 2017 Will, and Irene's 2017 Will, satisfied the statutory requirements of s 6 of the Succession Act 2006 (NSW) (the Act), relating to how a will should be executed, namely that (a) it was in writing and signed by Ken, and by Irene, respectively, in the presence of, and at the direction, of each of them; (b) the signature was made by Ken and by Irene, respectively, in the presence of two or more witnesses present at the same time, and (c) two of those witnesses attested and signed the Wills in the presence of Ken and of Irene. In other words, each of the 2017 Wills was duly executed.
4. However, before each of the 2017 Wills may be admitted to probate, the Court must also be satisfied of the will-maker's testamentary capacity and that each Will did truly represent his, and her, testamentary intentions respectively; or, "to use the traditional phrase, that the testator 'knew and approved its contents'": Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 at [59], affirmed in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [16] and [43]. I have earlier referred to the need, if appropriate, for the Plaintiffs to also establish the righteousness of the transaction.
5. In the Defence to the further amended Statement of Claim filed in Ken's proceedings, the following particulars, going to Ken's lack of testamentary capacity, were provided: "(i) … suffered significant cognitive impairment; (ii) … suffered from moderate to severe dementia; (iii) … had very poor short term memory; a complete lack of insight; and was disoriented as to time and place; (iv) was suffering from an 'insane delusion', to the point of paranoia, that the Defendants had had [him] and his wife admitted to Harbison Nursing Home so as to steal or sell their grazing property 'Southdowns'."
6. No particulars of Ken's lack of knowledge and approval were included.
7. In the Defence to the further amended Statement of Claim filed in Irene's proceedings, identical particulars going to Irene's lack of testamentary capacity were provided. Similarly, no particulars of Irene's lack of knowledge and approval were included.
8. The Defendants contended that there was adequate evidence relating to the relevant grounds of challenge to each of Ken's 2017 Will and to Irene's 2017 Will; that, by the evidence, they had sufficiently discharged their evidential burden of proof; and that they had shifted the persuasive burden onto the Plaintiffs, as the propounders of each 2017 Will, to prove, affirmatively, the validity of each Will. (There was no dispute by counsel for Karen and Jeffrey about this.)
9. The Plaintiffs filed a Defence to the Statement of Cross-Claim in each of the proceedings on 12 July 2018. However, as stated, the parties agreed that in the event the Court was not satisfied of the validity of either, or both, of the 2017 Wills, the relief sought by the Defendants in respect of that 2015 Will, should in relation to the relevant Will, be granted to them.
10. I am satisfied that each of Ken's 2015 Will, and Irene's 2015 Will, had been duly executed in accordance with s 6 of the Act. In addition, the affidavit of one of the attesting witnesses to prove due execution, in relation to the signature of Ken, and of Irene, was read, in order to obtain a grant of Probate in solemn form of each Will: Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].
11. There were a large number of affidavits read in one, or other, of the proceedings. Mercifully, there were not too many objections to the affidavits. In particular, no objection was taken to the oral statements said to have been made by the deceased to one, or other, of the witnesses who gave evidence of the conversation. (I shall refer to this aspect later in these reasons.)
12. Yet, as in most probate disputes, the personality, state of mind, desires, and prejudices, of the central persons, namely, in these proceedings, Ken and Irene; the relationship with persons for whom he, or she, did or did not provide; and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the relevant will-maker, most of those matters can only be examined by way of second-hand, and often, partisan, evidence, and may be unavailable, or far less reliable, due to the passage of time: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).
13. It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75]: "… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. 'Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough': John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66: 'Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.' Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will."
14. As Scarman J, graphically, put it in In the Estate of Fuld, deceased (No 3) [1968] P 675, at 714; "when all is dark, it is dangerous for a court to claim that it can see the light". When all is uncertain, and murky, the observation applies with almost equal force.

Summary

1. The main issues that needed to be determined were, and my conclusions, are: 1. Did Ken have testamentary capacity when he made the 2017 Will? I conclude that he did not. 2. Did Irene have testamentary capacity when she made the 2017 Will? I conclude that she did not. 3. Did Ken know and approve the contents of the 2017 Will? I conclude that he did not. 4. Did Irene know and approve the contents of the 2017 Will? I conclude that she did not. 5. Did the conduct of either Karen, or Jeffrey, give rise to the application of the doctrine of suspicious circumstances? It is not necessary to decide this issue in light of the above conclusions.

Dramatis Personae

1. Because of the number of witnesses who feature in the evidence, it is next convenient to identify each, and the role that she, and he, respectively, played in the life of Ken and of Irene, and by which persons each witness was called.
2. I shall also refer to the medical expert, who assessed each of Ken and Irene. It is not necessary to refer, here, to any other medical practitioner who was not a witness in the case, even though his, or her, reports have been included in the two folders of medical documents tendered, without objection, as Ex J2. Unless otherwise stated, it should be assumed that each witness was cross-examined.

Plaintiffs' Witnesses

1. Karen is Irene's younger sibling. She is, or was, an entertainer. Jeffrey is described by Karen as her "life partner". They have been in a relationship since about 1964. (In the case of Karen, it was necessary to hear her evidence over two days, as she became tired late in the afternoon of the first day of her cross-examination.) Jeffrey was not related by blood, to either Ken or Irene, although he gave evidence of having met them in about 1968 and of the close affinity that he had with each of them. Each is a lay witness who receives a significant benefit under Ken's 2017 Will and under Irene's 2017 Will. Jeffrey is a person who had never been a beneficiary named in any prior Will of either Ken or of Irene.
2. Priscilla Michelle Blackadder is an Australian lawyer who was admitted to practice on 13 February 2009. She was called to the Bar, and practised as a barrister, in Sydney, between 2011 and 2016. She then returned to practice as a solicitor. Between about 13 February 2017 until 31 January 2018, she was employed as "Special Counsel - Litigation" by Emprise Legal, a firm of solicitors, then conducting practise at Liverpool, Sydney. At the date of the hearing, Ms Blackadder was practising as a solicitor with another firm of solicitors in Sydney.
3. Whilst employed by Emprise Legal, she had the day to day carriage of two matters for Ken and Irene, one being in relation to the preparation of Powers of Attorney and Enduring Guardianship documents, and the other, being in relation to the preparation and drafting of Ken's 2017 Will and Irene's 2017 Will.
4. Ms Blackadder did not know either Ken, or Irene, before the events that are the subject of these proceedings and she had never acted for him, her, or them professionally. She was not present when each of Ken's 2017 Will, and Irene's 2017 Will was executed.
5. Lynn Baird is described in her affidavits as a "Support Worker". She is one of the two attesting witnesses to Ken's signature on his 2017 Will and to Irene's signature on her 2017 Will. She is the niece of Ross Gordon, the other attesting witness to Ken's signature on his 2017 Will and to Irene's signature on her 2017 Will. Her affidavit of attesting witness was extremely short and was limited only to confirmation of due execution. She did not give evidence, otherwise, of the events that had occurred on the day each of the 2017 Wills was signed. She was not cross-examined.
6. Ross Gordon is one of the two attesting witnesses to Ken's signature on his 2017 Will and to Irene's signature on her 2017 Will. He is the uncle of Lynn Baird. He was described as an "acquaintance" of Ken and Irene and had known them before the events that were said to have occurred on 1 April 2017. He was a closer friend of Karen and Jeffrey. He swore two affidavits, one being a formal affidavit of attesting witness and the other being one in which he described, in more detail, the events that had occurred on the day each of the 2017 Wills was signed.
7. Damian King is described in his affidavits as a "Fitter Machinist". He is married to Tracie King. They were neighbours of Ken and Irene from about 2007 until Ken and Irene moved out of their property, "Southdowns", situated on the Illawarra Highway, Moss Vale, in about February 2017. He had met them in about 2008. He met the Defendants in about 2010.
8. Tracie King is described in her affidavits as a "Library Customer Service Officer". She stated in her first affidavit that she "has not been promised anything by anyone for giving … evidence" and that she provides her affidavit "completely devoid of any self-interest and without any hope of self-gain". She had met Ken and Irene in about 2004 and gave evidence of the close relationship that she had with each of them, including conversations that she had with Irene about her, and Ken's, Wills.
9. It was Mrs King who, on about 8 March 2017, had first contacted Ms Blackadder, via Facebook Messenger, about Ken and Irene. Mrs King said that she had met the Defendants in about 2011.
10. Jean Cabot is described in her affidavit as a "Property Manager". She had managed certain real estate investments held by Ken and Irene in Bellevue Street, Goulburn for about 15 years. She gave evidence of her dealings with them over the years, and also of her dealings with them and Steve and Cathie in February 2016. She was not cross-examined.
11. Sandy Dawson is described in her affidavit as a "Property Manager". She had managed certain real estate investments held by Ken and Irene in Bellevue Street, Goulburn for about 18 years. She gave evidence of a conversation with Steve in "about 2015" and with Ken and Irene and Steve and Cathie in February 2016. She was not cross-examined.
12. Azize Karaki is a paralegal in the employ of Mason Parkes Lawyers, the solicitors on the record for the Plaintiffs. Her evidence was limited to what she wrote in an affidavit of service. She was not cross-examined.
13. John McIntosh is the solicitor on the record for Karen and Jeffrey in both Ken's and Irene's proceedings and has had the day-to-day conduct thereof. He became a director of Emprise Legal, the effective predecessor of Mason Parkes Lawyers, in about December 2013. He ceased being a director at Emprise Legal in about August 2018, and became a partner of Mason Parkes Lawyers in September 2018: Tcpt, 9 February 2021, p 385(23-31). (He stated that he was admitted as a solicitor in August 2017.)
14. An affidavit sworn by Mr McIntosh on 11 December 2018 (not referred to as one to be relied upon), was read on 9 February 2021, the fifth day of the hearing. The affidavit stated the steps taken to have Evanna Kamal, (who was described by Ms Blackadder as a paralegal), give evidence in each of the proceedings.

Defendants' Witnesses

1. Each of Steve and Cathie gave evidence. They live on a farm which is on the other side of the main road, and about one kilometre away, from "Southdowns". They had been neighbours and close friends of Irene and Ken for many years. Steve had known Irene and Ken since childhood.
2. David James Cummins is an Australian lawyer who was admitted to practice on 11 February 1972. He had been a partner at Wilkinson Throsby & Edwards, Solicitors, in Bowral since 1973. A substantial part of his practice related to the preparation of Wills, Powers of Attorney and Appointments of Guardian. Mr Cummins became a witness following orders of Lindsay J (Tcpt, 10 February 2021, p 487(03-04)) made on 21 October 2019, that he provide an affidavit deposing the circumstances under which the 2015 Will of each of Ken and Irene was made.
3. Mr Cummins had acted for Ken and Irene since about 1992 and he had drafted a number of his, and her, Wills; including Ken's 2015 Will and Irene's 2015 Will. He was also one of the two attesting witnesses to Ken's signature on his 2015 Will, and to Irene's signature, on her 2015 Will. (There were 19 Wills of both Ken and Irene made in between 1992 and 2015. The Wills were always executed on the same date and were, in each case, mirror Wills.) Mr Cummins had also acted for Ken and Irene in relation to other transactions, including conveyancing transactions.
4. Natalie Maree Sommer is described in her affidavits as a "Secretary". She is one of the two attesting witnesses to Ken's signature on his 2015 Will and to Irene's signature on her 2015 Will. She was not cross-examined.
5. Sylvia Curcuruto is the mother of Steve and the mother-in-law of Cathie. She had known Ken and Irene for about 40 years. She gave evidence of her relationship with Ken and Irene over some of those years.
6. Sylvia died prior to the hearing. Although objection was taken to the whole of her affidavit upon the basis that she was not available for cross-examination, it was not disputed that an affidavit may be used if the deponent is unavailable for cross-examination because she, or he, is dead: UCPR r 35.2(3). In the circumstances, I permitted the affidavit to be read, remembering that affidavit evidence, however good, which for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted as appropriate if the affidavit is used without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VR 327 at 333 (Anderson J); Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 at [5] (Hamilton J); Fulton v Fulton [2014] NSWSC 619 at [111]. I shall weigh her evidence, with the other evidence, remembering that she has not been cross-examined.
7. Denise Maree McKibbin is described in her affidavit as a "Carer". She met Ken and Irene, first, in early April 2015, when she was the partner and carer of John Curcuruto, the older brother of Steve. They had kept in contact with Ken and Irene until the death of each.
8. Judith-Ann Owens is described in her affidavit as a "Carer". She had known Ken and Irene from her childhood and had kept in contact with them until the death of each.
9. Dr John Graham Barnett is a registered Medical Practitioner. He has been in medical practice for over 50 years, initially in general practice. He was admitted as a fellow of the Royal College of Physicians of Edinburgh in 1994 and was given specialist recognition by Medicare as a Specialist Geriatrician in 1999.
10. Between 2001 and 2017, Dr Barnett worked at the Psychogeriatric Unit at Kenmore Hospital, Goulburn as a Visiting Geriatrician. For 11 years from 2007, he had worked at Bowral and District Hospital as a Staff Specialist in Geriatric Medicine, involved with in-patient and out-patient assessment. In 2019, he was a Clinical Associate Professor at the University of Wollongong and the sole specialist geriatrician in the Southern Highlands of New South Wales.
11. Alice Dingle is a paralegal in the employ of Teece Hodgson and Ward, the solicitors on the record for the Defendants. She affirmed two affidavits on 11 March 2019 in which she gave evidence of service on affected persons. She was not cross-examined.
12. I shall set out the evidence of each, and my impression of each of the witnesses and the reliance that I am able to place upon that evidence later in these reasons.

Ken and Irene

1. None of the witnesses painted differing pictures of Ken and Irene, although it is clear that he, and she, had very different personalities.
2. Ken, consistently, was described in the evidence as a relatively mild and timid person who did not speak much compared with Irene, who all of the witnesses, who knew them, considered to be the more dominant partner in the marriage.
3. Irene's controlling personality was revealed in some of the evidence, particularly the evidence of Mr Gordon. It seems that Irene was not someone to be trifled with, as demonstrated by the number of different Wills that were made in which beneficiaries changed. A number of examples of her conduct were given in the evidence. She knew her mind and found it difficult to brook any disagreement. On many issues, she made her views clear to Ken.
4. Irene also did not like going to, or having to deal with, doctors (having been in very good health throughout her life until the events to which reference will be made); she prided herself on not having to take medications; she did not want strangers on "Southdowns" and was wary of them; and she rejected the possibility of having meals prepared for her and Ken and delivered to them, as well as refusing "a home care service option" (home help from a third party), saying that she did not want anyone in the home, because she and Ken "did not want, or need, anyone else": Tcpt, 18 February 2021, p 807(26-40); Tcpt 18 February 2021 p 843 - 844.
5. There was a large amount of evidence given about the outward behaviour of each of Ken and Irene, said to have been observed by a number of witnesses. In considering that evidence, I have borne in mind that the evidence of such outward behaviour is not always reliable. In this regard, Briggs J in Re Key [2010] 1 WLR 2020 at [8] observed that: "…persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided."

Persons who did not give evidence, or who gave limited evidence, and documents that were not produced

1. Because of submissions that were made, it is necessary, next, to identify persons who were not called as witnesses by the Plaintiffs and documents that were not produced by them.
2. As a matter of general principle, the unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.
3. In Jones v Dunkel (1959) 101 CLR 298, Kitto J observed, at 308, that: "… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. …"
4. Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384-385; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.
5. In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.
6. Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party's case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party's case. The failure cannot fill gaps in the evidence, or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.
7. These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [78] - [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed).
8. Also, as has recently been written by Rees J in the matter of Pacific Springs Pty Limited [2020] NSWSC 1240, at [139], the failure to produce documents where the plaintiffs might be expected to be in possession of documents to corroborate their account: "may lead to an inference that such documents may not have assisted the plaintiffs' case: Jones v Dunkel [1959] HCA; (1959) 101 CLR 298 8 at 320 per Windeyer J, citing with approval Wigmore on Evidence (3rd ed., 1940), vol. 2, page 162: 'The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party…'; Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134] (Callinan J) Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [44] (Eames JA, with whom Buchanan JA agreed); Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [131]-[132] (Croft J); Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98 at [112]."
9. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15]: "…it is important to have regard to the abilities of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so..."
10. In Coshott v Prentice (2014) 221 FCR 450 at 469; [2014] FCAFC 88, the Court held, at [81], that: "… where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 explained at [440], '[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party's case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.'"
11. I have earlier referred to Ms Kamal, a paralegal employed by Emprise Legal, and the person who accompanied Ms Blackadder on each of the two occasions that she met with Ken and Irene. Furthermore, Ms Kamal was said to have been present during all of the conversations that Ms Blackadder had with Ken and Irene on each occasion that she met them. In addition, as some of the emails and the diary notes of telephone calls make clear, Ms Kamal also spoke with Karen, or Jeffrey, at various times. Undoubtedly, she would have communicated with Ms Blackadder concerning the proposed new Wills.
12. Ms Blackadder gave evidence that, before the first meeting, she had instructed Ms Kamal to read the Law Society Guidelines on capacity. Therefore, like Ms Blackadder, Ms Kamal would have been alive to the question about Ken's and Irene's capacity to sign legal documents even before meeting them. Ms Blackadder also stated that she had requested Ms Kamal "to observe carefully and familiarise yourself with the Guidelines" and requested her "[I]f you have any concerns whilst observing in respect of capacity" to let her know immediately.
13. Ms Kamal had attended, with Ms Blackadder, at the conferences held with Karen, Jeffrey, and Mr and Mrs King, on 20 March 2017 shortly prior to the meeting with Ken and Irene. She was also present at the meeting with Ms Blackadder, and others, including Ken and Irene, on 27 March 2017.
14. In an email sent on 31 March 2017 to Ms Blackadder, Ms Kamal referred to the fact that Jeffrey had telephoned to say that Ken and Irene wanted to sign the Wills but that they were now wary of "female lawyers" and so it would be best if they were signed "when we weren't around". Ms Blackadder said that she did not know what this comment meant and said she had not asked Ms Kamal what she had meant by it. There is also a cryptic 'ha ha' comment in an email that was unexplained.
15. Ms Kamal, described as a paralegal, was a witness who, one would think, could have provided evidence of some of the background facts and who could have given evidence of her observations of Ken, and of Irene, at each meeting with them. Presumably, she could have given evidence of, amongst other things, her observations of the interviews that had taken place with Ms Blackadder with Ken and with Irene. In other words, her evidence could have elucidated matters in dispute between the parties. She could also have given evidence of conversations that she had with Karen and/or Jeffrey.
16. In his affidavit, Mr McIntosh confirmed that Ms Kamal had been employed as a paralegal by Emprise Legal (now Mason Parkes Lawyers) from about 26 September 2016 to about 8 September 2017; that she had assisted Ms Blackadder with the execution of the new Power of Attorney, the Enduring Guardianship documents, and each of Ken's 2017 Will and Irene's 2017 Will. She had attended, with Ms Blackadder, upon Ken and Irene at Harbison Care, Burradoo Facility (Harbison Care) on 20 March 2017 and on 27 March 2017.
17. One might have expected Ms Kamal to be called by Karen and Jeffrey rather than by Steve and Cathie.
18. Counsel for Karen and Jeffrey relied upon the evidence given by Mr McIntosh, to which I have referred, asserting that Jones v Dunkel did not apply. He also stated that he and the firm's employees, at his direction, had attempted to obtain an affidavit from Ms Kamal but had been unsuccessful. He stated that on about 2 October 2018, he had instructed Ms Stephanie Martyn, an employed solicitor, to contact Ms Kamal and organise for her to attend a conference to discuss providing an affidavit in these proceedings. According to Mr McIntosh, a conference was arranged for 11 October 2018, but Ms Kamal was said to have cancelled the conference by email dated 10 October 2018. Ms Kamal was said to have confirmed that she would not be providing an affidavit in these proceedings.
19. Mr McIntosh went on to state that "all subsequent attempts to contact Ms Kamal were unsuccessful". However, he did not identify the nature, or frequency, of any such attempts, but he did say that they had been conducted by a then employee, Ms Martyn.
20. Mr McIntosh also gave evidence in cross-examination of his role as a director, and then partner, at Emprise Legal/Mason Parkes from 2013; of having 24 years of experience in litigation; that he was involved in acting for Ken and Irene at this time; and that he had known, in March 2017, that in this matter "there was likely to be some form of [legal] challenge at some point in the future".
21. In cross-examination, Mr McIntosh was shown Ex D6, which consisted of two documents, one being a printout of Ms Kamal's Facebook page, and the other being a printout of her LinkedIn page. He identified the photograph of the person shown as Ms Kamal and he acknowledged that the pages showed that she lived in Sydney. It also identified her place of employment.
22. In answer to the questions from the Bench, Mr McIntosh confirmed what he had done to ascertain from Ms Martyn the steps she had taken to contact Ms Kamal subsequently, as were deposed to in his affidavit. He accepted that he had not made any attempts to contact Ms Martyn to provide an affidavit, in these proceedings, and he appreciated "that so far as his evidence was concerned, any steps taken to have Ms Kamal present at the hearing seemed to have ceased as at 10 October 2018": Tcpt, 9 February 2021, p 401(04-13).
23. On 16 February 2021, being the eighth day of the hearing, counsel for the Plaintiffs stated that he wished to issue a subpoena to Ms Kamal to attend to give evidence and he sought leave to file in Court a notice of motion in which an order was sought for an abridgment of the time for service, being by way of substituted service, in relation to that subpoena.
24. Counsel submitted: "In this case, the Plaintiffs demonstrated steps taken to secure the attendance of Ms Kamal up to the date that the Plaintiffs affidavit evidence was due to be filed in accordance with the Court timetable. Those steps may not be beyond criticism. After enquiry in 2019, Ms Kamal made it clear that she did not wish to give evidence, provide an affidavit or attend our conference with counsel. It is unfortunate that such a period of time passed between when the Plaintiffs affidavit evidence was to be filed and when the matter was eventually allocated a trial date. At the hearing, the Plaintiffs sought to secure the attendance of Ms Kamal by way of subpoena, which was objected to by the Defendants. The point of the above is that the failure to call her is "explained".
25. In addition, counsel acknowledged that Mr McIntosh had said, or agreed, that the evidence revealed that nothing had been done in relation to Ms Kamal since October 2018; that no explanation was provided for not having issued a subpoena to give evidence to Ms Kamal at least six months previously; and that Ms Kamal was not even aware that a subpoena to give evidence was being contemplated.
26. Counsel for Karen and Jeffrey confirmed that no indication of the nature of the evidence that Ms Kamal was expected to give had been provided to counsel for Steve and Cathie. Indeed, it appeared that he did not know what Ms Kamal might say as "We haven't been able to have a conference with Ms Kamal. We haven't made any contact at all": Tcpt, 16 February 2021, p 596(13-14).
27. Before giving leave to file the notice of motion, which was not supported by an affidavit, I asked senior counsel for Steve and Cathie whether there was any objection to the notice of motion being filed and the relief sought. He said that there was and that: "a significant aspect of the way in which Mr Birtles and I have approached the case and run it in court is on the basis that she would not be giving evidence. Consequently, for example, the cross-examination [of] Ms Blackadder proceeded on that basis, so, yes, we would object. It would mean going back and needing to cross examine her again presumably as well … If there's any difference between the evidence given by Ms Kamal and Ms Blackadder, for example, then it may be necessary to go back and put to Ms Blackadder what Ms Kamal has said about various things": Tcpt, 16 February 2021, p 595(38-50).
28. It was pointed out that on a number of occasions during the course of the hearing, and well before 16 February 2021, senior counsel for Steve and Cathie had pointed to the failure of Karen and Jeffrey to call Ms Kamal.
29. In my view, the legal representatives of the Plaintiffs had sufficient time available to issue a subpoena to give evidence to Ms Kamal or to seek the leave of the Court to enable them to do so (after the time for putting on evidence had passed). There would have been a legitimate forensic purpose, having regard to the issues in the proceedings, for leave, then, to have been granted, albeit that it was sought to be issued and served after the close of the evidence. They did not take either step
30. In the circumstances, I was not satisfied that a proper explanation for the failure to issue a subpoena to give evidence to Ms Kamal had been given. I considered it was simply too late then, to permit a subpoena to give evidence to be issued, and that its principal purpose appeared to be (very late in the proceedings) to submit that any inference for the failure to call Ms Kamal as a witness should not be drawn.
31. In this regard, the Court must do what is just for both parties. I had regard to ss 56 to 60 of the Civil Procedure Act 2005 (NSW). Ken's proceedings and Irene's proceedings had been set down for hearing over 6 months before the hearing commenced, at which time the Court was informed that it was ready; it had been set down upon the basis that the hearing would proceed upon affidavits, with cross-examination; directions had been made previously for the service of the affidavits; the Court listed the matter for directions after it was set down, but before the hearing date, in order to make any other directions and to ensure that the hearing could proceed smoothly. No reasonable explanation was given for not having served a subpoena to give evidence upon Ms Kamal.
32. At the heart of the refusal to allow the notice of motion to be filed, and the subpoena to be issued, was the prejudice to Steve and Cathie, and the costs and delay that would follow if the application were permitted. From a case management point of view, it was not in the interests of the parties, or of the Court, for the application to be allowed.
33. For all of those reasons, I did not permit the proposed notice of motion to be filed or a subpoena to give evidence to be served.
34. Another witness who was not called by the Plaintiffs was Betty Boustani, a lawyer and the current solicitor on the record for Karen and Jeffrey in the proceedings. Although she had sworn an affidavit in the proceedings, the Court, was informed that the affidavit was not to be read as part of the case for the Plaintiffs: Tcpt, 2 February 2021, p 35(38) - p 36(02).
35. (I should mention that Ms Boustani was not referred to as a witness in the Trial Schedule provided to the Court some time before the hearing. However, her affidavit was identified in the list of affidavits sent to the Court upon which the Plaintiffs indicated they intended to rely.)
36. There was no explanation why Ms Boustani, the principal of the firm of solicitors, who was said to have "extensive Probate experience", did not attend upon Ken and Irene, in circumstances where there appeared to be a question about the testamentary capacity of each of them and where it must have been clear that Ms Blackadder did not have such experience.
37. Another matter raised was the failure to explain why Ms Baird's evidence was limited to her formal affidavit of attesting witness and why she had not given any evidence about the surrounding events that had occurred on 1 April 2017 whilst she was present. It was submitted that if she had nothing to say about the events, that could have been included in her formal affidavit.
38. The importance of the events surrounding the execution of Ken's 2017 Will and Irene's 2017 Will could not have escaped the attention of the legal representatives of the Plaintiffs. In the case of Mr McIntosh, and counsel who appeared for them at the hearing, each had been involved in the matter from about April 2017, that is to say, shortly after each of the 2017 Wills was executed.
39. Associate Professor Chanaka Wijeratne, who, I am aware, is a Consultant Psychiatrist, had prepared an Expert Report dated 29 November 2019, which was filed on 30 March 2020. He was referred to as a "Retrospective expert" in the Trial Schedule provided to the Court. However, his report was not relied upon as part of the case of Karen and Jeffrey.
40. Indeed, there was no evidence from any expert disputing the opinions expressed by Dr Barnett. Cathie and Steve submitted that the failure by Karen and Jeffrey to produce any expert medical evidence to challenge the conclusions of Dr Barnett, meant that a finding should be made that, having seen the report of Dr Barnett in February 2017, they had consciously rejected the opportunity to obtain their own expert assessments, whilst Ken and Irene were alive, as they knew any other expert would be likely to agree with the conclusions reached by Dr Barnett.
41. Whilst I do not think I should draw that conclusion, the failure by Karen and Jeffrey to obtain medical evidence at the relevant time, in circumstances where they were well aware of the medical opinion that had been obtained, is a relevant consideration in determining the question of testamentary capacity and whether Karen and Jeffrey have established the validity of each of Ken's 2017 Will and Irene's 2017 Will.
42. A number of documents were not produced by the solicitors acting for Karen and Jeffrey. In cross-examination, Mr McIntosh accepted that, despite a subpoena having been served upon Mason Parkes to produce all file notes recording conferences, no file notes of the conference between Ms Blackadder and Ms Kamal on 27 March 2017 had been produced: Tcpt, 9 February 2021, p 386(10-41). He maintained that the file note could not be located on the file despite search: Tcpt, 9 February 2021, p 386(44). He accepted that, whilst it was the firm's procedure to keep a scanned copy of the file note, that did not occur in this case: Tcpt, 9 February 2021, p 387(26-31).
43. As will be read, on 20 March 2017, prior to meeting with Ken and Irene, Ms Blackadder and Ms Kamal met with Karen, Jeffrey and Mr and Mrs King at a Café in Bowral, before all went to the Harbison Care, where Ken and Irene were then living. Ms Blackadder had made notes of the meeting at the Café and had placed them in the Emprise Legal file. These notes were not produced, it being said that they were not found despite search: Tcpt, 3 February 2021, p 118(18-35).
44. However, Ms Blackadder's original diary note of the 20 March 2017 meeting with Ken and Irene at Harbison Care was produced on the fourth day of the hearing: Tcpt, 9 February 2021, p 377(05-06). It will be necessary to refer to its contents later in these reasons.
45. On 27 March 2017, Ms Blackadder, Ms Kamal, Karen and Jeffrey, met with Ken and Irene at Harbison Care. It was at this meeting that Ms Blackadder is said to have provided the draft Wills to Ken and Irene. Ms Blackadder made notes of the meeting and had placed them in the Emprise Legal file. The notes said to have been made were also not found despite search.
46. The timesheets produced by Mason Parkes, and tendered as Ex D11, included other occasions when Ms Blackadder was shown as having spoken with Karen and Jeffrey, the first occasion being on 22 March 2017; then on 23 March 2017; and then when Ms Blackadder spoke with Jeffrey on 24 March 2017. Ms Blackadder said that she always kept notes of meetings, and had some notes of telephone calls. There are notes of only two telephone calls, and they were made by Ms Kamal; there are no notes of telephone calls to, or from, Ms Blackadder.
47. Mr McIntosh said that Ms Blackadder would take files out of the office to work on them at home, which might explain the missing documents, but she had said that she did not maintain the files and only saw them occasionally.
48. Steve and Cathie submitted that this lack of evidence should entitle the Court to draw inference that these documents, if produced, would not have assisted the case advanced by Karen and Jeffrey.
49. In relation to the witnesses who were not called, and the documents that were not produced, I draw the inference that each witness, and the contents of the documents not produced, would not have assisted the Plaintiffs' case. The importance of each of the witnesses, and of the documents, could not have escaped the intention of the solicitors acting for them. The documents should have been carefully retained in view of the fact that the solicitors knew that "there was likely to be some form of [legal] challenge at some point in the future": Tcpt, 9 February 2021, p 396(29-30).
50. I bear these matters in mind in determining whether I am satisfied, on the balance of probabilities, that Karen and Jeffrey have established the validity of each of the 2017 Will of Ken and of Irene.

Background Facts

1. With that lengthy prologue, I turn now to the determination of the issues in dispute.
2. It will be necessary to examine the evidence bearing upon the instructions for, and the execution of, Ken's 2017 Will and of Irene's 2017 Will with some care. It is convenient to start, however, with some of the background facts (which I do not understand to be controversial). If any facts set out hereunder are controversial, I am satisfied that they have been established by the evidence relied upon in the proceedings.
3. Some of the facts, particularly facts about the early life of Ken and Irene, have been taken from the historical information provided in the medical records. (I have incorporated within the following facts, and elsewhere, facts that the parties agreed in a written document headed "Schedule of Agreed Facts".)
4. I shall then turn to other facts that were the subject of dispute between the parties, but which will be referred to by reference to documents where that is possible.
5. Irene was born in May 1923 in Sydney. She was one of four children born to Leslie Chant and Stella Chant. Karen was born in December 1931. The other two children died at a young age.
6. Ken was born in December 1928 in Sydney. He worked for many years for his father who was an office retailer. He was a keen rugby league player. He and Irene moved to Moss Vale later in life, where they farmed sheep and later cattle. For a time, he ran Southdowns Caravan Park.
7. Ken was Irene's second husband. They were married in 1952 and remained married to each other at the date of Ken's death, 65 years later. It was not disputed that, during their marriage, they were completely devoted to one another and were virtually inseparable. There were no children of their marriage.
8. Steve's parents were long-time friends of Ken and Irene. Ken and Irene had been included in many of the Curcuruto family celebrations since the 1990s. There is substantial evidence showing Ken and Irene attending at the Curcuruto family Christmases, birthdays, and holidays, over the years.
9. From about 2014 or 2015, Cathie started helping Irene and Ken by picking up groceries, collecting their mail and assisting them with the payment of their bills.
10. On 4 December 2014, Ken signed an Advance Care Directive, which had been prepared by Mr Cummins, in which Ken noted that he had appointed Irene as his enduring guardian and Steve and Cathie as substitute decision-makers on questions of end-of-life medical treatment: Ex J3/88-89.
11. On the same date, Irene signed an Advance Care Directive which had also been prepared by Mr Cummins, in which she noted that she had appointed Ken as her enduring guardian and Steve and Cathie as substitute decision-makers on questions of end-of-life medical treatment: Ex J3/90-91.
12. On 21 May 2015, Ken signed an Enduring Power of Attorney and an Appointment of Enduring Guardian, which had been prepared by Mr Cummins, in which Ken appointed Irene as his enduring guardian and Attorney and Steve and Cathie as his substitute enduring Attorneys and guardians. Irene accepted the appointment on 21 May 2015, and each of Steve and Cathie accepted his, and her, appointment, respectively on 1 June 2015: Ex J3/104-119.
13. On the same date, Irene signed an Enduring Power of Attorney and an Appointment of Enduring Guardian, which had been prepared by Mr Cummins, in which she appointed Ken as her enduring guardian and Attorney and Steve and Cathie as her substitute enduring Attorneys and guardians. Ken accepted the appointment on 21 May 2015, and each of the Defendants accepted his, and her, appointment, respectively on 1 June 2015: Ex J3/120-135.
14. Each of Ken and Irene signed an Acknowledgement of Advice received regarding the mutual enduring Powers of Attorney: Ex J3/136-138.
15. On 16 February 2016, Ken fell off a ladder and was admitted to Liverpool Hospital with multiple injuries.
16. On 4 February 2017, Irene fell and broke her leg.
17. On 5 February 2017, Irene was admitted into Southern Highlands Private Hospital. Ken went to live with Steve and Cathie whilst Irene was in hospital. Cathie would take Ken to visit Irene each day and he would spend the day with her.
18. On about 9 February 2017, Steve and Cathie provided financial and other information about Ken and Irene to John Cerniauskas, a financial planner, trading as CoVenture Wealth Management and CoVenture Aged Care Planning. A "Statement of Advice - Strategy Only" was provided to Ken and Irene "c/- Stephen and Catherine" and the covering letter commenced "Dear Stephen and Catherine": Ex J3/387-489.
19. On 13 February 2017, Mrs King and Ken attended the St George Bank, where Mrs King was appointed a signatory to Ken's and Irene's bank accounts. They also visited David Cummins, who recorded that Ken stated that he "has been away up north" and that Irene was living "in an apartment, but that he did not know what it was called": Ex J3/334.
20. On 21 February 2017, Cathie completed and signed a Resident Application Form to Harbison Care, on behalf of each of Ken and Irene: Ex J3/363-370.
21. On 23 February 2017, Ken and Irene were admitted to Harbison Care where they stayed for the remainder of their lives.
22. On 1 March 2017, Cathie sent an email to Karen and Jeffrey which was in the following terms (Ex J3/384): "Hi Karen and Jeffrey, I hope you are both well and enjoying your time in Thailand. We are writing to you against the express wishes of Irene and Ken. A few weeks ago, 4 February, Irene had a fall at 'Southdowns' and injured herself. She was adamant she would not get in an ambulance that night. The following morning we insisted on an ambulance. After spending a day in emergency, she was admitted to Bowral Private Hospital with a broken femur. Ken came to stay with us at our home. Almost daily we asked to be able to contact you and let you know. We [sic] told absolutely not, under no circumstances to let you know anything. Steve did end up leaving a message on Jeffery's [sic] phone late February. During the hospitalisation both Irene and Ken were assessed for their physical and mental capacities. This outcome of this assessment was that they are both suffering with dementia and are without the capacity to care for themselves or make decisions of sound judgment. This assessment means that our roles as Enduring Guardians and Enduring Powers of Attorney have become active. After many phone calls and meetings we have been able to organise some respite care for both Irene and Ken while her leg is mending. It was becoming very confusing and difficult for both of them to be spending their night times apart. We feel that they are getting the very best care possible and our main aim was to keep them together. The respite care we have been able to access is at Harbison Care in Burradoo. Even though Irene and Ken are still instructing us to not notify anyone, I feel that it is important that you are aware of what is happening."
23. A written email response, dated 2 March 2017, was sent by the Plaintiffs, but written by Jeffrey, probably after discussion with Karen, in the following terms (Ex J3/386): "Hi Catherine, Firstly we would like to thank you both for the time & loving concern that Steve and yourself have taken to look after Ken & Irene. We understand that it is difficult the way Irene seems to think that she would not want to rely on anybody, so we think for all concerned…when we arrive back home on the 12th March Sunday, Karen will have to see her Dr if possible on the Monday, then with an OK we think the four of us should get together & have a meeting…so you can tell us…what you think would be the best course of action for their future. Will still try to call from Thailand…no luck so far. Love to you both, K & J"
24. Around 11 March 2017, Karen and Jeffrey returned to Australia from Thailand. They remained in Australia until mid-July 2017 and then returned to Thailand.
25. Between 8 March and 20 March 2017, there were at least 14 emails from Ms Blackadder to Mrs King, in relation to Ken and Irene, and more emails from Mrs King to Ms Blackadder. On 12 March 2017, Mrs King sent to Ms Blackadder a copy of Ken's 2015 Will.
26. On 17 March 2017, Ms Blackadder spent a total of 2.6 hours preparing documents for Ken and Irene. (It is clear that prior to this date, Ms Blackadder had not met, or taken any instructions, from Ken or from Irene.)
27. On 20 March 2017, Ms Blackadder attended upon Ken and Irene at Harbison Care for approximately 3 hours. At that conference, initial instructions were obtained from Ken and Irene for new Wills to be drafted. However, both of them wished to further consider specific gifts of personal effects which each wished to make.
28. Teece Hodgson & Ward, solicitors (instructed by Steve and Cathie) sent a letter dated 29 March 2017 to Emprise Legal (by email sent at 5:10 p.m. on 30 March 2017). The letter was not forwarded by Ms Blackadder or Ms Kamal to either Ken or Irene. Relevant parts of the letter stated (Ex J3/620-622): "…We also note that you have been advised that Mr Chant and Mr Lee are arranging for independent medical assessments to be carried out to determine 'the capacity' of Mr and Mrs Shepherd, though it is not clear in what regard their capacity is to be assessed, noting that it is shortly after, rather than before, any legal steps were taken. … Similarly, in relation to issues of contact and access, we comment that if Mr and Mrs Shepherd have capacity to make decisions around contact and access then it is for them to instruct our clients not to visit them. Our instructions are that this has not taken place. Although our clients have acceded to the request to refrain from contact following receipt of your letter, they wish to visit with Mr and Mrs Shepherd and will do so on the basis that Mr and Mrs Shepherd can choose themselves whether or not to see them. In this regard, our instructions are that when Mr Curcuruto last visited with Mr and Mrs Shepherd on 17 March 2017, he had a long conversation with Mr Shepherd and neither Mr not Mrs Shepherd asked him not to visit again or informed him that he was unwelcome. … Our clients are extremely concerned by recent events. Mr and Mrs Shepherd have been their close friends for decades, spending birthdays, holidays and Christmases together, including with Mr Curcuruto's parents and have until very recently been content to rely on the care and support provided by our clients, including increasing reliance on our clients for all aspects of their care and support over the last several years. Over the same timeframe, our clients' understanding is that Mr and Mrs Shepherd have maintained only intermittent telephone contact and rare visits from Mr Chant and Mr Lee, and have also had more limited contact and support from Mr and Mrs King than with our clients. Our clients also have medical evidence predating the documents executed by Mr and Mrs Shepherd with your firm that concludes that neither Mr Shepherd nor Mrs Shepherd has capacity to decide issues connected with their finances, property, residence, care, treatment or contact. Finally, our clients are aware that the purported stance now taken by Mr and Mrs Shepherd is a volte-face from their previous views and wishes, as reported to our clients' over a number of years. In such circumstances it is entirely appropriate that our clients pursue an application to NCAT for review of the revocation documents."
29. On 1 May 2017, the NSW Civil and Administrative Tribunal (Guardianship Division) made financial management orders in respect of Ken and of Irene. The affairs of each were committed to the management of the NSW Trustee and Guardian. The Tribunal found that each was incapable of managing his, and her, financial affairs, respectively.
30. On 6 June 2017, the NSW Civil and Administrative Tribunal (Guardianship Division) made guardianship orders in respect of each of Ken and Irene. This was about 2 months after the 2017 Wills were signed.

The Wills of Ken and Irene

1. As the two 2017 Wills are in the same terms, other than in respect of the identity of the "spouse" referred to, it is only necessary to set out the following summary of the relevant text of the Wills: 1. All prior Wills were revoked; 2. The primary executor was to be the spouse, but in the event that she, or he, "is unable or unwilling to act or continue to act", the substitute executors were to be Karen and Jeffrey; 3. The executors were to "sell, call in, or convert into money, any part of my estate and pay any and all death, estate, or succession duties, debts, legacies, funeral and testamentary expenses, and any other costs fees or expenses associated with my death or the administration of my estate"; and 4. The principal beneficiary was to be the spouse; and if she or he did not survive by 30 days, the residue of the estate was given to Karen and Jeffrey as tenants in common in equal shares, "including the whole of the property in Illawarra Highway, Moss Vale known as 'Southdowns' Homestead".

The 2015 Wills

1. As the two 2015 Wills are in the same terms, other than in respect of the identity of the "spouse" referred to, it is only necessary to set out the following summary of the relevant parts of the Wills: 1. All prior Wills were revoked; 2. The primary executor was to be the spouse, but in the event that she, or he, "is unable or unwilling to act as my executor", the substitute executors were to be Steve and Cathie; 3. The principal beneficiary was to be the spouse; and if she, or he, did not survive by 30 days: 1. A devise of the real property, being flats, situated at Bellevue Street Goulburn, was made to Paul McMullen and Paula Jane McMullen, as tenants in common in equal shares; 2. A devise of the property comprising the "Southdowns" Homestead, together with all household chattels in the main house and all livestock, motor vehicles and farming plant and equipment; was made to Steve and Cathie, as tenants in common in equal shares; and 1. The residue of the estate was gifted to Rodney Keyte and Kevin Owens, as tenants in common in equal shares.
2. It can be seen from the above summary that Ken's 2017 Will was very different to his 2015 Will and that Irene's 2017 Will was very different to her 2015 Will. What is written about the even earlier Wills of each of Ken and Irene, will also demonstrate how different each of their 2017 Wills was compared with earlier Wills.
3. As earlier stated, there were 19 Wills made for Ken and Irene over the period between 1992 and 2015. Each of the Wills had been prepared by Mr Cummins. A copy of each of the Wills before the 2015 Wills, were included in a folder entitled "Court Book - Historic Wills", which folder and its contents were tendered and marked Ex J1. They were said to be of "historic interest and for assistance in determining whether there was a general pattern to the testamentary intentions of" Ken and Irene: see Plaintiffs' Preliminary Submissions dated 17 December 2020 at [7].
4. At the commencement of the hearing, a document headed "Summary Table of Wills", summarising the dispositions in each of the historic Wills was tendered and included within Ex J1. Counsel confirmed that the document was an accurate summary of the dispositions made in each of the Wills: Tcpt, 8 February 2021, p 332(03-15). This document revealed that Karen (referred to as "Brian Chant") was a substitute devisee of real property until the Will dated 9 November 2007. She had been a beneficiary in Wills made between 1992 and November 2007, but was not, thereafter, a beneficiary in any of the Wills dated May 2008, July 2011, October 2011, March 2012, July 2012, October 2013, December 2014 and in each of Ken's 2015 Will and Irene's 2015 Will.
5. Importantly, in not one of the historic Wills is Jeffrey named as an executor or as a beneficiary, primary or substituted. Also, in none of them, was there a gift of Ken's, or Irene's, whole estate to one beneficiary, or to one class of beneficiaries.
6. Cathie was not a beneficiary named in any Will prior to 2012, although Steve's parents, Joseph and Sylvia Curcuruto, had been named as devisees of a share of real estate in each of the Wills made in June 2007, November 2007, and May 2008. Steve and Sylvia were devisees of a share in real estate in each of the Wills made in July 2011, October 2011, and March 2012. Steve and Cathie were however, devisees in the Wills made in July 2012, October 2013, and, as stated, in Ken's 2015 Will and Irene's 2015 Will.

The nature and value of Ken's and Irene's estate

1. The parties agreed that: 1. The property known as "Southdowns" comprises three lots (being Lot 310, Lot 315 and Lot 316), in two different deposited plans (D/P xxx722 and D/P xxx958), and that, in relation to all of them, Ken was a registered proprietor as to a one-half share as tenant-in-common, and that Ken and Irene were registered proprietors of the remaining one-half share as joint tenants. 2. In respect of the flats in North Goulburn (Lot 1 in D/Pxxx986), Ken and Irene were registered proprietors as joint tenants.
2. They also agreed that: 1. On Ken's death in October 2017, his 75% interest in "Southdowns", was reduced to a 50% interest as a consequence of the joint tenancy applicable to the one-half share of the remaining half share thereof passing by survivorship to Irene. Upon his death, "Southdowns" could be registered as to one half for Ken's estate, and as to the other half, for Irene's estate. 2. On Ken's death in October 2017, his interest in the Goulburn flats passed to Irene by survivorship, with the result that upon his death, Irene was entitled to be registered as the sole registered proprietor of the Goulburn flats.
3. The parties provided the Court with an Agreed Schedule that set out the assets of Irene's estate as at the date of the Schedule. I set out the terms of the Schedule: Schedule of Present Nature and Estimated Value of Assets of Estate of the Late Irene Gladys Shepherd Asset Description Plaintiffs' estimate of value Defendants' estimate of value Units 1 - 6, X Bellevue Street, Goulbourn (Lot X DPXXXXXX) ("Goulburn Flats") E$ 812,000 E$ 812,000 One half share in the property known as "Southdowns", XXXX Illawarra Highway, Moss Vale NSW 2577 (Lots XXX DPXXXXXXX, XXX DPXXXXXX and XXX DPXXXXXXX) E$5,000,000 E$3,700,000 Farm equipment: tractor trailers, lawn mower ploughs and chainsaw E$ 30,000 E$ 30,000 Personal effects E$ 20,000 E$ 20,000 OPC Trust Account (balance at 3/2/21) E$ 314,005 E$ 314,005 St George Bank account XXX XXX XXXXX XXXX (balance at 3/12/20) E$ 112,765 E$ 112,765 Liability Description Harbison Care fees ($ 5,330) ($ 5,330) Wingecarribee Shire Council ($ 23,302) ($ 23,302) Dr Heather McIntyre ($ 290) ($ 290) Estimated gross value of estate (excluding legal costs) E$6,260,660 E$5,553,848

1. The calculations set out above do not appear to be mathematically correct ($6,259,848) and ($4,959,848) respectively, but nothing turns on the value of the estate.
2. The Agreed Schedule also set out the assets of Ken's estate as at the date of the Schedule: Schedule of Present Nature and Estimated Value of Assets of Estate of the Late Kenneth Charles Shepherd Asset Description Plaintiffs' estimate of value Defendants' estimate of value One half share in the property known as "Southdowns", XXXX Illawarra Highway, Moss Vale NSW 2577 (Lots XXX DPXXXXXXX, XXX DPXXXXXX and XXX DPXXXXXXX) E$5,000,000 E$3,700,000 Motor Vehicle - Great Wall (GWM) V240 2012; registration xx xx xx E$ 8,000 E$ 8,000 Motor Vehicle - Mitsubishi Mirage Hatch 1999; registration xx xx xx E$ 1,000 E$ 1,000 Caravan E$ 2,000 E$ 2,000 OPC Trust Account (balance at 3/2/21) $ 267,139 $ 267,139 St George Bank Account (held jointly by Kenneth and Irene) $ 2,525 $ 2,525 XXXXXXXXXXXXXXXX (balance at 3/07/19) Liability Description Goulburn Council ($ 882) ($ 882) Wingecarribee Shire Council ($ 25,446) ($ 25,446) Goulburn Mulwaree Council ($ 1,154) ($ 1,154) Estimated gross value of estate (excluding legal costs) E$5,253,182 E$3,953,182

1. (It can be seen that the only difference in value, in relation to each estate, relates to the total value of "Southdowns" (the difference being $1,300,000). The estate, in each case, is of significant value.)

Costs

1. In each proceeding, the Plaintiffs also sought an order that the "[c]osts of this application be borne out of the [respective] estate on an indemnity basis". On the second day of the hearing, counsel for the Plaintiffs confirmed that, in the event the Plaintiffs were successful, they would consent to an order that the Defendants' costs, calculated on the ordinary basis, should be paid out of the estates of Ken and Irene. It would be unnecessary to make any order for the Plaintiffs' costs in that event, as they would receive the whole of each estate under each of the 2017 Wills.
2. Senior counsel for the Defendants stated in the event that Karen and Jeffrey were unsuccessful, that Steve and Cathie would seek an order that the costs should follow the event. He added, however, that there were a number of matters, which he foreshadowed, might be relevant to the questions how those costs should be calculated, and how they should be borne, including whether the legal practitioners of Karen and Jeffrey should be ordered to pay the costs: s 99 of the Civil Procedure Act 2005 (NSW).
3. In these circumstances, counsel requested that the costs of the proceedings not be dealt with, whatever the result of both proceedings, and that they should await submissions on costs being made: Tcpt, 3 February 2021, p 172(38) - 173(20); Tcpt, 18 March 2021, p 909(43-44). Naturally, I shall abide the request and not deal with costs in these reasons. However, I commend to the parties, once again, that if possible, further argument, with the obvious increase in costs, and the consequent delay in administering the estate, should be avoided.

Relevant alternative consequences

1. In summary then, there are different results that could be reached, with different consequences as to how property would be held.
2. If each of Ken's 2017 Will and Irene's 2017 Will is valid, because Irene died 15 days after Ken and because of Clause 3 of Ken's 2017 Will, his estate does not pass to Irene (other than jointly held property, which passes by survivorship). Rather, all of his property passes to Karen and Jeffrey as tenants in common in equal shares. Thus, Ken's interest in "Southdowns" will pass to Karen and Jeffrey absolutely.
3. Under Irene's 2017 Will, all of her property will also pass to Karen and Jeffrey as tenants in common, since they are the sole substitute beneficiaries of her estate, with the result that they will receive the whole of her interest in the Goulburn flats and her 50% interest, as tenants in common in "Southdowns".
4. It follows that if both of the 2017 Wills are valid, Karen and Jeffrey will receive the whole of Ken's, and the whole of Irene's estate, absolutely, as tenants in common in equal shares.
5. If both of Ken's 2017 Will and Irene's 2017 Will are invalid, since the parties agreed that each of the 2015 Wills is valid, and because the Court is satisfied as to the validity of each, as Irene died 15 days after Ken and due to Clause 3 of Ken's 2015 Will, his estate does not pass to Irene. Under Ken's 2015 Will, the Goulburn flats will not pass to Paul McMullen and Paula McMullen, because that property was held as joint tenants and passed by survivorship to Irene on Ken's death. Ken's interest, as tenant in common in equal shares, in "Southdowns", passes to Steve and Cathie as tenants in common in equal shares. The residue of Ken's estate passes to Rodney Keyte and Kevin Owens as tenants in common in equal shares.
6. Under Irene's 2015 Will, Paul McMullen and Paula McMullen will receive the whole of the Goulburn flats as tenants in common in equal shares; Irene's interest as tenant in common in equal shares in "Southdowns" will pass to Steve and Cathie as tenants in common in equal shares, and the residue of her estate will pass to Rodney Keyte and Kevin Owens as tenants in common in equal shares.
7. It follows then that Paul McMullen and Paula McMullen receive the whole of the Goulburn flats, Steve and Cathie will receive the whole of "Southdowns", and Rodney Keyte and Kevin Owens will receive the whole of the residue of both Ken's, and of Irene's, estates.
8. In view of the conclusions to which I have come, it is unnecessary to consider what would occur if only one of Ken's 2017 Will or Irene's 2017 were valid.

The medical evidence relating to Ken

1. It is next convenient to refer to the medical evidence relating to Ken. I shall summarise the evidence unless it is necessary to repeat the contents of a medical report verbatim. In this regard, there was a mixture of factual and opinion evidence relevant to both Ken (and Irene) contained in the medical evidence that was tendered.
2. At the outset, it is noteworthy to record that even with an assessment by a medical expert, the question of testamentary capacity, ultimately, is a question of fact for the trial judge, and lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303 at [86] and [128] (White JA, Bathurst CJ and Gleeson JA agreeing). Expert medical evidence, or the opinion of an attesting witness, as to competency, on its own, is not decisive: Norris v Tuppen [1999] VSC 228 at [335] (Ashley J); Nicholson v Knaggs [2009] VSC 64 at [41] (Vickery J)).
3. Before proceeding further, I note that a reference to the Folstein MMSE is a reference to Folstein's Mini-Mental State Examination, a standardised 30 point mini-mental state examination, which is a screening tool. The MMSE score provides some guidance in the assessment of capacity, although the test does not cover all of the matters that must be considered in assessing capacity, and cannot generally be used, on its own, for that purpose. It is not a complete mental status examination or a complete neuropsychological examination. Accordingly, it is regarded as having limitations as a tool for assessment of cognitive impairment and it does not test executive brain function.
4. As is also well-known, the MMSE is not designed to test testamentary capacity, but enables an assessment of global cognitive function by reference to a variety of different cognitive domains, including orientation to time and place, short and long-term memory, registration, attention and calculation, constructional ability, language, and the ability to understand and follow commands. None of those things directly enables an assessment of frontal, or executive, brain function, being the higher function for making decisions. The scores achieved may provide some guide, a low score being likely to raise questions.
5. The Rowland Universal Dementia Assessment Scale (RUDAS) is a reference to a short cognitive screening tool designed to minimise the effects of cultural learning and language diversity on the assessment of baseline cognitive performance. It assesses multiple cognitive domains including memory, praxis, language, judgement, drawing and body orientation.
6. In February 2008, Ken was diagnosed as suffering from Gleason 7 prostate cancer, which was being monitored conservatively. Ken informed Dr Raji Kooner, the Urological surgeon at St Vincent's Clinic, (who provided a number of reports that were tendered), that he may have some degree of depression.
7. Over the following years, Ken was reviewed by Dr Kooner. On each review, Ken decided against surgical intervention and stated that he wished to continue to be monitored and attempt to manage his symptoms himself. Dr Kooner regarded his decision as a reasonable one.
8. In March 2016, with Dr Kooner, Ken proceeded "to a TURP procedure, right ureteric resection and a stent placement to assist with the draining…": Ex J2/107 and 118. (TURP is the acronym for Transurethral resection of the prostate.)
9. In May 2013, Ken had a urinary tract ultrasound which revealed bilateral renal cysts.
10. In January 2014, Ken had an advanced basal cell carcinoma excised from the back of his left ear. In November 2014, a large ulcerated nodular lesion was found on the back of his right scalp and a smaller lesion was present on the front of the left scalp: Ex J2/14.
11. On 16 February 2016, Ken attended at, and was admitted to, Liverpool Hospital Emergency Department, having suffered multiple injuries as a result of having fallen backwards off a 3 metre height ladder onto the ground. He was unable to get up. An Adult Emergency Observation Chart, under the heading "Falls Risk Screen", noted that he was not confused, disorientated or agitated: Ex J2/18.
12. During the course of his hospitalisation, Ken underwent a brain and a spine cervical CT scan, which revealed "no acute intra-cranial haemorrhage or surface collection", that "[g]rey-white matter differentiation is preserved", "no mid-line shift or mass effect", and that "the ventricles and surface CSF spaces are within normal limits". It also revealed "no fractures of the skull vault or visualised skull base" and "normal alignment of the cranio-cervical junction and of the cervical spine." Severe degenerative disc disease and severe facet joint arthrosis, at multiple levels, was also observed: Ex J2/19.
13. In the Progress/Clinical Notes from Liverpool Hospital, dated 17 February 2016, there are a number of entries stating that Ken was observed to be "confused" or "pleasantly confused" or "slightly confused". On 18 February 2016, it was noted that there had been evidence of "confusion, agitation and wandering", "difficulty keeping track" and the "illogical flow of ideas".
14. In a Final Report Discharge Referral dated 19 February 2016, under the heading "Cognitive Impairment", the following appears at Ex J2/72: "- Pt became disoriented as to why he was in hospital, often completely forgetting about the fall (which he remembered well in ED). - Delirium screen was negative. - His wife and neighbours have noted short term memory loss recently. - He scored 23/30 on RUDAS. - He was seen by the Geriatrics team who suspected possible (likely) underlying dementia. He was assessed as being medically well though and could return home. - Socially, he lives with his wife who is also clinically unwell but they are very well supported by their neighbours, and he will be staying with them as he recovers. - The Geriatrics team advised outpatient Geriatrics follow-up to be arranged by his GP."
15. Dr Heather McIntyre, a general medical practitioner at the Moss Vale Family Practice, met with Ken, for the first time, on 25 February 2016. In a letter dated 26 February 2016 (Ex J2/83) addressed to Dr Barnett, she noted, amongst other things, that: "Mr and Mrs Shepherd are very independent and do not wish anyone to come into their home but are willing to accept help outside. They have no children and are not close to their families. We have told Mr Shepherd not to drive, at least for the time being, after his fall. We discussed a will and POA which he says are in train."
16. Dr McIntyre sought Dr Barnett's assessment and advice, on amongst other things, Ken's "cognitive impairment". Other evidence reveals that an out-patient appointment was made to visit Ken, but it was cancelled, with a fresh appointment being issued by Dr McIntyre on 28 April 2016.
17. Ken was seen by Dr Elizabeth Harper, the Staff Specialist in Geriatric Medicine at St Vincent's Private Hospital, having been admitted by Dr Kooner "for treatment of his bladder and carcinoma prostate". In a report dated 23 March 2016, sent by Dr Harper to Dr McIntyre (Ex J2/100-101), the following appears: "I was asked to see Mr Shepherd and he experienced a period of delirium. This was multi-factorial due to his surgery and constipation. We were unclear of Mr Shepherd's alcohol and I did initially treat these with a few days of temazepam and then regular evening risperidone. I know there are concerns by you and his neighbours of cognitive impairment. His power of attorney, Cathy, reports there was a recent admission to Liverpool Hospital and this was investigated. He is due soon to follow up with a local geriatrician, Dr Barnett. During his admission, Mr Shepherd's delirium was prolonged due to the use of catheters and drips. On discharge, they were removed and he is much improved. … I did perform an MMSE due to concerns of his driving. His MSSE was 17/30. This is perhaps a low score and should not really be taken into account post his delirium. It is, however, enough for me to say that he is not fit to drive and he should not resume driving until he is re-assessed in several weeks in regard to his cognition and his fitness to drive. He is due to see a local Geriatrician next month. I have not performed any imaging on Mr Shepherd. He has had imaging at Liverpool Hospital and his power of attorney, Cathy, has access to that. I do suspect that Mr Shepherd has a mixed vascular and Alzheimer's dementia, however, he is post-delirium and he warrants further review."
18. (Dr Barnett, in his oral evidence, accepted that bearing in mind his medical condition, the score of 17/30 was not surprising, and limited notice of the result can be taken: Tcpt, 10 February 2021, p 439(50)- 440(04); p 443(04-05))
19. Ken attended on Dr Barnett's office on 16 June 2016. In a report dated 18 July 2016, addressed to Dr McIntyre, Dr Barnett noted at Ex J2/131: "On examination, he was a cheerful, well-groomed man, and he had numerous facial seborrheic warts and keratosis. His short term memory was poor. I took him through the MMSE and he lost four points on orientation to time, three points on repetition, one point on spelling, and one point on the phrase. That gave a score of 21/30. I asked him to draw a clock face and he missed several of the numbers, and the hands were incorrectly placed. I believe that the CT scan showed no acute changes, but mild white matter low density change compatible with small vessel ischemia. I believe he has moderate dementia of moderate degree. He should not drive. He would benefit from an ACAT assessment, and I think would benefit from Adult Day Care. It is mostly his wife who is resistant to carers coming into the house. I will write to the RMS."
20. As he said he would, Dr Barnett wrote a letter dated 22 July 2016 to the Roads and Maritime Services, in which he stated (Ex J2/132): "I am writing as a medical practitioner with Specialist Registration as a Geriatrician at Bowral and District Hospital. I have been involved in the care of Kenneth Shepherd. He is 87 years old and he has been considerably unwell with a number of physical and cognitive problems. He had a major fall in February of this year when he was climbing a ladder, and he was subsequently in St Vincent's Hospital with a delirium. He scored 17/30 on the Mini Mental Scale at that time. I reviewed him today, and he is cheerful and appropriate in conversation but has very poor short term memory and I think that because of his physical injuries from the fall he would have slow reaction time. I believe he is not suitable to drive and that his Driver's Licence should be reviewed."
21. I next turn to Dr Barnett's evidence, given in his affidavit made on 20 February 2019, and in cross-examination.
22. Dr Barnett stated in cross-examination that it was "difficult" to assess Ken's mental state prior to Ken's first examination on 16 June 2016 as Ken was "physically ill and in pain and on narcotic drugs to control his pain": Tcpt, 10 February 2021, p 436(44-46). He stated that Ken was "showing some confusion" and "maybe there is dementia underlying it": Tcpt, 10 February 2021, p 436(12-14).
23. Dr Barnett stated that he had made handwritten notes in the Progress Notes at the Hospital, at which each of Ken and Irene were patients, as well as in his own records after Ken moved to the Harbison Care. He stated that he had "recorded statements [Ken] had made and my observations". Whilst he also stated that he did not have a highly detailed recollection of all of his consultations with Ken, he had referred to those documents, which he believed to be accurate, in preparing his affidavit.
24. Dr Barnett stated that when he saw Ken on 16 June 2016, he conducted the MMSE, "and he lost four points on orientation to time, three points on repetition, one point on spelling, and one point on phrasing, which gave a score of 21/30. This was a decline of 2 points from the RUDAS score (equivalent to MMSE) carried out in February 2016 at Liverpool Hospital". Dr Barnett's handwritten notes confirm "a diagnosis of vascular dementia, assessing the same, at that stage, as moderate".
25. On 5 February 2017, Dr Barnett saw Ken whilst visiting Irene after her fall. He described Ken on this occasion as being distressed and unable to recall having met Dr Barnett previously. Ken was also unaware that Irene had a broken leg: Tcpt, 10 February 2021, p 447(40-43). (Dr Barnett accepted that it was possible that Ken had not yet been told that Irene had broken her leg: Tcpt, 10 February 2021, p 449(02-04).)
26. Dr Barnett assessed Ken again, on 17 February 2017, following receipt of a request from Mr Cummins "concerning the capacity of Ken and Irene to understand the nature and effect of legal transactions". On that date, Ken scored 10/30 on the MMSE questions put to him by Dr Barnett.
27. Dr Barnett made handwritten notes (Ex J2/190) that included: "Asked to see him re capacity oe [on examination] poor stm [short term memory] - no recall of me seeing him Not oriented to [time and place] Understood few of the MMSE questions - needed prompting Needs nursing assistance. No understanding of managing at home or wife's illness. Lacks capacity."
28. On the basis of his assessment on 17 February 2017, Dr Barnett reached the conclusion that Ken lacked capacity for general assessment and legal documentation, that is, signing a request for an ACAT assessment: Tcpt, 10 February 2021, p 460(40-47). He clarified, in cross-examination, that Ken lacked capacity "to care for himself" (Tcpt, 10 February 2021, p 462(11-12)) and to look after himself at home (Tcpt, 10 February 2021, p 462(19-21)).
29. In cross-examination, Dr Barnett also stated that he had asked Ken whether he was prepared to have a cognitive test and that he understood what a cognitive test was: Tcpt, 10 February 2021, p 453(25-32). He told Ken that the purpose of the assessment was to make proper arrangements for Ken's and Irene's care and to determine whether they were fit to live by themselves or not: Tcpt, 10 February 2021, p 454(09-14). Dr Barnett stated that Ken was "extremely anxious" during this attendance: Tcpt, 10 February 2021, p 453(50).
30. In cross-examination, Dr Barnett agreed that at the time of the 17 February 2017 assessment, Ken's prostate problem would have been causing him bone pain, possible problems sleeping and feelings of weakness: Tcpt, 10 February 2021, p 456(09-11). He accepted that these factors may have affected Ken's cognitive ability and that it was not unreasonable to say that the MMSE may not have produced a fair result due to the presence of these factors: Tcpt, 10 February 2021, p 456(15-26).
31. (The Plaintiffs pressed the distinction that, at this stage, Dr Barnett was purely tasked with assessing capacity in respect of an ACAT assessment and had not yet turned his mind to testamentary capacity. It was also submitted that the failure to tell Ken about Irene's broken leg, initially, would have contributed to his distressed state. In oral submissions, the Plaintiffs drew my attention to the Court of Appeal's decision in Carr v Homersham [2018] NSWCA 65 and in Drivas v Jakopovic [2019] NSWCA 218, in which it was noted that anxiety in respect of the administration of cognitive testing is a factor that can affect performance: Tcpt, 18 March 2021, p 874(46)- 875(05).)
32. On 14 March 2017, Dr Barnett received a referral for an assessment from Dr McIntyre, who requested advice on what would happen if Ken and Irene were to leave the nursing home and were considered not to be able to care for themselves.
33. On 21 March 2017, Dr Barnett attended Ken and Irene at the nursing home, in the presence of Mrs King. Dr Barnett partially completed a specialist geriatric assessment of Ken. He noted that Ken could not draw a clock face, was unable to recall three words, and that his presentation was consistent with a diagnosis of advanced dementia. Dr Barnett was unable to undertake a full MMSE assessment of Ken due to "Ken's cognitive difficulties and Irene's interjections". However, Dr Barnett noted that his previous conclusions remained unchanged following this assessment. Dr Barnett made the following notes as part of his assessment (Ex J2/406): "Dementia: moderate to severe Difficult conversation as his wife would answer for him and speak over him. Not orientated to time. Knew he was in Harbison Homes. Unable to draw a clock face and place hands or recall three words. Consistent with his advanced dementia."
34. On the same day, Dr Barnett wrote a letter to Dr McIntyre, in which he stated (Ex J2/404): "[Ken] has severe dementia with poor short term memory. He lacks insight and does not have the capacity to make any legal or financial decisions."
35. During cross-examination, when asked whether the assessment on 21 March 2017 was of any use, Dr Barnett stated "I can't say that things were any worse, but certainly things were no better… he was much the same as when I saw him in hospital': Tcpt, 10 February 2021, p 463(49)-464(02). Dr Barnett also stated that Ken's "conversation had not improved [and] his short-term memory was poor": Tcpt, 10 February 2021, p 464(05-06).
36. During cross-examination, Dr Barnett accepted that having Mrs King present during the partial assessment on 21 March 2017 would have been distracting for Ken: Tcpt, 10 February 2021, p 467(45)-468(01).
37. On 28 March 2017, Dr Barnett saw Ken again. On 15 April 2017, Dr Barnett sent a letter to Dr McIntyre concerning this visit, in which he stated Ex J2/419: "My opinion as it was in July 2016 is that he has a mixed Alzheimer's and vascular dementia. He has deteriorated greatly since I saw him last year. He is totally lacking in insight and has no capacity to make any legal decisions or decisions regarding his health and finances. He is unable to care for himself and his helpful neighbours have done as much as they can. I support guardianship provisions and placement at the residential care facility."
38. Dr Barnett next attended Ken on 30 May 2017. As there were no changes of note, Dr Barnett did not record an entry in the Nursing Home Progress Notes.
39. Dr Barnett again attended on Ken on 25 July 2017. He made the following notes in the computer system for the Nursing Home (Ex J2/456): "[Ken] has moderate to severe dementia… he is best served by remaining in Harbison Care".
40. On 15 August 2017, Dr Barnett attended on Ken, following a referral from Dr Kooner. The following day, Dr Barnett sent a letter to Dr Kooner concerning this visit, in which he stated Ex (J2/458): "[Ken] has advanced dementia with poor short term memory but he is attentive and able to concentrate to a limited degree."
41. Dr Barnett had one further attendance with Ken on 22 August 2017.
42. In cross-examination, Dr Barnett stated that he had endeavoured to obtain a second opinion in relation to Ken, but was unable to do so: Tcpt, 10 February 2021, p 423(06-12). Dr Barnett stated that the reason he sought a second opinion was to "confirm [his] opinion": Tcpt, 10 February 2021, p 423(50).
43. Dr Barnett was of the opinion that Ken had frontal lobe disease and that Ken had CT scanning done which showed extensive white matter degenerative change consistent with vascular dementia: Tcpt, 10 February 2021, p 425(16-20).
44. In cross-examination, Dr Barnett acknowledged that people with vascular dementia are capable of having lucid periods and that they "[decline] in step wise fashion so that they can be alright for a little while and then deteriorate": Tcpt, 10 February 2021, p 425(46)-426(08). He also acknowledged that it was possible that Ken may have had lucid moments in periods when Dr Barnett did not see him: Tcpt, 10 February 2021, p 429(49)-430(02) and that it was possible that Ken could have had a lucid period after the date Dr Barnett had last seen him on 21 March 2017: Tcpt, 10 February 2021, p 474(36-38).
45. During cross-examination, Dr Barnett accepted that Ken's cognitive function may also have been impacted by any ongoing effects of the delirium he had suffered in 2016, disorientation from changes to his living situation, and the influence that Irene had over him: Tcpt, 10 February 2021, p 428(01-48).

Opinion of Dr Barnett as to Ken's capacity

1. By the time Dr Barnett responded to the request from Wilkinson Throsby and Edwards, solicitors, received on 22 February 2017, he had formed the view that Ken did not have the mental capacity to be able to understand documents that he might be asked to sign, or enter into legal transactions.
2. In his professional opinion, based on his observations of Ken and his professional experience, Dr Barnett thought that it was reasonably likely that, in March and April 2017, although Ken may have known what a Will was, he would have been unlikely to appreciate the components of his estate, and the nature of the assets comprised in his estate.
3. In cross-examination, Dr Barnett answered that he had asked Ken questions about the components of his estate in June 2016, but had not asked him about this matter subsequently: Tcpt, 10 February 2021, p 469(04-18). He stated that he had "based [his] opinion on [Ken's] short-term memory, which was obviously impaired. He was not orientated to time or place. His inability to recall three simple words, or answer questions backwards, he could not draw a clock face, which implies some…. construction or other frontal lobe difficulties. But it's also just the general human observations of somebody who can't answer questions and is quite ignorant of what's going on" that had led him to his conclusion: Tcpt, 10 February 2021, p 469(37-44).
4. Dr Barnett also stated at Tcpt, 10 February 2021, p 469(46) - 470(01): "I felt because he could make no sensible comments about his… welfare and could offer no solutions as to where they should live or what they should do, that the… same things would apply to the things that they owned. I think they had become immaterial to them both."
5. Dr Barnett also stated that "Ken showed little understanding of day to day things and so, therefore, I could not understand why they would possibly know what the nature of their assets were": Tcpt, 10 February 2021, p 471(17-22). He also doubted that Ken could have had a reasonable understanding of the value of his estate. Furthermore, he opined that it was highly unlikely that, by March and April 2017, Ken would have been able to identify, evaluate and discriminate between the strengths of the claims of the persons potentially benefiting from his estate, or the claims of the persons who might be expected to benefit from his estate. By that time, Ken was unable to form, or articulate, views that differed in any way from those of Irene; he presented as significantly confused; he looked to Irene to answer all questions on his behalf; and the extent of his conversation was echolaic in nature, repeating phrases after they were used by Irene.
6. Dr Barnett was further of the opinion that Ken's short-term memory was badly affected by March and April 2017, so that he was unable to recall relevant information regarding the care and support provided to both him and Irene by people in the past; and where given conflicting information, Ken merely repeated information provided to him by Irene.
7. Accordingly, Dr Barnett was of the opinion that it was highly unlikely that Ken would have had testamentary capacity (as established in Banks v Goodfellow) to make a valid Will in March or April 2017.

The medical evidence relating to Irene

1. Dr Barnett first saw Irene at the Southern Highlands Private Hospital, following her admission on 5 February 2017 with a fractured right femur. He consulted with Irene on several occasions to carry out assessments of her mental facilities and to provide guidance on treatment.
2. He first assessed Irene on 6 February 2017. During the consultation, she did not appear to remember that she had fallen at home and kept repeating "I just want to catch a taxi and go home!".
3. In the Progress Notes of 6 February 2017 Dr Barnett wrote (Ex J2/157): "Known to me. Saw husband last yr. Live on Illawarra Hwy. Mostly supported by Cathy Curcurato [sic]. Mrs Shepherd has evident cognitive impairment; but has been able to manage. Mrs Shepherd has dementia. Admitted after fall. #[fractured] femur. Awaiting surgery: O/E [on examination]. Engages well alert but repetitive and evident short term memory impairment. Poor orientation TP [time and place] but not confused. Pain OK. IV fluids HSx2. R leg oedematous Plan. Return tomorrow pm Note risk of delirium. Will need full cognitive AX [assessment] [illegible]"
4. In cross-examination, Dr Barnett noted that, at that stage, a full diagnosis of dementia had not been made, but that it had been intimated to him by her carers, and in a letter from Irene's GP, that there had been issues with Irene's short term memory: Tcpt, 10 February 2021, p 476(11-17).
5. On 7 February 2017, Dr Barnett attended on Irene again. He was informed by the hospital resident doctor that the orthopaedic surgeon had decided that, due to the nature of Irene's fracture, and her mental capacity, surgery was not an appropriate option, and that she should be managed with bed rest in hospital. Dr Barnett noted that it was not feasible for her to be managed at home as it would take around two or three people to move her around at all times: Tcpt, 10 February 2021, p 441(15-19); Affidavit, Dr John Graham Barnett, 20 February 2019 at par 8.
6. On 8 February 2017, Dr Barnett again attended on Irene. He recalled that Irene did not remember him from the previous day and was resistant to any nursing interventions. He attended again the next day and his Progress Notes record that during this attendance Irene was confrontational and agitated. He attempted to have her complete an MMSE examination but Irene refused to answer questions: EXJ2/170.
7. Despite not having completed the MMSE examination, Dr Barnett noted that cognitive assessment also included things like "engagement", "attentiveness", "repetition", "tangential thought", "abuse", "hostile affects" and the like: Tcpt, 10 February 2021, p 476(42-44). He felt, because "she could not engage with any questions or anything I tried to ask her, that she had cognitive impairment, and I did not believe it was a delirium because she was able to be attentive and quite definitive about what she was saying to me.": Tcpt, 10 February 2021, p 477(46-49). He confirmed that "her presentation was consistent with one of advanced dementia": Affidavit, Dr John Graham Barnett, 20 February 2019 at par 11.
8. At the conclusion of the meeting on 9 February 2017, Dr Barnett took Cathie out of the room to speak to her in relation to treatment and discharge plans for Irene.
9. Dr Barnett conducted a further assessment of Irene on 16 February 2017, recording in the Progress Notes (EXJ2/182) that: "…It is clear that Mrs Shepherd has significant cognitive impairment, being disorientated to time, place (orientation 0/10) and could not recognise me even though I have seen her several times during this admission. She refused to answer any MMSE questions, stating that she was fine and that it was her husband who had "lost his marbles". She is insightless - has no concept of her fracture and the implications i.e. non weight bearing (she believed she can go home in a taxi tomorrow) She believes she can manage at home. Impression: Dementia - mod [moderate]/severe Insight: lacking capacity No evidence delirium as she engages well, though in a hostile fashion. Able to hold attention. Plan CT brain…"
10. Even though Irene did not want to talk to Dr Barnett, or to have any cognitive assessment completed, that on its own, does not mean that she was cognitively impaired. However, that is not the only evidence on the topic. On 16 February 2017, Irene had a CT scan. Dr Barnett received the report from the scans on the same day which stated (Ex J2/184): "There is prominent diffuse decreased density within periventricular, subcortical and deep white matter of both cerebral hemispheres. The appearances are in keeping with gliosis secondary to chronic small vessel ischaemia. There are no focal areas of haemorrhage or infarction. No mass lesion is seen. There is diffuse age appropriate prominence of ventricles and subarachnoid spaces."
11. Dr Barnett confirmed that the results of brain scan and the images supported a diagnosis of vascular dementia and the degree of impairment to blood flow and circulation was congruent with the moderate to severe level of dementia with which she had presented.
12. Dr Barnett received a letter dated 17 February 2017, from Wilkinson Throsby & Edwards, requesting a written report regarding the capacity of Irene and Ken. He assessed Irene on 22 February 2017 at Southern Highlands Private Hospital, writing (Ex J2/313-314): "I have a letter re Ken's capacity assessment (he has no capacity). Will put in file. Mrs Shepherd, few c/o [complaints of] pain. Marked STML [short term memory loss]. Lacks insight also. Less agitated."
13. Dr Barnett prepared a report dated 23 February 2017 for Wilkinson Throsby & Edwards, which stated (Ex J2/322): "From my observation of her from previous contact, she has dementia, which is moderate to severe in degree. She lacks insight and lacks capacity to understand the nature and effect of legal transactions. There was no evidence of delirium as she engages well, though in a hostile fashion, and she is able to hold attention. She requires guardianship provisions and nursing home placement."
14. On 21 March 2017, Dr Barnett attended on Irene at Harbison Care after receiving a referral from her GP, Dr Heather McIntyre, on 14 March 2017. He was then informed by staff that there had been a change of attorneys and guardians completed the day before and one of the new appointees, Mrs King, was present. Mrs King remained in the room while the assessment took place and took notes.
15. In Progress Notes relating to the assessment there are multiple references to Irene's paranoia including: "expressing paranoia to Curcurutos"; "paranoid themes on neighbours wanting to take house away"; "paranoid re things being stolen" etc. (Ex J2/397).
16. Dr Barnett was only able to partially complete a specialist geriatric assessment of Irene as she refused to fully co-operate: Ex J2/399-400. He did not pursue the completion of the assessment because Irene was unable to engage in meaningful conversation and her presentation was such that his previous conclusions remained unchanged.
17. After the assessment, Dr Barnett spoke with Mrs King outside the hospital room and asked for evidence of her appointment as attorney (which she provided). There was a conflict in the evidence about the conversation that they had, but that conflict of evidence does not have to be resolved.
18. On 16 April 2017, Dr Barnett wrote a report of his assessment to Dr McIntyre, in which he stated (Ex J2/420-421): "I believe she has advanced dementia, which is most likely vascular. She has paranoid and delusional thoughts and is insightless and is unable to make any decisions, both legal or relating to health and accommodation. She has had a fracture of the right femur and it is uncertain whether this will heal and currently she needs significant nursing care just in terms of lifting and transferring. She is immobile. Her paranoia is now extending to the staff and she believes that they all think of her as being the old bitch."
19. Dr Barnett next attended on Irene on 30 May 2017, at Harbison Care, following an application to the Guardianship Division of NCAT. The observations of the report are noted in Ex J2/453 and include: "On examination Irene was forthright and entitled with almost non existent short term memory. She was not orientated in time or place. It was impossible to do an MMSE due to her lack of co-operation. She is unable to give any history and repeats merely that she will go home in a taxi with her husband and carry on life there. She has no insight into her dementia or fracture and how her care needs should be met. She stated that she did not want to move away from this area however. I believe she needs nursing home care given her severe dementia and loss of insight and capacity."
20. On 13 June 2017, Dr Barnett again attended on Irene for routine matters. He observed little change.
21. On 25 July 2017, Dr Barnett next attended on Irene at Harbison Care. Dr Barnett made an entry in the medical system of Harbison Care at Ex J2/457 stating: "…In terms of her mental state I believe her delirium has lessened. Today she remembered who I was, knew she was in Harbison Care, but did not know the date. Her short term memory is poor and I could not do formal testing, but she was attentive and could concentrate on conversation. She was adamant that she wanted to stay in the Bowral area where she felt comfortable and did not want to be separated from Mr and Mrs Curcuruto and the Cucuruto family. She repeatedly said that she had had little contact with her other family members for many years and she did not want to move up north. Because her confusion has improved, I believe her request has genuine weight."
22. On 22 August 2017, Dr Barnett met with Irene for the last time.

Opinion of Dr Barnett as to Irene's capacity

1. By the time Dr Barnett responded to the request from Wilkinson Throsby and Edwards on 23 February 2017, he had formed the view that Irene did not have the mental capacity to be able to understand documents that she might be asked to sign, or to enter into legal transactions.
2. He was of the opinion, based upon his observations and professional experience, that it was reasonably likely that in March and April 2017, Irene would have known what a will was and would have been able to appreciate the components of her estate and the nature of the assets comprised in her estate. He thought it was also possible that she could have had a reasonable understanding of the value of the estate. He accepted that Irene had told him that she had worked very hard and built up a lot of assets including the farm ("Southdowns"): Tcpt, 10 February 2021, p 480(05-10). However, he stated that it would be highly unlikely that she would have been able to identify, evaluate, or discriminate, between the strengths of the claims of persons expected to benefit from her estate. He found her to be significantly susceptible to her cognitive function being influenced by information provided to her, and her short term memory was badly affected.
3. In cross-examination, Dr Barnett confirmed that he did ask Irene questions about those who might benefit from her estate to which she mentioned Steve and Cathie, who would care for her and Ken, even after the guardianship documents had changed. She also stated they had relatives but that they did not want anything to do with them. He had based his opinion upon the fact that "her focusing on people was pretty transient and she would take instant dislikes to people and then be all over them the next minute": Tcpt, 10 February 2021, p 480(50) - 481(03). He opined that it was highly unlikely that Irene would have had the requisite testamentary capacity (as established in Banks v Goodfellow) to make a valid Will in March or April 2017.
4. Karen and Jeffrey conceded that there was no dispute that Ken and Irene had dementia at the relevant times, but challenged the degree (or severity) of the dementia from which each suffered: Tcpt, 18 March 2021, p 882(15-21).
5. The Plaintiffs submitted that Dr Barnett's opinion of Ken's and of Irene's testamentary capacity, provided in March 2017, was 'retrospective' and of "limited assistance to the Court in an assessment of testamentary capacity". They also submitted that Dr Barnett had made general observations about forgetfulness and disorientation as to time and place but had failed to comment on executive function and Ken's and Irene's ability to make decisions about certain topics, which was essential to satisfy the third element of Banks v Goodfellow: Tcpt, 18 March 2021, p 863(40)-864(04).
6. The Defendants submitted that the medical evidence established significant doubt as to Ken's and Irene's testamentary capacity such that only highly cogent evidence, which had not been provided by Karen and Jeffrey, would be enough to remove it.

Conclusions as to Dr Barnett's evidence

1. It is to be noted from the above, that this is a case in which Dr Barnett, the only medical expert who was cross-examined upon his affidavit which was read, actually examined each of Ken and Irene, and assessed his and her, mental state, respectively, at about the time each of the 2017 Wills was prepared and signed. Whilst it is true that he expressed his opinion as to testamentary capacity after the death of each of them (because he did not specifically assess that capacity during his, and her, lifetime, respectively), he based his opinions on the assessments of each made during Ken's, and Irene's, lifetime, respectively.
2. Importantly, Dr Barnett assessed Ken in mid-2016 and then in February and March 2017. He reached his conclusions as to testamentary capacity, based upon his observations made on those occasions.
3. In relation to Irene, Dr Barnett assessed her in February and March 2017, and whilst on several occasions, he was unable to conclude his assessment, that is a relevant matter that was taken into account by him. He reached his conclusions as to testamentary capacity, based upon his observations made on those occasions.
4. I found Dr Barnett to be a very good witness, who expressed himself calmly and with clarity and moderation. I found his evidence to be reliable and the picture portrayed of each of Ken and Irene to be well set out in the contemporaneous documentary evidence. His evidence provides the necessary diagnosis of the mental state of each of Ken and of Irene at around the time of the making of Ken's 2017 Will and Irene's 2017 Will. There is no reason to doubt his diagnosis in respect of Ken and Irene.
5. However, as I have stated, this evidence is only part of the evidence that the Court must consider. Dr Barnett's evidence cannot, and should not, be considered as if there were no other evidence. As it happens, other medical evidence to which I have referred, and other lay evidence, to which I shall refer, gives additional support for his conclusions.

Lay Witness Evidence

1. I next set out the evidence of the other witnesses and my impression of those witnesses below. Unsurprisingly, on occasions, witnesses perceived the same events differently. In reaching my conclusions I have borne in mind the following principles.
2. McLelland CJ in Eq cited Plunkett v Bull [1915] HCA 14; 19 CLR 544 in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
3. Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
4. As was observed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, at 318 - 319: "Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances … Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
5. In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.
6. I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)."
7. The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 3 WLR 640; [1985] 1 Lloyd's Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).
8. A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J).
9. The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15]-[16]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time."
10. I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis and Calogeropolous v Vergottis [1968] 2 Lloyd's Rep 403, at 431: "Credibility involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
11. I should mention an article by the former Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval."
12. A number of the witnesses, whose affidavits were read, were not cross-examined.
13. In Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293, although a case involving experts, none of whom were cross-examined, the Court of Appeal (per Beazley JA, Basten and Macfarlan JJA agreeing) discussed the legal principles relating to unchallenged evidence, relevantly, at [130] - [131]: "A trial judge is not required to accept evidence merely because it is unchallenged. However, the fact that evidence is unchallenged may provide a cogent reason for its acceptance: see Bulstrode v Trimble [1970] VR 840; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 19. In Hull v Thompson [2001] NSWCA 359 Rolfe AJA (Sheller JA and Davies AJA agreeing) noted, at [21], that "[p]rima facie if there is no cross-examination of an expert … there is no basis for a Judge not to accept the unchallenged evidence". However, it depends on the evidence in question. As Rolfe AJA stated, at [21]: '… there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence.'"
14. Whether or not a witness is cross-examined, it remains the function of the trial judge to assess the evidence, using whatever tools are available in the circumstances, including considering how the evidence sits with the other evidence in the case. If, after careful examination, the Court forms the view that any part of the evidence is not cogent, then it may be disregarded: Masters Home Improvement Pty Ltd (formerly Shellbelt Pty Ltd) v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88 at [420].
15. The fact that evidence is contradicted by other evidence may provide a proper basis for rejecting it even where it has not been challenged in cross-examination: Bulstrode v Trimble [1970] VR 840 at 848 (Newton J).
16. Keeping all of the above principles in mind, the Court will take, as a platform for fact finding, the reliable contemporaneous documentary evidence; will add known, established or agreed facts, probable facts (both inherently probable and by inferences properly drawn from known, established or agreed facts), and then the witness evidence which is not tainted, or flawed, by indicators of unreliability.
17. I shall deal first with the evidence of the witnesses who were not cross-examined.
18. Ms Karaki affirmed an affidavit on 24 May 2019 in which she gave evidence of having served, on 26 April 2019, Paul McMullen, Paula McMullen, the Royal Flying Doctor Service and the Children's Medical Research Institute, each of whom, is a substitute beneficiary named in Ken's 2014 Will and Irene's 2014 Will, with a notice of proceedings (formerly referred to as a "citation to see proceedings") pursuant to the Supreme Court Rules 1970 (NSW) Pt 78 r 57. None of the persons, or entities, on whom, or on which, the notice was served, has entered an appearance in each of Ken's proceedings or Irene's proceedings.
19. Ms Karaki also gave evidence of having served, on 26 April 2019, each of Mr McMullen, Ms McMullen, Rodney Keyte, Keith Owens and the Defendants, each of whom is a substitute beneficiary named in Ken's 2015 Will and Irene's 2015 Will with a notice of the proceedings. Only the Defendants have sought to participate in Ken's proceedings and in Irene's proceedings.
20. Ms Dingle gave evidence of having served, persons who are adversely affected under previous testamentary documents, made by Ken, and by Irene, between 14 August 1992 and 21 May 2015 to which reference will be made. She also gave evidence of having served 14 different substitute beneficiaries with a notice of proceedings. None of the persons, or entities, on whom, or on which, the notice was served entered an appearance in each of Ken's proceedings or Irene's proceedings. She stated that "[A]ll persons adversely affected by the Defendants/Cross-Claimants' application are on notice of the proceedings", three of whom (Daphne Morton, Glen Shepherd and Robert Jeffcoat) orally acknowledged receipt of the notice of proceedings but did not return a signed copy thereof as was sought by Ms Dingle.
21. There is also evidence of personal service, on 30 October 2019, of a notice of proceedings on Ms Morton, given by Andrew Jones, a licensed process server; upon Robert Jeffcoat on 1 August 2019, given by John Kowalenko, a licensed process server; and upon Glen Shepherd on 11 November 2019, given by Andrew Khee Tuan Ng Saad, a licensed process server. None of the process servers was cross-examined.
22. The evidence of each of the witnesses as to service is accepted.
23. A summary of the evidence given by Ms Cabot was: 1. Irene was "a shrewd businesswoman". 2. Irene and Ken would visit the Goulburn units "every few weeks" to "ensure that everything was in good working order". Whilst "Irene did most of the talking and gave directions" regarding the units, Ken "was always there and used to tap her on the arm and contribute to discussions regularly". 3. On or about 27 February 2016, she met with Ken, Irene, Ms Dawson, Steve and Cathie at the Goulburn flats. Steve told Irene "This unit needs renovating. I'll do it for you", to which Irene replied that he should "organise it with Joan and Sandy". Steve insisted that he would do it and that he was "taking over the accounts", to which Irene replied "I still want you to organise it with Joan and Sandy, they take care of the accounts". Again, Steve insisted "I'll do it, but I am doing it my way" and Irene stated "Okay". 4. Following the meeting that occurred on 27 February 2016, Ms Cabot received a number of telephone calls from Irene, in which Irene expressed concern about wanting to maintain control over the units. 5. According to Ms Cabot, Irene would often say words to the effect of "I have full control of the flats"; "nobody else is to be involved", and "I want to make all of the decisions in respect of the flats". 6. After Steve finished renovating unit 3, Irene stated that she felt Steve had "done the wrong thing" and "charged an awful lot for those renovations". Irene reiterated that "nobody else is to have anything to do with the flats". 7. Ms Cabot stated that Steve charged approximately $13,910 for the renovations to flat 3, and that she had obtained quotes for similar work, from other tradesmen, of approximately $6,500. A copy of the quotes obtained were not in evidence. 8. In about April or May 2017, Ms Cabot received a telephone call from Steve informing her that Irene and Ken had dementia and were in a nursing home. Steve stated that Ms Cabot would "need to deal with [him] from now on" and that she should send him all of the accounts for the units. She told Steve that she needed to speak to Irene and that she would not release any documents, as Irene had left instructions only to deal with her. 9. In about late May 2017, Ms Cabot contacted Irene, who stated that "[a]ll we want to do is go back to 'Southdowns'". She reiterated that "nobody else is to be involved with those flats" and she instructed Ms Cabot not to tell Steve and Cathie anything. 10. Ms Cabot only spoke with Irene on the telephone on one, or two, subsequent occasions. According to Ms Cabot's affidavit, each time she did so, Irene asked about the flats and stated words to the effect of "[t]hey are my flats. Nobody else is to be involved". 11. Ms Cabot stated that she did not notice any change in Irene's demeanour over the time that she knew her.
24. In broad terms, I accept some of the evidence given by Ms Cabot. However, it is highly unlikely, that any of the events occurred in February or March 2017, the critical period for the determination of the issues in this case. In addition, the failure to observe any change in Irene's demeanour suggests that Ms Cabot's evidence related, principally, to events, with Ken and Irene, which occurred before February 2017.
25. A summary of the evidence given by Ms Dawson was: 1. That, in about 2015, she received a telephone call from Steve who told her "I've got Power of Attorney now and I would like all the documents to do with the flats". She responded that she had not been authorised to send anything to him, that she "speak[s] to [Irene] regularly and she hasn't said anything to me about it" and that "if you want to talk about it, come down to the office and bring Ken and Irene and we can discuss it face to face". 2. Ms Dawson stated that shortly after the telephone call with Steve, she had a telephone conversation with Irene and Ken and that she told Irene she was "concerned and worried about [her]", following her telephone conversation with Steve, to which Irene stated "I knew you would be". She told Irene that Steve wanted her to send him all the documents concerning the flats, to which Irene replied "I'm the one who is in the control of the flats and I always will be. Don't give him anything." 3. Ms Dawson stated that she had also spoken to Ken during the same telephone call and expressed her concern that Ken "was being told what to say and do", to which Ken replied "I know. I believe [Stephen] has upset a lot of people down here recently". 4. On about 27 February 2016, Ms Dawson met Ken, Irene, Steve, Cathie and Ms Cabot, at Ken and Irene's flats in Goulburn. Whilst there, Steve told Irene "This unit needs some work Irene. I will sort it out for you". Irene asked Steve to "speak to Joan and Sandy and they can organise it", to which Steve replied that he would do it and he would be "taking control of the accounts" to which Irene re-iterated that she wanted Ms Cabot and Ms Dawson to organise the work. Steve stated "[n]o, Irene. I'm doing it my way now".
26. In broad terms, I accept the thrust of the evidence given by Ms Dawson. However, it is highly unlikely, that any of the events occurred in February, or March, 2017, the critical period for the determination of the issues in this case.
27. A summary of the evidence of Sylvia Curcuruto, who could not be cross-examined, was as follows: 1. That she and her husband, Joseph (Joe), had regular contact with Ken and Irene from about 1978. They would regularly visit Ken and Irene's home, have Ken and Irene over to their home, and all would go out together. 2. In 2014, when Irene became "a bit less mobile", Cathie began to do the shopping for Ken and Irene. 3. From mid-2016, once Ken had his driving licence revoked, Steve and Cathie would accompany Ken to his medical appointments and Irene would spend the time while Ken was away from home with her. 4. Approximately one or two years into her relationship with Ken and Irene, Irene mentioned her brother, Brian; that "Brian" lived overseas, and that she had not seen him for "yonks". She also said: "I've got no time for [Brian]. I don't want a bar of him" and "He's got his own life - he's gay". 5. Irene rarely mentioned "Brian" after that conversation and there were no photographs of "Brian" in Ken's and Irene's home. 6. She had noticed "a real change in Ken's memory" and that he had become "very forgetful" after he had fallen off a ladder at his home in January 2016. Thereafter, she noticed that, at least twice in every conversation she had with Ken, he would make statements to the effect of "What are we talking about?" He would also change topics "mid-flow" and talk about something "completely different", at least once in every conversation. 7. From 2016 onwards, both Ken and Irene became "repetitive in their conversations and statements". Both did not talk about "things they'd been doing recently" and, instead, spoke largely about the furniture business they had in the 1960s and their lives when they had first bought "Southdowns". 8. In the first half of 2016, Irene told Sylvia "[Ken's] really losing it. He can't remember anything. I don't think he should be driving now, as he could have an accident or hurt someone. He's not good. Not good at all". 9. From Easter 2016, Irene's discussion with Sylvia, almost always, concerned Ken, and her worry about his memory. 10. In February 2017, Irene had a fall and was admitted to hospital. According to Sylvia's evidence, during her first visit to see Irene in hospital, she asked Irene if "Brian" knew that Irene was in hospital, to which Irene replied "[i]t's none of his business. He doesn't need to know". Irene also said that she did not need to be in hospital and wanted to go home. 11. At the end of February 2017, Ken and Irene were placed in Harbison Care. Sylvia visited them, for the first time, a couple of days after they had been moved there. During this visit, Irene told Sylvia she was glad to be reunited with Ken and "this place will do". 12. During her next visit, around 22 March 2017, Irene stated that she was "very cranky" with Steve because he had been "taking [her and Ken's] money". Ken stated that Steve "wouldn't do that". 13. A similar conversation occurred during her next visit to Ken and Irene at the beginning of April 2017. This time, Irene stated that "Brian" had visited and "made us sign papers because [Steve's] been taking our money". 14. When she next visited Ken and Irene, in mid-April, Irene said that she was sorry about "what I did to" Steve and that "Brian" had visited and "he made me sign papers because he said [Steve] was stealing from us. He said that was how we had to fix it". Irene also stated "I don't know what we've done. I don't even remember signing anything. I just remember there were all these documents laid out on the bed. I don't know what to do. I don't want anyone to help us but Steve and Cathie". 15. Sylvia next visited Ken and Irene at the beginning of May 2017. During this visit, Irene asked Sylvia to put a "No Visitors" sign on the door and stated that she had told staff not to let "any of those strangers in". Irene also said: "They've been and visited and we don't know them and we don't want them here." When Sylvia asked to whom Irene was referring, Irene replied "Brian and Jeffrey, and Graeme Shepherd and all that lot. They're not family. We wouldn't know them from Adam!" 16. During her next visits to Ken and Irene, throughout May and June 2017, Irene was fixated "about the mess that we've made" and said words to the effect of "Thank goodness Cathie and Stephen are sorting it out for us". Irene also said words to the effect of "I don't know what we've done", "We need to change this" and "You've got to stop those others from visiting". 17. During her visits, Ken said very little apart from repeating some of Irene's comments such as: "We need to change this. We need to do something about this". 18. Sylvia stated that Irene's complaints about visits from family lessened from around June 2017.
28. Sylvia's evidence appears to be consistent with other evidence in the case. It is also important to note that she gave evidence spanning a reasonable length of time, including February and March 2017. Although she had a close connection with Steve and Cathie, and even though she could not be cross-examined, I accept her evidence.
29. I turn next to the evidence of the principal witnesses.
30. Of the two Plaintiffs, Karen gave evidence first, over different days. Due to her advanced age, and the lapse of time since the events she was asked to recall, there were some imperfections in her recollection of events. However, I do not attribute these imperfections of memory to an attempt to be untruthful. During cross-examination, I found that she did endeavour to assist the Court and did her best to answer the questions asked of her.
31. I remember, also, that not long before the events that occurred, she was extremely unwell, and during the period of the events, in March and April 2017, she remained unwell, although recuperating. This may explain some lapses of memory.
32. Karen was able to recollect many of the events, although it is abundantly clear that she left much of what had occurred to Jeffrey. According to her evidence, it was Jeffrey, initially, who received and read the emails sent to them; that he responded to those emails, when required; and that, often, although not always, he conducted the telephone conversations with third parties. This is not to say that Jeffrey did not discuss things with Karen, but according to her evidence, she seemed to be far less involved than he was with such matters.
33. As Karen stated in cross-examination, "me being, partially deaf, Jeffrey answers emails and, and [sic] answers the phone and takes phone calls on my behalf": Tcpt, 11 February 2021, p 572(32-33) and that "very rarely I would talk to any persons on account of my hearing problem": Tcpt, 11 February 2021 p 572(41).
34. However, later in the cross-examination, on 16 February 2021, Karen stated that actually "No, it wasn't very rare. I spoke to people on the phone after Jeffrey said it's a friend calling, or my cousin calling, or something, and then I'd accept the phone and talk to the person": Tcpt, 16 February 2021, p 601(37-39).
35. On 24 November 2016, shortly before leaving for Thailand, Karen and Jeffrey went to visit Ken and Irene at "Southdowns". Irene appeared ill and was in bed. Karen agreed to come back the next week to cut Irene's hair.
36. In cross-examination, Karen stated that on this occasion, Ken "seemed quite capable of everything": Tcpt, 11 February 2021 p 550(15). However, in an email dated 10 March 2017, to Cathie (Ex J3/501), Karen confirmed that Jeffrey had written "the Saturday we were all together, it was quite noticeable that Ken was not his usual self but Irene, as usual, was in complete control": Tcpt, 11 February 2021 p 548(45-46).
37. The following Saturday, Karen and Jeffrey visited "Southdowns" again. Steve arrived at the house, following which Cathie arrived with her daughter. This was the first time Karen and Jeffrey met Steve and Cathie.
38. Karen made plans for Jeffrey and her to return to "Southdowns" in December and then in February, upon their return from Thailand. Later that day, Irene called Karen to cancel the December visit.
39. On 8 February 2017, Karen was admitted to hospital in Thailand with shingles, and fell into a coma for 3 days. She was also treated for a minor stroke: Tcpt, 16 February 2021, p 602(41-45), p 603(05-10). This led to her and Jeffrey remaining in Thailand for about one month. They returned to Australia on 11 March 2017.
40. Although Karen seemed confused about when Jeffrey first showed her the email from Cathie informing them that Irene had fractured her femur, I tend to think that it was when "she came out of the hospital and went into intensive care": Tcpt, 11 February 2021, p 540(42) and p 541(04-05). Karen then said that she saw the email three of four days after coming out of the coma: Tcpt, 11 February 2021, p 541(28). Nothing turns on this difference in dates because it is clear that Jeffrey had read the email upon its receipt and had then responded to it.
41. Karen stated, in an affidavit sworn 3 June 2019, that when she called Irene in mid-March 2017, Irene was asking to speak to her. Karen said that she spoke to Irene on the telephone 3 times whilst she was in Thailand. Bearing in mind other evidence, this seems somewhat unlikely.
42. Karen repeatedly asserted in cross-examination, that the email from Cathie stated that Irene and Ken did not want to see her and Jeffrey anymore: Tcpt, 11 February 2021, p 562(05-24). The email, which has been quoted above, did not even intimate such a thing. It stated only that Irene did not want Karen and Jeffrey to know that she had fractured her leg and that Irene was in Harbison Care: Ex J3/384.
43. Karen's stated perception of the contents of the email, perhaps, demonstrates her subsequent antipathy to Steve and Cathie. Certainly, the email in response to Cathie's email, written and sent by Jeffrey, gave no impression of Jeffrey (or Karen) being upset by Cathie's email dated 2 March 2017. To the contrary, in the email, Karen and Jeffrey had expressed gratitude to Steve and Cathie for assisting Ken and Irene and had commented that they understood that "it's difficult the way Irene seems to think that she would not want to rely on anybody": Ex J3/386. It went on to say that, upon their return to Australia, they would meet with Steve and Cathie to talk about what would be the best course of action for Ken and Irene.
44. It is unclear whether Karen told Ms Blackadder, and others, at a meeting that took place on 20 March 2017 that Irene and Ken did not want to see her anymore. In cross-examination the following exchange took place: Tcpt, 11 February 2021, p 561(42-50). "Q: …At the meeting at the café, did you say words to this effect, 'We were very worried about Irene and Kenny when we received a letter from their neighbours, the Curcurutos, at the end of last year. It said that Irene and Kenny wanted nothing more to do with us'. Did you say that at the café meeting? A: I, I might have recalled the, the email, when I was - Jeffrey was sent the email, because I have nothing to do with computers, so it would have been said-"
45. Then a few minutes later, Karen said that she never told anyone at the café meeting that Irene and Ken did not want to see her anymore: Tcpt, 11 February 2021, p 563(01).
46. If Karen did say that Steve and Cathie had stated that Ken and Irene did not want to see Karen and Jeffrey, it was not an accurate statement of what had been communicated to them. I do not accept that Steve and Cathie had made any such representation.
47. Upon their return from Thailand, Karen's and Jeffrey's immediate focus was on Karen's health. She did not want to visit Irene and Ken until she had fully recovered. However, a day or so after their return, Karen and Jeffrey received a telephone call from Mrs King, in which she informed Karen that Ken and Irene no longer trusted Steve and Cathie anymore. She also told them that she had found Ken and Irene a new solicitor who might be able to help. Mrs King also told Karen that the solicitor would be coming to see Ken and Irene on 20 March 2017 and that Karen and Jeffrey should also attend.
48. Shortly afterwards, Karen called Irene, who, apparently, told her that Steve and Cathie had trapped them in Harbison Care and that she had been asking to speak to Karen. In contrast, in cross-examination, Karen stated that when attending the meeting of 20 March 2017, she still had no knowledge of any complaints made against Steve and Cathie: Tcpt, 11 February 2021, p 560(40-45). (She later said in cross-examination that she did not recall when she found out about any such complaints: Tcpt, 11 February 2021, p 561(15-21)).
49. I am satisfied that Mrs King would have had no hesitation in telling Karen about her "suspicions" concerning Steve and Cathie. I do not accept that Karen had no knowledge of the complaints said to have been made. I tend to the view that the change in attitude, by Karen and Jeffrey, towards Steve and Cathie, was brought by what they were told, principally, by Mrs King, to whose evidence I shall later refer. Otherwise, there is no explanation for Karen's change of attitude towards Steve and Cathie.
50. On 19 March 2017, Karen and Jeffrey travelled to Bowral and stayed in a motel overnight before attending the meeting the next day. On 20 March 2017, they and Mr and Mrs King met with Ms Blackadder and Ms Kamal at a café in Bowral. In cross-examination Karen said that at this meeting they did not discuss the complaints said to be made by Ken and Irene against Steve and Cathie: Tcpt, 11 February 2021 p 558(16-26). I do not accept Karen's evidence in this respect. The group then went to Harbison Care to meet with Ken and Irene.
51. In an affidavit sworn 6 December 2018, Karen stated that Ken and Irene invited her and Jeffrey to move into "Southdowns" and told Mrs King to give them a copy of the keys. She also said that she had been unable to hear any conversation between Ms Blackadder and Ken and Irene, as Ms Blackadder had asked Karen, Jeffrey and Mr and Mrs King to go to the other side of the room, whilst she conversed with Ken and Irene.
52. As stated earlier, it was on this occasion that a new Enduring Power of Attorney and Appointment of an Enduring Guardian had been signed by each of Ken and Irene and accepted by Karen, Jeffrey, Mr King and Mrs King. However, on this important aspect, Karen had no recollection of signing the Power of Attorney and the guardianship documents: Tcpt, 11 February 2021, p 566(36).
53. Following the meeting, Karen, Jeffrey, and Mr and Mrs King, all drove to "Southdowns". As will be referred to in more depth later, Karen said that they did not find that the carpet had been flooded, as Steve had told Jeffrey.
54. Karen became concerned about potential misuse of the Shepherd's money by Steve and Cathie after they found a receipt on the bench from the Co-op in Bowral for six large gas bottles. The order had been charged to, and paid for, by Ken and Irene but the delivery address was to Steve's brother, John Curcuruto. The following day when Jeffrey and Karen returned to "Southdowns" after visiting Ken and Irene, the receipt was missing.
55. Karen and Jeffrey obtained copies of the Shepherd's bank statements from St George Bank, but they were not able to identify what monies had been spent.
56. It is clear from the evidence, that the trust, if any, that Karen and Jeffrey had placed in Steve and Cathie, prior to visiting Thailand, had evaporated. Concerns about them having taken financial, or other, advantage, of Ken and Irene became real.
57. In my view those concerns were created by Mrs King. That this was so was very clearly raised in the affidavits by each of Karen and Jeffrey that were served. However, it appears that the lack of trust, the so called "suspicions", and the concerns, were completely unjustified. Despite the passage of time since the death of each of Ken and Irene, there is not one skerrick of evidence advanced to suggest that either Steve, or Cathie, had taken advantage of Ken or Irene, or that the trust shown by Ken and Irene in them, or the concerns that Mrs King expressed, were valid.
58. Furthermore, it was hardly likely that Steve and Cathie would draw attention to their involvement in the lives of Ken and Irene as they did, and that Cathie would inform Karen and Jeffrey of events involving Ken and Irene, against the wishes of Irene, as she did in sending the email of 1 March 2017, if such advantage was being taken.
59. On 23 March 2017, Ms Blackadder sent an email to Karen and Jeffrey stating "good to speak to you a moment ago": Ex J3/601. However, Karen stated in cross-examination that it is unlikely she had spoken to Ms Blackadder: Tcpt, 11 February 2021, p 572(33-34); Tcpt, 11 February 2021 p 572(41).
60. Karen also stated she did not see the email sent by Ms Blackadder on 23 March 2017 and did not tell Ms Blackadder that she wanted further medical reports on Ken's or Irene's condition as "… most of the emails and telephone calls are taken usually by Jeffrey and he may have read it out to me, but I don't recall that": Tcpt, 11 February 2021, p 573(45)-574(01).
61. Between 20 March 2017 and 27 March 2017, Karen received a telephone call from Mrs King in which she said "I've just spoken to Ken and Irene, and they have asked Damian and I to be there when Priscilla next comes down and when they execute the Wills." She also stated she did not want anything to do with the Wills and asked Karen to be there instead: Affidavit, Brian (aka Karen) Foster-Chant, 6 December 2018 at par 44.
62. On 27 March 2017, Ms Blackadder and Ms Kamal returned to Harbison Care to take further instructions about the Wills. Jeffrey and Karen were present at this meeting, although they returned to the opposite side of the room and chatted amongst themselves, whilst Ms Blackadder and Ms Kamal spoke to Ken and Irene.
63. As will be read, Ms Blackadder had already prepared a draft Will for each of Ken and Irene, which she left with them even though Irene said that they had a couple of things to think about. Ms Blackadder said that she could return next week if they were then happy to sign the Wills.
64. On 31 March 2017, Karen and Jeffrey visited Ken and Irene. Karen gave evidence that on this occasion, Ken and Irene expressed concerns about Ms Blackadder and Ms Kamal. Karen said that she witnessed Irene saying to Jeffrey that "Steve and Cathie have been to see us. They said those female lawyers are up to no good and we shouldn't trust them". In cross-examination, Karen said that she had no recollection of Ken or Irene expressing concerns about Ms Blackadder and Ms Kamal: Tcpt, 16 February 2021, p 602(18-24), p 603(11-15). I have earlier referred to a note from Ms Kamal on this topic.
65. Even if the statements were made by Irene, I do not accept that Steve or Cathie had visited for that purpose, or that either of them had said any such thing to Ken or to Irene about Ms Blackadder.
66. In her affidavit, Karen stated that she had heard Ken and Irene tell Jeffrey that they would like to execute the Wills in their current form. She asserted the following conversation had taken place: "IS: 'We want to make sure you two get everything and that the vultures don't get their hands on our property. Can we just sign the Wills without the lawyers being here?' JL: 'I don't know, I will call Evanna and find out. Kenny, what about you, do you want to sign the Will too? Are you happy with it?' KS: 'Yes, I am, please call the lawyers and see if we can do it without the lawyers being here. All of our visitors get reported back and I don't want Steve in here again angry'": Affidavit, Brian Foster Chant (aka Karen), 6 December 2018 at par 48.
67. In cross-examination, Karen stated that Ken and Irene had called Jeffrey to tell them they were ready to sign the wills. Karen did not speak to Irene and Ken about this, but Jeffrey informed her of the conversation: Tcpt, 11 February 2021, p 583(19-44). Yet, later in cross-examination, Karen also said that Ken never told her that he was ready to sign the Will (Tcpt, 16 February 2021, p 604(03-05)): "Q. After that time, after that day, Ken never said to you that he was ready to sign the will that had been given to him by Ms Blackadder, did he? A. No, he didn't. He had no right mind, sir"
68. What was meant by the last sentence was not explored further.
69. Jeffrey then told Karen that he had called Ms Kamal to get answers to Irene's question. He also said that he had told Ken and Irene that he had spoken to Ms Kamal; that she had said that the Wills could be signed without them being there, and that she would send an instruction sheet to be followed; and that he had telephoned Ms Kamal and had told her to tell Ms Blackadder not to return.
70. On 1 April 2017, Karen and Jeffrey dropped in to see their friend, Mr Gordon, on their way to Harbison Care. His niece, Ms Baird, was there. Mr Gordon asked if he could come along to Harbison Care and to visit a nursery in the Southern Highlands afterwards. The four then travelled to the Southern Highlands together and visited Ken and Irene.
71. Karen said that she observed Irene as "very bright and talkative" on that day and that Ken had said words to the effect: "I want to sign this Will now. We've talked about it all week and we don't want to make any changes. 'Southdowns' and the Goulburn Flats are the main ones, and all of the other things can go to you too. … No, no, we were just the caretakers of 'Southdowns', It's yours and Jeffrey's. We don't want anyone else to have it. It should stay in the family".
72. Karen said she then asked about the Shepherd side of the family to which Ken and Irene responded: "IS: 'They're not getting anything.' KS: 'It was nice to speak to John recently, but they did the wrong thing by us, you know the story. We've barely spoken to them since. No, it all needs to go to you and Jeffrey, you're our family. Where do I sign?'".
73. Jeffrey also said that he needed to find witnesses and asked Ken if he had read through, and understood, the Will. Ken said "Yes, of course I've read it and understand it. This isn't our first Will. We've had it for a week and talked it over". Jeffrey then left the room to look for two witnesses. Ken then began to sign the Will. Mr Gordon and Ms Baird were standing there talking amongst themselves. After Ken had signed the Will, he turned to Irene and had a conversation to the following effect: "KS: 'Well are you going to sign yours?' IS: 'Are you sure that you're happy with it all. Everything will go to Brian and Jeffrey?' KS: 'Well I signed it didn't I?' IS: 'Yes, I suppose you did. Okay, I'll sign mine then.'"
74. Irene then signed her Will. Karen said that they needed witnesses. Irene then asked Mr Gordon and Ms Baird to witness the documents. They agreed and they signed each Will also.
75. Karen stated in cross-examination, that she never saw Ken, or Irene, read the Wills. Nor did she hear anyone read it to them: Tcpt, 16 February 2021, p 605(01-06).
76. Karen stated that in April 2017, she and Jeffrey focused on getting Ken and Irene back to "Southdowns". Both were present when Dr McIntyre assessed Ken and Irene at Harbison Care. During the assessment, Jeffrey asked what they could do to enable Ken and Irene to be taken home. Dr McIntyre is said to have taken Jeffrey out the room and when he returned, he told Karen about the conversation.
77. In an affidavit affirmed 6 December 2018, Karen noted that Jeffrey told her "that we need to renovate the house to hospital standards, with a hospital bed and all sorts, and that she won't approve a release until she's inspected the house and signed off on it. She sounded just like [Steve], she said that they aren't going home and they are staying right where they are".
78. It is extremely difficult to accept Karen's evidence about the steps taken regarding moving Ken and Irene back to "Southdowns", and for her and Jeffrey to move there to look after them. Any rational consideration of Irene's physical state (the medical evidence being that she could not stand or walk), that Karen herself, was not physically well, and the characteristics that Irene and Ken had displayed regarding people coming to, let alone, living at, "Southdowns", could only have led to the realisation that Ken and Irene could not return to live there.
79. It is not possible to come to any other view than Karen and Jeffrey, in encouraging a belief that they would assist Ken and Irene to return there, fed Ken's and Irene's unrealistic hope of returning to "Southdowns" and fuelled the belief that others, including Steve and Cathie, were keeping them in Harbison Care, not because of his, and her, medical conditions, but so that Steve and Cathie could obtain some financial, or other, advantage.
80. It is clear that some events occurred, later in April 2017, which soured the relationship of Karen and Jeffrey with Ken and Irene. Karen said that they stopped visiting, as each time they visited, Irene would ask strange questions about them throwing parties at "Southdowns" and that Irene became very controlling about who was permitted to come into her room.
81. Karen also said that she stopped visiting as she was getting increasingly stressed by Irene and was concerned about her own health. (This, too, confirms the unrealistic suggestion that all would be able to live together at "Southdowns".)
82. Karen was not present at the NCAT hearing in May 2017 but heard what was occurring. She had asked Graham Shepherd to speak on her behalf. Karen also gave evidence that Graham Shepherd had approached Karen and Jeffrey with a brochure for a nursing home in Murwillumbah. By this time, Karen had realised that it would not be possible for Ken and Irene to return to "Southdowns" and she considered that the Murwillumbah nursing home would be a better alternative than Harbison Care.
83. Karen's involvement with Graham Shepherd and her acceptance of the suggestion that Ken and Irene should move north to Murwillumbah seems extremely surprising bearing in mind her evidence about the conversation with Irene about the Shepherd family about which Karen had given evidence.
84. In July 2017, Karen and Jeffrey returned to Thailand.
85. I next turn to Jeffrey's evidence. Overall, I came to the view that I must treat Jeffrey's evidence with some caution. I consider that he had come to appreciate the importance of the role that he had played in the events that had occurred and he seemed somewhat defensive about that role and tried to lessen his involvement, attributing some of what had occurred to Karen.
86. Despite having stressed, initially, that Karen had been unwell, and that he had received and sent most of the emails for them; that he had read and showed her all emails if that were necessary (Tcpt, 16 February 2021, p 638(15-41)), I formed the impression during his evidence in cross-examination, that he wanted to attribute a much more significant role in the events to Karen. That Karen did not play such a role, particularly in relation to the 2017 Wills, was reasonably clear from some of the contemporaneous emails and diary notes that were in evidence.
87. Jeffrey observed that Karen and Irene had a close relationship; that Irene had vacationed with Karen and him; that they had all lived together on occasions; at times, Irene had bought Karen dresses and that she had "never criticised Karen or I [sic] for our lifestyle". It is not entirely clear when the events spoken about had taken place.
88. It is hard to accept Jeffrey's evidence when: 1. In each of the Wills in which Karen was a beneficiary, neither Irene nor Ken had referred to her as Karen. In each of the historic Wills, Karen was referred to as "Brian". One might have thought that if they were as close as was suggested, both Ken and Irene would have referred to her as Karen, or at least included that name as one by which she was also known. 2. Karen and Jeffrey spent a substantial amount of time over the years before 2017, living in Thailand, and travelling outside Australia. Evidence of Karen's entries and departures from Australia found in Ex D10 indicate Karen spent the following amount of time in Australia: 1. 2007 (from 3 May 2007) - 47 days 2. 2008 - 15 days 3. 2009 - 0 days 4. 2010 - 20 days 5. 2011 - 29 days 6. 2012 - 125 days 7. 2013 - 294 days 8. 2014 - 291 days 9. 2015 - 279 days 10. 2016 - 294 days 11. 2017 (to 6 August 2017) - 134 days 1. There is evidence, from a number of other witnesses, of Irene speaking in a disparaging, or derogatory, manner, about Karen. For example, Denise McKibbon stated that on a visit to Irene and Ken at Harbison Care in mid-March 2017, Irene said to her "I don't want to talk about Brian. He is 'fancy'. He is fancy, just like that nurse [pointing to a male nurse]. How can he [referring to Brian] be 'Karen'. That's ridiculous": Affidavit, Denise Maree McKibbon, 7 March 2019 at par 22. Ms McKibbon also stated that during her visits in April 2017, Irene had referred to Karen as "my brother. The idiot who wants to be blonde and called Karen" and "so stupid and I hate him…I wouldn't know him if I fell over him. I've not seen him for years." Steve recalled a conversation with Irene where she said "[Karen and I] are not close. He does his own thing. He has a very different way of life. They have their way of life and we do not want them at 'Southdowns'. It makes Ken uncomfortable". Steve also recalled Irene apologising for Karen's appearance after a meeting in November 2016 and referring to Jeffrey as "[Karen's] friend" rather than partner: Affidavit, Stephen Curcuruto, 27 February 2016 at par 66.
89. Jeffrey confirmed that, in late November 2016, Karen and he had first met Steve and Cathie on a visit to "Southdowns". Steve informed Jeffrey that he and Cathie helped Ken and Irene with groceries, with paying bills, and around the farm. They exchanged email addresses.
90. It is unnecessary to repeat Jeffrey's evidence about his and Karen's stay in Thailand and the medical events that had occurred whilst they were there. He corroborated Karen's evidence about those events, which I accept.
91. On 1 March 2017, Jeffrey received the email from Cathie informing him that Irene had fallen and broken her femur. The contents of the email can be found at Ex J3/384 and include the statement that Irene had not wanted Karen and Jeffrey to be informed of those events.
92. In cross-examination, Jeffrey stated that he did not show Karen this email but did tell her about it and the contents: Tcpt, 16 February 2021, p 655(13-40). (This is inconsistent with Karen's evidence on this topic.)
93. In an affidavit sworn 3 June 2019, Jeffrey stated that after Irene's accident, he had attempted to call Ken and Irene, but the call would not connect due to a problem with the Thai sim card in his mobile telephone. Unless the sim card had been changed, or the problem had just arisen (about which there was no evidence), it confirms my doubt about the correctness of Karen's evidence of her regular telephone contact with Irene during the periods of time she and Jeffrey lived in Thailand.
94. On 10 March, Jeffrey sent an email to Cathie stating that "on the Saturday we were all last together it was quite noticeable that Ken was not his usual self": Ex J3/501. In cross-examination, Jeffrey first said that he was talking about Ken's memory and diminishing thought process but later said that he was referring to Ken's physical capacity: Tcpt, 16 February 2021, p 659(15-30).
95. Jeffrey stated that he thought Ken was staying in Harbison Care to support Irene and not because he could not manage at home alone: Tcpt, 16 February 2021, p 661(47-48). I do not accept this evidence. It demonstrated that Jeffrey held an unrealistic view of Ken's physical, and mental, state. It is also inconsistent with the overall evidence of Ken's condition at the time.
96. On 14 March 2017, Karen told Jeffrey of her conversation with Mrs King regarding Ken and Irene's welfare. Karen told Jeffrey that she had called Irene: "I've spoken to Irene to find out what is wrong and I'm very worried. She's told me she is trapped and we need to go and get them. She said that she had been trying to reach us and that they never told the Italians not to tell us what had happened. It was quite the opposite."
97. Shortly afterward, Jeffrey said that he left a voicemail for Steve in order to obtain information about Irene's condition and to inform Steve that Karen and he would be staying at "Southdowns". Steve returned his telephone call and is said to have told him that Ken had damaged the house, flooded the bathroom, that the carpets would need to be replaced and that there is no water or electricity. According to Jeffrey, Steve got very aggressive and angry on the phone: Tcpt, 16 February 2021, p 672(46-47) He also said that the conversation included Steve saying: "Listen, I'll tell you right now, as far as I'm concerned, both Ken and Irene will stay there until they die! We are in control of it all now. Irene won't ever walk again. They are staying put. They will die in Harbison."
98. It is likely that some parts of this conversation were said but I doubt that those parts were said to establish that "We are in control of it all now".
99. Jeffrey gave similar evidence to Karen of the events of 20 March 2017. However, he left out of his affidavits some important parts of the events. Importantly, little was said of the initial meeting with Mr and Mrs King, Ms Blackadder and Ms Kamal at the café, although, he did say, in cross-examination that Ms Blackadder had told him that there should be no further contact with Steve and Cathie: Tcpt, 16 February 2021, p 676(24-28). He had given no evidence of anyone signing the Enduring Power of Attorney or the Appointment of Enduring Guardianship documents. Indeed, Jeffrey said he did not see any documents being signed on that day: Tcpt, 16 February 2021, p 670(25-33).
100. He gave evidence of Karen and him returning to "Southdowns" and what they observed there, including the finding of the receipt to which I have earlier referred.
101. It is not necessary to repeat what I have said about the concerns that he and Karen held about Steve and Cathie. I am firmly of the view that the concerns were unreasonably reached and held, bearing in mind that he had met them in late November 2016, had received correspondence from Cathie in March 2017, whilst in Thailand, alerting Karen and him to Irene's medical condition, as well as Ken's, and Irene's mental state, that he had responded with gratitude and appreciation, and that until discussions with Mrs King, whom he and Karen had not even met previously, he had no reason to be concerned about Steve and Cathie's treatment of Ken and Irene. I have already referred to the lack of evidence supporting the concerns.
102. Jeffrey stated, in cross-examination, that neither he, nor Karen, had telephoned, or planned to telephone, Ms Blackadder to give further instructions about the Wills for Ken or Irene: Tcpt, 16 February 2021, p 679(29-38). Yet, Ex D11 (the timesheets kept by Ms Blackadder) shows that, on 22 March 2017, Ms Blackadder had a "Telephone attendance on J Lee and B Foster Chant." The subject of this telephone conversation was not disclosed. Nor was there any diary note written by Ms Blackadder produced.
103. On 27 March 2017, when Ms Blackadder and Ms Kamal returned to Harbison Care, Ms Blackadder was said to have told Jeffrey and Karen that she had gone through the Wills with Ken and Irene and would come back the following week to have them finalised and executed if Ken and Irene were then happy with those Wills. This evidence appears inconsistent with the evidence of Ms Blackadder, to which reference will be made, that Ken and Irene had some things that they wished to consider before signing his and her Will respectively.
104. On 31 March 2017, on a visit to Ken and Irene, Jeffrey said that Ken and Irene had expressed some concerns about the lawyers who had attended. Shortly thereafter, Jeffrey called Ms Kamal and had a conversation with her about postponing Ms Blackadder's visit to Ken and Irene. Jeffrey said words to the effect "The Curcurutos have been in Irene's ear and told them not to trust the female lawyers. I don't want her to get upset."
105. Each of Steve and Cathie denied having said any such thing to Ken and Irene. Even if it had been said, it demonstrates the mental state of each of Ken and Irene in accepting what was said. It is also surprising that Jeffrey, who, by this time, had met both Ms Blackadder and Ms Kamal, did not attempt to dissuade either of Ken or Irene from believing the lawyers should not be trusted.
106. Jeffrey informed Ken and Irene that he told Ms Blackadder and Ms Kamal not to come back. He said that Irene and Ken then advised that they would like to execute the wills in the current form, following which he called Ms Kamal to enquire how the Wills could be executed properly.
107. In cross-examination, Jeffrey asserted that it was Karen who had received the telephone call from Irene saying that she and Ken were ready to sign the Wills: Tcpt, 16 February 2021, p 676(50)-677(01). (Karen had not given such evidence.)
108. Following the telephone call to Ms Kamal, the contents of which appear to have been communicated to her, it appears that Ms Blackadder considered her retainer by Ken and Irene to have been terminated. In this regard, Ex D11 reveals no time sheet entry after 31 March 2017.
109. Thus, from this time, it appears that Karen, or more probably, Jeffrey, assumed sole responsibility for having each of the 2017 Wills signed.
110. In oral submissions, counsel for Karen and Jeffrey submitted that Jeffrey was involved in arranging for the signing of the Wills in a "logistic sense" but not "in the actual instructions": Tcpt, 18 March 2021, p 886(19-21).
111. I shall not repeat Karen's evidence, which Jeffrey repeated, about the events leading up to their arrival, with Mr Gordon, and Ms Baird, on 1 April 2017, at Harbison Care.
112. Jeffrey gave evidence that Ken said that he and Irene had been over the Wills and that they were ready to be signed. In an affidavit sworn 6 December 2018, Jeffrey asserted that Ken said words to the effect: "We don't need to make any changes. As long as 'Southdowns' and the flats are going to you, we are happy. The rest can go to you too…. We want you and Jeffrey to have it. It should stay in the family. It was good speaking with John, but you know the story. We've barely spoken to them since the falling out. I have thought it through. I want it to go to you and Jeffrey. You are our family. I'm going to sign it now."
113. It is hard to accept that this conversation occurred. Firstly, Jeffrey had never been a beneficiary in any of the Wills made before Ken's 2017 Will and Irene's 2017 Will. There does not appear to have been any changes in the relationship between Jeffrey and Ken or Jeffrey and Irene that would prompt such an abrupt, and significant, change to the testamentary intentions of each of them. (The terms of the conversation suggest that Ken was speaking to Karen rather than to Jeffrey.)
114. Counsel for Karen and Jeffrey conceded that, other than Dr Barnett's evidence of Ken and Irene's "degree of paranoia about the Curcurutos", it is "pretty much inexplicable" as to what caused the testamentary intentions of Ken and Irene to change between 2015 and 2017 in regards to Karen and Jeffrey: Tcpt, 18 March 2021, p 877(45)-878(06).
115. Furthermore, none of the earlier Wills had reduced the pool of beneficiaries to only two people. Each of the earlier Wills of Ken and of Irene had made gifts to persons who they had known for many years and who had played a role in the lives of each of them. In relation to Steve and Cathie, some of the earlier wills had favoured Steve's parents.
116. Karen and Jeffrey submitted that as the secondary beneficiaries changed regularly over the last 20 years and since neither the Plaintiffs nor Defendants were featured in the 2014 Wills of Ken and Irene, this is not a matter where the history of will making is significant for the Court to consider.
117. It was not suggested that either Ken, or Irene, had expressed any specific reasons for such changes. Indeed, there is no contemporaneous evidence of any specific enquiries made by Ms Blackadder into the rationale for the changes brought about by each of the 2017 Wills or whether there was such a rationale. Karen and Jeffrey submitted that having been Karen's partner for 46 years "it was obvious" Jeffrey had "been a central part of Ken and Irene's 'family' for many years" and his inclusion was an example of Ken's capacity to consider the claims of potential beneficiaries.
118. It is true, in a broader context, that Jeffrey might have been described as "family" as he had been part of Karen's, and to a significantly lesser extent, of Ken's and Irene's, lives since 1968. By 1992, the date of the first Will made by each of Ken and Irene, a copy of which is in evidence, he had been Karen's partner for nearly 25 years. By each of Ken's 2015 Will and Irene's 2015 Will, he had been Karen's partner for over 45 years. Yet, he had not been a named beneficiary in any earlier Wills. There was no objectively rational basis, or for that matter, the existence of any obvious reasons, for so significant a change. The nature of, and the reasons, if any, given, for major changes in a will are part of the relevant factual matrix for assessing capacity.
119. Jeffrey stated that when visiting Ken and Irene, after the Wills were signed, Irene accused Karen and him of throwing parties at "Southdowns", of leaving the gates open, and saying that she did not want to see anyone anymore. Jeffrey became worried for Karen's health as she would become very stressed when she was around Irene at Harbison Care. It seems that he did not regard Irene's conduct as revealing a dementing illness.
120. There are other aspects of Jeffrey's evidence that are hard to accept. He said that after Ken's fall from the ladder in February 2016, he did not notice any change in Ken's functioning or memory, yet accepted that when he had visited in November 2016, Ken would require more prompting to remember recent events. Nor had he noticed any alarming lapses in day-to-day management from either Ken or Irene. Yet, the email from Cathie showed that Jeffrey had been made aware of the incident when Irene had refused to let Ken go to the hospital for a routine scheduled kidney procedure: Tcpt, 16 February 2021, p 661(13-15).
121. Jeffrey disagreed that Ken and Irene had poor short term memory. In an affidavit sworn 6 December 2018, Jeffrey heard Irene say words to the effect "Tracie and Damian came today" or "Tracie's coming later." Jeffrey observed Ken reading the Daily Telegraph most mornings and initiating conversations about what he read. Of course, he accepted what Irene had said, without knowing whether it was correct.
122. Jeffrey also observed that Ken and Irene were aware they were in a nursing home and talked often about wanting to go back to "Southdowns". That this was an unrealistic hope, and not in the best interests of either Ken or Irene, does not appear to have been considered by Jeffrey or by Karen.
123. Jeffrey also maintained that Ken and Irene were not disoriented as to time and place, as he observed Irene making comments, if Karen and he were late, and Ken always knowing when it was lunchtime or dinnertime.
124. In an affidavit sworn 3 June 2019, Jeffrey stated that when he visited Ken and Irene, in April 2017, they were happy to see Karen and him and that at no time did either express that they were unhappy with the new Power of Attorney or Enduring Guardianship documents or the Wills. It appears to have not occurred to him that neither might have remembered that he, and she, had signed those documents.
125. I next turn to the evidence given by Ms Blackadder, the legal practitioner who said that he had taken instructions from each of Ken and Irene, and the legal practitioner who had prepared each of the draft 2017 Wills. Importantly, she was not present at the time each of those Wills was executed by Ken, and by Irene, respectively.
126. Ms Blackadder admitted that, in her professional life, up to the point of being involved in the lives of Ken and Irene in March 2017, she had never had to consider whether a person had testamentary capacity: Tcpt, 2 February 2021, p 91(47-49). She had only become aware of Banks v Goodfellow when reading the Law Society Guidelines for Assessing Mental Capacity in March 2017 shortly before the meeting that she had with them. She had, however, drafted some wills in around 2009/2010 as a junior solicitor in another firm: Tcpt, 2 February 2021, p 92(01-12).
127. Ms Blackadder stated that: "[I]n preparing for the initial conference with [Ken and Irene] I considered that the clients were elderly and in a nursing home. Whilst this did not mean that they would necessarily have issues with capacity, I resolved to be prepared and cautious. I was also mindful that that this was not my primary area of practice and ensured that I spoke with the principal of the practice, Betty Boustani, who had estate experience, and she directed me to the Law Society's guidelines for assessing mental capacity. Prior to the visit, I downloaded and refreshed my memory as to the Law Society's Guidelines for "When a Client's Mental Capacity is in doubt".
128. At least in part, from what she herself admitted, the Court is able to gauge her then level of expertise, and competence, when it came to taking instructions for the preparation, and the execution, of, a will for an elderly client. This also means that I should carefully consider her later accounts of what had occurred at the time and consider those accounts in the context of the contemporaneous records that are available. Having seen and heard Ms Blackadder, I have come to the view that I should not place substantial weight on the ex post facto account she gave.
129. In an affidavit, sworn 29 October 2018, Ms Blackadder stated that around early March 2017 she was approached by Karen, Jeffrey, and Mrs and Mr King, to assist Ken and Irene with a guardianship and power of attorney matter: Affidavit, Priscilla Michelle Blackadder, 29 October 2018 at par 10. In fact, her involvement occurred not as a result of any contact by Karen and Jeffrey, but rather by contact with Mrs King. Indeed, there is no suggestion of any contact between Ken, Irene, Karen or Jeffrey, and Ms Blackadder, until the visit that occurred on 20 March 2017.
130. Ms Blackadder acknowledged as much at Tcpt, 2 February 2020, p 33(21-24) when she said: "I did receive instructions from Mr and Mrs Shepherd but the initial contact for me to act in the matter was made by Tracie and Damian King with Karen and Jeffrey, because at that stage Mr and Mrs Shepherd were not able to make that phone call and had asked them to get some legal assistance."
131. In cross-examination, Ms Blackadder admitted to only speaking with Karen and Jeffrey, for the first time, on 20 March 2017, during the meeting at the café in Bowral: Tcpt, 2 February 2020, p 70(03-07).
132. Other evidence reveals far more contact between Mrs King and Ms Blackadder prior to 20 March 2017 than that adverted by Ms Blackadder in her affidavit. Between 8 March 2017 and 20 March 2017 there were at least 14 emails from Ms Blackadder to Mrs King in relation to Ken and Irene, and more emails from Mrs King to Ms Blackadder. Contact was first made, by Mrs King, around the 8 March 2017, when she asked Ms Blackadder for help with Ken and Irene having a Power of Attorney in favour of Steve and Cathie revoked: Ex J3/489AA.
133. The first Facebook message contained a reference to "Ken … suffering from a form of dementia": Tcpt, 3 February 2021, p 111(12); Ex J3/489AA.
134. On the same day, Ms Blackadder sent an email to Mrs King with links to information about power of attorney, guardianship and NCAT proceedings: Ex J3/489A. In this email, Ms Blackadder wrote that "In terms of a meeting, I'm happy to travel to the Highlands … Otherwise I'm happy to meet with you in the first instance so that you can see what is involved and then if you want to proceed, I can meet with the Shepherds at a later date. I'm happy with either course".
135. On 9 March 2017, Mrs King sent an email to Ms Blackadder and, as an attachment, a letter from Steve and Cathie to Mrs King regarding an update on their actions as carers for Irene and Ken: Exhibit J2/500F-500G.
136. Mrs King sent Ms Blackadder another email, and as an attachment, a letter dated 16 February 2016 from Mr Cummins to Irene and Ken, including a copy of all the estate planning documents and Certificates of Title that were being held in safe custody for the Shepherds: Ex J3/500M.
137. On 12 March 2017, Mrs King sent Ms Blackadder a copy of part of Ken's 2015 Will: Ex J3/508.
138. On 13 March 2017, Mrs King sent an email to Ms Blackadder informing her that Ken and Irene had signed powers of attorney and enduring guardianship over to Mr and Mrs Curcuruto: Ex J3/514-515.
139. On 17 March 2017, Mrs King sent an email to Ms Blackadder referencing an NCAT application she and Mr King were filling out in regard to a revocation of power of attorney and guardianship claim. In the same email she wrote that Irene and Ken are concerned about their Wills: Ex J3/524-527.
140. On 17 March 2017, Mrs King sent an email which included "The good news is, we have been able to find Irene's brother and he is coming on board with us." The wording of this email is interesting and suggests Mrs King having a significant involvement. This is the first reference in all communications to Karen: Ex J3/535.
141. Ms Blackadder gave evidence that Ken and Irene, during the meeting on 20 March 2017, gave her the following information: 1. They both wanted to return to "Southdowns"; 2. They wanted Brian and Jeffrey to handle their financial and health decisions; 3. Steve and Cathie "only wanted 'Southdowns'"; 4. Cathie was in possession of Ken and Irene's bank records and would not provide them with a copy; 5. Steve and Cathie made Irene and Ken sign documents with their previous solicitor, Mr Cummins, but they did not know what they signed and nothing was explained to them; 6. Steve and Cathie had used their powers as attorney to place Irene and Ken into Harbison Care so they could run their cattle on "Southdowns"; and 7. Ken and Irene thought that Mr Cummins was in a relationship with Steve's mother and Cathie and Steve had used that relationship to force Ken and Irene to sign power of attorney and guardianship to them.
142. It was submitted by senior counsel for the Defendants that putting aside the facts of which Ms Blackadder was aware before 20 March 2017, the information that she learned from Ken and Irene at the conference would have raised, in Ms Blackadder, as a lawyer, a suspicion of impaired mental capacity. It was submitted that a competent legal practitioner experienced in the preparation of wills would have considered the allegations, and investigated them, particularly the serious allegations made against another legal practitioner. There is some merit in this submission.
143. One difficulty with Ms Blackadder's affidavits, is that they do not, clearly, separate the questions asked by Ken and those asked by Irene. In cross-examination she clarified that (Tcpt, 2 February 2021, p 31(03-16)). "They did ask different questions. Mrs Shepherd, in my observation was probably a more lively person. She, she probably had a lot more to say about it. She wanted to know, she wanted to make sure that she was getting hold of bank statements and, and that, it was going to be that Karen and Jeffrey could go with Tracie and Damian King to the bank to get hold of bank statements. That was the main line of her questioning. Mr Shepherd was a lot more quietly spoken. His questions, as I recall, pertained a little bit more towards the guardianship document and it was more just generally what that document did in terms of his medical needs and, and whether he could still make some decisions, I recall. I can't recall verbatim the questions that were asked-"
144. Ms Blackadder made no reference in her affidavits to asking either Ken, or Irene, specific questions about his, or her, assets and liabilities; whether the estate of one should first pass to the surviving spouse; or who should be appointed as the executor of the Will. No discussion appears to have been held in regard to co-executors, or a gift over, in the case either or both Brian and Jeffrey pre-deceased them: Tcpt, 2 February 2021, p 93(14)-94(19). In oral evidence, Ms Blackadder did say that those topics were discussed when she interviewed Ken and Irene at Harbison Care: Tcpt, 2 February 2021, p 92(22-32).
145. The Wills of Ken and Irene are mirror wills. However, the evidence shows examples of differing instructions being given to Ms Blackadder by Ken and by Irene. For example, in Exhibit PB (Ms Blackadder's original file note) and repeated in her affidavit sworn 29 October 2016, it is written that Irene wanted Brian to receive "Southdowns" but Ken wanted Brian and Jeffrey to receive that property.
146. On 20 March 2017, three days before the Wills were drafted, Mrs King sent an email to Ms Blackadder informing her that Ken and Irene were going to see a geriatrician to assess their mental capacity: Ex J3/580a.
147. On 22 March 2017 Ms Blackadder received an email from the Defendants' solicitors, which attached the medical report dated 23 February 2017 from Dr Barnett. It stated (Ex J3/599-600): "Dear Priscilla We act for Mr and Mrs Curcuruto. We understand you act for Mr and Mrs Shepherd. Our clients: 1. Were appointed the alternative enduring powers of attorney for your clients by instrument dated 21 May 2015. Copies attached. 2. Were appointed alternative enduring guardians for your clients by instrument dated 21 May 2015. Copies attached. 3. In February 2017 received written reports from Dr John Barnett, the local Geriatrician, via your clients' then solicitor. Copies attached. Relevantly, Dr Barnett notes: a. Mrs Shepherd "...has significant cognitive impairment…" and "…she has dementia, which is moderate to severe in degree…"; b. Mr Shepherd "…has a mixed Alzheimer's and Vascular dementia. He has obviously deteriorated very much since I saw him last year. He is totally lacking in insight and has no capacity to make any legal decision…" 4. On or shortly after 20 March 2017 received the attached documents which purport to revoke our clients' various appointments. Clearly, the documents are of no effect as your clients did not have the capacity to execute the revocation. We are instructed to put you on notice that our clients are making an urgent Application to Review revocation of enduring power of attorney at the NSW Civil and Administrative Tribunal. We will contact you again once our clients' applications have been filed."
148. After receiving this medical report, Ms Blackadder prepared a draft response and spoke to Betty Boustani and John McIntosh. She also sent the draft response to Karen and Jeffrey for feedback. There is no suggestion that she ever contacted either Ken, or Irene, about the contents of that email to obtain instructions from either.
149. Ms Blackadder said that she remained confident in her assessment of Ken and Irene, but she and Ms Kamal made general enquiries of the office of Dr Wijeratne: Tcpt, 3 February 2021, p 137(27-45). It is clear that in the face of Dr Barnett's diagnosis and opinion, and her general lack of experience, Ms Blackadder ought to have been far less confident than she was.
150. In cross-examination, Karen stated she was not involved in asking Ms Blackadder to seek independent medical assessments of Ken and Irene and it would have been Jeffrey who dealt with that: Tcpt, 11 February 2021, p 574(23) - 575(04). Jeffrey could not remember if he gave instructions to Ms Blackadder for an independent assessment. He first stated that he asked a duty nurse for an assessment at Harbison Care (Tcpt, 16 March 2021, p 687(18-19)) but later in cross-examination stated he thought Ken's godson, Graham Shepherd, was handling it: Tcpt, 16 February 2021, p 688(08-09).
151. On 23 March 2017, Ms Blackadder sent a letter, on behalf of Ms Boustani, in response to the Defendants' solicitors which referred to Karen and Jeffrey making arrangements for independent medical assessments of Ken and Irene: (Ex J3/611). The relevant parts of the letter stated: "Thank you for the reports of Mr and Mrs Shepherd. As you may be aware, two independent reports are generally required to determine capacity. As the present appointed guardians, Karen and Jeffrey have made arrangements for two independent assessments to be carried out on Mr and Mrs Shepherd."
152. Yet no report was ever produced and the evidence is unclear as to the reasons why enquiries of Dr Wijeratne were not pursued or why the "two independent reports" were not obtained.
153. On 23 March 2017, Ms Blackadder drafted a will for each Ken and Irene, respectively.
154. Ms Blackadder and Ms Kamal drove back to Harbison Care on 27 March 2017 to discuss the draft Wills with Ken and Irene. Ms Blackadder, and Ms Kamal, are said to have spent approximately 2 to 3 hours with Ken and Irene. She stated that during that time she went through the entirety of both documents with Ken and Irene. She also stated that Ken told her they needed more time to discuss the distribution of their personal effects in detail and she agreed to come back the following Monday.
155. On leaving Harbison Care on that day, Ms Blackadder could not have concluded that the Will that she had drafted for Ken and for Irene contained the final instructions of each of them, respectively.
156. Ms Blackadder and Ms Kamal did not have any direct contact with Ken and Irene after that.
157. Whilst Ms Blackadder admitted that the instructions were incomplete when she drafted the Wills, she stated, in cross-examination, that "to the extent that there was [sic] gap, they were plugged on the second time we went down there, with the further conversations that we had": Tcpt, 2 February 2021, p 90(30-34). I do not accept this evidence.
158. The Defendants submitted that this could not have happened as fully drafted Wills, pre-dated, and ready for execution, were brought with Ms Blackadder and Ms Kamal on 27 March 2017 when they attended on Ken and Irene. No instructions had been received from either Ken or Irene between 20 March 2017 and 27 March 2017 which could have enabled Ms Blackadder to form the view that the Wills that she prepared were other than in draft form and subject to the further instructions of each of them.
159. Karen and Jeffrey emphasized in submissions that Ms Blackadder, after leaving the draft Wills with Ken and Irene agreed to only be in contact "if" (emphasis added) any changes were required: Tcpt, 18 March 2021, p 864(14-43); see Plaintiffs' Submissions In Reply dated 16 March 2021 at [10].
160. On 31 March 2017, Ms Blackadder stated that Jeffrey had called her to express concerns that Ken and Irene were said to have expressed regarding "those female lawyers who came to see them". However, Jeffrey's evidence stated he called Ms Kamal, not Ms Blackadder, to express concerns about the "female lawyers", which is confirmed by an email Ms Kamal sent to Ms Blackadder (Ex J3/622b).
161. Later that day, Jeffrey called Ms Kamal to say that Ken and Irene were ready to execute the Wills. A file note of this telephone call is found at Ex PMB/5.
162. The Wills were executed on 1 April 2017.
163. It is significant that Ms Blackadder, despite having been informed about his, and her, condition, from the very beginning of receiving information about Ken and Irene, and in purportedly acting for each of them, did not require a medical assessment to be conducted if she was not content to accept the assessments made by Dr Barnett. Often, when a legal practitioner has concerns about a will-maker's testamentary capacity, she or he will seek the opinion of a medical expert to assess capacity before going further. There is usually an assumption that medical evidence going to the state of health and the mental state of the will-maker will be informative.
164. The Law Society guidelines, a copy of which Ms Blackadder attached to her affidavit, relevantly, states: "8. WHEN TO REFER AND TO WHOM If there are still doubts about a client's mental capacity after the solicitor's "initial assessment", there may be a need to request a formal mental capacity assessment from a medical professional with experience in assessment of cognitive capacity. There is a range of medical professionals whose role is to undertake mental capacity assessments and they use a variety of methods or tools to complete this task. A solicitor needs to consider the client's particular circumstances and possible disability before making a referral to an appropriate professional. … 11. MAKING THE FINAL LEGAL JUDGMENT WHEN THE CLINICAL MENTAL CAPACITY ASSESSMENT IS AVAILABLE A mental capacity assessment report sent to a solicitor may conclude that the client is or is not capable of the particular legal task in issue, for example, that they have testamentary capacity. However, it is important to remember that these findings are only clinical opinions which are distinct from a legal assessment about mental capacity. They are simply one source of evidence about the issue which the solicitor must consider before finally advising the client. The solicitor must take time to thoroughly read and understand this report and to clarify any technical terms or language with the report's writer if necessary."
165. Yet, in this case, even though steps were taken to enquire about a medical assessment, and despite Ms Blackadder, having read the medical assessments from Dr Barnett, no assessments were obtained by Ms Blackadder. There was no evidence explaining why contemporaneous independent medical assessments were not pursued or from whom instructions were given, if they were, to not pursue such assessments.
166. Ms Blackadder stated in cross-examination that she believed Ken's difficulty hearing was the extent of either of Ken or Irene's medical problems: Tcpt, 2 February 2021, p 96(30-37). I am unable to accept this evidence.
167. There is a conflict between when Ms Blackadder's instructions ceased and when she stopped acting for Ken and Irene. Ms Blackadder stated, in cross-examination, that her instructions from Ken and Irene ceased before the execution of the Wills on 1 April 2017: Tcpt, 2 February 2021, p 33(40-43). However, there is evidence that she continued to receive correspondence from Mrs King, Graham Shepherd, and from Karen and Jeffrey, in regard to Irene and Ken until her employment with Emprise Legal came to an end in early 2018.
168. Ms Blackadder also confirmed that she never received instructions from Ken, Irene, or their attorneys, to cease to act for Irene and Ken. Nor did she send any correspondence terminating, or confirming the termination of the retainer to Ken or Irene.
169. The Defendants submitted that Ms Blackadder had received her instructions from Karen and Jeffrey, rather than from Irene and Ken.
170. Although it was thought to be lost, on the fourth day of the hearing, the Plaintiffs produced the original file note of Ms Blackadder from her meeting with Ken and Irene. Some time was spent on the File Note, (Ex PB), which provided (with minor corrections): "Date: 20 March 2017 Client: Shepherds - Irene + Ken Matter: POA - Guardianship Author: PMB Venue: Harbison Care Bowral Attended with: Evanna Kamal Also present - Brian "Karen" Foster Chant, Jeffrey Lee, Tracie + Damien King Asked to leave whilst I took instructions Moved to back at 100m with Evanna - Evanna asked to witness I + K - Want to go home to "Southdowns" - prisoners here - Put here by Steve and Cath so they can run their cattle I - Over my dead body they'll get "Southdowns" P - What do you want my assistance with? I - We want Brian + Jeffrey to look after everything whilst we are struck here and take us home *Ken do you want my assistance today as well? K - Yes P - What with? K - To go home. For Brian and Jeffrey to handle things P - Irene do you know why you're here? I - I have a broken hip - and they've put us here to rot P - Who? I - Steven and Catherine P - Who are they? I - Our neighbours - we thought they were friends - some friends they only want "Southdowns" P - Is that your property? I - Yes that's right. It's Kenny and mine. No one else. Ask Kenny - he'll tell you. Putting this cattle on our land. Locking us in here. P - Ken is that right? K - We just want to go home and protect our land. They were supposed to be our friends. Now we see they think they are getting "Southdowns". That's now what I want P - OK - you mentioned Irene that you want Brian and Jeffrey to look after you I - I want them to take control whilst I'm stuck here. Cathy has all the bank records. She won't give them to me. Couldn't tell you what's even there. P - Are you concerned they are taking your money? I - Of course they're taking our money - they're taking "Southdowns" which I never agreed to. Put me in here so they can take more. P - Ok so you want Brian and Jeffrey to take over managing your financial affairs? I - Yes P - And decisions about your health? I - Look I want Brian to handle it all. Jeffrey can help. And Tracie and Damien. P - Who are Tracie and Damien? I - Our other neighbours - our good neighbours. Not the vultures. P - Ken, what do you want? K - Brian and Jeffrey to look after this for us. We can't do anything here. We need to go home. P - Is there any family or other people you would like to look after your affairs? K - Brian and Jeffrey are our family. I want them to look after everything for us P - Karen/Brian and Jeffrey have said they'll move into "Southdowns" with you both. How do you feel about that? K - Would be like the old days. I - We would love that. They would be home. And Tracie can show them where everything is. Irene: -Enduring Guardianship - Checklist - Read understood signed. Guardians agree to appointment. -Revocation of previous appointment - yes - understood -Confirmed Steven and Catherine Curcuruto to be removed -Revocation - of previous POA - removal of Steven + Catherine Curcuruto - confirmed she understands - "so this means they can't get our money anymore?" - no longer have control of account on your behalf -POA - confirm Brian/Karen + Jeffrey with Tracie and Damien as Brian + Jeffrey still living on Central Coast -Understood after reading to her - yes - Irene -Brian + Jeffrey + Tracie + Damien accept appointment -Checklist Ken: -Revocation of POA - explained to Ken that Steven + Catherine no longer have power of attorney Ken asked if this meant financial access to accounts. I confirmed that. Said he understands - Signed. -Enduring POA - confirmed he wants Brian + Jeffrey + Tracie and Damien to be appointed to handle financial affairs. -B+J+T+D accept appointment Revocation of Guardian - Ken understood that this document was for removal of Steven + Catherine Curcuruto as legal guardians Appointment of Guardians - Ken asked "is this about my health?" - I confirmed that the people he was to appoint could make decisions for him about health when he couldn't. He confirmed that Brian and Jeffrey were who he wanted. Said he also would appoint Tracie + Damien to "help" Brian and Jeffrey. Appointees accepted - Signed. P - Ken + Irene that's all been done now. I - Thank you girls - Brian you make sure these girls get paid. P - Ken + Irene I'm going to leave a card for you. If you need me any time you can call. I - Thank you so much. K - Thank you we feel so much better now. P - Is there anything else we can help with? I - Yes you can make sure those people don't get anything in our wills. That Cummins made us sign things saying they get "Southdowns". I never signed anything saying that. That's Brian's. P - OK so essentially you would like new wills leaving "Southdowns" to Brian? I - Yes. I'm sick of this. That's our family home. They aren't locking us in here to get it. P - Ken is that your wish to? That "Southdowns" go to Brian? K - Yes. And Jeffrey. It is for them. But I want to chat to I P - OK. I'll have to come back once we've drafted something to sign it all if you are happy with it. I - You come back when it's ready. And while you're at it, tell them to get their cattle off my land. P - The Curcurutos? I - Yes. I'm sick of those freeloaders. P - OK we will look at that also. Costs - EK to send via Brian/Jeffrey email - I + K ok - "don't care" - "make sure paid" [Signed by Priscilla Blackadder] 20/5/2017 (my emphasis)"
171. There was some controversy about the date the file note was drafted. The handwritten file note bears the date 20 May 2017, but the word "March" is written over the top of "May". In her initial statement dated 28 November 2017, Ms Blackadder said the events of the meeting occurred on 20 May 2017. However, in her later affidavit, sworn 29 October 2018, she stated the initial meeting occurred on 20 March 2017 and that the file note had been written contemporaneously.
172. During the first day of the trial, Ms Blackadder was cross-examined about the date of the file note (Tcpt, 2 February 2021, p 84(38)-88(37)): "Q. What has happened is, you have written 20 May 2017 and then written over the word "May" the word "March", haven't you? A. I always write down dates and everything wrong. It was a…mistake in hand as I was writing, so - and the reason I do that is I often will enter horse competitions and do all sorts of things, so I often do it. It's not something unusual with - it was written on 20 March. … Q. …Could you be mistaken when you say that this not was written on 20 March 2017? Could that be an error? A. No. It was written on 20 March. Q. If you go to the top of… the second page, do you see that you've written 20 May 2017 again and then written over it the word "March"? A. Again, it was, it would've been done at the time. I do it regularly. It was, it was definitely recorded at the time. I take file notes wherever I go, Mr Harris. It's my general practise. Q. Go to the third page. This page is a bit unusual because the date says "20/3/2017"? A. Yeah. Q. Or could have been 20/5/2017? A. That's how I write threes. … Q. Go to the fourth page which is on page 541? A. Yeah. Q. And look at the date again? A. Yeah. Q. And you'll see again the date was written originally 20 May 2017 but then changed to 20 March 2017, do you see that on page 541? A. Again, it would've been corrected at the time. I mean my seven looks like a nine… … Q. But look at the bottom of the page. You've signed alongside the date "20/5/2017"? A. It's a three. It's a three. It's not a five. … Q. Do you have a document headed, "Statement of Priscilla Michelle Blackadder dated 28 November 2017"? A. Yes. … Q. "In or around mid-May 2017 our firm was approached by Mr Brian Foster Chant and his partner", et cetera? A. Yes. Q. Do you see that? A. Yes. Again, dates, my issue. Paragraph 4 I say 20 March… it's an issue I have with dates. Q. I want to put to you that at the time you prepared this note on 28 November your file note still had 20 May on it? A. No. Q. I want to put to you that the note that's PMB4 was made by you on 20 May 2017? A. No. It was made on 20 March 2017. Q. If you'd look again on page 912(a) on the paragraph numbered 5, you'll see you've referred to a meeting that took place on 20 May at the Raw & Wild café, do you see that? A. Yes. Again, it's my issue with dates. Q. I have to be fair to you. In the paragraph numbered 4 you refer to being asked to travel to the Southern Highlands on 20 March 2017, do you see that?

A. That's right. Q. But then again over the second page of this at 912(b), you've got a subheading, "Attendance on Ken and Irene Shepherd" on 20 May 2017, do you see? A. Again, it's my issue with dates. Q. On the next page in the paragraph numbered 20, "As stated above at the conference on 20 May 2017 I spent much time with Mr and Mrs Shepherd explaining to them", et cetera, do you see that? A. Yes. Q. I want to put to you that the note that's PMB4 was written by you on 20 May and you subsequently backdated it so it appeared to be made on 20 March? A. No. That's not how I run my practice. Q. Are you able to explain how if you were making this note at the time of your conversation with them you can have written 20 May as the date? A. Because I'm doing various things at once… you see I write the wrong dates. It's May, March. It's, it's an issue that I have. I've written the wrong dates. If I'd wanted to perfect it later, I would've corrected the date. Q. Are you able to explain why you would have signed the bottom of the fourth page and then written 20/5-- A. I don't believe that's a five. I believe it's a three. Q. Stroke 2017? A. I believe it's a three. Q. Sorry? A. I believe that that is my three that looks like fives. Q. You say to his Honour, are you, that you were sitting there with Ken and Irene talking to them and you had the notebook on your lap-- A. Yes. Q. --and as you sat there you wrote out the conversation in detail-- A. I will write notes. It doesn't obviously catch everything that was said verbatim, but I do take notes as I write. The same as if I go to court. The same as if I go to any client conference, there is notes that are taken as I'm doing my job. I saw the Shepherds on 20 March 2017. I took a contemporaneous file note of that attendance. Q. It must've been a very slow conference if you had to stop and write down - A. It was. I was there for several hours. Q. --everything you said and everything they said? A. I was there for several hours. I wanted to make sure, as I always do with any of my - it's how I run my practice. I dot my I's and cross my T's, literally. Q. Are you able to explain then why your statement of 28 November has so many wrong dates in it? A. Again, because… it's a error that I make that I obviously can go back and correct because I was doing other things at the time and I should've corrected it. The date was 20 March and should've been 20 March consistently. Q. But if you had shortly after 20 March realised the error on PMB4 in the date and changed it-- A. I would've created a new file note if, if that was the case. Q. Will you listen to my question, please? If you had realised the error in the date shortly after 20 March and changed it, changed the words "May" or changed the date of 20 May to 20 March 2017, how did the date 20 May 2017 get into your 28 November statement? A. I don't know. I probably had someone else type it for me. I don't know, Mr Harris. Q. What would having somebody else type it for you do? Didn't you dictate it? A. Maybe it wasn't proofread, it was probably scribbled out on a piece of paper and copy-typed, I can't recall. Q. That's what I'm asking you, how would you have scribbled out on a piece of copy paper the date of 20 May 2017, if this original file note had had that date changed to March? A. Mr Harris it was, it was created on 20 March.

Q. It's an important document this PMB4, isn't it, because it is where you record, it is the basis of the record that you give in your affidavit of the conversations that you had with Ken and Irene? A. Yes, it's a contemporaneous file note of the instructions I took on the day."

1. The Defendants submitted that, having regard to the original date of the file note before amendment and the inconsistent dates between pages, it should be inferred that page 3 of the file note was contemporaneous with the 20 March 2017 conference, but pages 1, 2 and 4 were written in May 2017, after the commencement of the proceedings in NCAT. Alternatively, they submitted that if the Court was not prepared to draw that inference, the file note should be given little weight. They also submitted that the contradictions and assertions in Ms Blackadder's evidence suggested that she tried to cover up facts to protect herself.
2. In submissions in reply, counsel for the Plaintiffs submitted that an allegation of this severity should have been pleaded and no notice was given to Ms Blackadder or to the Court that such a serious allegation was to be levelled.
3. The form of the file note does lead to some disquiet about the date on which it was prepared. It is difficult to accept the explanation that a legal practitioner would make mistakes as to the date of a document. However, I am unable to conclude that Ms Blackadder wrote it in May 2017 and that she had changed the date in an attempt to mislead the Court. In this regard, I remember s 140 Evidence Act 1995 (NSW).
4. There is no record of what Ms Blackadder said, saw, or heard, upon each attendance on 20 March and 27 March 2017 that led her to consider that that the test in Banks v Goodfellow had been satisfied. She did not outline the matters about each having the capacity in respect of each of the elements referred to in that case. The file note does not include the questions asked or the answers given, going to the issue of the capacity of Ken or Irene.
5. In this regard, Ms Blackadder's lack of understanding of Banks v Goodfellow, so far as it relates to the last two elements referred to therein concerning capacity, is to be demonstrated by the following passage of her evidence in cross-examination, when she was asked about her consideration of the prior Will (Tcpt, 3 February 2021, p 130(06-15), p 131(25-28)): "Q: So, I just want to get this straight with you. In your mind, the significance of the previous will was whether or not the same assets had been given away then as were being given away in the new will is that right? A: Yes, one of the- Q: That was the significance in the previous will as far as you were concerned? A: It was, it was yeah, and to make sure that we were covering everything - to make sure that yeah, we had the assets absolutely covered. … Q: The combination of them seeing a new solicitor for the first time and having a new will made, which completely changed the effect of the previous will, was that combination of factors not of significance to you? A: I don't recall it being."
6. What was required of Ms Blackadder was the exercise of judgement about the condition of each of Ken and Irene. What she ought to have done in this case depended upon all the circumstances including the age and health of each of Ken and Irene; her knowledge of, and familiarity with, each of them; the presentation of each of Ken and Irene to her; and whether there were any "red flags" suggesting a possible challenge to capacity.
7. Relevantly, in this case, what might have been regarded as "red flags" included that Ken had been unwell and Irene was in hospital; that there had been a diagnosis, in the case of each of them, of a condition likely to affect capacity; that each of Ken and Irene was making significant changes to his, and her, Will, respectively; that each Will failed to make any, or any reasonable provision, for a beneficiary or beneficiaries, named in a prior Will, including Steve and Cathie; that someone who had not previously been named as a beneficiary in any prior Will was a substitute beneficiary, with Karen, of the whole of his and her estate; that neither Ken, nor Irene, was an existing client of Ms Blackadder's firm; and that there was a solicitor, who had been the long-time solicitor of both Ken and Irene, and who had prepared at least one prior Will.
8. Unfortunately, I find that I cannot attach a great deal of weight to the evidence of Ms Blackadder for the reasons set out above. Importantly, she failed to make any, or adequate, inquiries as to the capacity of each of Ken and of Irene. This was a case where the "red flags" referred to above existed.
9. I turn next to the evidence of Mrs King.
10. In around 2012, Mrs King began to assist Ken and Irene in paying their bills. In around 2015, Cathie asked Mrs King to forward to her any bills she received from Ken and Irene as she would assist Ken and Irene herself. Mrs King stated that Irene was angry that Cathie had taken over payments of the bills as she said she had not asked Cathie to do so.
11. This began a series of "suspicions" that came to be held by Mrs King regarding Cathie and Steve. Mrs King gave evidence that in around late 2015, Irene and Ken began to express concerns to her about their money, in particular, that they had not "seen a bank statement in such a long time". Mrs King accepted that Irene was still signing cheques written out by Cathie and Steve in 2017: Tcpt, 4 February 2021, p 226(10-25), p 226(45)-227(30).
12. Mrs King stated that around 18 March 2016, Irene and Ken showed her a copy of the 2015 Wills, in which the paragraphs regarding gifts to Paula and Paul McMullen, Rodney Keytes and Kevin Owens were crossed out. According to Mrs King, Irene said they had been "told to cross the other people out, so Steve and Cathie will get everything". (Whilst it may be that she was told this, I do not accept that Steve or Cathie had done so. Mrs King made no enquiry of either of them to confirm what she had been told.)
13. Mrs King said she assumed Mr Cummins had advised Ken and Irene to cross the paragraphs out. Her reasons for assuming that fact were not made clear. Mrs King accepted in cross-examination that the conversation may have taken place on 9 March 2016, rather than on 18 March 2016, as on the later date, Ken was in St Vincent's Hospital and Irene was living with Steve and Cathie: Tcpt, 3 February 2021, p 189(36-48); Tcpt, 4 February 2021, p 267(03-05).
14. Mrs King stated that she had taken copious notes of the conversation and a photograph of the Will. Her "copious notes", produced to the Court on the third day of the hearing, were limited to a diary entry of 9 March 2016, comprising only "three to four words" and did not in fact record her conversation with Irene: Tcpt, 4 February 2021, p 267(34-39), p 268(03-04).
15. Shortly after this meeting Mrs King contacted Mr Cummins and relayed the content of that conversation. When asked why she contacted Mr Cummins, if she had assumed he had advised Ken and Irene to cross-out the paragraphs in their 2015 Will, she stated "Irene wanted me to": Tcpt, 3 February 2021 p 191(02).
16. Shortly afterwards, Mrs King stated that Mr Cummins told her he had already visited Irene and Ken at a time when Mrs King was not present. Mr Cummins' evidence was that he did not have any contact with Irene and Ken between May 2015 and January 2017.
17. Mrs King stated, that on two separate occasions in, or about late 2015/early-2016, Irene and Ken had told her they wanted to make changes to their Powers of Attorney and Guardians because they did not "trust Cathie and Steve anymore" and that were not sure if they "trust[ed] Mr Cummins anymore either". A file note from Mr Cummins dated 17 January 2017 and 20 January 2017 shown to Mrs King at cross-examination contradicts each of those claims.
18. Mrs King also stated that after Irene broke her leg on about 4 February 2017, Irene became "more insistent about her concerns" regarding Cathie's and Steve's management of her money.
19. (Cathie stated that in February 2017, neither Ken, nor Irene, had asked her about their bank statements, mail, or cash, which she had withdrawn on their request. I accept her evidence in this regard.)
20. On 13 February 2017, Irene asked Mrs King to take Ken to the bank to access their bank statements and withdraw $2,000 in cash, because Irene felt it may be the last opportunity to do so before she and Ken were placed into Harbison Care.
21. Mrs King also said she was unsure whether she honestly believed Ken and Irene would not be allowed to leave Harbison Care once they were admitted. I found her evidence on this topic quite implausible considering that Mrs King's own mother was also a resident of Harbison Care and that it was likely that she would have known that residents were able to leave if necessary and if they were capable of doing so.
22. On that same day, Mrs King took Ken to St George Bank in Bowral, where the teller gave Ken an envelope with his and Irene's bank statements and another envelope with $2,000 in cash. During this visit, Mrs King arranged for herself to become a signatory to Ken and Irene's bank account. There is no evidence that either Ken or Irene had asked for this to be done. Indeed, Mrs King accepted in cross-examination, that the actions taken contradicted her affidavit evidence to the effect that she had started to "step back" from caring for Ken and Irene at this time: Tcpt, 4 February 2021, p 251(04-16).
23. Mrs King then took Ken to see Mr Cummins, who requested she leave the room during the meeting. After the meeting, Ken was said to be crying, and he requested that he be taken back to Irene. Mrs King returned with Ken to the Hospital where they then met Steve, who according to Mrs King's affidavit sworn 4 December 2018, took the $2,000 that had been withdrawn from the bank.
24. Mrs King later accepted, in cross-examination, that in fact, she had given Steve the cash, saying "This is too complicated": Tcpt, 4 February 2021, p 237(28-33).
25. Karen and Jeffrey submitted that all of these events demonstrated that even before Karen and Jeffrey had returned to Australia, Irene and Ken wanted to change their Wills. I am unable to accept this submission as there is no evidence to substantiate it.
26. Mrs King also stated that Irene and Ken again asked her to contact Mr Cummins on their behalf to change their Powers of Attorney, and Guardianship, documents and their Wills.
27. On 21 February 2017, Mrs King contacted Mr Cummins to relay this request but was told that Ken and Irene had been "deemed unfit to make decisions", the Guardianship had "kicked in" and there "is nothing you can do".
28. Shortly thereafter, Ken and Irene were moved to Harbison Care. Mrs King maintained that Ken and Irene repeatedly expressed a desire to return to "Southdowns". She admitted in cross-examination, that she had made statements to them that suggested Steve and Cathie did not want them to go back to "Southdowns": Tcpt, 4 February 2021, p 242(22-30). She also admitted that it was "possible" that she had told Ken and Irene that it was reasonable for them to fear that Steve and Cathie might use their Powers of Attorney to sell Ken and Irene's property: Tcpt, 4 February 2021, p 294(15) - 295(05).
29. There was simply no legitimate basis for instilling such a fear in Ken and Irene, and if she said such things, its effect was to embed the illegitimate fears that each of them might have voiced about the conduct of Steve and Cathie.
30. Mrs King stated that it was shortly after this conversation that Ken and Irene both stated they wished to see a new solicitor. On 8 March 2017, Mrs King contacted Ms Blackadder and arranged for her to visit Irene and Ken. (Again, bearing in mind the length of time that Ken and Irene had retained Mr Cummins, it is difficult to accept her evidence in this regard.)
31. Her account of the initial meeting with Ms Blackadder and Ms Kamal is largely in keeping with that of Jeffrey and Karen's recollection above, except, that Mrs King accepted that at the meeting, Ms Blackadder was told that a doctor had assessed Ken and Irene as lacking mental capacity and that their longstanding solicitor considered that they did not have the capacity to make decisions about legal issues: Tcpt, 4 February 2021, p 301(47)-302(09).
32. In her affidavit sworn 4 December 2018, Mrs King stated that at the time of making their 2017 Wills, Irene and Ken did not have "poor short-term memory". Whilst she admitted to observing some age-related forgetfulness, she did not, otherwise, believe Ken to be suffering from dementia. She stated that Irene "was very sharp and her memory was sound". She also stated that they understood why they were at Harbison Care and that they would need assistance if they returned to "Southdowns".
33. In cross-examination, Mrs King accepted several propositions which give rise to further questioning the capacity of Ken and Irene including that Irene was confused about why Ken needed to take medication in April 2016 (Tcpt, 3 February 2021, p 196(21-23)); that Irene often asked her to purchase items that she already had a reasonable supply of (Tcpt, 3 February 2021, p 197(44-46)); and that paying bills was "a bit beyond" Irene at this stage (Tcpt, 3 February 2021, p 194(36-37)).
34. She also accepted that she, herself, had referred to Ken as having dementia (Tcpt, 3 February 2021, p 199(40-42); Tcpt 4 February 2021, p 252(26-29)) - namely in a text message of 20 October 2016 to Cathie, which described Ken as having dementia (Ex J3/279) and a Facebook message on 8 March 2017 from her to Ms Blackadder which also stated that "Ken is suffering from a form of dementia" (Ex J3/489AA).
35. Mrs King also accepted that she had received an email from Cathie on 8 March 2017, which referred to the fact Irene and Ken had been assessed by a geriatrician to be suffering from moderate to severe dementia and that each was without capacity to provide for themselves. Her overall contention was that while she stated on several occasions that Ken did have dementia, she did not personally believe either Ken or Irene was suffering from dementia: Tcpt, 3 February 2021, p 200(40) and Tcpt, 4 February 2021, p 253(13-16). She gave no reason for not disputing, contemporaneously, the truthfulness of the statements in this email (Tcpt, 4 February 2021, p 247(22)-246(23)) if she, then, did not believe the assertions to be true.
36. The Defendants contended that Mrs King's evidence was designed to place Steve and Cathie in a bad light to Ken and Irene and also to the Court.
37. Karen and Jeffrey conceded that Mrs King, in some ways, may have been "pouring a bit of oil on the fire" about Steve and Cathie having organised the admission to Harbison Care.
38. In my view, Mrs King wholeheartedly formed a view about Steve and Cathie, and played such an intrusive role in the events that had occurred based upon that view, it affected her ability to form a reasoned conclusion on matters at the time. I have referred to a number of aspects of her evidence that I am unable to accept as correct.
39. I have borne in mind Mrs King's evidence that she has no interest in the outcome of the case. However, my overall assessment of her was that her hostility towards Steve and Cathie and her readiness to think the worst of them in February and March 2017, and subsequently, including her suspicions of them, which she repeated several times during her oral evidence, but the basis of which was not the subject of any supporting evidence, led her to be too ready to paint an unreasonable and unjustified picture of each of them.
40. I have no doubt that she communicated the unreasonable and unjustified picture to Ken and to Irene which had the effect of inflaming each of them to take a particular view of Steve and Cathie. I am cautious about those parts of her evidence which are disputed by Steve and Cathie. Indeed, where there is conflict in the evidence, I accept the evidence of Steve and Cathie rather than the evidence of Mrs King.
41. I next turn to the evidence of Mr King.
42. Mr King stated that from around 2015 onwards, Ken and Irene became particularly concerned about Steve and Cathie finding out when Mr King was taking them to medical appointments. He recalled an incident in about 2015, when Irene had a urinary tract infection and an ambulance was called. Irene is said to have told Mr King: "Please don't tell Steve and Cath… I don't want them to find out and put me in a nursing home."
43. In cross-examination, Mr King stated that he had never had any discussions with Irene about nursing homes prior to that time and that her statement came out of the blue: Tcpt, 16 February 2021, p 618(32-42). (There was no evidence about any mention of a nursing home in 2015.)
44. Mr King also recalled an incident in about 2015 when he took Ken to see the family doctor, Dr Conomos. Ken told Mr King: "I don't like that cheap doctor that Steve and Cath have been taking me to. Thanks for taking me to see Dr Conomos… Best not to tell Steve and Cathie about this."
45. In his affidavit, Mr King stated that, from around late 2015 or early 2016, Ken and Irene began to complain about not seeing any mail or bank statements, "on almost a weekly occurrence". When Mr King suggested that they should ask Steve and Cathie, Irene would often say words to the effect of: "I've asked before and it didn't get me anywhere. It will upset them."
46. Mr King alleges that he had a telephone conversation with Cathie shortly thereafter about Irene's concerns, in which Cathie stated of Irene: "That bloody bitch. She gets all confused. Loses it, and wants to take over. It is easier not to take it over. I only take the NRMA open road."
47. In his affidavit, Mr King stated that he disagreed with Cathie's statement that Ken was placed into Harbison Care on the basis of cognitive impairment. Mr King believed Ken needed to be in Harbison Care "to be close to Irene and to avoid the distress of being apart from her."
48. Mr King believed Ken's behaviour did not change at this time and that he did not act dazed, or confused, about where he was, or that he was there to be with Irene. Mr King recalled that Ken regularly asked about his land and pet bird, that Ken was not unco-ordinated, that he knew who Mr and Mrs King were when they visited, and would ask about people they both knew. Mr King also observed that Ken dressed himself, fed himself and did not skip meals.
49. In his affidavit, Mr King stated that he disagreed with Cathie's statement that Irene was placed into Harbison Care on the basis of advanced dementia. Mr King believed that Irene needed to be in Harbison Care "because of the injury to her leg".
50. However, in cross-examination, Mr King accepted that, towards the end of 2016, Ken and Irene were having significant problems living by themselves at "Southdowns", even with the assistance they were getting from the Curcurutos and the Kings: Tcpt, 16 February 2021, p 619(33-36).
51. Mr King stated that in or about late February or early March 2017, Ken and Irene asked the Kings if they could arrange Mr Cummins to visit them to discuss changes to their Powers of Attorney, Guardianship and Wills.
52. Mr King stated that, shortly thereafter he "attended Harbison Care with Tracie to inform Ken and Irene as to my discussion with Mr Cummins" and the fact that Mr Cummins refused to visit the Shepherds. However, in cross-examination, Mr King stated that it was Mrs King who had spoken to Mr Cummins on the telephone about the Shepherd's request: Tcpt, 16 February 2021, p 623(24-26).
53. Mr King accepted that this contradicted his statement in his affidavit that he went to Harbison Care to inform Ken and Irene as to "my" discussion with Mr Cummins: Tcpt, 16 February 2021, p 623(31)-624(07).
54. According to Mr King, Irene stated "we are in trouble. I need Brian here. Brian can help us." Irene asked the Kings to go to "Southdowns" and look for Karen's number. Mr King stated that both Ken and Irene were crying. This evidence seems somewhat implausible as the email dated 1 March 2017 sent by Cathie contemporaneously outlined the view expressed by Irene about contacting Karen and letting her know of the events that had occurred.
55. Shortly thereafter, Mr King went to "Southdowns" and found Karen's telephone number but noticed that all of Ken and Irene's business papers were missing. In cross-examination, when asked how he knew that the papers were missing, he stated that Irene had told him where they were shortly after their conversation: Tcpt, 16 February 2021, p 625(07-25).
56. Mr King also stated that Ken told Mr King where "a lot of the business papers were… and said to get them and… to secure them": Tcpt, 16 February 2021, p 625(31-48). However, Mr King did not find any documents in the places that Ken had told him they would be: Tcpt, 16 February 2021, p 626(03-14).
57. In his affidavit, Mr King stated that, on or about 8 March 2017, he and Mrs King had received an email from Cathie, suggesting relocating Ken's bird, "Pinky", from "Southdowns". When the Kings showed the email to Ken and Irene, Ken stated "They're moving Pinky, because they don't want us going back to "Southdowns"" and Irene stated "We're going to need a lawyer to get us out of this mess. Can you find someone to help us please?" He did not give any evidence about explaining to Ken or Irene why it might be beneficial to relocate the bird as, then, no one was living at "Southdowns". Mr King did say, however, that he told Ken and Irene that it would be very difficult for them to return home bearing in mind their mobility as he and Tracie would not be there all the time to help them: Affidavit, Damian King, 4 December 2018 at par 48.
58. Mr King alleged that, in mid-march 2017, he had a conversation with Ken and Irene in which they expressed their mistrust of Mr Cummins. Mr King stated Ken said words to the effect of: "Steve and Cathie lock us in here on the documents he had us sign… I'd rather burn 'Southdowns' to the ground than let Steve have it": Affidavit, Damian King, 4 December 2018 at par 55. Again, he did not give any evidence about explaining to Ken or Irene that they were not locked up in Harbison Care, but that they were there because of the medical conditions from which each was then suffering.
59. In mid to late March 2017, Ken and Irene asked the Kings if they had found them a new lawyer yet. Mrs King stated that she had found Ms Blackadder but "she will work for you both, and can't take instructions from us". Ken is said to have asked Mr and Mrs King to organise a meeting with Ms Blackadder and Irene stated "the sooner you can get the lawyer here, the better".
60. On 20 March 2017, Mr King met with Mrs King, Jeffrey, Karen, Ms Blackadder and Ms Kamal at a cafe in Bowral. They then all went to Harbison Care to see Ken and Irene. In cross-examination Mr King stated that he saw Ms Blackadder speak to Ken without Irene being there at the same time: Tcpt, 16 February 2021, p 630(17-26). Mr King also stated that Ms Blackadder spoke to Ken near the window, whilst Irene was in her bed: Tcpt, 16 February 2021, p 630(41-48).
61. In cross-examination, it was Mr King's contention that Ken and Irene were mentally capable of understanding the Powers of Attorney and Enduring Guardianship documents that were signed at the time of the meeting: Tcpt, 16 February 2021, p 629(19-22).
62. In cross-examination, Mr King stated that, after 20 March 2017, he was in contact with Karen and Jeffrey once or twice a week: Tcpt, 16 February 2021, p 634(43-47). According to Mr King, they discussed "the best way to care for Ken and Irene" and how "to get the bank statements sorted out. It was mainly around the power of attorney and what needed to be done": Tcpt, 16 February 2021, p 634(49) - p 635(10). When it was put to Mr King that these were not conversations he was having with Ken and Irene, he replied: "Yes, they were, because… they were asking us to help them": Tcpt, 16 February 2021, p 635(12-25).
63. Mr King stated that in about early April 2017, he had a discussion with Ken and Irene in which he asked "Did Priscilla come down and sort out your Wills the way that you want them?" According to Mr King, Irene stated: "Yes, we're very happy now. Everything will go to Brian and Jeffrey" and Ken stated: "We're both happy with the decision we've made".
64. Mr King alleged that, in April 2017, he had a conversation with Ken and Irene in which Irene stated that Steve had visited and been "angry and yelling… saying 'why did you take us out of the Wills. What do you think you are doing?'" Mr King stated that Ken told him: "We're scared. We're sitting ducks here and Steve, Cathie and Sylvia come and go as they please. We need to get back to the safety of 'Southdowns'". He did not explain how Steve and Cathie had come to know that Ken and Irene had made new Wills or that they had been "taken out" of these Wills.
65. Mr King stated that, after 20 March 2017, on multiple occasions Ken and Irene said words to the effect of: "We are so grateful to you and Tracie for helping us out of this mess" and "We are glad that you and Tracie and Brian and Jeffrey are in charge now": Affidavit, Damian King, 28 May 2019 at par 16.
66. In his affidavit sworn 4 December 2018, Mr King stated that he did not believe that Ken and Irene suffered from a "complete lack of insight" at the time of making their 2017 Wills. He asserted that, in late March to early April 2017, he had several conversations with the Ken and Irene in which they displayed insight. In these conversations, Irene would acknowledge her broken leg but stated that she wanted to recover at home with 24 hour care. Ken stated that he was worried about his property and needed to get back to it. Similarly, when Mr King visited Ken and Irene in February 2017, Ken would often ask about "Southdowns" and the animals.
67. In his affidavit sworn 4 December 2018, Mr King stated that he did not believe Ken and Irene suffered from a "very poor short-term memory" at the time of making their 2017 Wills. He also stated that he did not believe Ken and Irene were "disoriented as to time and place" at the time of making their 2017 Wills. Nor did he believe that Ken and Irene were suffering from "insane delusions" at the time of making their 2017 Wills.
68. Mr King observed that whilst Ken required some prompting with short term memory, he did not observe any change in Ken's memory following his fall in February 2016. Mr King also did not observe Ken to change topics midway through a conversation, repeat himself frequently or take a lot of time to look for things. This is inconsistent with other objective evidence.
69. Whilst Mr King recalled Irene saying words to the effect of "Ken's memory is getting bad" around early 2016 and thereafter, he did not hear Irene say "Kenny's losing it" or complain about his driving.
70. Mr King observed that Irene was "sharp as a tack" and her "memory was flawless".
71. Mr King alleged that, when he visited Ken and Irene at Harbison Care, they both knew exactly where they were and would often say words to the effect of "We hate this nursing home. We just want to go home" and "We want to go back to 'Southdowns'".
72. According to Mr King, he observed Ken to be confused on two occasions. The first was in or around March 2016, when Ken was in St Vincent's Private Hospital. Ken said words to the effect of "where am I?" and "why am I here?" and did not recognise his own reflection. However, Mr King observed that Ken was no longer confused within a few days of returning to "Southdowns".
73. The second occasion was on 18 October 2016, when Mr King visited Irene and Ken at "Southdowns" at around 6:00 p.m., after Irene had a fall. Mr King sent a text message to Cathie the following day (Ex J3/276A-277): "Irene had a fall yesterday and I think Ken's back is worse from getting her back up. Both thought it was still morning when I was there at 6pm. Ken wanted to know how far it was back to the farm and later, 'When are we going home'! … They seemed pretty confused at first but after spending the rest of the day with them, okay.'" Mr King's observation was that Ken was "half asleep and unwell" when he made these comments.
74. Mr King stated that he still had grave concerns about the intentions of the Curcurutos, and whether all of their actions and motivations were designed to inherit "Southdowns".
75. Karen and Jeffrey submitted that Mr King was a "disinterested person" and, therefore, his evidence as to Ken and Irene's understanding of the nature of making the Wills should be believed.
76. I do not accept the submission about him as, in my view, Mr King's evidence suffered the same limitation as the evidence of Mrs King. In my view, he too, was so suspicious of the motivations of Steve and Cathie, that he was unable to express an objective view of their conduct and the state of health of Ken or Irene. Where there is conflict in his evidence and the evidence of Steve or of Cathie, I prefer the evidence of Steve and Cathie.

Attesting witnesses

1. Each of the attesting witnesses to Ken's signature and Irene's signature on his and her 2017 Will respectively also gave evidence.
2. As stated, Ross Gordon was one of the two attesting witnesses of Ken's 2017 Will and Irene's 2017 Will. In his affidavit, sworn 8 November 2018, Mr Gordon stated that, on or about 1 April 2017, he was visited by Karen and Jeffrey. Mr Gordon's niece, Ms Baird, was also present. They arrived at his home at about 7.30 a.m. but he could not remember whether or not he was expecting them: Tcpt, 10 February 2021, p 514(02-14).
3. Jeffrey told Mr Gordon that he and Karen were going to visit Ken and Irene at Harbison Care that day and that they needed to have Irene and Ken sign some documents. Neither specified that the documents to be signed were Wills: Tcpt, 10 February 2021, p 515(35-47).
4. When Mr Gordon stated that he wanted to buy a tree from a nursery in the Southern Highlands, Jeffrey invited him and Ms Baird to accompany them. In cross-examination, Mr Gordon could not identify a specific nursery or the type of tree that he wished to purchase in the Southern Highlands: Tcpt, 10 February 2021, p 515(15-33). He also admitted that, ultimately, he did not visit a nursery on the day: Tcpt, 10 February 2021, p 515(21-23).
5. Mr Gordon, Ms Baird, and the Plaintiffs all travelled to the Southern Highlands in the same car. There was no evidence about any discussions about the purpose of the visit during the car ride.
6. Upon arriving in the Southern Highlands, all attended Ken's and Irene's room at Harbison Care. Mr Gordon recalled Karen having a conversation with Irene about "the state of her health and how she felt and what had been going on" and "the same with Ken": Tcpt, 10 February 2021, p 521(01-06).
7. In his affidavit, Mr Gordon stated that he then overheard a conversation between Ken and Irene whilst he was in conversation with Ms Baird and the Plaintiffs but could not recall whether they were conversing when he heard Ken and Irene speaking: Tcpt, 10 February 2021, p 520(07-09).
8. He also stated that he heard Irene say to Ken "[R]ead them out to me and tell me what you think about them" and "Do you think they are okay?" He heard Ken reply, "Yes, they are good. That's what we wanted." However, in cross-examination, Mr Gordon stated that Irene prompted Ken several times during their conversation, saying words to the effect of "Is that what you want?" He also said that Irene hurried Ken, saying words to the effect of "Have you read it?": Tcpt, 10 February 2021, p 518(27-43).
9. Mr Gordon stated that, during Ken's conversation with Irene, Ken had documents in front of him: Tcpt, 10 February 2021, p 519(01-02). Mr Gordon thought that Ken and Irene "must have been in receipt of those documents when [he] arrived": Tcpt, 10 February 2021, p 520(47-49).
10. Jeffrey left the room and Ken signed one of the documents, which Mr Gordon later found out to be Ken's Will. In his affidavit, Mr Gordon stated that Irene said to Ken, "Are you sure you're happy with that?" to which Ken replied, "Well I signed it didn't I?" Irene then said, "Yes you did. Give me mine, I'll sign it now".
11. However, in cross-examination, Mr Gordon accepted that Irene prompted Ken to sign the documents several times, before he did so: Tcpt, 10 February 2021, p 521(46)-522(13). He was unable to distinguish whether Irene said words to the effect of "Sign them" or "If you're happy with it, sign them": Tcpt, 10 February 2021, p 519(14-20). He also saw Irene "snatch" the documents out of Ken's hand once he had signed it: Tcpt, 10 February 2021, p 521(25-31).
12. Mr Gordon then witnessed Irene sign a document, which he later found out to be her Will.
13. In cross-examination, Mr Gordon accepted that he did not see either Ken, or Irene, read the document that each had signed: Tcpt, 10 February 2021, p 521(36-40); p 523(38-45).
14. At this time, according to Mr Gordon's affidavit, Karen said to Irene and Ken, "Jeffrey has gone to find some people to be witnesses before you sign them." Irene replied "Well we've signed them now. Ross and Lynn are here, can't they be the witnesses?" Mr Gordon and Ms Baird both confirmed that they had seen Irene and Ken sign their wills and would be happy to witness the Wills, which they did.
15. In cross-examination, Mr Gordon confirmed that he had not read the documents he witnessed: Tcpt, 10 February 2021, p 524(20-21).
16. In his affidavit, sworn 7 November 2018, Mr Gordon affirmed that, on or about 1 April 2017, the documents dated 27 March 2017 were signed by Ken and Irene as their wills in the presence of Mr Gordon and Ms Baird. Mr Gordon also affirmed that, at Ken and Irene's request, he and Ms Baird attested and subscribed the Wills in the presence of Ken and Irene and each other.
17. As stated above, the other attesting witness, Ms Baird did not give other than formal evidence confirming, in an affidavit of attesting witness sworn on 6 November 2018, that the 2017 Wills were signed by both Ken and Irene in the presence of herself and Mr Gordon.
18. I next turn to the evidence given by Mr Cummins.
19. It was Mr Cummins who had drafted Advanced Care Directives dated 4 December 2014 for Ken and Irene. Whilst there is no reference to these documents in his affidavit, a copy of them formed part of Ex J3/88-91 and he confirmed that he had done so in cross-examination.
20. He had also drafted Powers of Appointment and Appointments of Enduring Guardians each dated 21 May 2015, for Ken and Irene in which each named the other as the primary Attorney and Guardian respectively, and in the event that she, or he, was unable to act, named Steve and Cathie as joint Attorneys and Guardians.
21. On 5 May 2015, Ken and Irene conferred with Mr Cummins at his office. They discussed their existing Wills with him and gave instructions for new wills to be prepared for each of them. Although initially, they gave instructions that if the other did not survive, Mr and Mrs King were to receive the residue of his, and her estate, respectively, towards the end of the conference, they changed this part of the instructions so as to omit Mr and Mrs King, saying that they would provide instructions later as to the identity of the residuary beneficiary. They said that they would return on 12 May 2015 to sign the wills.
22. On 12 May 2015, Ken returned to Mr Cummins' office for a conference and gave instructions for the preparation of his Will. Ken also gave instructions that Irene wanted a Will in the same terms as to substitute beneficiaries if Ken did not survive her. A copy of the instructions, which Mr Cummins recorded in writing, was annexed to his affidavit sworn 30 October 2019.
23. Mr Cummins prepared a Will for Ken and for Irene based on those instructions. On 21 May 2015, Irene came into Mr Cummins' office for a conference, initially alone, at which time she repeated the instructions that Ken had previously given to Mr Cummins. Later, Ken joined the conference. Each was given a copy of the Wills, which he and she read. Each confirmed the wish to sign, and then each of Ken's 2015 Will, and Irene's 2015 Will, was executed, the signature of each being witnessed by Mr Cummins and his secretary, Natalie Sommer.
24. Mr Cummins received no further instructions from either Ken, or Irene, to change the 2015 Wills.
25. Mr Cummins had no contact with either Ken or Irene between May 2015 and 17 January 2017. Whilst he did not mention the following events in his affidavits, he confirmed the following events in cross-examination.
26. Irene telephoned Mr Cummins on 17 January 2017: Tcpt, 10 February 2021, p 492. His file note reflecting the telephone call stated (Ex J3/313): "Ph from Irene Shepherd 11:30am 17 January 2017 'She Kenny are going downhill:' Kenny can't drive anymore Apt: 3-30pm @ 'Southdowns' to discuss the future!"
27. Following this telephone call, Mr Cummins went to visit Ken and Irene at "Southdowns" on 20 January 2017. He made a contemporaneous diary note of the conference, which is in the following form (Ex J3/318-320): "Both look frail Ken - very frail physically Want to be re-assured that I will continue to be solr. No instructions to change any documents. They have lost their key to front gate but Steve & Cathy both have keys. _______________________________________ Going to Tracy's for dinner by car which I gather Kenny drives Irene: "We are doing the foundations". Ken: They have money in St G Someone may be helping w accounts. Cathy helps. They have no reason to be concerned about financial matters but may ask Cathy to show her bank statements. They both have no reason to consider any dishonesty by Cathy & Steve. I think they are doing the right thing & can't & shouldn't make any change."
28. In cross-examination, Mr Cummins stated that he observed both physical and mental frailty in each of them, although he thought Ken's condition was worse than Irene's. He gave evidence (Tcpt, 10 February 2021, p 511(17-21)) that: "It was not unusual for the Shepherds to want to review their documents from time to time. And this was such an occasion, they just seemed to me to be certainly not as well mentally as I had seen them before. I can't recall from the meeting anything particular that led me to that conclusion. Just the general nature of the conversation."
29. On 13 February 2017, Mrs King brought Ken in to see Mr Cummins. Once again, he made a contemporaneous diary note which is in the following terms (Ex J3/335): "1. Tracy says work was done around the farm. 2. Painter was brought into paint new fences around [illegible] planted trees. 3. Water issue now fixed -? For Tracy Painter says he was authorised to paint the house, but Ken says house does not need painting."
30. Mrs King telephoned Mr Cummins on 14 February 2017. His contemporaneous diary note of the conversation was in the following form (Ex J3/335A): "Re: Shepherd She has no cash - Cathy C has it. She will not do anymore cash handling"
31. On 15 February 2017, Mr Cummins wrote to Steve and Cathie because he thought the guardianship powers for Ken and Irene might need to be activated: Tcpt, 10 February 2021, p 497(35)-(42). However, he did not become aware that the Enduring Power of Attorney or the Enduring Guardianship documents that he had drafted had been activated, or subsequently revoked, until March 2017: Tcpt, 10 February 2021, p 497(17-28).
32. Importantly, as it was close to the time of the events, Mr Cummins wrote a statement dated 27 April 2017 about Ken and Irene (Ex J3/648-649) which included: "…12. I became aware of the Shepherds declining health, especially their mental capacity, after the 2015 documents were put in place. 13. The Curcurutos were appointed as joint alternative attorneys and guardians by instruments made 21 May 2015. 14. I had no contact from the Shepherds after the May 2015 documents were put in place until Mrs Shepherd phoned me on 17 January 2017…. 15… I visited the Shepherds at 'Southdowns' on 20 January 2017… 16. Mrs Curcuruto informed me that Mrs Shepherd suffered a fall at home on or about 4 February 2017 and had been admitted to the Southern Highlands Private Hospital. 17. Subsequently, Mrs Curcuruto informed me that Mrs Shepherd would not be returning to 'Southdowns' and that arrangements had been made for a double room (for both Ken and Irene together) in a nursing home, Harbison Care at Burradoo. 18. I wrote to the Curcurutos on 15 February 2017… 19. On 17 February, Ken came to my office unannounced, having been brought there by Tracey King. I had a conference with Ken alone…Ken was very confused and did not remember that Irene was still a patient at Southern Highlands Private Hospital. 20. On the same day, Tracey King advised me that she had taken Ken to St George Bank where he had withdrawn $2,000.00. Tracey told me earlier on 14 February 2017 that she held no cash for the Shepherds and it had all been returned to Mrs Curcuruto. 21. I needed to be satisfied that the authority of the Curcurutos as alternate joint attorneys and guardians had arisen, so I requested an assessment of the Shepherd's capacity on 17 February 2017 from Dr John Barnett, geriatrician. He issued reports on 23 February 2017. I concluded from those reports that the Curcurutos had such authority. 22. I refer to the letter from Emprise Legal dated 23 March 2017 to Haille Paine Solicitors and particularly to the stated comments by the Shepherds that they did not understand documents I had previously prepared for them. I was always satisfied that they fully understood and approved of all the documents that I prepared in accordance with their instructions. 23. I commenced a relationship with Mrs Curcuruto's mother in October 2016. I had known her since the early 1990s when Mrs Curcuruto (as a student of Oxley College, Bowral) became a friend of my eldest daughter, which friendship continues. My third daughter is also a friend of Mrs Curcuruto's younger sister. 24. In 2013, I also acted for Mr and Mrs King and prepared for them estate planning documents."
33. I found Mr Cummins to be a careful and clear witness who ensured that he gave only his best recollection of the events. Where he did not remember, he said so. He was cross-examined on his personal relationship with Cathie's mother, which had commenced in October 2016 and his failure to disclose that relationship to either Ken or Irene. On this topic, I accept his explanation that since he had not been asked to effect any alterations to the Will of Ken and of Irene, indeed, had not really been given any instructions from either of them after that relationship had commenced, there was no conflict of interest and no consequential need to disclose the relationship to them: Tcpt, 10 February 2021, p 498(35) - 499(09).
34. I am satisfied that he is, and was at the time of the events about which he gave instructions, a competent, intelligent, and careful, solicitor, who, in 2017 was extremely experienced in dealing with wills. I am also satisfied that plainly, he was doing his best to assist the court, and I accept his evidence as truthful. Much of his evidence was confirmed by the contemporaneous diary notes that he had made.
35. Mr Cummins was also cross-examined on the statement that he had made, and signed, in April 2017. Rather than regarding his doing so as worthy of criticism, it was, in my view, commendable that he had done so, as there was a written, and almost, contemporaneous, version of events that he had made and signed, and which may have been relevant, and admissible, in the event that he became unable to give evidence at the hearing, over three and a half years later. It goes without saying that his recollection of relevant events then would have been better than at a hearing some years later.
36. I have no hesitation in accepting Mr Cummins as a witness of truth.
37. Ms McKibbin gave evidence that on 3 April 2015, she had first met Ken and Irene at an Easter lunch with the Curcuruto family. Present were Steve, Cathie, and Sylvia, amongst others and the lunch had been at the Sutton Forest Inn.
38. In May 2015, she saw Ken and Irene again at the christening party for Steve's and Cathie's children. She observed that Steve was supporting an unsteady Ken and Irene to enter the church.
39. At every family gathering that she subsequently attended, Ms McKibbin "observed Cathie and Steve going out of their way to provide help and support to Ken and Irene - moving their chairs, checking they were comfortable, bringing them drinks and food, and making sure they were involved in conversation".
40. Throughout 2015 and 2016, Ms McKibbin accompanied John to a number of medical appointments. At the office of the doctor, they coincidentally saw Ken and Cathie, on at least two occasions.
41. Ms McKibbin did not ever visit Ken and Irene at "Southdowns", but in the last week of February 2017, she and John began visiting them at Harbison Care. She was informed by a staff member that the nature of Irene's fracture meant she was not allowed to put weight on her leg and needed 24-hour care. At this visit, Irene stated that they were pleased to be at Harbison Care, saying "I'm glad we are in a room together, with our own bathroom and we don't need anyone else". Ken said "I like looking at the trees". Ms McKibbin acknowledged that this was, in each case, a rational conversation: Tcpt, 16 February 2021, p 647(20).
42. Ms McKibbin recalled that on the first occasion she had visited them at Harbison Care, Irene could not remember her name and had referred to her as "Thingamebob". Irene also said that she did not need to be in hospital anymore and that she was ready to go home. She said she was sick of the nurses and the doctors and that she did not need them anymore. She also said that she was sick of being in hospital and that she would "be better off in my own bed".
43. Each time Ms McKibbin and John visited them, Ken and Irene repeated a similar conversation. Irene said words to the effect "I don't need looking after- I'll be fine at home" and "I want to go home" or "Are you here to take me home?"
44. In one of Ms McKibbin's first visits to visit Ken and Irene, she went with John and Cathie. After Cathie left the room, Ms McKibbin recalls that Irene said to her "It's alright. We know what they've done for us. We'll make sure they are recompensed": Affidavit, Denise Maree McKibbin, 7 March 2019 at par 19.
45. On a visit in mid-March 2017, Ms McKibbin had a conversation with Irene to the following effect: "Irene: 'I'm going home'. Me: 'Irene, you can't go home. You can't put any weight on your leg'. Irene: 'I think we can get more cattle. I want us to have more cows on our place. It it's too difficult with cows, we'll get sheep'. Me: 'How are you going to look after yourselves?' Irene: 'We can go and live with Steve and Cathie. Have you come to take me home again?'"
46. I have already referred to occasions in which Ms McKibbon said Irene made disparaging, or derogatory, comments about Karen. From about April to May/June 2017, Irene repeated words to that same effect every time Ms McKibbin visited. However, this is after each of the 2017 Wills were signed.
47. On 22 March 2017, Ms McKibbin visited Ken and Irene, at which time Irene said that they "signed some papers so I can go home. I think that's what we've just signed, some papers so that we can go home". On the following two visits, Ken's and Irene's conversations were almost identical.
48. In the first week of April 2017, Ms McKibbin again visited Ken and Irene at Harbison Care. Irene mentioned "people came and made us sign papers. I thought I was going home."
49. Whilst it is not likely that either Ken or Irene would have mentioned having made a will, had each understood what he, and she had signed, it could not have been rationally understood that what had been signed were "some papers so I can go home".
50. From about May 2017 onwards, Irene made many comments about Cathie looking after her and Ken and being compensated for her help.
51. Ms McKibbin and John were present with Ken and Irene when Ken died.
52. It was put to Ms McKibbin that the conversation about wishing to return home and being sick of doctors, nurses and the hospital, was a rational one, which she accepted was so. However, importantly, whilst the feelings expressed might have been rational, the conversation reveals a complete lack of insight, by Irene, into her own medical condition and the difficulties that she would be likely to face living at home.
53. When Ms McKibbin was asked about the last occasion she had spoken to either Steve of Cathie, before giving her evidence, she said that it had been about two years before the hearing, and that her affidavit had been prepared by their solicitor - instructions for it being given over the telephone. She also confirmed that whilst she remained friendly with John Curcuruto, she was no longer in any relationship with him.
54. I found Ms McKibbin to be a witness of truth whose evidence I accept. She was responsive to questions asked of her and did not attempt to exaggerate what she said, saw and heard. She did not demonstrate any bias in favour of one side or the other. Her answers in cross-examination did not assist the case of Karen and Jeffrey.
55. I next turn to the evidence of Judith-Ann Owens. Ms Owens had known Ken and Irene from her childhood. Her father, Kevin Owens, had worked for them as a salesman in their furniture store from the time Ms Owens was born until she was 7 years of age. She was also a family friend of Steve and Cathie.
56. After her father stopped working for them, he remained a close friend of Ken and Irene. Ms Owens remembered her parents receiving Christmas cards from Ken and Irene and visiting them once or twice a year after her family moved to Kangaroo Point.
57. In April 2015, Ms Owens moved from Queensland to Sanctuary Point (about 90 minutes from Moss Vale) to care for her father after he was diagnosed with cancer. She lived there until about January 2019. She recalled hearing her father speak on the telephone with Ken about once a month.
58. At Christmastime 2016, Steve and Cathie visited Ms Owens and her father. During this visit, Ken and Irene were discussed and all expressed concern about them.
59. In January of February 2017, Mr Owens had telephoned Ken and Irene multiple times without answer. He then telephoned Steve on loudspeaker who informed him that Irene had broken her leg. Ms Owens was present when her father called Ken's brother, John Shepherd, to inform him that Irene was in hospital.
60. Ms Owens then telephoned the hospital for her father, put the telephone on speaker and heard her father speaking to Irene for around 20 minutes.
61. Ms Owens took her father to Harbison Care on three occasions before Ken and Irene died. The occasion closest to the making of Ken's 2017 Will and Irene's 2017 Will was on 11 March 2017. On this occasion, Ken appeared to recognise her father but Irene mistook Ms Owens for his partner, Yvonne, who had died 9 months previously. This was the first time Ms Owens had seen them for many years.
62. Ken and Irene said they had not seen Steve and Cathie for a while and Irene stated "We are so lucky to have such good help from Cathy and Steve. We just don't know where they are": Affidavit, Judith-Ann Owens, 8 March 2019 at par 21. Irene repeated, at least three times, "I'm going home in two days".
63. Mr and Ms Owens visited again in June 2017. Ken and Irene, initially, did not appear to recognise Ms Owens or her father. Once reminded of who Kevin was, Ken began to cry. On two or three occasions Irene repeated "I want to go home". She also repeated, during this visit, "I'm going home again in two days."
64. Ms Owens observed that Irene did not seem to follow the conversation, did not respond to statements and questions and would stare into the distance without saying anything. Irene and Kevin spoke about memories of Kevin's time working for them, which Irene appeared to recollect and enjoy.
65. In re-examination, Ms Owens, without objection, mentioned that on the way home from the visit her father raised concerns about Ken and Irene not keeping up with conversation, their deterioration and how he had to instigate conversations: Tcpt, 10 February 2021, p 420(10-20).
66. Ms Owens visited Ken and Irene again in late August 2017. Ken was asleep and did not wake at all during the visit. Ms Owens observed that Irene appeared very agitated and uncomfortable in her bed. She was fidgeting, not keeping up with conversation and repeating herself. Ms Owens noted that the only time Irene participated was when they were talking about Mr Owens' time working for her and Ken. Irene also stated that "I'm going home in two days".
67. I found Ms Owens to be a witness of truth whose evidence I accept. She, also, responded to questions asked of her without prevarication and did not attempt to exaggerate what she said that she saw and heard. Her answers in cross-examination did not assist the case of Karen and Jeffrey.
68. The next witness to whom I refer is Cathie. In February 2016, Ken fell off a ladder and spent time recovering at Liverpool Hospital. During this period, Irene stayed with Cathie and Steve. On the night Ken was discharged Steve told Cathie "the doctor said that Ken has been advised not to drive for the time being due to his confusion". Cathie then started taking Ken and Irene to their doctor's appointments.
69. Cathie stated that in February 2016, Irene had asked her and Steve to help look after the Goulburn flats. However, she did acknowledge in cross-examination that in February 2016, she understood Irene wanted Ms Dawson and Ms Cabot to manage the Goulburn flats: Tcpt, 18 February 2021, p 831(15-19). Cathie also confirmed receiving an email from Ms Cabot which stated: "We are under instructions only to communicate with Mrs Shepherd in relation to the flats": Tcpt, 18 February 2021, p 83(21-24).
70. Despite this, Cathie reached out to Mr Cummins, via email, asking for assistance in regards to obtaining copies of statements and the general management of the Goulburn flats: Tcpt, 18 February 2021, p 831(21-28). Cathie stated that she contacted Mr Cummins because he had handled their appointments to act for Ken and Irene and knew that she and Steve were helping them on other matters at the time. She also acknowledged that although she and Steve's Powers of Attorney had not been activated at this time, she "understood that since our acceptment [sic] of the appointments, we could help Ken and Irene under their direction": Tcpt, 18 February 2021, p 831(33-40).
71. On 14 March 2016, Ken spent a fortnight in hospital for a prostate procedure. Cathie stated that when she visited him in hospital Ken appeared to be "very confused" and was uncertain of why he was there.
72. It was also during this period that Cathie said she began to notice issues concerning Irene's personal hygiene including Irene wearing the same dirty clothes for multiple days in a row and having unruly hair.
73. In late April 2016, Ken was scheduled to see a geriatrician based on advice from his doctor at St Vincent's Hospital. However, Cathie stated that she had to rearrange the appointment because Irene had cancelled the initial appointment.
74. Ken was re-admitted to hospital for a follow up procedure in June 2016. During this time Cathie observed that Irene appeared "more confused" asking "Why is Kenny in here, he looks fine to me. Why can't we take him home?" During a visit to the hospital, Cathie stated that Irene had soiled herself and needed Cathie's help to clean herself up.
75. On 16 June 2016, Cathie took Ken to see Dr Barnett. Dr Barnett told Cathie and Ken that "Ken's reaction times and…memory are not quite good enough to be driving anymore", to which Ken agreed. However, Cathie stated that in subsequent conversations, Ken was confused as to why he could no longer drive anymore.
76. Dr Barnett saw Cathie "infrequently" and did not have "lengthy conversations" with her: Tcpt, 10 February 2021, p 429(12-16). According to him, when he had discussed Ken and Irene with her, the only questions that arose were of the nature of "how long will they be in hospital" and "how can we get them into Harbison": Tcpt, 10 February 2021, p 429(42-43).
77. On 4 February 2017, Irene had a fall at "Southdowns" and was admitted to hospital the following day and remained there until 23 February 2017. During this period, Ken stayed with Cathie and Steve. Cathie stated that during this period, Ken was confused and frequently stated he wanted to "go back home to Irene now".
78. On 7 February 2017, Dr Hartnell, orthopaedic surgeon, told Cathie that Irene could not go home until her leg healed. Hospital staff then recommended a double room at Harbison Care Nursing Home for Ken and Irene. Cathie stated that Irene was initially resistant to the idea of supported accommodation but after further discussion said "[i]t will be good if we (Ken) can be together".
79. Cathie also met with financial planner, John Cerniaskus, to investigate and obtain advice, as to how any respite placement for Ken and Irene could be funded.
80. On 17 February 2017, Cathie recalls receiving a telephone call from the hospital discharge planner to inform her that Dr Barnett had assessed Ken and Irene and considered both to "have lost the capacity for rational judgment and decision making".
81. On 21 February 2017, Cathie was present and assisted with an ACAT assessment of Ken and Irene. The assessments found Ken and Irene needed care and each of them to have reduced capacity.
82. Cathie accepted in cross-examination that until Irene had broken her leg in February 2017, her health was "excellent" (Tcpt, 18 February 2021, p 810(49)-811(02)) and there were no concerns with Irene's memory impairment at home (Tcpt, 18 February 2021, p 812(06-08)). Cathie also accepted during cross-examination, that Irene could handle money at the time of the assessment: Tcpt, 18 February 2021, p 821(14) - 822(10).
83. Mr Cummins provided Cathie and Steve with a copy of Dr Barnett's report. Cathie assumed that from then the Powers of Attorney and Enduring Guardianship were activated for both Ken and Irene.
84. On 23 February 2017, a room at Harbison Care became available for Ken and Irene and they subsequently moved into the room.
85. Cathie asked multiple times, prior to Ken and Irene moving into Harbison Care, if she should contact the immediate families to let them know Irene had broken her leg. Both Ken and Irene declined. However, Cathie and Steve decided to contact Karen and Jeffrey because of Irene's "age and injury". I have already referred to the nature of this communication.
86. After Ken and Irene moved into Harbison Care, Cathie noticed that Mrs King would visit more frequently. Cathie expressed her concerns regarding Mrs King to Harbison Care staff. The reasons for this concern were not the subject of detailed evidence.
87. During multiple visits to Harbison Care in 2017, Cathie saw Irene refuse to co-operate with nurses and express distrust of the staff. Irene expressed a repeated desire to go home and there were several occasions where she was unwilling to let Ken attend medical appointments or to leave Harbison Care without her.
88. On 14 March 2017, Cathie and Steve met with Mr Cummins. At this meeting, Mr Cummins revealed the contents of Ken and Irene's 2015 Wills. Cathie stated that this was the first occasion that she came to know that she and Steve were named as executors and beneficiaries in each of the 2015 Wills.
89. During this meeting, Mr Cummins advised Cathie and Steve to visit the bank on Ken's and Irene's behalf to set up a trust to ensure their money was inaccessible to others. Cathie visited the bank and was told a financial management order was required. The bank teller also informed Cathie that Mrs King had been added as a signatory to Irene's account. Cathie obtained, and signed, a form to remove Mrs King as a signatory.
90. On 14 March 2017, Steve called Jeffrey in Cathie's presence. During this conversation Jeffrey and Karen thanked Steve and Cathie for "everything you [sic] have done for [Ken and Irene]". This was the last time they spoke on the telephone to Karen and Jeffrey until the 30 October 2017, when Cathie called Karen to enquire about attending Irene's funeral.
91. On 20 March 2017, Cathie received a call from Harbison Care's Director of Nursing, Linda Cooke, who informed her that she and Steve's Powers of Attorney had been revoked and that new Powers of Attorney had been granted. Cathie and Steve then met with Mr Cummins who informed them they should stop any action as attorneys and that he could not advise them further. Later, Mr King came to Cathie and Steve's home and delivered the papers relating to the revocation of the Powers of Attorney and Appointments of Enduring Guardians.
92. Later that evening, Cathie sent an email to Karen and Jeffrey expressing her disappointment at the change in arrangements: Ex J3/581. The email contained no reference to Irene and Ken's lack of capacity to make the aforementioned changes but Cathie gave evidence that this was because "we had already explained that to [Brian and Jeffrey]" and "we were so shocked at the turn of events and that's how I expressed what we were feeling": Tcpt, 18 February 2021, p 839(02-17).
93. Shortly thereafter, Cathie contacted a solicitor, Rohan McAlpine, who helped her and Steve lodge an application to NCAT.
94. On 2 April 2017, Cathie and Steve visited Ken and Irene. Cathie asked Irene about the new solicitor and attorneys to which Irene replied "We didn't sign any papers! What new solicitor? What rot".
95. Cathie stated that on multiple visits in April 2017, Irene expressed words to the effect "Help us out of this mess. I don't know what papers we have signed", "I am very angry with Brian and Jeffrey and Tracie and Damien [sic]" and "I do not want them at 'Southdowns'".
96. Cathie stated in cross-examination that throughout April, she had conversations with Ken and Irene that were "in isolation, rational, but they occurred multiple times per visit, and on each occasion we visited: Tcpt, 18 February 2021, p 839(25-29).
97. On 1 May 2017, Cathie, Steve and Ken attended the NCAT Hearing.
98. On 13 May 2017, Irene called Cathie and asked Steve to visit as Ken was not feeling well. After the visit, Steve told her that "Ken and Irene are scared" and Irene "went off about Ken's family, saying they'd been in there today, uninvited, and really upset".
99. On 14 May 2017, Cathie asked Ken who had visited him the previous day and he stated "I don't know any of them, they are strangers to me, but they said they were my relations so they must be".
100. On 23 May 2017, when visiting Ken and Irene, Cathie stated that Irene wanted to know when the Tribunal Hearing was scheduled for and asked Cathie and Steve to "fight all the way for us, you know us and what we want, we need help".
101. Of course, in coming to conclusions about Cathie's veracity, I remember that she has a significant interest in the result of the proceedings. I note, however, that there is no evidence at all establishing, or going close to establishing, that she did not act in the best interests of Ken and Irene. In this regard, all of the evidence speaks with one voice, that Ken and Irene could not return to "Southdowns" and that they needed medical and other assistance. Overall, I am satisfied that Cathie did her best to tell the truth. I accept her evidence.
102. It is unnecessary to repeat Steve's evidence going to Ken's admission to St Vincent's Hospital and the surrounding events. He corroborates Cathie's evidence. It is also unnecessary to repeat what he wrote about Irene and Ken's admission to Harbison Care, as once again, he corroborated Cathie's evidence about those events. I accept his evidence on these topics.
103. In cross-examination Steve stated that on 27 February 2016, he met with Cathie, Ken, Irene, Ms Cabot and Ms Dawson at the Goulburn flats: Tcpt, 17 February 2021, p 763(40-49). Steve recalled saying to Cathie, Ms Cabot and Ms Dawson that the flat had some damage, which he then repeated to Irene: Tcpt, 17 February 2021, p 764(10-32). Irene then asked Steve to complete the work and he agreed: Tcpt, 17 February 2021, p 765(22-25). In cross-examination, Steve denied making the statements in Ms Dawson's evidence: Tcpt 17 February 2021, p 764(38-44), p 765(36-37).
104. In his affidavit sworn 27 February 2019, Steve gave evidence about a similar interaction at the Goulburn flats in May 2016, where he inspected unit 3 with the agent and found that the bathroom was leaking. During the inspection, Irene had remained in the car. After inspecting the flat, Steve stated that he had discussed the work that needed to be done with Irene who asked him to then organise the repairs, which he did. It is unclear whether the events described on the 27 February 2016 and May 2016 are the same events.
105. Steve stated that from around spring 2015 onwards, he noticed Ken frequently repeated himself, spent a lot of time looking for things, and was often forgetful. On 16 February 2016, Ken fell off a ladder. After the fall, Steve observed that Ken spoke more slowly, was more frequently repetitive and more frequently forgetful. He corroborated Cathie's evidence that in 2016, after Ken was admitted to St Vincent's, he was frequently confused and uncertain as to why he was there.
106. After Ken's first admission to St Vincent's, Steve also observed changes in Irene's behaviour. He stated that up until Irene was admitted to hospital, she would call Steve, once or twice a month, to say Ken had gone missing, when he was merely outside or in the bathroom. Steve stated in cross-examination that in late January 2017 he did not believe Irene's mental capacity was good or that she was capable of paying her bills: Tcpt, 17 February 2021, p 742(48)-743(10).
107. Steve was asked about an invoice and accompanying explanation he provided to Irene on 30 January 2017, relating to work he had recently completed on "Southdowns". Steve accepted he saw Irene draw a cheque for the full sum of the invoice and sign it. He also said in cross-examination that Irene "wouldn't be able to understand" the invoice. When asked why he gave Irene the invoice he stated "so she could see…what I'd done" (Tcpt, 17 February 2017, p 746(34-36)) and "it's common practice to give…an invoice to a client": Tcpt, 17 February 2021, p 746(47-50).
108. On 17 February 2017, Cathie informed Steve that Mrs King had taken Ken to the bank to withdraw cash. Cathie asked Steve to get the money back from Mrs King when he visited Irene at the hospital. During this visit, Steve said Mrs King handed him the money and bank statements and said "You can have it. I don't want to get involved…this is too complicated and Ken's got it in his head that you are having an affair with Irene!"
109. In cross-examination, Steve stated that at the time of the conversation with Mrs King he thought the Powers of Attorney had been activated (although a letter dated 15 February 2017 from Mr Cummins stated otherwise. It is unclear whether Steve had seen the letter): Tcpt, 17 February 2021, p 790(47-49).
110. After Ken and Irene moved to Harbison Care on 23 February 2017, Steve observed Ken and Irene to be much happier as they were together.
111. In February 2017, Cathie and Steve met with Mr Cummins who informed them the Powers of Attorney and Guardianship documents had become active and that they might like to contact a financial advisor for advice. At this meeting, Steve became aware that he was a beneficiary under Ken's and Irene's 2015 Wills. It is unclear if this is the same event as the 14 March 2017 meeting referenced in Cathie's evidence, but it is likely to have been. (I do not think anything turns on Steve providing an earlier date.)
112. In early 2017, a financial strategy report was prepared by a financial planner, John Cerniauskas, in respect of Ken and Irene's finances. Steve stated that at this time he believed the Powers of Attorney had been activated but accepted that it would have been important to consult with Ken and Irene about the report. Whilst Steve had no recollection of mentioning the report to Irene and Ken, he said he "was sure Cathy [sic] would have" mentioned it: Tcpt, 17 February 2021, p 751(35-41).
113. On 14 March 2017, Steve had a 40 minute telephone call with Karen and Jeffrey, explaining what he and Cathie had been doing for Ken and Irene. He stated Karen "had nothing by thanks and compliments for what we had done". I accept this evidence.
114. On a visit to Harbison Care in or around mid-March 2017, Ken accused Steve of stealing his, and Irene's, money and changing the locks at "Southdowns". Steve replied that he had put one lock on "Southdowns" to secure the property as someone had been inside. Shortly thereafter, Steve and Cathie were made aware their appointments as attorneys and guardians had been revoked.
115. From April 2017, Cathie and Steve continued to visit Ken and Irene often. Steve stated that he and Cathie explained to Ken and Irene "a little about what had gone on with the revocation of our appointments and the appointments of new attorneys and guardians." He said Ken did not remember signing the papers or that he had changed solicitors from Mr Cummins. Ken was also confused as to how Karen was involved.
116. In cross-examination, Steve was unclear about what, if anything he said, to Ken and Irene, specifically in relation to the 2017 Wills. Steve said that he would likely have mentioned to Ken and Irene that they changed their Wills and was "pretty sure" Irene and Ken replied "I don't remember signing papers": Tcpt, 17 February 2021, p 773(28-43). Steve denied being aggressive when speaking to Ken and Irene about their 2017 Wills: Tcpt, 17 February 2021, p 774(01-07).
117. During a visit on 2 April 2017, Steve asked Ken and Irene about the arrangements relating to his cattle at "Southdowns". Irene stated she was happy for Steve to continue to leave his cattle on the property.
118. On multiple visits in April 2017, Ken and Irene would ask Steve and Cathie for assistance and both appeared shocked when Steve informed them of the change to their Powers of Attorney and Guardianship documents.
119. On a visit in late April 2017, Steve asked Ken if he wanted to attend the NCAT Hearing, which he agreed to with Irene's encouragement.
120. On 25 April 2017, Steve visited Ken and Irene. In cross-examination he was taken to a behavioural assessment of Irene completed on 25 April 2017 at 8:00 a.m. which stated: "Visitor 2 speaking aggressively without apparent control…Irene was speaking aggressively and appeared very agitated when visitor/neighbour, Mr Curcuruto was in attendance this am. The neighbour was discussing the will and documents that he found at the Shepherds' house that Irene's brother will not accept…Visit caused agitation…Requested visitor to leave…Visitor left and resident settled": Ex J2/423A. Steve accepted he was the only visitor at that time but denied speaking aggressively, speaking about the wills or mentioning Karen: Tcpt, 17 February 2021, p 777(20-28), p 777(30-43). (Whilst the author of the report did not give evidence, it is a document written contemporaneously with the event.)
121. On 1 May 2017, Steve, Cathie and Ken attended the NCAT Hearing. Steve said on the way home "Ken seemed to quickly forget the day".
122. On 2 May 2017, Steve attended on Ken and Irene. Ken said to Steve "I'm so pleased to see you. Irene and I really appreciate what you are doing for us."
123. On 13 May 2017, Graham, John, Glenn and Lynne Shepherd visited Ken and Irene whilst Steve was present. Steve said that during the visit Irene was "extremely agitated, screaming and shouting at them to 'leave!'" whilst Ken did not recognise the visitors.
124. Over various meetings between 17 May 2017 and 22 May 2017, Steve observed Irene refusing to take her medicine; attempt to convince Ken to not take his medicine; not want Ken to be taken to his doctor's appointment by himself; and express fears of "strangers coming to the room and trying to take us away".

Submissions

1. The Plaintiffs contended that previous beneficiaries were removed from the Wills as they fell out of favour, or ceased their working relationship with Ken and Irene.
2. They submitted that in any event, the other beneficiaries were not people who would have reasonably expected to be provided for in Ken and Irene's Wills, or people who Ken or Irene should have given any consideration to, as possessing a right to lay claim on their bounty. As will have been read, a number of them had been beneficiaries in earlier Wills.
3. In regards to the insane delusion pleading, the Plaintiffs submitted that Mr Cummins' position on the Harbison Care board, his undisclosed relationship with Cathie's mother, and his refusal to assist in updating Ken and Irene's documents, rightly or wrongly, was sufficient to support Ken's and Irene's mistaken belief that the Curcurutos, with the assistance of Mr Cummins, had organised their admission to Harbison Care in order to "steal 'Southdowns'". I disagree as there was simply no evidence that could reasonably lead Ken or Irene to the conclusion that Steve and Cathie were endeavouring to steal "Southdowns". Furthermore, the medical evidence clearly established that returning to "Southdowns" was not a viable option.
4. More importantly, Karen and Jeffrey submitted, as in Bull v Fulton (1942) 66 CLR 295; (1942) HCA 13, that there was no evidence that anyone tried to talk, or reason, Ken and Irene out of these beliefs.
5. In written submissions Karen and Jeffrey referenced the Court of Appeal's decision in Battenberg v Phillips [2020] NSWCA 249, in which Emmett AJA had repeated: "…where a will has been read by or to a deceased, the presumption that the testator knew and approved of the will is a very strong one and can be rebutted only by the clearest evidence".
6. Counsel conceded that Ms Blackadder was not experienced in assessing testamentary capacity at the time of drafting but submitted that she had taken steps to ameliorate that position. He referred to what Kunc J had written in the postscript of Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, namely "that it can't be that only certain classes of solicitors should be the people that assess testamentary capacity": Tcpt, 18 March 2021, p 862(26-38).
7. Counsel also submitted that the relatively straightforward nature of Irene's and Ken's estate, namely, the land known as "Southdowns", the Goulburn flats, and the cash on deposit, was sufficiently reflected in the instructions Ken and Irene gave to Ms Blackadder, to demonstrate an understanding of the extent of the property which was to be the subject of the Will. However, it was conceded that if incomplete instructions were given, it was only in relation to some personal effects and not a large part of the estate: Tcpt, 18 March 2021, p 868(40-44). In fact, Ms Blackadder gave the evidence of Ken and Irene saying that they wished to think about "other personal effects in detail and whether we want to leave them to anyone in particular" before the draft Will was signed: Affidavit, Priscilla Michelle Blackadder, 29 October 2018 at par 28.
8. It was also submitted that Steve and Cathie's failure to seek a statutory Will to replace the 2017 Wills should weigh upon the Court's consideration of the validity of the Wills. I do not understand this submission as s 22 of the Act provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied that the proposed will, alteration or revocation, is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity.
9. The Defendant's principal contention was that based on their relationship and substantial family history with Ken and Irene, it was reasonable for them to have a moral claim on the bounty of each of Ken and of Irene. They highlighted the fact that no complaints were made about other previous beneficiaries including Kevin Owens, the McMullens, or Rodney Keyte. Yet, there was no evidence of Ken or Irene giving consideration to the longstanding testamentary benefits given to each of them and whether they no longer had a claim on his and her bounty.
10. They also submitted that this failure to consider the beneficiaries who had been named in a number of prior Wills, demonstrated the lack of capacity of Ken and of Irene to recall, or give consideration to, persons who might have had claims on their testamentary bounty.
11. In oral submissions, senior counsel for the Defendants accepted that no one had tried to talk Ken or Irene out of the mistaken beliefs concerning Cathie and Steve, who, themselves, were unaware of those beliefs being raised by Ken and Irene. In addition, the remaining people who were aware of these mistaken beliefs, namely Mr and Mrs King, and, perhaps, Ms Blackadder, had perpetuated those mistaken beliefs: Tcpt, 18 March 2021, p 890(04-43).
12. It was also submitted that the involvement of Jeffrey, and, to some extent, Karen (who authorised his actions), in the drafting and execution of each of the 2017 Wills, combined with the fact the Wills were not read to Ken or to Irene, or observed to have been read over by them, raised serious doubts that each knew, and approved of, the content of each of the 2017 Wills. In addition, the evidence given by the attesting witness who was there, was to the effect that Ken signed his 2017 Will because Irene nagged him and she then signed her 2017 Will because he had signed his.
13. One particular submission made on behalf of the Defendants should be quoted verbatim. They submitted that a finding should be made that: "(i) knowing of the assessments of Ken and Irene's mental capacities by Dr Barnett before they came back to Australia in March 2017; (ii) knowing of the contents of the Haille Paine letter and its attachments; (iii) having decided not to get independent medical assessments of Ken and Irene; (iv) learning of the Teece Hodgson & Ward letter and in particular that NCAT proceedings had been commenced which would consider and make a determination of Ken and Irene's mental capacities; Mr Lee and Ms Chant moved to get the Wills signed as a matter of urgency, and before Ken and Irene received any more legal advice or had further contact with lawyers."
14. They went on to submit that in dealing with will-makers in circumstances similar to that of Ken and of Irene, authorities suggest that reading over the Will may not be sufficient proof of knowledge and approval: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [173]; Ashkettle -v- Gwinnett [2013] EWHC 2125 (Ch); Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 [184]-[192]; see also: In the Will of Steward, deceased [1964] VR 179 at 185.
15. In addition Irene's Will was not in accordance with her instructions as it dealt with the entirety of her estate when she had only given instructions in relation to "Southdowns" and the Goulburn flats, or in some cases just "Southdowns". It also gave Jeffrey one half of the estate where she had twice instructed Ms Blackadder that "Everything should be going to Brian".
16. Whilst the Defendants accepted in the oral submissions that the evidence is "slightly ambiguous" in this regard, they submitted that on each occasion when presented with the opportunity to sign the Wills giving everything to Karen and Jeffrey, Ken and Irene had rejected that opportunity, in order to think about making other arrangements: Tcpt, 18 March 2021, p 894(38-43).
17. They also submitted that Ms Blackadder's affidavits spoke to the issue of Ken and Irene's "testamentary intentions" rather than testamentary capacity.

The Law

1. Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.
2. Wills can be proved in two ways; being a grant in common form, or a grant in solemn form. A grant, in either form, is a judicial act, and becomes an order of the court: Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 at 398. In the case of a grant of probate in common form, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the Will proved in solemn form: Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147 at [35].
3. A grant of probate, or letters of administration, represents both an order of the Court and an instrument of title: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233] (Lindsay J).
4. In broad terms, if the last will of the will-maker is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for.
5. In the case of a grant in solemn form (with exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant), the grant of Probate is said to be irrevocable. Or, as was put in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, by Campbell JA, at [7]: "The situation is rather that a grant in solemn form is binding on the parties to the probate suit in which it was granted, on anyone who has been cited to see the proceedings, and also on anyone of full capacity who has an interest and knows of the proceedings but chooses not to intervene: Osborne v Smith (1960) 105 CLR 153; Williams, Mortimer and Sunnucks at 270."
6. Lindsay J comprehensively dealt with the distinctions and provided an admirable historical analysis of the difference between common form, and solemn form, grants in Estate Kouvakas; Lucas v Konakas. It is not necessary to repeat the conclusions to which he came in that case. However, his Honour added, at [65]: "The absence of the words 'in solemn form' is not necessarily indicative of a grant in common form: Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [28]. A grant made, on notice to all interested persons, after hearing evidence bearing on the validity of a will, could aptly be described as a grant 'in solemn form' notwithstanding the absence of those words in the instrument of grant. The difference between common and solemn form grants is more than merely formulaic."

Testamentary capacity

1. The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory but is derived from the case law. Nor does the Court adhere to the language of testamentary capacity in the case law as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134]. Furthermore, how the elements would be regarded as having been established, in a given situation, must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity.
2. Before proceeding further, it is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, Bathurst CJ and Gleeson JA agreeing): "…Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument."
3. ("Inofficious" in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker's bounty: Brown v McEnroe (1890) 11 NSWR Eq 134 at 138 (Owen CJ in Eq); McNamara v Nagel [2017] NSWSC 91 at [263] (Robb J)).
4. The retrospective task of the Court is to assess whether a will is valid; the test for testamentary capacity being understood in the context that it is time, situation, person, and task, specific. That is to say, whether the particular will-maker, suffering from his, or her, particular medical, or mental, conditions, in the particular situation, was able to make the particular will, at the time it was made. As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 at 109.
5. In Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387; [2005] HKCU 1254, Ribeiro PJ, in the Hong Kong Court of Final Appeal stated at [176]: "If someone wishes to dispute the validity of a will on the grounds that there is want of… testamentary capacity or of the requisite knowledge and approval, that person bears an evidential burden of putting the relevant ground of challenge in issue. If the evidence adduced by him or otherwise arising in the case is of sufficient cogency to raise such an issue, the court, when assessing the evidence as a whole at the end of the case, decides whether the proponent of the will has discharged the persuasive burden in relation to the relevant fact in issue on the balance of probabilities."
6. But in regard to burdens and presumptions, one needs, also, to remember what was more recently written by Leeming JA in Mekhail v Hana, at [168]: "I respectfully agree with what Justice Lindsay has written, extra-judicially, on this point: '… In the modern form of 'judge alone (case managed) trial' it is generally artificial, at least at a final hearing, to analyse a case in terms of a 'prima facie case' or dispositive 'presumptions'. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence. What is perceived to be 'law' upon an exercise of probate jurisdiction is often no more than a reflection of ingrained attitudes of mind about case management based upon established practice. One needs to approach talk of 'presumptions' and shifting 'burdens of proof' with respect, but critically. When the language of the law does not sit comfortably with actual practice, a re-assessment of law, practice and their interaction may be called for in order to bring them into line. This might be done relatively easily with an appreciation that a 'presumption' is not, in the current context, so much a 'legal rule' as a common 'inference' drawn from particular types of evidence. It is, after all, a 'rebuttable presumption of fact' even if hedged about by formalistic reasoning": G Lindsay, "The 'Why' and 'What' of 'Suspicious Circumstances' in Probate Litigation", paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018.'"
7. Attention to the evidential and persuasive burdens may be decisive in a case in which the evidence is in short supply. But, in other circumstances, it is simply a tool to enable the Court to identify, and weigh, the relevant elements within the evidence, the ultimate task being to consider all of the evidence available, and to draw such inferences as the Court can from the totality of that evidence, to conclude whether those propounding the disputed will have discharged the burden of establishing that it represents the testamentary intentions of the will-maker.
8. Next, I repeat what Powell J stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 704-707: "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows: 1. The onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the court is bound to pronounce against the document; 2. This onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3. The proponent's duty is, in the first place, discharged by establishing a prima facie case; 4. A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator; 5. The first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; 6. Where what is propounded as a will comprises more than one sheet of paper, it is not necessary that every sheet be signed, although it was, at one time, held that, for the prevention of fraud, the sheets must, at the time of execution, be attached in some way... although as time went by the degree of 'connection' insisted upon seems progressively to have been relaxed; if, however, the pages are authenticated beyond doubt there appears to be no reason why 'connection' at the time of execution need be insisted upon; 7. A testator's signature is sufficiently 'made' in the presence of the attesting witnesses if the signature was in fact made in the presence of witnesses who either saw, or had the opportunity to see, the testator writing, even though they did not actually see the signature itself; 8. A testator's signature is sufficiently 'acknowledged' in the presence of the attesting witnesses if, by word or gesture, the testator invites the witnesses to sign his will, or witness his signature and the witnesses either see, or have the opportunity of seeing, the testator's signature; 9. Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. Facts which may well cause suspicion to attach to document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it (b) that the testator was enfeebled, illiterate or blind when he executed the document (c) where the testator executes the document as a marksman when he is not); 11. Where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator, is as a general rule, conclusive evidence that he knew and approved of its contents; 12. The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow in which case His Lordship said 'It is essential to the exercise of such a power' (scil, testamentary power) 'that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made.' 13. The test of what the law, in this context, at least, regards as 'a disease of the mind' or 'an insane delusion', was discussed by Sir J.P. Wilde in Smith v Tebbitt in which case his Lordship said: 'It is, no doubt, true that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, and may therefore be called "delusive". But what I want to convey on this head is this; that the question of insanity and the question of "delusions" is really one and the same - that the only delusions which prove insanity are insane delusions - and that the broad enquiry into mental health or disease cannot, in all cases, be either narrowed or determined by any previous or substituted enquiry into the existence of what are called "delusions".' … 14. A duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding sanity is to be presumed until the contrary is shown 15. Facts which, if established, may well provide evidence to the contrary include: (a) the exclusion of persons naturally having a claim on the testator's bounty (b) extreme age or sickness 16. In relation to the former of these two matters, however, it is appropriate to record that, in the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker, the following passage appears: '… the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition though the justice or injustice might cast some light upon the question as to his capacity.' 17. However, while extreme age or grave illness will call for vigilant scrutiny by the Court, neither (even though the testator may be in extremis) is, of itself, conclusive evidence of incapacity; it will only be so if it appears that age, or illness, has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property." [Citations omitted]
9. In Banks v Goodfellow (1870) LR 5 QB 549, Sir Alexander Cockburn CJ, at 565, in a passage not always quoted, stated: "If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence - in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand."
10. At 569-570, Cockburn CJ referred, with approval, to the decision of the Judicial Committee of the Privy Council in Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 at 290-291, where Erskine J had delivered the judgment of the Court in the following terms: "… Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration."
11. Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters. Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect.
12. This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate. In each regard, memory is important.
13. As Ward J (as her Honour then was) noted in King v Hudson [2009] NSWSC 1013 at [51]: "Mr … referred in this context to the three 'R's' adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: 'He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them.' Mr … emphasised that his Honour went on to say: 'It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other.'"
14. White J, in Dickman v Holley; Estate of Simpson [2013] NSWSC 18, at [159], wrote: "The question of testamentary capacity is not whether the deceased did bring to mind her property and those who might have claims upon her, and did evaluate the respective claims on her testamentary bounty, but whether she was able to do so (King v Hudson [2009] NSWSC 1013 at [51]). That question must be answered in the context of the particular will in question (Re Estate of Church [2012] NSWSC 1489 at [52]-[55] and cases there cited)."
15. As was written in Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40] by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory….". Thus, comprehension and appreciation of the calls on a will-maker's bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he or she, must have the capacity to decide for himself, or herself between competing claims. That means that he, or she, must have the ability to inform himself or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances.
16. Henry J put this succinctly in The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250 at [100]: "The question is not whether a testator knows they are excluding someone who has a claim, but whether a testator was, at the time, capable of recollecting who they were, understanding their respective claims and deliberately forming an intelligent purpose of excluding them from any share of their property." (Citations omitted)
17. Where, in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the Will to show that the will-maker's mental state did not influence the Will: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. However, as Dixon CJ (with Webb and Kitto JJ) wrote in Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67: "… that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."
18. In Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289-290, Gleeson CJ said: "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439. This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter."
19. In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [65]: "It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator's (or testatrix's) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question."
20. In Carr v Homersham, Basten JA wrote at [47]: "To speak of there being a 'doubt' as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the court must resolve it; that must be done by consideration of all the evidence and the inferences which may be drawn from it. It is true that the court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, 'a grave matter'. A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity."
21. I should also refer to Bailey v Bailey (1924) 34 CLR 558 at 570-572; [1924] HCA 21, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant: "… 5. A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. 6. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances. 7. As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries… (b) the exclusion of persons naturally having a claim upon the testator… (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit… 8. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof. 9. 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…"
22. As I stated in Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [358], the statement of principle in Banks v Goodfellow has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 at [82] and [66]. It has also been described as the "classical exposition": I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed 1989, Law Book Co) at [306]. It is very well settled and has proved sufficiently flexible to take account of developments, in particular developments in medical understanding.
23. Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566: "It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause - namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, 'the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.'" [Footnotes omitted]
24. In Re Griffith; Easter v Griffith at 290-291, the Court considered it a grave matter to invalidate a will: "The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton and Marston v Knight, above. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind. … Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid."
25. Kirby P articulated at 295, this principle as follows: "In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."
26. In describing the scope of the requirement of knowledge of the nature and extent of his property, Coleridge J, directing the jury in Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 at [620]-[621], wrote that to have capacity the will-maker must: "... [have] a mind... of sufficient memory and understanding to know generally the state of his property (I use the word generally, because you have no right to expect from a man... a specific and accurate knowledge of every atom of his property... [But] if a man has six children, and... thinks he has only five... you could hardly say he is in a proper state of mind to dispose of his property."
27. In Read v Carmody [1998] NSWCA 182, Powell JA, (with whom Meagher and Stein JJA agreed), wrote at 4 that a testator or testatrix "is aware, at least in general terms, of the nature, and extent, and value, of the estate".
28. In Kerr v Badran; Estate of Badran [2004] NSWSC 735, Windeyer J noted at [49]: "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 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 asset 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."
29. In Tu v Tu; Estate of Tu [2008] NSWSC 458, Windeyer J explained at [44], that he did not cast doubt on the test expounded in Banks v Goodfellow in Kerr v Badran.
30. The discussion by Windeyer J in Kerr v Badran was referred to, with approval, by Hodgson JA (Young JA and Bergin CJ in Eq agreeing), in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [64], and by White J in D'Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 133 at [95].
31. In Frizzo v Frizzo [2011] QCA 308, Muir JA (with whom McMurdo P and White JA agreed) at [53], stated: "A testator may not need to know the exact address or precise current value of land he owns or other matters of detail but it is necessary to show that the testator is able to differentiate between his assets to a sufficient degree to satisfy the court that he is substantially aware of what he 'does and doesn't own' and its general value. Kerr v Badran does not absolve a party propounding a will from proving that the testator knew the nature and extent of his assets."
32. In In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39, Hood J, at 199, noted that in order for a testator to rightly understand these matters, it is essential that his "mind should be free to act in a natural, regular and ordinary manner". Dixon J cited these observations with approval in Timbury v Coffee (1941) 66 CLR 277 at 283; [1941] HCA 22.
33. Vickery J, in Nicholson v Knaggs at [97] deals with the testator's understanding of the "practical effects" of the will: "In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is also unnecessary. However, it does need to be shown that the deceased understood that she, or he, was executing a Will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it."
34. These principles were affirmed in Brown v Wade [2010] WASC 367 at [95]-[96].
35. I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation."
36. However, whilst that may be a summary of the principle, I prefer to identify the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks - Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013), where the authors deal with particular matters which arouse suspicion, noting, at 207 [13-30]: "A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside. The testator's feebleness of body or mind may be relevant to knowledge and approval." [Citations omitted]
37. In Bull v Fulton at 341, Williams J noted: "A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants".
38. In Rowe v Sudholz [2019] QSC 306, in which a beneficiary received a large, unexplained increase in pecuniary legacy, Applegarth J wrote at [137]: "The absence of an explanation for such a significant increase does not mean that there could be no explanation or that [the deceased] lacked testamentary capacity. However, the absence of an explanation for such a significant increase creates the suspicion that [the deceased] placed excessive weight on recent acts of friendship by [the Defendant], and that his impaired memory and executive dysfunction affected his ability to discriminate between her claim and the claims of others, including [the Plaintiffs]."
39. Thus, whilst an explanation for a dramatic change in testamentary intention may be sought, the focus in that search must remain firmly on the question whether the deceased had the capacity to make the Will.
40. As to the date at which testamentary capacity must be established to have existed, it is established that if the deceased had capacity at the time he, or she, gave instructions for the will, 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 and Ford at [308].
41. Thus, it would be necessary to establish that the will, as executed, accords with the instructions given by the will-maker at the earlier time. The principle does not apply if there are material differences between the instructions given and the will prepared.
42. In this case, affirmative satisfaction of the testamentary capacity of each of the will-makers at the time the 2017 Will was made also invites the examination of the position at the time the Will was executed: Smith v Tebbitt (1867) LR 1 P&D 398, 436-437.
43. Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR 3 P&D 64 at 67. It is a question determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo at [66].
44. As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) at [65]: "The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation."
45. It was also aptly put in "Assessment of Testamentary Capacity and Vulnerability to Undue Influence" by Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh and Pamela R. Champine (2007) 164 The American Journal of Psychiatry, at 722: "Testamentary capacity is a construct rooted in both the legal and medical domains, thus inviting a collaborative approach to its definition and assessment. Challenges to testamentary capacity are made on a legal basis, and the judge remains the final arbiter. However, the evidence to support a challenge may be informed by the assessment of a medical expert."
46. Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case.
47. Because it was raised, I turn next to the concept of delusions.
48. Delusions are a hallmark of psychotic disorders, for example in schizophrenia, delusional disorders, psychotic depression, delirium and organic psychosis. Thus, a delusion (in the clinical sense) is not itself a medical disorder, but it will be evidence of one.
49. There are numerous definitions of delusions. For example, in the fifth edition of the 'American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders' ("DSM V") at p 819, a delusion is defined as: "A false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person's culture or sub-culture (i.e. it is not an article of religious faith). When a false belief involves a value judgment, it is regarded as a delusion only when the judgment is so extreme as to defy credibility."
50. Karl Jaspers, a well-respected and known German philosopher, in his book General Psychopathology (1963, University of Chicago Press), considered delusions to be characterised by: "False judgments that share the following external characteristics to a marked though undefined degree. 1. They are held with extraordinary conviction with an incomparable subjective certainty. 2. There is an imperviousness to other experience and to compelling counter arguments. 3. Their content is impossible."
51. Mullen P, in The Phenomenology of Disordered Mental Function Postgraduate Psychiatric Ed. (1979, Hill, Murray & Thorley Academic Press) defined delusion as an abnormal belief which arises from disturbed judgments and which the experience of reality becomes a source of new and false meanings and continued stating that delusions usually have attributed to them the following characteristics: "1. They are held with absolute conviction. 2. They are experienced as self-evident truths, especially of great personal significance. 3. They are not amenable to reason or modifiable by experience. 4. Their content is often fantastic or at best inherently unlikely. 5. Their beliefs are not shared by those of a common social and cultural background."
52. Nicholas Keks, in The Psychiatry Interview and the Valuation of the Mental State Foundations of Clinical Psychiatry Ed. (1994, Sydney Block & Bruce Singh. Melbourne Press) stated that delusions are false ideas usually of great personal significance held firmly despite all evidence as to the contrary and are inconsistent with a patient's social cultural background. They have the following characteristics: "1. They are held with absolute conviction and are experienced as self-evident reality. 2. They are not amenable to reason or modifiable by experience. 3. They have great and usually central personal significance. 4. Their content is often fantastic or at least inherently unlikely. 5. They involve beliefs which are personal and idiosyncratic and unlikely to be shared by those of a similar social and cultural background. 6. They have a tendency to contaminate wide areas of the patient's experience, such that a wide range of unrelated events come to be interpreted as confirming the core delusional belief. 7. The way in which these beliefs emerge is often bizarre or difficult to understand, and evidence put forward to prove the truth of the delusions is often irrelevant, absurd or plainly incomprehensible. 8. Delusions are pathognomonic of psychosis."
53. Thus, a delusion is an idiosyncratic belief, held firmly by a person, at a particular point in time, and not supported by known facts, and not shared by other members of the person's cultural and/or religious community. It may be distinguished from an "overvalued idea", this being a psychiatric expression meaning not a delusion, but an irrational idea. Although irrational, an overvalued idea is "sufficiently attached to the initial worry to be understandable". Thus, while an overvalued idea may be irrational, the logic is obvious and there is no breach from the shared reality, referring to beliefs shared by other members of the person's cultural and/or religious community.
54. A delusional belief is one that involves a clear break from reality (as the concept of reality is understood by the community of which the patient forms part). Mere irrationality, even extreme irrationality, is not delusional if it has some connection with reality: Schultz v Bailey [2007] NSWCA 110. Nor is a mistaken belief a delusion: Du Maurier v Wechsler [2001] NSWSC 4 at [40] (Windeyer J). Thus, the relevant false belief must not be a simple mistake that could be corrected. It must be irrational and fixed in nature.
55. It has been said that the expression "insane delusion" used in Banks v Goodfellow is arguably tautological, but that the "inclusion of the word 'insane' emphasises that a relevant delusion is one indicative of a mental deficiency inconsistent with testamentary capacity, and not simply a false or mistaken belief": Carr v Homersham at [124] (Macfarlan JA). In the same judgment, Leeming JA, at [130], described the term as "a familiar, if out-moded, expression".
56. In Easter v Griffith (1995) 217 ALR 284, as per Gleeson CJ, at 291, the issue was whether a testatrix "ultimately came to suffer from a form of mental disturbance which made it impossible for her to judge [her son] rationally". Gleeson CJ, at 292, endorsed the premise that "it was unnecessary for [the trial judge] to make a positive finding that the testatrix was suffering from insane delusions in order for the onus of proof of testamentary capacity to fall upon the party propounding the will".
57. Gleeson CJ (with whom Handley JA agreed, Kirby P dissenting) discussed Banks v Goodfellow, and observed, at 290-291: "Mental infirmity of a kind which denies testamentary capacity does not necessarily involve 'insane delusions'. In Harwood v Barker (1840) 3 Moo PC 282, the testator was said to have a bodily disease affecting the brain and was greatly debilitated physically. He was said (at 285) not to have been suffering from any delusion, but was found not to have been in a state of mind to judge the propriety of his dispositions. (See also Battan Singh v Amirchand [1948] AC 161). After referring to the accepted definition of a 'delusion' as considered by the High Court in Bull v Fulton (1942) 66 CLR 295, 339 as being a 'fixed and incorrigible false belief which the victim could not be reasoned out of', Gleeson CJ (NSW) then rendered some further observations endorsing the approach of the trial judge (Santow J). He said: 'As Santow J observed, psychiatric knowledge has developed a great deal since those early formulations of the relevant legal principles. There is a degree of artificiality in seeking to force all manifestations of 'insanity' under the rubric of delusion. Where the existence of a material delusion can be shown, then the relevance of that to an issue as to a person's ability to comprehend and appreciate the claims upon his or her bounty may be clear and direct. ... The attention paid to delusions is understandable, but the law must be sufficiently flexible to take account of developments in psychiatric understanding. The critical question, in a case such as the present, concerns mental capacity to comprehend and appreciate the claims upon one's bounty. Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid. In this area of discourse the concept of delusion is not restricted to false beliefs about objective facts .... Delusion may also consist in, or involve, a value judgment where 'the judgment is so extreme as to defy credibility': see the definition in the Diagnostic and Statistical Manual of Mental Disorders, 3rd Ed, revised (DSM-III-R), 1987, issued by the American Psychiatric Association and cited by M Spitzer, 'On Defining Delusions' (1990) Comprehensive Psychiatry, Vol 31, no 5 at 395). In practice, however, it may be much easier to characterise a belief about a matter of objective fact as irrational and the product of a disorder of the mind than it is to characterise a value judgment as so extreme as to warrant the description of a delusion. The scope for difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion.'"
58. In Tillett v Varnell Holdings Pty Ltd [2009] NSWSC 1040, Brereton J wrote, at [70]: "Delusions and hallucinations may, but not necessarily do, affect a person's judgment; that will typically depend on the subject matter of the delusion or hallucination. Thus, in the context of testamentary capacity, 'insane delusions' that poison the testator's affections in respect of potential beneficiaries bear on capacity; but only if the delusions be of such a character as to have 'a direct bearing on the provisions of the will' [Banks v Goodfellow, 557; Bull v Fulton (1942) 66 CLR 295 at 299]."
59. In Carr v Homersham, at [104] - [113], Macfarlan JA considered various authorities that assisted in identifying delusions that are relevant: "In Boughton v Knight (1873) LR 3 P & D 64 at 68 Sir James Hannen, in summing up to a jury, accepted that a delusion was relevant only if it was 'the belief of facts which no rational person would have believed[,] that is [an] insane delusion'. To the same effect, his Lordship said that the jury members must ask themselves (at 68): 'Can I understand how any man in possession of his senses could have, believed such and such a thing?' His Lordship also accepted that a delusion is a belief that the deceased 'is incapable of being, or at least of being permanently reasoned out of' (at 68). In Timbury v Coffee (1941) 66 CLR 277 at 291; [1941] HCA 22, Williams J found that the jury was entitled to form a view that a false belief that the deceased held 'was so irrational as to be due to some aberration of his intellect'. In Bull v Fulton at 298, the High Court found that the holding by a testatrix of a false belief that her nephews were guilty of deceit or forgery, resulting in her exclusion of them from the dispositions in her will, indicated that she lacked testamentary capacity. Latham CJ referred to the beliefs as 'completely irrational' and 'so firm that no evidence, no persuasion, could affect them'. His Honour also referred to the testatrix as having 'persisted in her allegations though she knew that they were false' and having 'again and again gratuitously made the allegations against her nephews' (at 198). His Honour regarded the evidence produced to the deceased to demonstrate the falsity of her belief as "overwhelming" (at 298). Similarly, Williams J at 338-9 referred to the testatrix having 'caused a flood of irrational distrust and hatred against [her nephews] for which there was no possible justification' and stated that 'having regard to her pertinacious adherence to her delusive ideas with respect to her nephews in opposition to … plain evidence of their falsity, the better conclusion is that … her mind had become the victim of insane delusions'. His Honour adopted the following as appropriate definitions of an insane delusion: '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' and 'a fixed and incorrigible false belief which the victim could not be reasoned out of' (at 339). In Worth v Clasohm, a testatrix erroneously believed that she was being poisoned by certain relatives with whom she was living. The court adopted the definitions of insane delusion given by Williams J in Bull v Fulton and noted at 449 that 'no-one [had] ever tried to reason the testatrix out of the beliefs she is said to have expressed'. In particular, the court noted that the deceased's doctor, who gave evidence, 'never attempted to reason with [the testatrix] on the subject of the poisoning of her food or medicines' (at 450). In Re Estate of Griffith, the testatrix excluded her only child from her wills because she was disappointed with his decision to join a religious order and with his choice of career. By majority, this court found that the deceased's testamentary capacity had not been established. Gleeson CJ (with whom Handley JA agreed) observed at 289: 'The case confronted the trial judge with the difficulty of distinguishing between a 'harsh, unreasonable judgment of character' which is not, on that account alone, inconsistent with a sound disposing mind, and a 'morbid aberration' which so affects a testatrix's judgment of a person with a natural claim on her bounty as to warrant the conclusion that she lacked the capacity to make a valid will.' His Honour found that there was ample evidence to support the primary judge's conclusion that there was no rational ground for the testatrix to behave towards her son as she did or for her to have formed the belief that her son 'had so behaved towards her as to merit hatred' (at 292). His Honour found that this delusion constituted, in the words of Williams J in Bull v Fulton, 'a fixed and incorrigible false belief which the victim could not be reasoned out of' (at 292). His Honour held that it followed that 'the testatrix was unable to consider and give effect to the claims upon her bounty of her only child' (at 292). In Perpetual Trustee v Baker [1999] NSWCA 244, the testatrix laboured under a number of mistaken beliefs at the time that she executed her will. This court held however that the beliefs were not delusional in the sense referred to in Re Estate of Griffith. Giles JA and Brownie AJA concluded that the testatrix did not hold any 'demonstrably false belief from which she could not be moved by logical argument and evidence to the contrary' (at [9]). In Wechsler v Du Maurier [2002] NSWCA 13, the deceased was found to have held a false belief that one of her daughters and her husband 'had cheated or deceived her or dealt with her improperly' (at [6]). At first instance, Windeyer J said the following: '…While such concern [about financial matters] may on one view have been unjustified it was explicable and if explicable then the fact that [the deceased] thought she had been cheated and deceived was also explicable. If one asks the question in the terms Sir James Hannan put in his charge to the jury in Broughton v Knight [sic] (1873) LR 3 P&D 64 at 68: 'Can I understand how any woman in possession of her senses could have believed that Dr & Mrs Wechsler had acted improperly in the ways she believed?' I consider the answer to be in the affirmative. The belief might have been mistaken and I think it likely that all involved were to some extent mistaken'. His Honour's conclusion and reasoning were upheld on appeal. Stein JA (with whom Hodgson JA and Foster AJA agreed) said that there was 'ample evidence' for the primary judge 'to conclude that the false belief which [the deceased] held was explicable and that it was not a delusion but in fact a mistaken view' (at [36]). I consider that these authorities support the following propositions: (1) It is insufficient to demonstrate the absence of testamentary capacity to prove that the deceased acted on a material mistaken belief in making his or her will. (2) For a mistaken belief to rise to the level of a 'delusion' which affects the validity of the will, there must at least be a high degree of irrationality in the belief and ordinarily evidence will be required that there has been an attempt to reason the deceased out of the belief, such that the deceased's adherence to it suggests that the deceased has a mental disorder or deficiency precluding the deceased from comprehending and appreciating 'the claims to which he [or she] ought to give effect': Banks v Goodfellow at 565. (3) Whether or not there is such evidence, generally the circumstances must be such that it can be inferred that the deceased was wedded to the belief irrespective of its truth. If that is not the case, the belief is likely to be no more than a mistaken view, the holding of which cannot be inferred to reflect on the deceased's mental competence."
60. In The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, Henry J wrote, at [113]-[114]: "A delusion is an irrational, fixed and permanent belief out of which a testator cannot be reasoned: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 at 339; Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 at 449; Re the Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 290; Wechsler v Du Maurier [2002] NSWCA 13 at [32]. There must be an element of irrationality about the asserted false belief such that an inference can be drawn that the deceased could not have been talked out of it, regardless of evidence demonstrating its falsity: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [117], per McFarlan JA."
61. Ways to demonstrate the existence of a delusion have recently been considered in Clitheroe, Re Probate [2021] EWHC 1102 (Ch), in which Falk J wrote at [102] - [104]: "I agree that, for a delusion to exist, the relevant false belief must not be a simple mistake which could be corrected. It must be irrational and fixed in nature. I also agree that it should be out of keeping with the person's background. Where the belief is as obviously extreme and irrational as the kind in question in Smith v Tebbitt it is unlikely to be difficult to demonstrate that it amounts to a delusion. Where a belief does not fall into that category, one way of demonstrating that it amounts to a delusion - and indeed the obvious way in many cases - is to show by evidence that the individual could not in fact be reasoned out of it. It is not surprising that the clinical test focuses on this for that reason, and also because it is a matter which can be tested with a live patient. However, as Smith v Tebbitt shows it is not an essential ingredient of the test. Rather, it is a means of demonstrating evidentially that the test is satisfied. Another way, which is relevant in this case, would be if it could be shown that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was plainly aware (the "proof" referred to in the Haggard report of Dew v Clark), such that there is no sensible basis on which to conclude that the individual was simply mistaken or had forgotten the true position, as opposed to being delusional. A further alternative would be to demonstrate that the individual had no basis on which they could rationally have formed and maintained the mistaken belief. The key question in each case is whether the relevant irrational belief is fixed. As a matter of principle, it seems to me that the correct focus must be on the individual's state of mind. What is required to determine that the relevant belief has the requisite fixed nature must depend on the particular factual circumstances (which will include the nature of the belief and the circumstances in which it arose and was maintained), rather than itself being part of the test. A test based on proving a hypothetical proposition, namely that if an attempt was made to reason the individual out of the belief it would not succeed, seems to me to be not only an inherently difficult concept in the absence of an actual attempt being made, but also one that does not take account of the potential range of different factual circumstances that may exist. For example, if there is irrefutable evidence known to the individual that a particular belief is unfounded, but they still continue maintain it, I do not follow why further mental gymnastics should necessarily be required to prove a further hypothetical proposition. That risks, at the least, adding additional, and in my view unnecessary, complexity. It also gives rise to particular difficulties in a testamentary context, where the challenge of proving a hypothetical might mean that, in practice, issues of capacity could turn on the happenstance of whether the deceased was in fact challenged about a belief during his or her lifetime. What I consider to be the correct approach would allow a holistic assessment of all the evidence. This would take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge."
62. Then, if the will-maker is found to be clearly suffering from a delusion, then the critical question will be whether the delusion was relevant to the will that he or she made. As Latham CJ wrote in Bull v Fulton, at 299: "... Where an insane delusion 'has had, … or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity'. The onus in such a case is on those supporting the will to show that the delusion did not influence the will. This does not mean that a propounder must absolutely demonstrate this negative proposition. He must establish it according to the standard of proof required in civil cases. It will be sufficient for him to satisfy the court that it is a reasonable inference from the facts that a delusion proved to exist did not affect the disposition in question." (Omitting citations)

Knowledge and Approval

1. In addition to showing that the deceased had testamentary capacity, Karen and Jeffrey, as the propounders of the 2017 Wills, must also show that each of Ken and Irene knew and approved the contents of his, and her, Will, respectively. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J. However, as Leeming JA indicated in Mekhail v Hana, at [128], even though they are distinct concepts, they are linked and evidence will often be relevant to both issues.
2. Chadwick LJ in Hoff v Atherton continued: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. … Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."
3. Lewison J stated in Perrins v Holland [2011] Ch 270 at [31]: "Plainly testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter.'"
4. The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour wrote (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
5. Traditionally, a two-stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the Court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not "excite suspicion", then the Court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity.
6. More recently, however, perhaps a single stage approach, as suggested by Lord Neuberger in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [22], is more appropriate: "Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in In Re Crerar (unreported) but see (1956) 106 LJ 684, 695, cited and followed by Latey J in In re Morris, dec'd [1971] P 62, 78 namely that the court should 'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.'"
7. I should also refer to the judgment of Lewison LJ in Simon v Byford [2014] EWCA Civ 280, at [47]: "When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed. The reason for the requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland [2010] EWCA Civ 840; [2011] Ch 270 at [25]. Normally proof of instructions and reading over the will will suffice: ibid at [25]. The correct approach for the trial judge is clearly set out in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380. It is a holistic exercise based on the evaluation of all the evidence both factual and expert." Suspicious circumstances
8. In Theobald on Wills (16th ed, 2001) at [4-049] : " … Another instance [of suspicious circumstances] is where a person was active in procuring the execution of a will under which he takes a substantial benefit by, for instance, suggesting the terms of the will to the testator and instructing a solicitor chosen by that person. … However, circumstances can only raise a suspicion of want of knowledge and approval if they are 'circumstances attending, or at least relevant to, the preparation and execution of the will itself'".
9. In Brown v Fisher (1890) 63 LT 465 it was said that: "The court is to approach with suspicion the consideration of a will procured and propounded by a person taking a large benefit thereunder, although the will may have been prepared by a solicitor, and though fraud is not pleaded by the person opposing the will and where there was no testamentary incapacity on the part of the testator or the witness."
10. In Tyrrell v Painton [1894] P 151, Lindley LJ, at 157, observed: "The rule in Barry v Butlin, Fulton v Andrew, and Brown v Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." [Footnotes omitted]
11. Davey LJ, at 159-160 wrote: "It must not be supposed that the principle in Barry v Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed." [Footnotes omitted]
12. These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see, In the Estate of Leona Johnson (Deceased) (2015) 122 SASR 190; [2015] SASC 51 at [7].
13. Viscount Simonds in Wintle v Nye [1959] 1 WLR 284 at [14], as agreed to by other members of the House of Lords, approved the judgment of Parke B in Barry v Butlin, adding: "It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed."
14. I have earlier referred to Vernon v Watson; Estate Clarice Isabel Quigley dec'd in which there was full review of case law on the topic by Burchett AJ at [2] - [9]; I shall not repeat what was written in that case.
15. As the Court of Appeal confirmed in Tobin v Ezekiel, at [47]-[48] (Meagher JA with whom Basten and Campbell JJA agreed): "Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case... the relevant circumstances were described... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator... … prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters… They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995".
16. This was confirmed in Mekhail v Hana; Mekail v Hana at [144]-[145] by Leeming JA.
17. The Court does not substitute its own judgment for that of the will-maker as to what would be a proper disposition of his or her estate. What must be dispelled is any suspicion that the will-maker did not understand what the Will provided for, that is to say, the will-maker did not know and approve of its contents.
18. When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec'd) [1950] 2 All ER 117 at 121.

Involvement of a Solicitor in 2017 Wills

1. It has been observed that if a duly executed will has been professionally prepared and then explained to the maker by an independent, and experienced, solicitor, it will be markedly more difficult to challenge its validity on the grounds of lack of capacity than in a case where those prudent procedures have not been followed.
2. Even though a solicitor may genuinely believe that the testator had testamentary capacity at the time he or she executed the will, that opinion does not displace the Court's role in deciding whether in fact the testator had testamentary capacity: Rowe v Sunholz at [148]; Ruskey-Fleming v Cook [2013] QSC 142 at [63] and [71].
3. Because it played a major part in the submissions, it is necessary to say something about the duties of a solicitor who takes instructions for and who has a will executed.
4. In Jarman on Wills, 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is said: "Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills."
5. In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [89] I referred to Pates v Craig & Anor The Estate of Cole (NSWSC, 28 August 1995, unreported) where Santow J made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be the principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. It is not necessary to repeat what was written.
6. In Nicholson v Knaggs, Vickery J, at [664], recommended a "considered and appropriately structured interview with the testatrix" and emphasized that "in order to establish knowledge and approval of a will by a testator, more is required than 'merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him' (at [387])". I respectfully agree.
7. In my view, this is not a case in which the words of Young J in Re Crooks Estate (Supreme Court (NSW), Young J, 14 December 1994, unrep), at 29, apply. In that case, his Honour stated that evidence from a solicitor who has considerable experience, including in dealing with elderly clients and their testamentary wishes, is valuable evidence of testamentary capacity because: "[a]n experienced solicitor or solicitor's secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths [sic]."
8. The passage quoted above was referred to, with approval in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).
9. However, the Court must also consider whether the particular instance before it "may stand apart from the ordinary [case]": Drivas v Jakopovic at [54].
10. In Petrovski v Nasev; The Estate of Janakievska , I also wrote at [89], referring to Pates v Craig & Anor; The Estate of Cole that a solicitor taking instructions where capacity is potentially in doubt has a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the will-maker. In this case, I am not satisfied that particular care was taken.
11. However, in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [192], Santamaria JA, with whom Beach and Kyrou JJA agreed, wrote: "A solicitor who prepares a will comes under professional duties to exercise proper care and attention. In the United Kingdom, there are several decisions that inform the duty of a solicitor when taking instructions from an infirm testator. In Kenward v Adams, and Re Simpson, Templeman J said that, where a solicitor is making a will for an old or infirm testator, the solicitor should ensure that the making of the will is witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. Needless to say, this is a counsel of prudence that must be subject to the circumstances of the case. The exigencies of the situation may make it impracticable; nor would it need to be followed where, despite the age of the testator, he is obviously well and is proposing to make a will that distributes his estate in a manner which is uncontroversial. Where it is evident that a will may be controversial and a solicitor does not take elementary precautions, the court will have to look elsewhere if it is asked to determine capacity and knowledge and approval. In Ashkettle v Gwinnett, Christopher Pymont QC, sitting as a Deputy Judge in the Chancery Division, referred to the judgments of Mummery LJ and Sir Scott Baker in Hawes v Burgess to the effect that 'it is 'a very strong thing' for a judge to find lack of testamentary capacity when the will has been prepared by an experienced and independent solicitor following a meeting with the testator, when it had been read through and explained to her and when the solicitor had formed the view that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational'. Nonetheless, he said: I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and (as Mummery LJ acknowledges) the terms of the will may themselves suggest that the solicitor's assessment was not soundly based." (Citations omitted)
12. Applegate J, did not go as far as Santamaria JA in Veall v Veall, but preferred to say "if the solicitor's view as to testamentary capacity was not based on a proper assessment and accurate information, it may be worth very little": Rowe v Sunholz at [149].
13. The weight to be given to the solicitor's evidence will depend on her, or his, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker's presentation to the solicitor, and whether there are any "red flags" suggesting a possible challenge to capacity. It will also depend on "the level of enquiry and discussion on the part of the lawyer of, and with, the deceased": Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [51].
14. In the present case, as I have previously noted, there were a number of red flags including the fact that both Ken and Irene had each recently received medical attention; that medical reports had been provided that raised significant questions about the capacity of each of them; where an independent expert to consider his, and her, capacity had been foreshadowed but was not proceeded with; that neither Ken nor Irene was an existing client of the firm at which Ms Blackadder was employed; that at least some instructions were being provided by one or both of the sole substitute beneficiaries; and where each of Ken and Irene was making a significant change to his, or her, will in appointing Jeffrey, who had never been a beneficiary, as a beneficiary in circumstances where the contents of the earlier Wills had not been considered in any material way.
15. It is difficult to accept that Ms Blackadder sufficiently considered these red flags.
16. Because it is relevant to the issues in this case, I also refer to Key v Key [2010] WLR 2020; [2010] EWHC 408, in which there was a reference to what has been described, in the United Kingdom, as "the golden rule", namely, that in "the case of an aged testator or a testatrix who has suffered a serious illness there is one golden rule which should always be observed ….the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator…".
17. There is no so-called "golden rule" in Australia. At its highest, what is described elsewhere as a rule provides guidance only and any failure to obtain the view of a medical practitioner does not automatically invalidate the Will; nor does compliance guarantee its validity. The duty of the solicitor instructed to make a will is to take reasonable steps to satisfy herself, or himself, that the will-maker has testamentary capacity. This requires the exercise of her, or his, judgement.

Determination of the Probate Proceedings

1. What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, in my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.
2. In arriving at a conclusion in each of the proceedings, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141: "The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details."
3. It is understandable that one party, or the other, might feel disappointed, upset and resentful that they have not benefited from either Will. But it is not the task of the Court to decide whether the Wills were justified or fair. The Court is only required to decide which is the last valid Will of Ken and of Irene and which Will should be admitted to probate.
4. Having carried out the holistic assessment of the evidence, I am satisfied that Karen and Jeffrey have not satisfactorily shown that each of Ken and Irene had testamentary capacity at the time the 2017 Will was executed. Taking into account all of the evidence in the case, including, naturally, the evidence of Ms Blackadder, I am not satisfied that, in relation to the 2017 Will of each of Ken and Irene, that it is the Will of a capable will-maker. The cognitive deficiencies of each were largely detectable and had been detected. I am left with a significant residual doubt and accordingly I am unable to be satisfied that each 2017 Will is a valid Will. The doubt has not been overcome by the evidence of Karen and Jeffrey and their witnesses.
5. Whilst it is not necessary to do so, bearing in mind my finding on capacity, I am also not satisfied that each of Ken and Irene knew and approved the contents of his, and her, Will respectively. Adopting the approach that the Court should be vigilant and jealous in examining the evidence, I cannot be satisfied that each of Ken and Irene knew and approved the contents of his and her 2017 Will, respectively. The involvement of Karen and/or Jeffrey raises a significant suspicious circumstance, particularly when Jeffrey was not a substitute beneficiary named in any other Will of either Ken or Irene.
6. Karen and Jeffrey have not persuaded me that each of Ken and Irene knew and approved the content of his and her 2017 Will.
7. In the circumstances, it is unnecessary to determine whether each of Ken and Irene suffered from any delusion.
8. I am unable to grant the relief sought by the Plaintiffs. I dismiss their claims. There is no dispute about the validity of the 2015 Will of each of Ken and of Irene. There should be a grant of Probate, in solemn form of each of those Wills.
9. I shall hear the parties in relation to costs and upon publishing these reasons shall allow them an opportunity to agree upon that question. If they are unable to, directions will be made as to the determination of that issue.
10. In the meantime, in proceedings 2018/117875, the Court: 1. Orders that the Will dated 27 March 2017 but executed on 1 April 2017 of Kenneth Charles Shepherd is not his last valid Will. 2. Orders that the whole of the Plaintiffs' further amended Statement of Claim filed on 1 June 2020 be dismissed. 3. Orders that the Will dated 21 May 2015 of Kenneth Charles Shepherd be admitted to probate. 4. Orders that Probate in solemn form of the Will dated 21 May 2015 of Kenneth Irene Shepherd be granted to the Defendants, Stephen Paul Curcuruto and Catherine Clare Curcuruto, the instituted executors named in that Will. 5. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 6. Orders that the matter of the costs of the proceedings be listed for hearing at the time these reasons are published.
11. In the meantime, in proceedings 2018/122543, the Court: 1. Orders that the Will dated 27 March 2017 but executed on 1 April 2017 of Irene Gladys Shepherd is not her last valid Will. 2. Orders that the whole of the further amended Statement of Claim filed on 1 June 2020 be dismissed. 3. Orders that the Will dated 21 May 2015 of Irene Gladys Shepherd be admitted to probate. 4. Orders that Probate in solemn form of the Will dated 21 May 2015 of Irene Gladys Shepherd be granted to the Defendants, Stephen Paul Curcuruto and Catherine Clare Curcuruto, the instituted executors named in that Will. 5. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 6. Orders that the matter of the costs of the proceedings be listed for hearing at the time these reasons are published.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2021