CLEMENS v BYRNES

CATCHWORDS : Succession - Wills - testamentary capacity - testator suffering from schizophrenia and insane delusions - strained relationship between testator and two surviving children - whether the testator suffered from schizophrenia and insane delusions at the time of making his Will - whether a claim pursuant to the Family Provision Act is available to the surviving children

LEGISLATION CITED : Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW)

Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Battan Singh v Amirchand [1948] AC 161 Blore v Lang (1960) 104 CLR 124 Bull v Fulton (1942) 66 CLR 295 Coates v National Trustees Executors & Aency Co Limited (1956) 95 CLR 494 Dolman v Palmer (2005) NSWCA 361 Eather v Maher [2006] NSWSC 746 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parkes (1989) 17 NSWLR 1 Hughes v National Trustees Executors & Agency Co (Australasia) Limited (1979) 43 CLR 134 CASES CITED : Hunter v Hunter (1987) 8 NSWLR 573 Jones v Dunkel (1959) 101 CLR 298 Kleinig v Neal (Nw 2) [1981] 2 NSWLR 532 McDougall v Rogers [2006] NSWSC 484 Re Allen, deceased; Allen v Manchester (1922) NZLR 218 Re Estate of Griffith (1995) 217 ALR 284 Re Estate of Paul Francis Hodges Deceased; Re Will of Bishop (deceased); Flynn v Roccisano [2004] VSC 346 Re Fulop (1987) 1 NSWLR 679 Shorter v Hodges (1988) 14 NSWLR 699 Singer v Berghouse (1994) 181 CLR 201 Stern v Engel (2001) NSWSC 1025 Vigolo v Bostin & ORs (2005) 221 CLR 191 Walker v Walker (Young J, unreported 17 May 1996)

PARTIES : CLEMENS, Thomas Stephen & ANOR v. BYRNES, Mary

COUNSEL : P: L Ellison SC D: M Gilbert

SOLICITORS : P: Turnbull Hill Lawyers D: Byrnes Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

THOMAS STEPHEN CLEMENS & NIJOLE MARIA CHAN v. MARY KATHLEEN BYRNES JUDGMENT 1 These proceedings concern the last Will and Testament of the late Steponas Klemenis made 28 October 1997. They were instituted by the deceased's adult children, Thomas Stephen Clemens and Nijole Maria Chan. Mr Steponas Klemenis died on 14 September 2003, aged 85 years.

2 The plaintiffs assert that at the time of making his Will, the deceased lacked testamentary capacity by reason of the fact that he was suffering from schizophrenia and insane delusions. Specifically, they assert that the deceased was not of sound mind, memory or understanding at the time of making his Will. 3 The plaintiffs advance an alternative claim pursuant to s.7 of the Family Provision Act 1982 (NSW) ("the Act") for provision from the deceased's estate for their maintenance, education or advancement in life. 4 The history of the relationship between Mr Klemenis and his two children appears from the two primary affidavits of Thomas Stephen Clemens both sworn on 8 December 2005, the affidavit of Raelene Clemens sworn 4 August 2006 and the primary affidavit of Nijole Maria Chan sworn 21 June 2006. The Klemenis Family

5 The deceased and his late wife, Anastasia Klemenis, had three children, Viktoras Klemenis (deceased Germany, 1945), Thomas Stephen Clemens and Nijole Maria Chan.

6 Anastasia Klemenis predeceased her husband on 4 April 1984. Viktoras Klemenis predeceased his father in Germany in 1945 at the age of approximately nine months. Unsuccessful inquiries have been made of authorities in Germany as to any records or birth or death certificates in relation to the late Viktoras Klemenis.

7 The plaintiffs are the only surviving relatives of the late Mr Klemenis.

8 On 9 February 1999, the Guardianship Tribunal determined, pursuant to the Guardianship Act 1987 (NSW), that Mr Klemenis was not capable of managing his affairs and made an order that the management of his estate be committed to the Protective Commissioner.

9 The plaintiffs argue that the facts and circumstances forming the grounds on which the Guardianship Tribunal made the determination and order were in existence at the date of the purported Will.

10 The alternative claim pursuant to the Act is made on the basis that Mr Klemenis made no provision out of his estate for the plaintiffs and that the plaintiffs are eligible persons as that term is defined in s.6(1) of the Act. Accordingly, the plaintiffs each claim provision out of the estate for their respective maintenance, education or advancement in life.

The relationship between the deceased and the plaintiffs

11 The narrative history which appears below is based upon an acceptance of the evidence of the plaintiffs and the defendant as to their respective relationships with the deceased. The plaintiffs and the defendant were not in a position to contradict evidence each of them gave as to relevant events that occurred in the course of their individual relationships. The only exception is the defendant's evidence that she saw no evidence of any regular contact made by Mr Clemens with the deceased when she was with Mr Klemenis or by any account he gave her. I, however, accept Mr Clemens' evidence. He was not prone to overstate matters and appeared to be an entirely honest and reliable witness. 12 I was impressed with the manner in which both plaintiffs and the defendant gave their evidence and, accordingly, I accept their evidence as to their respective relationships as being essentially correct. 13 The relationship between Mr Klemenis and his two children was a strained one. On several occasions for periods spanning either months or years Mr Klemenis did not see or speak to one or either of his children. The history of this strained relationship appears from the affidavits of Mr Clemens and Ms Chan and is, according to them, largely characterised by each of them making overtures to their father in the hope of patching up their estrangement.

14 In his affidavit of 8 December 2005 Mr Clemens recalls that his father was always "a volatile and violent man". He relates an incident that occurred when he was 15 years old when his father chased him through the house with a hammer holding the hammer as if he was going to hit him. On that occasion, Mr Clemens reported the incident to police.

15 Mr Clemens related incidents of verbal abuse from his father such as the statement, "You're useless", and his father throwing things in a temper. It would appear from his affidavit evidence that the years of abuse finally culminated in the deceased testator ordering him to leave the family home when he was 22 years old.

16 Mr Clemens had minimal contact with his father in the years following his mother's death in April 1984. From the late 1980s through to the early 1990s, he had regular and frequent contact with his father, estimating that he would see him once every three months. The relationship was argumentative however, with the argument often revolving around the issue of Nijole's marriage to Alan Chan. Mr Clemens recalls that his father would become very angry when they discussed Nijole and on some occasions he ordered him to leave. Mr Clemens recalls one very specific occasion in 1997 when his father repeatedly punched a wall with his open fist for at least a minute following an argument between them in relation to Nijole.

17 Mr Clemens states that there was a period of approximately two years in about 1995-1996 when he had no contact with his father as a result of an argument that they had in relation to Nijole. When they resumed contact, Mr Clemens saw his father approximately once per month.

18 Mr Klemenis was involuntarily admitted to James Fletcher Hospital in 1998, where, according to Mr Clemens, he remained for six weeks. During this period, Mr Clemens visited his father twice per week but recalls that for the first three weeks his father appeared comatose and was unresponsive, despite Mr Clemens' attempts to speak with him. Mr Clemens recalls that when his father emerged from what appeared a comatose state he spoke mostly about things from the past.

19 While still in James Fletcher Hospital, Mr Klemenis asked his son to buy some cigarettes for him. When Mr Clemens refused, Mr Klemenis told him that he would not be included in the Will.

20 When Mr Klemenis was discharged from James Fletcher Hospital he returned to his home and lived there for approximately six weeks. Mr Clemens attempted to help his father clean the house. The house had been in a very poor state of cleanliness since the time of Mrs Klemenis' death in 1984. The floors were covered in rubbish and there were empty plastic bags, empty plastic drink bottles and newspapers all over the floor. There were dirty dishes piled in the sink and saucepans with burnt food sitting on the benches. Most of the food in the fridge was covered in mould and mildew. In an attempt to help clean the mess, Mr Clemens suggested that empty bottles and other containers be thrown out but his father resisted this suggestion saying, "I need to keep those".

21 Mr Clemens stated that his father did not wash his clothes but would instead sponge them down. He neither bathed nor showered. There were cobwebs, rats and cockroaches throughout the house.

22 On the day of the Guardianship Tribunal hearing, Mr Clemens had arranged to take his father to the hearing but when he arrived he found his father unresponsive, immobile and staring into space. Mr Clemens and his wife took Mr Klemenis to James Fletcher Hospital. He was then transferred to the John Hunter Hospital where he remained until a place became available for him at Fig Tree Nursing Home. While Mr Klemenis was at Fig Tree Mr Clemens visited him once or twice a week.

23 According to Mr Clemens, while at the John Hunter Hospital and prior to his transfer to Fig Tree, Mr Klemenis did not talk but continued to stare into space. He was unresponsive and did not eat anything. He remained in this "comatose" state for four weeks. When he emerged from this state, Mr Clemens asked if Mr Klemenis might see Nijole. His father agreed to do so. To Mr Clemens' knowledge, his father had not seen Nijole in approximately 30 years. When Mr Klemenis did see Nijole, he commented on a ring she was wearing at the time. Nijole gave the ring to her father and then later discovered that her father had given the ring to the defendant, Mary Byrnes.

24 Approximately six months prior to Mr Klemenis' death, Mr Clemens raised with his father the issue of who would inherit his father's estate. He responded that he had left his estate to Mr Clemens and his wife, Raelene Clemens.

25 According to Mr Clemens' two-page affidavit in reply sworn 19 June 2006, his father was not happy at Figtree Nursing Home. He wanted to return to his home and he did not like the food served at Fig Tree. In that same affidavit, Mr Clemens states that, when living in his own home, his father would not invite visitors into his home as he was embarrassed by the state of uncleanliness of the house. Mr Clemens recalls that his father would arrange to meet him at the top of the hill rather than at his home.

26 According to Mr Clemens' affidavit of 24 paragraphs sworn 19 June 2006, Mr Clemens helped his father build the family home at Cardiff. Mr Clemens left school at the age of 15 and began working and paying board to his parents. Mr Clemens recalls that there was a vegetable patch in the back garden and that he assisted in maintaining the vegetable garden. In her affidavit sworn on 18 August 2006, Ms Chan stated that in the very early years she also assisted her parents around the house, and she refers to working in the vegetable patch and caring for the chickens.

27 Mr Clemens stated that he invited both his parents to his wedding but his father did not attend. When Mr Clemens christened his daughters in 1976 he invited both his parents but his father did not attend.

28 During the 1990s, Mr Clemens and his wife would take his father shopping once every fortnight at the local shops at Cardiff. Mr Clemens stated that this arrangement continued throughout the 1990s with a brief two-year interruption in about 1995-1996 when he had no contact with his father. During the time that his father was in Fig Tree Nursing Home, Mr Clemens would bring his father his favourite meals, for example salamis, rye and other Lithuanian foods. Mr Clemens cooked these meals for his father and would sometimes take him prawns.

29 In her affidavit of 21 June 2006, Ms Chan states that her relationship with her father became troubled when she met her late husband, Alan Chan. When the late Mr Chan asked Mr Klemenis for his daughter's hand in marriage, he threatened to kill his daughter and then proceeded to beat Mr Chan causing him severe bruising. Mr Klemenis objected to his daughter marrying Mr Chan on the grounds that he was Asian. He was of the opinion that his daughter should marry a Lithuanian man or an Australian, but not an Asian man.

30 From that time Ms Chan avoided visiting her parents' home in Cardiff when her father was present. Ms Chan was married to her late husband on 28 November 1964. It is unclear whether Mr Klemenis was invited to the wedding, but in her affidavit Ms Chan expressed her then concern that her father would appear at the wedding and cause problems, and states that she hired security guards to prevent this from happening.

31 Ms Chan refers to an incident that occurred at her parents' home in Cardiff in 1968 when she was staying there with her four year-old daughter and her mother in Mr Klemenis' absence. He arrived home unexpectedly however at 2.30 am and, on discovering his daughter and young granddaughter, ordered them to leave the home immediately.

32 When Mr Klemenis was diagnosed with osteomyelitis in 1978, Ms Chan visited him in hospital but he rejected her overtures and ordered her to leave. In December 1983 Ms Chan visited her parents' home in Cardiff with her husband and their two young daughters. As Ms Chan was leaving with her family Mr Klemenis came out of the garden shed with a knife in his hand. He approached the car, grabbed the passenger door handle and tried to pull the door open while Mr Chan was driving the car. In that same month, Ms Chan was present when Mr Klemenis told his late wife to leave the marital home. On that occasion, Ms Chan and Mr Clemens took their mother away and she lived for the next three months in Sydney with Ms Chan. Soon thereafter the late Mrs Klemenis was diagnosed with cancer and, as noted earlier, she subsequently died on 4 May 1984.

33 Prior to Mrs Klemenis' death, Ms Chan visited her in Calvary Hospital. On several occasions, Ms Chan visited when her father was also visiting with a priest and on one occasion, Ms Chan invited her father to dinner at her home with the priest.

34 Ms Chan had no contact with her father between the time of her mother's death in May 1984 and her husband's death in 1999. Ms Chan did, however, send her father birthday cards each year, although she never received a response. Ms Chan has said that from the time of her husband's death in 1999 to the time of her father's death in 2003 she and her father became "very close".

35 In the affidavit of Raelene Clemens sworn 4 August 2006, Mrs Clemens referred to her strained relationship with her father-in-law, the deceased. For approximately two years following her marriage to Mr Clemens, Mr Klemenis did not speak to Mrs Clemens and, although invited, he did not attend their wedding. When Mrs Clemens knitted a beanie for Mr Klemenis he warmed a little towards her but she states that she was a little fearful of him. In this respect, Mrs Clemens referred to an incident where Mr Klemenis repeatedly hit his head and hands against a brick wall at the back of the house. Mrs Clemens recalled that this incident followed an argument between Mr Klemenis and Mr Clemens concerning Nijole.

36 Mrs Clemens stated that the family often celebrated Christmas at her house and on such occasions Mrs Klemenis, Nijole and her family would celebrate there but Mr Klemenis would stay home despite an invitation to join the family.

37 Mrs Clemens stated that she and Mr Clemens had limited contact with Mr Klemenis after the death of Mrs Klemenis in April 1984. They resumed contact in the late 1980s and early 1990s. During this period, Mrs Clemens would visit Mr Klemenis with Mr Clemens. During the 1990s, Mrs Clemens took Mr Klemenis shopping once every fortnight at Cardiff in order that he could do his banking and grocery shopping.

38 Mrs Clemens stated that she and Mr Clemens would, on occasion, in the late 1990s help Mr Klemenis to clean his house. According to Mrs Clemens, Mr Klemenis' home had been dirty since his wife died in April 1984. She recalled that the house was in a state similar to that described by Mr Clemens as referred to above. Reference is also made in her affidavit to taking Mr Klemenis his favourite foods while he was in Figtree Nursing Home. The relationship between the defendant, Mary Byrnes, and Mr Klemenis

39 The history of the relationship between the defendant, Mary Byrnes, and Mr Klemenis appears from the four affidavits sworn by her on 19 December 2005, 16 February 2006, 3 August 2006 and 24 August 2006.

40 In the first of these affidavits, the defendant stated that she first became acquainted with Mr Klemenis at the age of 10 years at which time she attended St Kevin's Church, Cardiff, with her parents and with Mr and Mrs Klemenis. She stated that in the early 1980s when Mrs Klemenis became ill, her mother, Mrs Kathleen Denyer, nursed Mrs Klemenis during her illness until Mrs Klemenis moved to live with her daughter (Nijole Chan) in Sydney. Ms Byrnes states that as far as she is aware, Ms Chan nursed her mother until her death.

41 Ms Byrnes stated that after Mrs Klemenis' death, Mr Klemenis continued to maintain a close relationship with Ms Byrnes' parents, but particularly with her mother, Mrs Denyer. She explained in her affidavit that although her parents lived together they had "a poor relationship," in effect separated but living under the same roof. The defendant observed that her parents' domestic arrangements had to be understood in the context of their devout Catholic faith. The defendant also stated that Mr Klemenis was Catholic and strict in his interpretation of the faith, adhering rigidly to his beliefs.

42 Ms Byrnes recalled that her mother attended Mr Klemenis' home most evenings and that she and Mr Klemenis would take the evening meal together. When Ms Byrnes married in 1985, Mr Klemenis attended the wedding with Ms Byrnes' mother. After her marriage, Ms Byrnes had Mr Klemenis and her mother to dinner on a Saturday night. Her mother and Mr Klemenis also visited her for family celebrations such as birthdays, Easter and Christmas. After the birth of her daughter, Gabrielle Byrnes, Mr Klemenis attended events such as Gabrielle's christening and birthday parties. Annexed to Ms Byrnes' affidavit (Annexures "A" to "F") are photographs of family gatherings attended by Mr Klemenis.

43 Ms Byrnes described the relationship between her mother and Mr Klemenis as an affectionate, although not sexual, relationship. After the death of her mother, Ms Byrnes maintained a close friendship with Mr Klemenis. Mr Klemenis, through his close relationship with Ms Byrnes' mother, had become "one of the family". In addition to attending family celebrations, Mr Klemenis also gave Ms Byrnes and her young daughter, Gabrielle, gifts, and, on occasion, birthday or Christmas gifts. On one such occasion, Mr Klemenis purchased a piano for Gabrielle, then aged four.

44 Ms Byrnes was aware of Mr Klemenis' strongly held views which were racist and "moralistic" in nature. While Mr Klemenis liked neither Russians, nor Asians and was strongly anti-Semitic, Ms Byrnes described his racism as "selective". She stated, for example, that Mr Klemenis' treating General Practitioner, Dr Prasad, was of Indian ethnic origin and that Mr Klemenis had considerable respect for him.

45 Mr Klemenis also had strong views in relation to issues such as abortion, pre-marital sex, extra-marital sex and contraception. Ms Byrnes recalled Mr Klemenis as saying things such as "the end of the world will be coming soon". She also recalled Mr Klemenis confiding in her that he was suffering from schizophrenia and that he had been diagnosed with the condition some time prior to the death of Ms Byrnes' mother. Ms Byrnes acknowledged Mr Klemenis' unusual beliefs but stated that to her knowledge "he did not ever suffer any episodes of hallucinations or irrational behaviour". She described conversations with Mr Klemenis as "normal" and Mr Klemenis' manner as "lucid and coherent".

46 Ms Byrnes stated that so far as Mr Klemenis' relationship with his two adult children was concerned, from the moment she met him she was aware that the relationship was a strained one and that they had little contact. Ms Byrnes stated that she cannot recall ever seeing Mr Klemenis' children visiting him whenever she visited him and she stated that he rarely spoke of his children except to express "anger towards them and on (sic) his disappointment in them".

47 Ms Byrnes recalled one occasion when Nijole Chan visited her dying mother. Ms Byrnes stated that Mr Klemenis told her that he did not like the fact that Nijole had asked her mother to change her will in favour of Nijole. Ms Byrnes recalled that Mr Klemenis said, on a number of occasions, words to the effect that he did not like the fact that Nijole had married an Asian man. Ms Byrnes also recalled that Mr Klemenis did not like the fact that his son had changed his family name, anglicising the name to "Clemens". In relation to contact between Mr Klemenis and his two children, Ms Byrnes recalled Mr Klemenis saying words to the effect of, "I don't ever see my daughter. My son comes and sees me occasionally when he wants something".

48 Ms Byrnes described an affectionate relationship between her mother and Mr Klemenis. She recalled that her mother confided to her an interest in marrying Mr Klemenis, and that Mr Klemenis gave her mother a sapphire ring as a gift. She did not wear the ring but carried it with her. When she died, Ms Byrnes placed the ring in her mother's coffin. Ms Byrnes recalled that Mr Klemenis was inconsolable when her mother died. Ms Byrnes stated that for the first three months after her mother's death when she visited Mr Klemenis he would weep and speak of her mother.

49 Ms Byrnes stated that her mother made arrangements for Mr Klemenis in the nature of attending to his finances. After her death, Mr Klemenis told Ms Byrnes words to the effect, "You will have to look after paying my bills like Kathleen [Ms Byrnes' mother] did".

50 Ms Byrnes stated that she started assisting Mr Klemenis to pay his bills. She recalled that he was deeply affected by her mother's death and required "ongoing assistance" with tasks her mother had helped him with. After a time the assistance he required became more onerous on Ms Byrnes in terms of both the nature and number of requests. Ms Byrnes began to take Mr Klemenis shopping and took responsibility for paying an increasing number of bills for him. Ms Byrnes recalls that she raised questions as to the legality of her doing that for Mr Klemenis without a Power of Attorney. Mr Klemenis was under the impression that the Power of Attorney that Ms Byrnes' mother had been given would pass to Ms Byrnes. On 28 October 1997, Mr Klemenis arranged for Ms Byrnes to act as his Power of Attorney.

51 After her mother's death, Ms Byrnes would speak with Mr Klemenis on a daily basis and would visit him two or three times a week. Mr Klemenis regularly ate with her and they would go shopping together. During their time together the pair would discuss news and current affairs and Mr Klemenis would make inquiries as to Ms Byrnes' work and about Gabrielle.

52 Ms Byrnes recalled that it was after her mother's death that Mr Klemenis, who once took "a great deal of pride in his appearance", ceased to take particular care of himself. Prior to her mother's death, Mr Klemenis cooked meals for himself or for Ms Byrnes' mother. He continued to cook for himself for a period of three months after Kathleen Byrnes' death and then he stopped doing so. Ms Byrnes cooked meals for him or arranged for him to dine with herself and her daughter.

53 Ms Byrnes stated in her affidavit that at Mr Klemenis' invitation she accompanied him to see his solicitor about preparing a Power of Attorney. At this meeting, the deceased said he wished to make a Will. She stated that she was present when he consulted with the solicitor. Ms Byrnes stated that Mr Klemenis indicated he wanted to appoint Ms Byrnes as executor and he wanted his estate to go to her but in the event that she pre-deceased him, he wanted his estate to go to her daughter, Gabrielle.

54 Ms Byrnes stated that prior to that meeting she was not aware that it was Mr Klemenis' intention to dispose of his assets in this manner. She stated that the solicitor prepared the Power of Attorney and the Will the same day and that Mr Klemenis signed both documents. Ms Byrnes stated that to the best of her recollection she was not present when the Will was signed.

55 Ms Byrnes explained that the only monies ever lent her by Mr Klemenis were monies in the sum of $4,000 for her mother's funeral expenses. When Kathleen Byrnes' estate was finalised, Ms Byrnes repaid the monies loaned to her by Mr Klemenis. Ms Byrnes denied that Mr Klemenis lent any other money to her and explained that a cheque Mr Klemenis wrote for $20,000 was never drawn and that she made arrangements with Mr Klemenis' bank for the cheque to be cancelled. Ms Byrnes denied any liability to Mr Klemenis' estate.

56 In early 1998, Ms Byrnes arranged respite care for Mr Klemenis at a facility close to Ms Byrnes' home. At the time, Ms Byrnes had a male boarder living with her. Mr Klemenis accused Ms Byrnes of having an affair with him and told her that her (assumed) behaviour was "not right". At this time Ms Byrnes was separated but not divorced from her husband. Ms Byrnes recalled that subsequently on several occasions Mr Klemenis spoke to her in a hostile and angry manner.

57 Ms Byrnes recalled that Mr Klemenis was also anxious that he continue to receive care from her and even suggested that he should move in to live in Kathleen Byrnes' former quarters in Ms Byrnes' home. In Mr Klemenis' view he could better "protect" Ms Byrnes and Gabrielle by doing so.

58 In early 1998, Ms Byrnes first noticed that Mr Klemenis was paying less and less attention to his personal hygiene and appearance and, consequently, Mr Klemenis required more care. Ms Byrnes recalled a steady deterioration in the manner in which Mr Klemenis kept his house to the point where there were piles of rubbish throughout the house and the hot water did not work. He became increasingly forgetful. Ms Byrnes described the deterioration in memory throughout 1998 as "fairly significant". She said, for example, Mr Klemenis would forget various appointments that he had to attend and so Ms Byrnes began to remind him about his appointments.

59 During 1998 Mr Klemenis developed a habit of ringing Ms Byrnes continually, sometimes between nine and 10 times a day. Ms Byrnes stated that during those telephone conversations Mr Klemenis had difficulty remembering what day it was. Ms Byrnes recalled that in about June 1998 Mr Klemenis was visited by a member of the Hunter Area Health Service. So far as she is aware, Mr Klemenis had been referred to them by ACAT (the Aged Care Team) whom Ms Byrnes originally contacted in relation to respite care for Mr Klemenis.

60 During 1998 Mr Klemenis' accusations of an affair between Ms Byrnes and her boarder continued. Mr Klemenis told Ms Byrnes at one time that he had been contacted by an unidentified third party who had informed him of the affair. On another occasion, Mr Klemenis told Ms Byrnes that her estranged husband was not Gabrielle's father and that Ms Byrnes' boarder was Gabrielle's father.

61 In August 1998, Ms Byrnes contacted the Hunter Mental Health Services with her concerns about Mr Klemenis. A member of the Health Service contacted Ms Byrnes to inform her that they had visited Mr Klemenis and that they had made a further appointment to visit him again. Ms Byrnes noted that after this initial visit Mr Klemenis did not seem to improve and that she had to take steps to distance herself from him. Ms Byrnes stated that despite her attempts, Mr Klemenis would visit her at her home and request assistance from her.

62 Throughout this period, Mr Klemenis continued to make accusations of sexual impropriety. In addition, he contacted Ms Byrne's boarder's wife and the principal at the school in which Ms Byrnes taught. She was informed that Mr Klemenis had contacted the CEO of the Catholic Education Office with allegations that Ms Byrnes was unfit to work in a Catholic institution. 63 In the latter half of 1998 Ms Byrnes maintained contact with the Hunter Mental Health Service informing them of her observations of Mr Klemenis' condition. Ms Byrnes stated that she became concerned about his deterioration and she was concerned that he might harm either himself or another person. 64 In December 1998, Ms Byrnes was contacted by a person from the Hunter Mental Health Service who suggested that Mr Klemenis be "scheduled". Ms Byrnes stated that she agreed with this suggestion and Mr Klemenis was subsequently admitted to James Fletcher Hospital. 65 In late 1998, an application was made to the Guardianship Tribunal in relation to Mr Klemenis. The hearing took place on 9 February 1999. Ms Byrnes attended and gave evidence including a description of her observations of Mr Klemenis' deteriorating condition and her concerns. As recorded in paragraph [8], an order was made that the Protective Commissioner be appointed Guardian for Mr Klemenis. 66 After the order was made, Mr Klemenis was moved from James Fletcher Hospital to Figtree nursing home in Toronto. Ms Byrnes ceased her daily management of Mr Klemenis' affairs, management having been assumed by the Protective Commissioner. 67 Ms Byrnes stated that following these arrangements Mr Klemenis bore no ill will towards her. Ms Byrnes stated that Mr Klemenis told her words to the effect, "I like it here [at Figtree] and the people I'm with. The only thing I don't like is the food". Mr Klemenis did, however, continue with his accusations of impropriety against Ms. Byrnes. Although she would bring Gabrielle to visit him, Ms Byrnes stated that she ceased to do so after a time as Mr Klemenis maintained his accusations and criticisms in relation to her alleged improprieties. 68 Ms Byrnes stated that she continued to visit Mr Klemenis until October 2001. Initially she would visit him five times a month but the frequency of the visits lessened over time until, by October 2001, Ms Byrnes visited him only once a month. Ms Byrnes explained that the reason for the change was that she obtained casual employment in Port Macquarie and would only visit Newcastle once every one to two months. Ms Byrnes stated, however, that whenever she did return to Newcastle she visited Mr Klemenis. When she did visit, she got on well with him but he continued to ask about her relationship with Mr Hamilton. 69 Ms Byrnes last saw Mr Klemenis on 3 March 2003 for his birthday. He was still at Figtree and appeared well cared for and clean. Ms Byrnes described him as calm and recalled that he would speak to her in a proper fashion. He would ask about Gabrielle and wanted to reminisce about Kathleen Denyer. He needed assistance with walking and used a walking frame for this purpose. Mr Klemenis died six months later. The Protective Commissioner notified Ms Byrnes of Mr Klemenis' death and that his final Will (28 October 1997) named her as executor and sole beneficiary. 70 In March 2004, Ms Byrnes' solicitors received a notice of caveat on behalf of the plaintiffs in these proceedings.

The Will of 28 October 1997 - clause 4 71 The deceased included the following paragraph in his Will:- "4. I acknowledge that I have made no provision whatsoever in this my will for my Son ROMUALDAS KLEMENSIS [sic] (also known as Tommy Clements) and my daughter NIJONLE [sic] CHAN and state that I have done this purposefully. I have not spoken to either of my children for at least fifteen (15) years and consider that no relationship exists between us. I believe that they have rejected me and do not consider me as their father and they having been adequately provided for during their childhood should take no benefit under the provisions of this my Will." 72 This clause in the Will was the subject of considerable attention during the course of the proceedings. It was submitted, inter alia, that there were factual inaccuracies in it, in particular, the reference to not having spoken to his children for at least 15 years. It was submitted that a statement of belief of they having rejected him was also a reverse of the true situation. 73 Mr Gilbert on behalf of the defendant, submitted in relation to Mrs Chan, that it appeared that the deceased had not spoken to her for approximately 13 years and that there was no substantial factual inaccuracy involved in clause 4 in this respect. It was acknowledged that the deceased's son had spoken to his father on a number of occasions during the 15 years preceding the making of the Will, but that the contact between them was "minimal". Such contact as existed was said to have been for short periods of time and was of unsatisfactory nature. It was submitted on behalf of the defendant that any inaccuracy on this aspect could not, of itself, lead to the conclusion that the Will was invalidated by reason of a lack of testamentary capacity. It was suggested that, as the Will was prepared "on the spot", there may have been inaccuracies inadvertently made and they may be attributed to the fact that the deceased was simply exaggerating the position. It was finally submitted that any factual inaccuracy as to the lack of contact with the deceased's son may be attributable simply to either exaggeration or the frailty of human recollection. 74 In relation to the statement made by the deceased of having been rejected by his children, it was observed that that statement is preceded by the phrase "I believe that" (they had rejected him). Seen in this light, it is said that this was an expression of the deceased's belief and that it was one which was at least open to him to form, whether or not it truly did accord with the objective facts. Mr Gilbert submitted that there may indeed have been good reasons for the children to have rejected him and not to have treated him as their father and that, in effect, formed the basis for the deceased's belief. 75 I accept the general thrust of these submissions that too much should not be read into the terms of clause 4 of the Will in relation to testamentary capacity. I will return to this aspect again below. The plaintiffs' expert evidence on the issue of testamentary capacity

76 In his affidavit sworn on 7 December 2005, Dr Krishna Prasad, general practitioner, stated that he treated Mr Klemenis as a patient in his general medical practice for approximately 25 years until the time he was placed in an aged care facility in late 1998 to early 1999. Annexure "A" to Dr Prasad's affidavit is a copy of Dr Prasad's report in relation to the deceased dated 12 November 2005. In it, Dr Prasad identified the material, clinical notes and letters from colleagues, which formed the basis for the opinion expressed in his report. 77 Dr Prasad stated that Mr Klemenis had been diagnosed with, and was undergoing treatment for, Chronic Schizophrenia, early dementia, COPD and Prostate Cancer (prostatic carcinoma). 78 Dr Prasad stated that during the 1990s and until his death in 2003 Mr Klemenis' mental state was such that psychiatric intervention, including admission to Hunter Mental Health care facilities, was necessary. Mr Klemenis' delusions, paranoia, and the impairment in his memory and cognitive function had progressed to an extent that such intervention became necessary. 79 Dr Prasad expressed his opinion in that report that Mr Klemenis may not have been in the right frame of mind to make rational decisions when he executed his Will in 1990 or his Will in 1997. Dr Pasad's opinion is based on the extent of Mr Klemenis' cognitive impairment as he had assessed when he saw him.

80 In his affidavit sworn 28 October 2005, Dr Thomas Edmeades, psychiatrist, stated that he has no independent memory of his treatment of Mr Klemenis due to his own ill health. He stated that he is at least aware that he treated Mr Klemenis in his capacity as a psychiatrist in 1964, July 1984, mid-1986, on 19 August 1987, 22 August 1988, 9 April 1990 and 24 February 1992. 81 In a letter dated 3 July 1984 and addressed to Dr Prasad (Annexure "A" to the affidavit of Dr Edmeades), Dr Edmeades stated that Mr Klemenis had difficulty in 1964 with "recall" and that in 20 years there had been no further significant deterioration in his condition. Dr Edmeades stated that Mr Klemenis was "very upset" when his daughter married a Chinese man. He also stated that Mr Klemenis did not have "a prolonged grief reaction" to his wife's death in April 1984 and was inquiring about whether or not he could remarry. 82 In a letter dated 20 August 1987 and addressed to Dr Prasad (Annexure "B" to the affidavit of Dr Edmeades), Dr Edmeades stated that most of Mr Klemenis' physical functions were normal but that he still had a "fair degree of overall tension and is somewhat apprehensive of the future". Dr Edmeades stated that Mr Klemenis is "mildly paranoid about Governments in general" but that it was his opinion that it would be preferable that Mr Klemenis persevere without medication. 83 In a letter dated 23 August 1988 and addressed to Dr Prasad (Annexure "C" to the affidavit of Dr Edmeades), Dr Edmeades recounts for Dr Prasad the difficulties experienced by Mr Klemenis in relation to keeping appointments with him. Dr Edmeades stated that Mr Klemenis informed him that the past 12 months had been the worst he had experienced, Mr Klemenis having had problems with vomiting, pain in the abdomen and having undergone a prostatectomy. Mr Klemenis was not able to tell Dr Edmeades whether the cancer was malignant but told Dr Edmeades that he had been assured that all would be well. 84 Dr Edmeades described Mr Klemenis as "gradually decorticating" and he indicated that that condition would probably become progressively worse. Dr Edmeades advised taking an approach whereby he would offer Mr Klemenis support as and when it was needed. 85 In a letter dated 18 April 1990 and addressed to Dr Prasad (Annexure "D" to the affidavit of Dr Edmeades), Dr Edmeades stated that Mr Klemenis' main anxieties related to his loss of sexual motivation and his failure to find a satisfactory female partner. He referred to Mr Klemenis' "overly religious friend" and that Mr Klemenis is afraid to let the relationship develop any further as he was apprehensive about the future and what might happen to him financially should the marriage break down. 86 Dr Edmeades stated that he left to Mr Klemenis the issue of making any further appointments and stated that Mr Klemenis "usually stays afloat for six to 12 months after having a talk". 87 Finally, in a letter dated 25 February 1992 and addressed to Dr Prasad (Annexure "E" to the affidavit of Dr Edmeades), Dr Edmeades stated that Mr Klemenis wanted to talk about his carcinoma of the prostate and his treatment in relation thereto, and he queried why his doctor was advising castration. Dr Edmeades noted that Mr Klemenis was being treated through the Oncology Unit and that he was due for another bone scan in March 1992. He also noted that he had prescribed alternative medication for Mr Klemenis to aid him in sleeping because Mr Klemenis had been experiencing discomfort and side effects from the original prescription.

88 In his expert report written for the purpose of these proceedings (Annexure "C" to his affidavit sworn 2 July 2006), Dr David Bell observed that, what appears from his review of the evidence was that "all agree that [Mr Klemenis] had chronic schizophrenia" (Report, paragraph 2). Dr Bell stated that the delusional productions of chronic schizophrenia distort the beliefs of the sufferer rendering "the testator incapable of arriving at a balanced judgement about the call that his children have upon his bounty," thereby removing "an essential plank on which testamentary capacity depends". 89 Dr Bell noted that, according to the affidavits of Mr Clemens, Ms Chan and Dr Phillips, Mr Klemenis was confused about the length of time during which he had not had contact with either of his children. In addition, Dr Bell noted that Mr Klemenis stated in his Will that his children had rejected him as a father and that his children considered that he was no longer their father. While Dr Bell observed that such confusion might be explained by the loss of memory the result of mild dementia, he opined that such confusion was "more likely … explained by his delusional belief" (Report, paragraph 3). 90 Dr Bell noted that what appears from the affidavits of Mr Clemens and Ms Chan is that Mr Klemenis had rejected his children despite the overtures made to him by each of his children over the years to repair the gap between them (Report, paragraph 4). Dr Bell opined that Mr Klemenis' confusion reflects the "delusional paranoid beliefs, which he had in his mind" (Report, paragraph 4). Dr Bell continued, explaining that "[i]n psychiatric terms, he had projected into their minds a construction which had originated in his and had maintained that projection in the face of good reason to deny its validity" (Report, paragraph 4). 91 "Projection maintains the force of a delusion in the face of evidence to the contrary" (Report, paragraph 4). The result of such projection is that "it serves to maintain false beliefs" (Report, paragraph 5). In relation thereto, Dr Bell observed that Mr Klemenis had strong racial prejudices which "could be taken to explain his rejection of his daughter after she married an Asian" (Report, paragraph 6). However, he stated that "his inherited prejudices have no relevance to the false beliefs expressed in his will about his son" (Report, paragraph 6). This statement, Dr Bell explained, is based on the "general thrust of the facts" as asserted in the affidavits of Mr Clemens and Ms Chan and Dr Bell's assessment that those affidavits reflect "the truth of the matter" (Report, paragraph 6). 92 The fact that Mr Klemenis was suffering from schizophrenia, had delusions and was assessed by the Guardianship Tribunal as incapable of managing his own affairs, Dr Bell stated "do not in themselves necessarily remove testamentary capacity" (Report, paragraph 8). The decision of the Guardianship Tribunal, according to Dr Bell, has "only an inferential relevance of relatively weak force" and only then such relevance would be limited. The squalor in which Mr Klemenis was living provided "an indication of how severe Mr Klemenis' schizophrenic illness had become and indirectly the force that the delusions exercised on his mind" (Report, paragraph 8). 93 Dr Bell stated that the fact that Mr Klemenis was not of sound mind, memory or understanding at the time of making his Will are facts relevant to the question of testamentary capacity. Having regard to the fact that the deceased was not of sound mind or memory, Dr Bell opined that Mr Klemenis lacked testamentary capacity. 94 In his affidavit of 8 December 2005, Mr Clemens describes two occasions when Mr Klemenis appeared to go into a "coma". One of these incidents occurred in 1998 at James Fletcher Hospital and the second in John Hunter Hospital. Dr Bell observed that the "state of sitting immobile and staring straight ahead seen in a person who has chronic schizophrenia was probably catatonic" (Report, paragraph 11). Dr Bell explained that a catatonic state does not result from a coma but instead "appears to be a freezing of the body while the mind becomes totally occupied with psychotic thoughts" (Report, paragraph 11). Dr Bell opined that such incidents, particularly when considered alongside the squalor into which Mr Klemenis sank, are an indication of the "mental illness having great severity" (Report, paragraph 11). 95 Dr Bell also observed that towards the end of his life, Mr Klemenis developed "delusions" about Ms Byrnes (Report, paragraph 19). One particular delusion he highlighted was that of Mr Klemenis' stated belief that the married man who boarded with Ms Byrnes on weekdays was having a sexual relationship with her. Mr Klemenis became convinced that she was doomed to hell and he wanted to move in with her in order to protect her. Mr Klemenis developed the habit of telephoning Ms Byrnes frequently and eventually telephoned her place of work to relay his beliefs as to her alleged immorality. There reached a point where Ms Byrnes became concerned for her safety, although she did not indicate the nature of those concerns. 96 In relation to the death of Mrs Klemenis, Dr Bell observed that Mr Klemenis "clearly did not have a grief reaction" (Report, paragraph 21). Dr Bell noted that in 1964 Mr Klemenis had been prescribed medication to which he had "responded well". However, in 1987, a report in relation to the previous 12 months noted Mr Klemenis' decline in memory and his "mild paranoia" about governments. Dr Bell observed that at this time, Mr Klemenis was not taking any medication. The clinical notes in the following decades do not refer to any further decline in Mr Klemenis' power of memory (Report, paragraph 22). 97 Dr Bell opined that Dr Edmeades' reference in clinical notes to Mr Klemenis' declining memory, a decline to which no subsequent reference is made in any of the material reviewed by Dr Bell for the purpose of his report, would indicate "what could have been chronic schizophrenia over these years, but do not reveal any definitely diagnostic feature" (Report, paragraph 25). Dr Bell continued, suggesting that "schizophrenia could explain the apparent impairment of memory which did not advance over a period of 20 years" (Report, paragraph 25). 98 In relation to Mr Klemenis' meeting on 14 April 1994 with a member of the Hunter Area Psychogeriatric team, Dr Bell noted that in 1994 Mr Klemenis "recognised well that his daughter had not broken off with him, but rather he had cut her and her children off" (Report, paragraph 27). Dr Bell opined that, "a failing memory does not explain the falsities" (Report, paragraph 27). 99 Dr Bell observed that all those practitioners responsible for treating Mr Klemenis agreed that he was suffering from chronic schizophrenia and, in Dr Bell's opinion, he was suffering from "late onset schizophrenia" (Report, paragraph 30). Dr Bell explained that late onset schizophrenia "differs from that which begins earlier in life by being far less florid and far less damaging to the capacity for rational thought and personality. As a result, it can be very difficult to recognise. Typically these cases are not frankly psychotic even if they advance their delusions openly. Mr Klemenis would appear to have characteristics of this late-onset type of schizophrenia. It would appear to have progressed further in terms of his delusional beliefs about his children by the time that he made out his will of October 1997" (Report, paragraph 30). 100 Having regard to Mr Klemenis' increasingly harassing behaviour towards Ms Byrnes and his own diagnosis of late onset schizophrenia, Dr Bell observed that "even in old age the individual can be a significant menace", and opined that Mr Klemenis "would appear to have had this progression" (Report, paragraph 33). 101 In composing his report, Dr Bell had regard to the findings of Ms Cody, a psychologist attached to the James Fletcher Hospital, contained in her report dated 15 December 1998 to the Guardianship Tribunal. In that report Ms Cody concluded that Mr Klemenis could not make informed arrangements about his financial affairs and future living arrangements. 102 In his report, Dr Bell stated that "different factors bear upon the separate issues that concern the matter of guardianship as distinct from testamentary capacity", although they may coincide (Report, paragraph 36). Dr Bell opined that those factors do coincide in the case of Mr Klemenis (Report, paragraph 36). Dr Bell explained that "the delusional ideas produced by the schizophrenic process affect both through much the same mechanism, his beliefs. The ideas that rendered him unable to plan his affairs have also distorted his thinking about the call that his children have on his bounty" (Report, paragraph 36). 103 Similarly, in reports to the Guardianship Tribunal, both Dr Raymond and Dr Prasad arrived at the conclusion that Mr Klemenis was incapable of making decisions in his own best interest (Report, paragraph 38). Dr Bell notes that Dr Prasad reported a similar decision to the Tribunal in February 1999 (Report, paragraph 38). 104 In relation to the hospitalisation of Mr Klemenis on two occasions in 1999 and Mr Klemenis' omitting certain details of his hospitalisation when reviewed by Dr Ticehurst in February 2000, Dr Bell opined that "Mr Klemenis may have had some type of progressive dementing condition, but on balance the evidence indicated that it was so minor as to be an insignificant factor in governing his behaviour and judgments" (Report, paragraph 40). Dr Bell elaborated, stating that given Mr Klemenis' capacity to recall events, even with omissions, "the initial impression of memory impairment had not been correct, particularly as he gave a reasonably coherent history" (Report, paragraph 40). 105 Having regard to Mr Klemenis' performance in a Mini Mental State examination (a score of 26/30), a strong indication that he did not have dementia, Dr Bell opined that Mr Klemenis "did not have a significant dementia, but rather was incapacitated by the effect of his chronic schizophrenia" (Report, paragraph 42). 106 Dr Bell stated that he could not agree with Dr Phillips' conclusion that Mr Klemenis decided to disinherit his children on reasonable grounds rather than as a result of insane delusions for the reason that Dr Phillips seems not to have had all the affidavit material before him concerning the history of the efforts made by Mr Klemenis' children to maintain a relationship with their father (Report, paragraph 46). Dr Bell explained that he would better understand Dr Phillips' conclusion were Dr Phillips to give reasons why he disregarded aspects of the affidavit evidence. 107 In the final analysis, Dr Bell opined that Mr Klemenis did not have testamentary capacity when he made his will on 28 October 1997 by reason of his long-held insane delusions in the context of his paranoid schizophrenia (Report, paragraph 48). Dr Bell stated that Mr Klemenis cut his children off as a result of his delusional beliefs and, similarly, he resisted the many attempts made by each of his children to restore the filial relationship. Dr Bell noted that in light of the affidavit evidence relating to the efforts made by both Mr Clemens and Ms Chan, Mr Klemenis' purported Will contains statements that appear to be false (Report, paragraph 48). 108 On the assumption that the affidavits of Mr Clemens and Ms Chan reflect the truth of the matter, Dr Bell opined that the false statements in the purported Will were the result of the late Mr Klemenis' delusional beliefs (Report, paragraph 49). Dr Bell concluded that on the basis of the available material, the deceased lacked testamentary capacity by reason of his insane delusions which "rendered him incapable of arriving at a sound assessment of who had justifiable claim on his bounty" (Report, paragraph 49).

The defendant's expert evidence on the issue of testamentary capacity (a) Dr Jonathon Phillips - Consultant Psychiatrist

109 In two affidavits, sworn on 23 May 2006 and on 30 August 2006 respectively, Dr Phillips attached his primary report on the deceased and to the issue as to testamentary capacity and his report in response to Dr Bell's report. 110 In the report dated 31 March 2006 (Annexure "B" to his affidavit sworn 23 May 2006), Dr Phillips stated that while there is "not (sic) doubt that Mr Klemenis suffered a chronic psychotic disorder (probably paranoid schizophrenia) and that from time to time he held delusions of jealousy" (page 11), it was his "firm opinion" that Mr Klemenis was suffering from "mild/moderate cognitive impairment" (page 11). It was his opinion, however, that such impairment is "unlikely" to prevent a testator from appreciating the call near family members might have on the testator's estate and does not interfere with the reasoning process required for the preparation of a Will (page 11). 111 The basis for Dr Phillips' opinion is his review of patient records, which reflects Mr Klemenis' "slowly deteriorating cognition from the early 1990's (sic) and with mild/moderate cognitive impairment at/around the time of preparing his final will" (page 10). Dr Phillips stated that the patient records indicated that Mr Klemenis was suffering from mild dementia occasioning problems with new memory rather than problems with long-established information in relation to assets and their distribution to near family members (page 10). In relation to the decision of the Guardianship Tribunal Dr Phillips took a similar view as Dr Bell, opining that he regarded the decision as having no bearing on the question of Mr Klemenis' capacity to prepare his Will (page 12). 112 Dr Phillips noted Mr Klemenis' statement in his Will to the effect that as at the time of making it (28 October 1997) he had no contact with either of his children for the past 15 years. Dr Phillips noted that Mr Clemens stated in his affidavit that he had regular and frequent contact with his father in the late 1980s through the early 1990s and then again in the six months immediately prior to his father's death. Dr Phillips passed no comment on the inconsistency between Mr Klemenis' statement in his Will and Mr Clemens' affidavit. 113 Dr Phillips observed that it is difficult to assess a patient on the basis of patient records and cautions that a diagnosis of cognitive impairment or mental illness does not necessitate the conclusion that the testator lacked testamentary capacity (page 9). In relation to the diagnosis of chronic schizophrenia, he stated that the issue which arises from the diagnosis is whether the condition produces "insane delusions" likely to interfere with a testator's reasoning capacity in relation to the preparation of their Will. 114 Dr Phillips posited the question of insane delusions in Mr Klemenis' case as requiring consideration as to whether his delusions in relation to his son and daughter "were of intensity sufficient to poison his affection regarding his son and daughter and to cause him not to make his son and daughter beneficiaries of the will" (page 11). 115 Dr Phillips identifies the relationship between Mr Klemenis and his two children as "estranged" and states that "there had been no interaction with his daughter for many years and interaction with his son was intermittent and relatively unsatisfactory as best" (page 11). He stated that Mr Klemenis, by reason of his "eccentric personality and cantankerous behaviour and his prejudice" may have been the cause of the estranged relationship (pages 10-11). He then stated that "there is little information available to me to suggest that either Mr Klemenis' son or his daughter had put particular effort into maintaining a relationship with him, or supporting him in the years preceding his death when he was troubled by increasingly severe psychiatric and physical problems". Dr Phillips concluded, "simply there was no or very little reciprocity in the relationship" (page 12). 116 Dr Phillips expressed the opinion that in these circumstances it was not unreasonable for Mr Klemenis to have concluded that there was no ongoing relationship with either his son or daughter and consequently, that he did not want either of them to be beneficiaries of the Will. On the basis of his analysis of the material, Dr Phillips opined that Mr Klemenis' decision not to include his children in his Will was not the result of insane delusions (page 12). 117 In his report, Dr Bell noted that there was no explanation as to why Dr Phillips arrived at this conclusion in relation to the efforts made by each of Mr Klemenis' children to form a relationship with their father. 118 In his report in response to Dr Bell's report, Dr Phillips reiterated his earlier advice as to the difficulty of evaluating testamentary capacity on the basis of hospital records and other documents (Report, page 7). Dr Phillips also restated his position that a person suffering mild or moderate cognitive impairment such as that which occurred in the early stages of dementia, does not necessarily lack testamentary capacity. Dr Phillips reasserted his diagnosis that Mr Klemenis suffered "mild" cognitive impairment and that such impairment did not interfere with his "deliberation/reasoning" process to an extent of precluding Mr Klemenis from addressing issues relevant to the preparation of his Will. Dr Phillips stated that Mr Klemenis' 1997 Will demonstrates that he reasoned in a precise manner his decision to exclude his son and daughter from it. 119 Dr Phillips acknowledged that while Mr Klemenis was clearly prejudiced, there is a distinction between false beliefs born of prejudice and false beliefs the product of insane delusions. Dr Phillips, in his opinion, did not equate Mr Klemenis' prejudices with psychosis or insane delusions. Specifically, he opined that Mr Klemenis' decision to disinherit his daughter was based in prejudice and not psychosis. Dr Phillips opined that, "it is more probable … that Mr Klemenis made an entirely conscious and reasoned decision to exclude his daughter and his son from his estate, knowing that he had the privilege of distributing his estate in a manner desired by him".

120 The freedom of testamentary disposition is recognised and upheld by Australian law and is an important right and a determination that a person lacked testamentary capacity at the time of making their Will is "a grave matter" (Re Estate of Griffith (1995) 217 ALR 284 at 294, per Kirby P (as he then was) at 290, per Gleeson CJ).

121 Similarly, in cases such as this where an alternative claim is made under the Act the claim must be understood as arising under legislation premised upon the assumption of freedom of testamentary disposition: Hunter v Hunter (1987) 8 NSWLR 573 at 576, per Kirby P; Re Estate of Griffith (supra) at 294, per Kirby P. 122 In enacting the Act, Parliament did not provide courts with broad discretionary power to consider whether a testator acted unjustly, unwisely or harshly (Re Estate of Griffith (supra) at 294, per Kirby P). Indeed, Kirby P stated that freedom of testamentary disposition "includes a freedom to be unfair, unwise or harsh with one's property" (Re Estate of Griffith (supra) at 294). Kirby P explained that "[t]he provisions made by a will shall therefore only be disturbed if adequate provision has not been made for a spouse or child who claims" (Hunter v Hunter (supra) at 576). The extent of any disturbance is discretionary and limited to the extent only that is necessary to make adequate provision for the proper maintenance, education or advancement in life" of the eligible applicant (Hunter v Hunter (supra) at 576, per Kirby P).

123 Whether a testator was possessed of testamentary capacity involves consideration of the question whether the testator, at the time of making his or her Will, was of sound mind, memory and understanding: Bailey v Bailey (1924) 34 CLR 558 at 559. The classic statement of the test for determining whether a testator had testamentary capacity at the relevant time is that stated in Banks v Goodfellow (1870) LR 5 QB 549 at 570:- "It is essential to the exercise of 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 delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have made."

124 The plaintiffs submit that the testator was incapable of appreciating and giving effect to their claims as his children by reason that he suffered from a disorder of the mind that poisoned his affections and perverted his sense of right thereby preventing the exercise of his natural faculties. 125 It is now recognised that the question of testamentary capacity cannot be resolved exclusively by reference to the existence of "insane delusions" but rather to the broader question of mental infirmity: Re Estate of Griffith (supra) at 290, per Gleeson CJ. Nevertheless, judicial focus has been upon the question of the existence of "delusions", meaning "a fixed and incorrigible false belief which the victim could not be reasoned out of": Bull v Fulton (1942) 66 CLR 295 at 339. The question, however, to be addressed is whether the testator was of sound mind sufficient to understand the nature and extent of his estate, the calls upon his bounty and his intended disposal of that estate. 126 While mental infirmity of a kind which denies testamentary capacity does not need to fall within the category of "insane delusions", the question that the tribunal of fact must address is whether the testator was of a state of mind to judge the propriety of his dispositions: Battan Singh v Amirchand [1948] AC 161. 127 Cases that have dealt with wills that effectively disinherit the deceased's immediate family have been referred to as "inofficious" (Re Estate of Griffith (supra) at 288, per Gleeson CJ citing Banks v Goodfellow (supra) at 570). Such cases pose the considerable difficulty of distinguishing between a "harsh, unreasonable judgment of character" which might be said to be inconsistent with a sound disposing mind and a "morbid aberration" which so affects the testator's judgment of a person with a natural claim on the testator's bounty that it warrants the conclusion that the testator lacked testamentary capacity (Re Estate of Griffith (supra) at 289, per Gleeson CJ).

128 The burden of proof as to testamentary capacity rests upon the party propounding the will: Bailey v Bailey (supra) at 570, per Isaacs J. The propounder of the will must establish a prima facie case that the testator was of sound mind, memory and understanding at the time of the making of the will: Bailey v Bailey (supra) at 571, per Isaacs J. "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" (Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 699 at 704, per Powell J). 129 In order to displace the prima facie case, the opponent must establish that some affliction - age or illness - operated to so influence the mental capacity of the testator that he or she was incapable of disposing of their property (Bailey v Bailey (supra) at 571-572, per Isaacs J). Regard must be had to the entirety of the evidence in order to determine whether this burden on the party propounding the Will has been discharged: Bailey v Bailey (supra) at 570, per Isaacs J. 130 The burden of establishing a prima facie case that Mr Klemenis was of sound mind at the time of making his Will rests with the defendant. In order to determine whether Mr Klemenis was equal to the task of disposing of his property, regard must be had to the terms of the Will, the affidavits of the plaintiffs and the defendant, the medical history of the late Mr Klemenis as that history appears from the affidavits of Dr Thomas Edmeades and Dr Prasad, and the expert evidence of Dr Bell and Dr Phillips. 131 Mr Ellison SC, who appeared on behalf of the plaintiffs, stated in his written submissions that it was important to observe that the defendant had called no evidence from either of the attesting witnesses to the 1997 Will and no evidence from the solicitor or other person who took the instructions for that Will. In these circumstances, the plaintiffs invite the Court to draw inferences in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298. 132 One issue in this case is that of reconciling Mr Klemenis' testamentary statements to the effect that he had no contact with his adult children for a period of 15 years between 1982 and 1997 with the evidence of both Mr Clemens and Ms Chan that they had indeed attempted to maintain a relationship with their estranged father. 133 Dr Bell characterised Mr Klemenis' understanding of their relationship as confused and opined that such confusion reflected Mr Klemenis' "delusional paranoid beliefs". Dr Bell stated, however, that his assessment is predicated on his assumption that the affidavits of Mr Clemens and Ms Chan reflect the truth of the situation that existed between Mr Klemenis and his children. 134 So far as evidence relating to Mr Klemenis' capacity to care for himself and his home, I agree with Dr Bell that such evidence, taken with the Guardianship Tribunal's assessment, is of only inferential relevance to the question of testamentary capacity. Nothing was tendered in evidence as to the material which formed the basis for the Tribunal's assessment and reference was made only to its orders placing Mr Klemenis' affairs in the hands of the Public Trustee. 135 While it may be accepted that Mr Klemenis' squalid living conditions provide some indication of the severity of Mr Klemenis' schizophrenic illness, the question remains whether such illness indicates the absence of testamentary capacity. 136 Mr Gilbert of counsel on behalf of the defendant, submitted that, whilst the deceased was a person who obviously had eccentric, fixed and inflexible views, he nonetheless was able to function within society. It was submitted that he was able to maintain a caring and affectionate relationship with Kathleen Denyer and, to a lesser extent, the defendant. The evidence, it was submitted on behalf of the defendant, was that it appeared that the deceased was able to provide comfort and support for Mrs Denyer and that, in return, he received comfort and support from her. These, it was said, were examples whereby it could be said that the deceased functioned as a normal member of the community despite having his inflexible ideas and fixed prejudices (written submissions, 8 September 2006, p.5). 137 In Re Will of Bishop (deceased); Flynn v Roccisano [2004] VSC 346, Teague J acceded to an application for an order of revocation of probate on the grounds that the testatrix was suffering from severe chronic schizophrenia at the time of making her Will. The case concerned an "inofficious" will, in that the testatrix had disinherited her only daughter who had, despite her mother's consistent and painful rejection of her, been a devoted and loving daughter. 138 The case before Teague J was similar to the present case insofar as the relationship between mother and daughter was characterised by the mother's rejections of the daughter's considerable and consistent attempts to repair what had always been an estranged relationship attributable to the mother's callous dismissal of the daughter. Frequently the contact between mother and daughter served to provide the mother with the opportunity to accuse her daughter of failing to pay her sufficient attention, to offer "at best ... curt, chilly response[s]", or to reject her daughter outright with instructions to "forget that her mother was her mother". 139 The testatrix had a history of admission to psychiatric institutions, although admittedly only for a period of 10 weeks in 30 years, and otherwise of treatment for mental illness. Freedom of Information requests yielded medical notes made by various medical practitioners detailing the testator's hallucinations, disorientation and acute and debilitating anxieties. In the decades immediately prior to her death, the testatrix was hospitalised on several occasions for weeks at a time for mental illness and her condition was managed with medication. 140 The expert evidence in the case was to the effect that the testatrix had suffered for over 25 years from serious, chronic schizophrenia without any insight into her condition. She manifested social withdrawal and paranoia and over the years had become more suspicious of, and hostile towards, her daughter and neighbours. The expert's opinion was that schizophrenia had impaired the testatrix's judgment to such an extent that she had failed to recognise her daughter's existence and that she had a claim on her estate. 141 Teague J concluded (at [36]) that the case was a "powerful case" for revocation and accordingly, made orders revoking the grant of probate. The orders were made on the basis of the severity and length of the testatrix's psychiatric condition, and on the grounds that there had been a total but not a mutual breakdown in the relationship between mother and daughter in the absence of disentitling behaviour on the daughter's part. In addition, the testatrix's totally solitary life after the death of her husband meant that there was no beneficiary to whom the testatrix might have a moral obligation. 142 This case differs somewhat from the circumstances of the case before Teague J. In this case, Mr Klemenis suffered from chronic schizophrenia. He rejected the overtures of his children and had behaved in a callous fashion towards his daughter when she married against his wishes. Mr Klemenis was not, however, a totally anti-social man. His relationship with Ms Byrnes, and particularly with her mother, Mrs Kathleen Byrnes, was close and constant over many years. While he suffered from delusions of jealousy, it is by no means certain that he suffered from delusions of a kind and extent that would warrant a finding that he lacked testamentary capacity.

143 Mr Klemenis' Will makes reference to his children so as to exclude them on the basis that, so far as Mr Klemenis was concerned, he had no relationship with them. It would be unwise to put too fine a point on the precise terms of Mr Klemenis' reference to his children. The terms of a Will should be read in a manner as to give effect to the natural and ordinary meaning of the words used in the instrument. 144 While Mr Klemenis' statement in clause 4 of the Will is of a deeply personal nature, it is also couched in legal terms. The reference to both children "having been adequately provided for during their childhood" and that they "should take no benefit" from "this my will" are expressions readily recognisable as lawyerly. While the meaning of Mr Klemenis' words, "I have not spoken to either of my children for at least fifteen (15) years and consider that no relationship exists between us" suggests that literally there has been no contact between them, what is important to discern is what Mr Klemenis intended to convey by these words: that, so far as he is concerned, there has been no contact between them.

145 Dr Bell in the plaintiffs' case opined that Mr Klemenis' performance in a Mini Mental State examination (26/30) was a "strong indication" that he did not have dementia but that Mr Klemenis was "incapacitated by the effect of his chronic schizophrenia". Dr Bell placed significant emphasis on his assumption that the affidavits of Mr Clemens and Ms Chan reflected the truth insofar as concerned their claims that they had made efforts to restore and maintain a relationship with their father. In light of that assumption and Mr Klemenis' statement in his Will that he had had no contact with his children for 15 years, Dr Bell opined that Mr Klemenis lacked testamentary capacity by reason of his insane delusions which had rendered him incapable of making the necessary assessment as to his children's claims on his bounty.

146 Dr Phillips for the defendant, on the other hand, opined that Mr Klemenis most likely suffered from paranoid schizophrenia but that his delusions were delusions of jealousy and that he was suffering from only a mild or moderate cognitive impairment. Dr Phillips stated, however, that this mild cognitive impairment was unlikely to have interfered with Mr Klemenis' capacity to make the necessary assessment for testamentary disposition nor was it likely to interfere with Mr Klemenis' reasoning process.

147 It was submitted on behalf of the defendant that, in the circumstances in which the deceased found himself at the time of making the Will, he had acted rationally. In that respect, it was further submitted:- "18. In that Will, the deceased left the whole of his estate to the daughter of his long-term companion who had just recently died. Further, the nominated beneficiary was not a stranger to the deceased, but rather someone (with) whom he had been closely involved over the past 13 years. During that period of time, the deceased had been part of the defendant's family …" 148 It was also submitted that, given the limited contact with his daughter and that he had not spoken to his son for approximately two years in the 1990s, these were additional circumstances in which the making of the 1997 Will had to be considered (defendant's written submissions, paragraph 20). 149 It was further submitted that the Will reflected "… an ongoing consistent intention of the deceased to benefit Mrs Denyer and/or her family. The two previous Wills made by the deceased - in 1988 and 1990 - left the whole of the deceased's estate to Mrs Denyer. The 1997 Will represented a continuation of that intention though, because of Mrs Denyer's recent death, that benefit was conferred on to her daughter (her only child)" (defendant's written submissions, paragraph 23). 150 Support for this submission was said to lie in some of the cross-examination of Dr Bell who appears to have accepted that, given the history of the earlier Wills, one could accept that there was "… a rational chain of behaviour by somebody who is responding to those who he believes care about him?" (defendant's written submissions, paragraph 24; transcript of proceedings, p.71). 151 I am unable to find in this case that Mr Klemenis' chronic schizophrenia deprived him of testamentary capacity. There is no evidence that he required medication specifically to treat his schizophrenia nor is there evidence that Mr Klemenis was hospitalised for reasons relating exclusively to mental illness. The evidence suggests that he was institutionalised for reasons relating to his increasing frailty and his inability to look after his own domestic needs. While Mr Klemenis' rejection of his children appears harsh and unreasonable, Mr Klemenis was not incapable of forming close personal relationships and the evidence indicates that he did so with Ms Byrnes' family, in particular with Ms Byrnes and her mother, Mrs Kathleen Denyer. 152 In determining the issue of testamentary capacity at the relevant date, it is clear that the deceased held a long-standing view that he did not have a close relationship with his children and he held racist views which caused him to act as he did towards his daughter. Whilst these views may be seen as completely unfair and totally unwarranted, they existed for many years - long before the Will was executed in 1997. On the evidence, these views were held by Mr Klemenis long before his mental condition deteriorated. 153 It is not without significance that the deceased made an earlier Will in 1990 in which he appointed Mrs Denyer and John Byrnes to be executors and trustees and in which he bequeathed the whole of his estate to Kathleen Denyer for her sole use absolutely. Accordingly, Mr Klemenis displayed a partiality to Mrs Byrnes' family (in particular to her mother) long before the onset of his later declining health. 154 Dr Phillips, with whom I was impressed as a witness, stated that mild, even moderate, cognitive impairment or diagnosable mental illness will not automatically preclude testamentary capacity. It is not essential "that a testator has first class cognition across all domains of cognitive performance" (Dr Phillips' report, 31 March 2006, p.9). The fact that a person with moderate cognitive impairment suffers problems with new memory and with orientation and with the ability to lead an independent life does not necessarily negate testamentary capacity. Having considered the evidence, I accept Dr Phillips' assessment. In particular, I accept his oral evidence (transcript p.83):- "Q. And does it follow then that you believe that his capacity to make the will in late 1997 was intact? A. Well, to make a will, to have testamentary capacity is, of course, broader than that and I came to the conclusion that more probably than not he had a broad understanding of his bounty of his estate, and that more probably than not he had a broad understanding of who he wished to be the beneficiary of his estate and had reasons why he wished that person to be a beneficiary, and he had a broad understanding more probably than not of who else might have an interest in his will."

155 I also accept Dr Phillips' explanation given in cross-examination. The fact that the deceased held unfounded views about his children and the fact that the cause of the estrangement with them was due to his own attitudes, beliefs and behaviour does not so much in this case indicate an incapacitating mental illness as a deep seated prejudice and bigotry with early schizophrenic tendencies. There is an important distinction as Dr Phillips observed between those problems and "a high grade schizophrenia" (transcript, p.88-89). The various personality issues which the deceased exhibited were long-standing. 156 Dr Phillips was cross-examined about paragraph 4 of the Will and it was suggested that, if the facts stated by the deceased therein were factually wrong Dr Phillips, who in part relied upon that paragraph of the Will in reaching his opinion, would have to revise his opinion. 157 However, I do not consider that the fact that there may be factual error in the matters set out in paragraph 4 is determinative. The deceased, when he wrote his Will, had long been blaming his children rather than himself for the estrangement. Any distortion of the true facts by the deceased is readily explicable by his long-standing, vehemently held and unreasonable views. In other words, his personal perception and beliefs were not such as to indicate a "high grade" level of mental illness. Accordingly, I do not accept that the evidence establishes that any incorrect statement of fact in paragraph 4 of the Will was the product of a delusional state of mind. 158 I, accordingly, conclude that Mr Klemenis was of sound mind, memory or understanding at the time of making his Will and I therefore find that the last Will and Testament of Mr Klemenis should be admitted to probate and I so order.

159 Having found that the last Will and Testament of the late Mr Klemenis should be admitted to probate, it remains to determine whether provision should be made for the plaintiffs from the estate of the deceased.

160 Section 7 of the Act provides that an "eligible person" may apply to the Court for an order for provision from the deceased estate. The powers of the Court are discretionary and are expressed in the following terms:- "[I]f the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate … of the deceased person, as in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person."

161 No issue as to eligibility or standing to make the application for provision arises where the applicant is or the applicants are either the widow, widower, bona fide domestic partner or child of the deceased (s.6(1)(a) and (b)) as the requirements of s.9(1) are not enlivened in respect of applicants in those categories and the Court need not determine whether there are "factors which warrant the making of the application" (s.6(1)(c) and (d) and s.9(1)). Accordingly, the plaintiffs are "eligible persons" within the meaning of s.6(1)(b) and have standing to make the application for provision. 162 The plaintiffs received no provision out of the estate of the deceased. The question in these proceedings is whether and, if so, the extent to which the deceased was obliged to make some provision for them. In the determination of the answer to that question, s.9(2) of the Act requires the Court to carry out a two-stage process. The first stage calls for a determination whether the plaintiffs have been left without adequate provision for their maintenance, education and advancement in life. The second stage, which arises only if the determination at the first stage is made in favour of the plaintiffs, requires the Court to decide what provision ought to be made out of the deceased's estate for the applicant (Singer v Berghouse (1994) 181 CLR 201 at 208-209, per Mason CJ, Deane and McHugh JJ).

163 The first stage process is one of fact although the assessment involves the exercise of a value judgment. The second stage involves the exercise of a discretion.

164 In relation to the second stage, consideration must be given to the issue as to the proper level of maintenance appropriate for each plaintiff, having regard to his or her financial position, the size and nature of the deceased estate, the relationship between each of them and the deceased and whether there are other persons with legitimate claims on the testator's bounty (Singer v Berghouse (supra) at 209-210, per Mason CJ, Deane and McHugh JJ).

165 Mr Gilbert for the defendant quite properly indicated that he accepted that the plaintiffs are deserving and that there was no issue as to disentitling conduct on their part. The question arises therefore whether the discretion should be exercised in favour of making an order for the maintenance, education and advancement in life of either one or both of the plaintiffs.

166 The answer to that question depends upon a number of matters identified in Singer v Berghouse (supra) at 201 and in Re Fulop (1987) 1 NSWLR 679. These require consideration of:-

• The totality of the relationship between the plaintiffs and the deceased including the conduct of the plaintiffs towards the deceased.

• The totality of the plaintiffs' circumstances including the nature of present and reasonably anticipated future needs.

• The nature and strength of the defendant's claim to testamentary recognition. 167 The above matters are to be considered in light of the size and nature of the estate. The deceased's estate is relatively small (without taking into account the costs of the litigation) having an approximate gross value of $600,000 in about August 2006. The net value of the estate was estimated by Mr Ellison to be approximately between $350,000 to $370,000 (that is if both sets of costs are deducted) (transcript p.125). 168 Paternity is a not an insignificant starting point: Gorton v Parkes (1989) 17 NSWLR 1. I do not consider that it can be said to have been diminished by any renunciation of the relationship by either plaintiff. The deceased, as I have found, by reason of his unusual cast of mind and attitude to his children, was responsible for the absence of a close or fulfilling relationship with them. 169 The conduct of a claimant towards the deceased is a relevant factor in determining whether proper maintenance or support has been provided: Goodman v Windeyer (1980) 144 CLR 490; Singer v Berghouse (supra) at 209-210. The disharmony and estrangement in the relationship between the deceased and the plaintiffs which was due to the deceased's own attitude and conduct , should have been recognised as such by a wise and just testator. The limited nature of the relationship that the plaintiffs enjoyed with the deceased, accordingly, should not, in my opinion, be seen on the facts of the case to be a disqualifying circumstance or as abrogating the obligation of the deceased as a parent on his death for his son's and daughter's need for maintenance and advancement in life. As Gorton v Parkes (supra) makes clear, parental obligations in these respects are not avoided by parental repudiation of the relationship: see also McDougall v Rogers [2006] NSWSC 484 per Brereton J. 170 I turn to the particular relationships involved in the proceedings.

1.1 The plaintiffs' circumstances 171 In his affidavit of 24 paragraphs sworn 19 June 2006, Mr Clemens stated that he was born on 13 May 1942 and was, therefore, 64 years of age. He ceased working in 2003, is currently unemployed and receives workers compensation payments of $380.00 per week. Mr Clemens has stated that he believes that he will continue to receive workers compensation payments until he reaches the age of 66 at which time he will be eligible to receive the aged pension. Mr Clemens has unencumbered property and $115,000 in the bank (as at September 2006). 172 Mr Clemens' wife, Raelene Clemens, receives workers compensation payments of $390.00 per week. Mrs Clemens ceased working in 2005. The Clemens' total income is $770.00 per week. The Clemens' do not have any significant debts.

173 Mr Clemens, whose evidence I accept, has stated that his marital home is in need of repairs and renovations and that he and his wife need to purchase new cars as the cars they own are very old and in constant need of repair. Mr Clemens also stated that he and his wife are not in a position to improve their financial situation and he believes that they will struggle to meet their living expenses when they are both in receipt of the aged pension. Mr Clemens is also seeking a capital sum in order to meet their future medical expenses and the costs of private health insurance. His affidavit evidence estimates that his home is valued at $280,000 and his total assets amount to $459,000. 174 In her affidavit sworn on 21 June 2006, Mrs Chan estimates the value of her home at $585,000 and an investment property in Perth at $300,000.

175 In her affidavit sworn on 18 August 2006 Ms Chan stated that she earned $18,500.00 in the financial year ending 30 June 2005 and $31,000.00 in the financial year ending 30 June 2006. She explained that her earnings for the year ending 30 June 2006 were an aberration and that she is unlikely to earn income at that level in years to come. The reason is that her income is dependant on the work available to her through the Australian Bureau of Statistics. Ms Chan stated that she is not in a position to save any money due to her relatively low income which is spent on her day-to-day living expenses.

1.2 The relationship between the plaintiff, Nijole Chan, and the deceased 176 I have earlier set out the evidence concerning the relationship between Mrs Chan and her father. That evidence plainly establishes that Mrs Chan was rejected by the deceased by reason of her marriage to her husband and that the deceased consistently rejected her over very many years. His conduct was such that Mrs Chan was left with no prospect of having a close relationship with her father. 177 Notwithstanding those extreme circumstances, I accept Mrs Chan's evidence that she did endeavour to keep some form of contact by sending birthday cards and the like, but that these modest attempts met with the same outcome, namely, a complete lack of response by her father. 178 Accordingly, in the circumstances on the evidence which I accept, Mrs Chan did all within her power to have a relationship with her father and, indeed, towards the end of his life, she managed to do so. It follows that the fact that she could not establish a close relationship with her father is not a circumstance that tells against her in relation to the claim made.

1.3 Contributions to the estate of the deceased by Nijole Chan 179 Mrs Chan stated that in her younger years she assisted her parents around the house and, in particular, attended to chores such as working in the vegetable patch and caring for the chickens. There is no other evidence from which one may discern any identifiable contribution having been made to the estate.

1.4 The needs advanced by the plaintiff, Nijole Chan 180 Mrs Chan is 67 years of age. She has unencumbered assets approaching a value of $1,000,000 and no dependants. She will receive ultimately $90,000 in cash from her superannuation. She believes she will not be eligible for a pension because of the value of her assets. She receives income from an investment property in Perth but states that it will not be enough in addition to her superannuation to give her an income during retirement and, accordingly, seeks an income for retirement. Mrs Chan said that she wants to replace guttering at her home to the value of $4,000, to replace old carpet at her home and polish floors all to the value of $8,000.

2.1 The relationship between the plaintiff, Thomas Clemens, and the deceased 181 The history of Mr Clemens' relationship with his father has been set out above. As in the case of his sister, the absence of a satisfying relationship was not due to Mr Clemens as much as the deceased's conduct and attitude to which reference has earlier been made. 182 Accordingly, in the circumstances, Mr Clemens is not disentitled by reason of the absence of a relationship and I accept his evidence that he did endeavour, within the marked limitations that existed, to have an ongoing relationship with his father.

2.2 Contributions to the estate of the deceased by Thomas Clemens 183 In the early years, Mr Clemens helped his father build the family home in Cardiff. Mr Clemens left school at the age of 15 and began working and paying board to his parents. Mr Clemens recalls that there was a vegetable patch in the back garden and that he assisted in maintaining the vegetable garden.

2.3 The needs advanced by the plaintiff, Thomas Clemens 184 Mr Clemens is 65 years of age. He has stated that his marital home is in need of repairs and renovations and that he and his wife need to replace their very old cars. Mr Clemens has also stated that he and his wife are not in a position to improve their financial situation. The other relevant details concerning his assets and needs have been referred to in paragraphs [171] to [173].

3.1 The situation of the defendant, Mary Byrnes 185 In her affidavit sworn 3 August 2006, Ms Byrnes stated that the net value of her assets is $208,930. Her superannuation entitlements total $158,000, contributions in the last five years having been made only by Ms Byrnes' employer. She is entitled to her superannuation on turning 60 (in approximately 13 years time) or earlier if she retires. The net value of her assets as at the date of trial (September 2006) was $206,000. 186 Ms Byrnes estimated that as at August 2006 her weekly expenses totalled $704 and weekly income totalled $435.50. Prior to 1 July 2006, Ms Byrnes' weekly income was $725.74. Up until 1 July 2006, Ms Byrnes had a part-time teaching position with Westport High School. Her prospects of employment as at August 2006 were that she was registered as a casual teacher with no knowledge of her likelihood of obtaining casual work. 187 Ms Byrnes estimated the value of her home at $265,000 and total assets at $291, 930. Her liabilities (including a home loan) total approximately $83,000. 188 Ms Byrnes' evidence was that the only monies ever lent her by the deceased were monies in the sum of $4,000 for her mother's funeral expenses. When Kathleen Byrnes' estate was finalised, Ms Byrnes repaid the monies loaned. Ms Byrnes denied that the deceased lent any other money to her. She explained that a cheque Mr Klemenis drew for $20,000 was never drawn on and that she made arrangements with the deceased's bank for the cheque to be cancelled. Ms Byrnes denies any liability to the deceased's estate.

3.2 The relationship between the defendant, Mary Byrnes, and the deceased 189 The history which has earlier been set out in this judgment indicates that the defendant did form a genuinely supportive relationship with the deceased, he having become very close to her family. 190 I also accept Ms Byrnes' evidence that she did render assistance and support to the deceased in the respects earlier mentioned and that she assisted in his eventual hospitalisation, given the deterioration that occurred in his condition. 191 The evidence establishes that, following the death of Mrs Denyer, a generally supportive relationship further developed between the deceased and Ms Byrnes and that the deceased saw her as a significant person in his life. 192 The evidence, accordingly, does support the conclusion that Ms Byrnes acted in a meritorious manner towards the deceased who was, in a social and personal sense, for some years considerably dependent upon her to assist him in managing the ordinary affairs of life.

3.3 The needs advanced by the defendant, Mary Byrnes 193 Ms Byrnes is aged 47 years. Her financial circumstances may be described as tight, her circumstances being that without employment, she cannot meet her living expenses and would have to borrow money in order to meet them. The defendant is also younger than the plaintiffs which is relevant to her future needs. 194 Ms Byrnes has been a single parent since 1996. Her daughter, Gabrielle (aged 16) has an expectation that after completing her Higher School Certificate she will commence tertiary study and that she will need her mother's financial assistance in order to do so.

Consideration of the application 195 A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his or her own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule: Kleinig v Neal (No 2) [1981] 2 NSWLR 532. 196 The Court cannot remedy unfairness. All it can do is act upon the principles, which are established. The Court is here only to provide such amount as is appropriate where an eligible person has been left without adequate means for their advancement in life, maintenance, education as is referred to in s.7 of the Act. The discretion must be exercised (whatever the justification, in personal terms, might exist for grievances on the part of the plaintiffs) to decide whether, in the circumstances, the claims demand testamentary recognition by a judicious father: Vigolo v Bostin & Ors (2005) 221 CLR 191. 197 Although the deceased's Will of 28 October 1997 bequeathed the entirety of his estate to Ms Byrnes, and thereby excluded his adult children, the plaintiffs having established in these proceedings an entitlement, any order for provision under the Act the Court should nonetheless interfere as little as possible as circumstances permit with the way in which the deceased exercised his testamentary discretion: Palmer v Dolman; Dolman v. Palmer [2005] NSWCA 361. An order for provision is neither made as a reward for good conduct nor withheld as a punishment for any perceived bad conduct on the part of an applicant: Stern v Engel [2001] NSWSC 1025. 198 Young J (as he then was) in Walker v Walker (unreported, 17 May 1996) said at [31]:- "I reject the approach that all an applicant under this Act [Family Provision Act 1989 (NSW)] has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance." 199 The provision which the Court may properly make in default of a testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances: Re Allen, deceased; Allen v Manchester (1922) NZLR 218 at 220-221. 200 The totality of the circumstances, as earlier indicated, must be taken into account: Palmer v Dolman; Dolman v Palmer (supra). The deceased provided some financial support to his son and daughter up until they left home at the age of 22 and 24 respectively. There is no evidence as to what financial support was provided for the children whilst they lived at home, although it may be presumed, whilst living under the father's roof, there was support in the form, at least, of the usual food, clothing and shelter. 201 There is no evidence that the deceased's daughter, Mrs Chan, contributed to the estate in any other way than as a child living at home customarily assisting with domestic chores and work in the garden, as did her brother. Mr. Clemens contributed in his residential years at home towards board and the building of the house. Those are relevant considerations. A claimant's conduct, of course, does not cease to be relevant if it has not been of financial benefit to the testator. If a claimant has made sacrifices on the testator's behalf, that is a circumstance to be considered even if no monetary saving or benefit for the testator resulted. The fact that a claimant has been a dutiful and devoted spouse or child is also one of the relevant circumstances of the case to be considered along with all other relevant circumstances in deciding whether proper maintenance has been provided. 202 Plainly in this case, there was limited demonstrable affection between son and daughter and father for reasons that have been explained above. In particular, it was the lack of affection on the part of the deceased, the daughter's feelings of fear and rejection regarding criticism and lack of approval of her husband that contributed to a breakdown in relations between her and the deceased. The lack of affection on the part of the deceased, his son's feelings of rejection and the criticism of his son by the deceased led to the estrangement between Mr Clemens and the deceased. 203 Mrs Chan has, as already noted, unencumbered assets of nearly to the value of $1,000,000 and no dependents. She has a limited income from her investment property. She has limited needs in terms of repairs and renovations to her home as discussed above and to a limited extent a basis for establishing a need for some assistance in her retirement. However, that aspect is not to be overvalued or treated in a disproportionate way. 204 Mr Clemens has established financial need in terms of the requirements previously referred to in this judgment. He and his wife are not in a position to improve their financial situation and I accept his evidence that there exists a reasonable basis having regard to his financial position to expect that he and his wife will struggle to meet their living expenses when they are both in receipt of the aged pension. He has also established a basis for a capital sum in order to meet future medical expenses and the costs of private health insurance.

Other considerations 205 There is no evidence that the plaintiffs have not set forth as fully and as frankly as possible all details of their financial and material circumstances, including details of their assets and liabilities, of income and outgoings (and, where the applicant Thomas Clemens is living with a spouse, such details in respect of the spouse: Stern v Engel (supra)). Having considered their evidence, I find, as earlier stated, that there is no basis for not accepting their evidence as truthful and accurate. Similarly, I accept the defendant's evidence as to her relationship with the deceased and as to her own personal and financial circumstances. 206 I find, as indicated above, that the plaintiffs have established that they are both eligible persons in terms of s.6(b) of the Act and that they both were left without adequate provision for their respective maintenance and advancement in life. 207 I have also concluded that provision ought to be made out of the estate for both plaintiffs. However, I am required to consider and evaluate the particular circumstances of each plaintiff, having regard to all the relevant considerations to which I have earlier referred and as individually affecting each of them. 208 Amongst those considerations, I am required to take into account the nature and extent of each plaintiff's present and reasonably anticipated future needs. By reason of her financial position, Mrs Chan's needs are not as pressing as those of her brother or of the defendant. As stated earlier, Mrs Chan has no dependants but has no firm prospect of work. These matters will be reflected in the amount of the orders which I propose to make. I also take into account that Mr Clemens made some material contribution in the early years to the construction of the home. 209 The claims of the plaintiffs, as earlier stated, must be approached in the light of the competing claims upon the testamentary beneficence of the deceased. The only such competing claim is that of the defendant. The Court is required to balance any needs of the plaintiffs as adult children of the deceased with the provision made for the defendant: Eather v Maher [2006] NSWSC 746. Ms Byrnes enjoyed an active relationship with the deceased and I take that into account. I also have regard to and take into account her personal circumstances. 210 Mr Ellison, counsel for the plaintiffs submitted that a tripartite division of the net divisible estate would be appropriate in the division of 40% to Mr Clemens, 40% to Mrs Chan and 20% to the defendant, Ms Byrnes. 211 Mr Gilbert, counsel for the defendant, has correctly indicated that he has accepted that the plaintiffs are deserving claimants. He suggested the appropriate division would be $25,000 to $50,000 for Mrs Chan, $75,000 to $100,000 for Mr Clemens and the remainder to the defendant. 212 I have determined, having regard to the matters to which I have referred, that there be provision for the plaintiffs out of the net residue of the Estate of the testator upon the following bases:-

(a) Mr Clemens, a 40% share of the net value of the Estate;

(b) Mrs Chan, a 25% share of the net value of the Estate. 213 That determination will result in Ms Byrnes having a 35% share of the net value of the Estate. 214 I propose that the parties produce short minutes of order to give effect to this judgment. 215 I reserve the question of costs and will, if necessary, hear submissions as to the appropriate order in that respect. **********

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.