DAWSON v PETERS & 3 ORS

LEGISLATION CITED : Wills Probate and Administration Act s.18A

Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Briginshaw v Briginshaw (1938) 60 CLR 336 Nock v Austin (1918) 25 CLR 519 CASES CITED : Plunkett v Bull (1915) 19 CLR 544 Timbury v Coffee (1941) 66 CLR 277 Trust Company of Australia Ltd v Daulizio [2003] VSC 358 Tyrrell v Painton [1894] P 151 Vernon v Watson (Estate Clarice Isabel Quigley Deceased) [2002] NSWSC 600

Frederick Brian Dawson - Plaintiff PARTIES : Joan Marie Peters and Gwen Cameron - First and Second Defendants Narelle Godbee - Third Defendant

M.P. Cleary - Pltf COUNSEL : R. Reitano - 1st & 2nd Dft M. Lawson - 3rd Dft

Higgins & Dawson - Plaintiff SOLICITORS : Bradfield Mills - 1st & 2nd Defendants Atkinson Vinden Heazlewoods - 3rd Dft

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

102918/06 - FREDERICK BRIAN DAWSON v JOAN MARIE PETERS & 3 ORS THE ESTATE OF WILFRED NICHOLLS JUDGMENT 1 BRYSON AJ: Wilfred Nicholls late of the 36 Fourth Avenue, Toukley New South Wales, retired, died at the Wyong District Hospital on 27 June 2005. He was a widower: his late wife Alma died on (or about) 21 September 1987. He had been a patient there from 14 June, presenting with chronic airways limitation. His condition is also referred to as pneumonia and as infective exacerbation of chronic obstructive pulmonary disease. He had had several previous hospitalisations for obstructive pulmonary disease, and was a smoker. The causes of death certified were:

I (a) pneumonia (b) chronic obstructive pulmonary disease II (a) polio with severe hypo scoliosis. 2 The testator made a will dated 23 January 2002 regularly executed and attested, and appointed the plaintiff Mr Frederick Brian Dawson, solicitor, who practises at Toukley, his executor and trustee. The will shows on its face that it was professionally drafted. The will directed Mr Dawson to convert all property into money and to pay the net moneys in equal shares to seven persons. The will referred to each of Mrs Joan Peters and Mrs Gwen Cameron as "my niece", and they are daughters of the late sister of Mr Nicholls late wife. The other five beneficiaries are members of the Medina family, who are not relations by blood or marriage of the testator, but had long been known to him, as closely as if they had been relatives, through the late Mr Edward Charles James Medina, who died in 1995. Edward Medina from his teenage years had a close association with the testator and his wife, in some ways like a son or nephew. These five are Mrs Jeraldine Medina (who is Mr Edward Medina's widow) and Ms Tania Medina, Mrs Narelle Godbee and Mr Aaron Medina (his daughters and son) and Harrisson Godbee who is Mrs Narelle Godbee's young son. 3 Mr Dawson applied in common form for probate of that will by Summons dated 28 February 2006. In his Summons he also claimed "a declaration under s 18A of the Wills Probate and Administration Act … that the document dated 26 June 2005 constitutes an amendment to the will of the deceased". (My abbreviation is WPA Act.) There is no room for doubt and no one disputes that the will of 23 January 2002 should be admitted to probate; the matter in dispute is whether a document dated 26 June 2005 should also be admitted to probate. That document is not a formal will. It is signed by the testator but there is no attesting witness's signature on the document. It was hand-written by Mrs Narelle Godbee on the back of a piece of A4 paper, earlier used to print out a shopper-docket from a computer program and then torn in half. 4 The only evidence dealing with the circumstances in which this document was made and signed is the evidence of Mrs Godbee, who wrote it and would receive the principal benefit under it. Under this document the house at 36 Fourth Ave Toukley was given to Mrs Godbee; this of course has a large impact on the residue available for distribution. There would be next to nothing else to distribute. In form it is a letter to Mr Dawson: Sun 26th June 2005 Dear Mr Dawson, In case I am not able to change my will before my death, this is my new amendments. This overrides the previous will made by Mr Dawson, Because my friend Aaron Medina has stollen from me in the past, and recently went into my house while I was in hospital and went through my belonging, Aaron Medina is to recieiv nothing from my estate. No money at all, in the event of my death. My granddaughter Narelle Godbee is to be left my house at 36 South Ave Toukley, as she is the only family member to look after me, visit regulary, and look after my affairs. In the event of my house being signed over to Narelle Godbee and my placement into a hostel, all money left is to be split equally. (excluding Aaron Medina.) Aaron is to recieve nothing. Please add my great granddaughter, Montanna Godbee in pace of Aaron as recievg an equal share in my estate. This note overrides my will than Mr Dawson did previously. Your sincly W Nicholls 5 In my understanding the effect of this document, if admitted to probate is not to revoke the earlier will, but to leave parts of it in operation including the appointment of Mr Dawson and the gifts of residue, but without the gift to a one-seventh share to Aaron Medina; and with a gift of a one-seventh share to Montanna Godbee. It would operate as a codicil. Although the document is not in the form of a will, but of a letter to Mr Dawson, and seems to contemplate that a new will would be made if there was an opportunity to do so, its meaning is that it expresses testamentary intentions. Although it says "This overrides the previous will" it talks about ability "to change my will" not to revoke it. The reference to equal shares can only be understood by applying the earlier document with the changes expressly provided for in the later document. One sentence ("In the event of my house being signed over &c") speaks about dispositions which might take place during the testator's lifetime. This sentence is not testamentary and perhaps should be omitted from any grant of probate. 6 The persons interested in maintaining that the later document should be admitted to probate are Mrs Narelle Godbee and her little daughter Montanna. The interests of all the other beneficiaries in the first document, including Mrs Narelle Godbee's son Harrisson are adversely affected by the later document, although in different ways. 7 The Court made orders joining interested persons as defendants. Not all these defendants appeared at the hearing. Mrs Peters and Mrs Cameron were represented by counsel and opposed the claim for a declaration and the document of 26 June 2005. I made a representation order appointing them to represent the class of persons interested in opposing the declaration. Mrs Narelle Godbee was represented by counsel and actively upheld the claim, and I made an order appointing her to represent the class of persons interested in the making of the declaration. Mr Dawson and his counsel took an objective part, presenting the controversy for decision but leaving it to the persons interested to maintain the opposing positions. I regard this as appropriate. In substance although not in form Mrs Narelle Godbee is the plaintiff claiming probate. In my opinion the law relating to the onus of proof, and the approach to be taken by the Court to a claim for probate of a document prepared by the persons taking benefits under it, and to uncorroborated claims against a deceased estate apply to Mrs Godbee and her case. 8 The document of 26 June 2005 was not valid within the provisions of s 7 of the WPA Act relating to the form and manner of execution of wills. It was of course not signed by the testator in the presence of two or more witnesses, and no witnesses attested his signature or signed the will. It is necessary for Mrs Godbee to show (s 7(1)(c)) that "it appears, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will"and (s 18A(1) "that the deceased person intended the document to constitute his … will" and this was disputed. Where there are circumstances of regularity and the will is read over to the testator who indicates that he approves of it, courts usually conclude or presume that the testator knew and approved of the contents. The circumstances in this case are very irregular and the presumption does not apply. It is necessary for Mrs Godbee to obtain a finding that the testator knew and approved of the contents of the document and intended its contents to be his disposition of his property after his death. 9 The circumstances of the testator, a man of very advanced years in hospital suffering from very severe illness of which he died on the following day, raise the issue of capacity. While it is always necessary to show that the testator was of sound mind, memory and understanding at the time of making the will, the issue may claim little attention unless there are facts and circumstances which show that attention is required; in the present case there are. 10 There have been many expositions and restatements of the law relating to testamentary capacity, commencing in the modern law with Banks v Goodfellow (1870) LR 5 QB 549 in which Cockburn CJ made a systematic examination of the basis of the law. The present case is not some dramatic manifestation of incapacity such as insanity or delusional beliefs, but enfeeblement associated with extreme old age and severe illness. Banks v Goodfellow has been cited in many judgments, and not everything which Cockburn CJ considered is important in this case; but it is useful to set out some passages cited in the judgment of Mandie J in Trust Company of Australia Ltd v Daulizio [2003] VSC 358. His Honour made a survey and citation of significant case law including: 133 In Banks v Goodfellow , [(1870) LR 5 QB 549] the Court of Queen's Bench referred with strong approval to a number of statements on the topic of testamentary capacity in cases in the Courts of the United States of America. Among those statements are some pertinent to the present case: (i) "As to the testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility [ ie. physical weakness ], and yet he may possess sufficient understanding to direct how his property shall be disposed of..."( Harrison v Rowan 3 Wash. C.C. at 585 [United States Circuit Court for the District of New Jersey)].

(ii) "By the terms `a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may formerly have done; for even this would disable most men in the decline of life; the mind may have been in some degree dehabilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory." [ Den v Vancleve (1818) 2 Southard at 660 (Supreme Court of Judicature of New Jersey)].

(iii) "[The testator] must, in the language of the law, be possessed of a sound and disposing mind and memory. He must have memory... But his memory may be very imperfect; it may be greatly impaired by age or disease. He may not be, able at all times, to recollect the names, the persons, or the families, of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered... The question is not so much what was the degree of memory possessed by the testator as this -- Had he a disposing memory? Was he capable of recollecting the property which he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole... -- Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged, at the time he executed his will?" [ Stevens v Vancleve (1822) 23 F. Cas. 35; 4 Wash. C.C. 262 at 267 per Washington J (charging jury) (United States Circuit Court for the District of New Jersey)]. 11 A more succinct exposition was made by Dixon J. in Timbury v Coffee (1941) 66 CLR 277at 283: Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J., In the Will of Wilson (1897) 23 V.L.R. 197, at p199) "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J., Symes v. Green (1859) 1 Sw. & Tr. 401, at p402 [164 E.R. 785])--Cf. per Holroyd J., In the Will of Key ((1892) 18 V.L.R. 640). "In the end the tribunal--the court or jury--must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will ( Smith v. Tebbitt (1867) L.R. 1 P. & D. 398, at p 436); Sutton v. Sadler (1857) 3 C.B. (N.S.) 87, at p 97 [140 E.R. 671, at p675])" (per Rich J., Landers v. Landers (1914) 19 C.L.R. 222, at pp. 235, 236). 12 Many courts have made observations relating to wills prepared by persons who receive benefits under them. This, I think, is closely related to, or may be a special application of the careful approach courts take to claims against deceased estates, where in the nature of things the evidence of the deceased person about a transaction is not available. In Australia the principal authority is Nock v Austin (1918) 25 CLR 519; Barton and Gavan Duffy JJ referred at 523 to Tyrrell v Painton [1894] P 151 at 156 and following in which Lindley LJ referred, in the English Court of Appeal, to the need for the plaintiff to dispel suspicion arising from the circumstances in which the will was executed. Barton and Gavan Duffy JJ went on at 524 to say: It is unnecessary to discuss a number of the cases cited; but we may as well quote the terse statement of the principle by Sir Samuel Evans in the case of In the Estate of Osment ([1914] p 129 at 132):--"It is well established that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and cause it to be vigilant and jealous in examining the evidence in support of the instructions for the will; it ought not to pronounce for the document unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. That is the principle … ". 13 In Vernon v Watson (Estate Clarice Isabel Quigley Deceased) [2002] NSWSC 600 Burchett AJ made a full review of case law on this subject. Similar concerns underlie Plunkett v Bull (1915) 19 CLR 544: see Isaacs J at 648-649. 14 The testator made three wills prepared by Mr Dawson or his firm, one on 19 January 1994, one on 25 July 2001 and the will of 23 January 2002. Dispositions were made in favour of members of the same group of people as mentioned in the will of 23 January 2002, with wide variations in the benefits. The wills do serve to show that the testator had means of knowledge of the formalities of making a will, and contact with Mr Dawson. Making these wills was not complex. 15 There is no evidence of any occasion while he was in hospital, or at any time late in his life, when Mr Nicholls' intellectual function was put under any real test or was systematically examined by anyone. Apart from Mrs Godbee's evidence, there is no indication that Mr Nicholls discussed or considered any significant business matter during the whole of his period in hospital. He made one significant decision, about his Advanced Care Direction, his not being resuscitated in some conditions. This was recorded and must have been made in a way which satisfied a member of the medical staff that it ought to be acted on. That was a decision on a highly important matter; nothing more important; yet of a very different kind to decision about the terms of his testament. With its stark importance came stark simplicity. 16 Neither the testator nor Mrs Godbee appear to have had much experience in legal or business affairs. I am not told by the evidence what the testator's occupation had been; he worked in a company manufacturing telephone equipment, but he retired many years before his death. His business affairs were simple; he owned a house and he had various investments in the nature of deposits in banks, which may have totalled about $80,000. Otherwise he does not seem to have any business affairs to attend to, for many years. Mrs Godbee assisted him in such business as he had, and he had given her authority to operate one of his bank accounts several years before; but she did not act on this until the last few days of his life. 17 It is very unfortunate that Mr Dawson, or some other solicitor experienced in this field, was not involved in the events of June 2005. No doubt there are many testators of whom there is no possibility that their capacity might be questioned, but a person in a condition like Mr Nicholls, of very advanced years, severely ill and in hospital with a life-threatening condition, should inspire a prudent professional approach by a solicitor. If there is any room for doubt or any room to bring a question of testamentary capacity under decision, a solicitor, acting prudently, would take great care to satisfy himself that the testator had testamentary capacity, and would also be mindful that there was at least a possibility that a court might consider testamentary capacity later, and would make full note so that a record would be available. An experienced solicitor would have understood the need to establish whether the testator had testamentary capacity by asking the testator general questions which led the testator to explain to the solicitor the parts of his affairs which were then important; not by answering detailed questions from the solicitor, but by explaining to the solicitor the state of his property, what it consisted of, to go through and naming his family and the people whom he was considering benefiting, why he thought they should be benefited, and anyone he had decided not to give benefits to; and explaining what led him to decide on the distribution he did. Detailed questions from the solicitor would follow as full an explanation as the testator was able to give unprompted. 18 The nature of the illness with which the testator presented at the hospital, and the treatment obviously required meant that his mental capacity or intellectual functioning did not receive or require medical professional consideration while he was in hospital; there were much more urgent problems for medical staff. His hospital treatment by junior doctors and nursing staff was under the control of Dr Alex Erdstein, a consultant respiratory physician who has been a medical graduate for about 16 years and practised as a respiratory physician from the beginning of 2003. Dr Erdstein does not have specialist qualifications in psychiatry or neurology but has the ordinary training in those subjects of a legally qualified medical practitioner and also the advantage of his experience in practice. In his first report (Exhibit 1) which was unfortunately brief, Dr Erdstein said: On reviewing the medical records in the hospital, it is clear that his deterioration occurred at the time of the Will amendment. Although no formal assessment was made of his mental state, he was quite unwell, and to this reason there should be doubts as to whether his judgement would be adequate.

In his second report (Exhibit 2) he said: "… I adhere to my previous position on Mr Nicholls' fitness to dispose of his Estate. I remember his medical status very clearly. Unlike other expert medical witnesses, I was present during his entire medical episode. I recall how sick he was. The Will amendment occurred on the second-last day of his life. I recall my assessment of him on 26th June 2005, the day of the Will amendment. There is a clear assessment stating that he was unwell. He was quite wheezy and hypoxic. He was given Morphine on the morning of the Will amendment. Despite encouragement to use his oxygen therapy, Mr Nicholls was confused and kept removing his oxygen mask. For these reasons, I feel that Mr Nicholls would not be in the frame of mind to adequately make changes to the disposal of his Estate, as a result of his fluctuating confusion, hypoxia, and his underlying memory impairment." 19 Dr Erdstein said, on the basis of his own knowledge of the patient, that in the days immediately before his death, including 26 June, the patient was in his end stage of his respiratory illness and was in the dying stages of it, and a palliative approach to his treatment had been undertaken in the days before he died; morphine was part of that palliative approach because it was appreciated that he was in his last stage of his life and these measures are taken to make people more comfortable when they are going through that process. To Dr Erdstein's observation the patient did not have renal failure; he was not known to have cardiac impairment although that had not been investigated, and Dr Erdstein was not able to say that the patient was not dehydrated. 20 In view of the low dosage of morphine and the pattern of administration it was likely that its effects would reach a peak within one or two hours of administration and would have an overall effect that went on for four to six hours. Dr Erdstein's evidence in detail on the effects of morphine, with the fact that the most recent morphine administration which the testator had received at the time he made his will took place eight or 10 hours before, leads me to find that it is unlikely that that morphine had any significant effect on his state of mind and functioning when he signed the document. The testator had several subcutaneous morphine doses on the previous day and several on the following day on which he died; administration of morphine for palliative purposes indicates that his condition was seen as terminal, and shows how extremely ill his treating physician thought he was. 21 Dr Erdstein's statements that the patient was suffering from fluctuating confusion, and that he had underlying memory impairment were based on observation of the patient during ward rounds during which he would see the patient for 10 or 15 minutes at a time. This was an aspect of the patient which he remembered very clearly; although his observations were not recorded in hospital records. His view was also based on history and reports from other persons who were treating Mr Nicholls and the observation of fluctuating confusion was based on reports from others; so too was the observation of underlying memory impairment. The patient did not have a formal cognitive assessment with a mental state examination, by Dr Erdstein or by anyone else. Dr Erdstein did not regard it as appropriate to give the patient a mental state examination because he was quite unwell. Dr Erdstein did not participate in discussion of an Advance Care Direction, which relates to the patient's not being resuscitated in some events. The patient did not have a stroke or other more concrete neurological condition, so far as Dr Erdstein observed. Dr Erdstein agreed that no neurological mental or cognitive disease contributed to Mr Nicholls' death; he did not have a stroke or any more concrete neurological condition. 22 Dr David Gorman, a physician with significant postgraduate qualifications, experience in medical practice and training in law, was qualified to give evidence on behalf of Mrs Godbee. He has had much relevant practice experience since his first medical degrees in 1980; including much experience in oncology and palliative medicine. His principal sources were the hospital records and clinical notes, and he saw the report of Dr Butler and the first, shorter, report of Dr Erdstein. Dr Gorman spoke on the supposition that the earlier discussion was made and document written on 24 June; the evidence before me is that they were made on 22 or (more probably) 23 June. He expressed opinions supporting testamentary capacity on 24 June as well as at about 14.10 hours on 26 June. In Dr Gorman's view Mr Nicholls had delirium, which he described (t102/9): A. No, that's right, and I think there's no doubt that with the condition which I described as a delirium, which is not any fancy decision, it is - sorry, description, it is really just differentiating that from a dementia, let us say. But he had a delirium with his severe illness and he had periods of disorientation, there is no doubt about that, and he had periods, from the notes, where he did seem lucid.

So I would agree with you at any one time, all I can base my opinion on are those times where a notation has been made, neither disoriented or alert and orientated. So delirium is fluctuating and patients can have lucid periods during that time. 23 Dr Gorman also said (t102/48): A. Well, delirium is a state usually associated with severe medical illness of fluctuating disorientation and poor cognitive function. It is reversible if the underlying condition can be reversed and usually it is an important diagnosis to make in the sense in the elderly, for example, you are saying it is reversible, this isn't the beginning of a dementing process. It is reversible, it is because they have lung disease or a urine infection; so disorientation fluctuating course, reversibility and its association with a severe medical illness.

Q. In this patient do you associate delirium with any particular days or times? A. Well, I think one would say that a large part of his whole admission he had periods of delirium. I suppose if one walked in and he was lucid, you couldn't say that he was delirious, but if you look at the whole admission, there is no doubt on the discharge summary one could write that one of the features of that admission was delirium, in the same way as one of the features was a respiratory tract infection which may or may not have been treated and in the same way the delirium is treated. So the delirium is fluctuating.

There is no doubt that that would be the term of art or medical diagnosis for that period that he was disorientated. It wasn't dementia, it wasn't a brain tumour or it wasn't an abnormality in the minerals and salts in the blood. It was a delirium associated with his respiratory disease and his respiratory infection. 24 In his report he said: Delirium, which is what he had, is characterised by periods of lucidity. If the deterioration in cognition is permanent and stable, the definition of delirium would not be met. There is no doubt that on occasions during the last days of his life he was disoriented and could not have made important decisions. On other occasions he could have made correct decisions. Finally, I note that the decisions he made as outlined in the codicil were not of a complex nature. Presumably his previous will was also a reasonably simple document that it could have remembered. 25 I have the considerable advantage that Dr Gorman gave evidence in the court room and not, as other medical witnesses did, by telephone landline. I was impressed by the meticulous care of his consideration and explanations. Dr Gorman acknowledged the advantages of a treating doctor in assessing the capacity of a patient over a person such as himself who proceeded on the basis of medical records. His evidence showed that the references to the patient as "alert and oriented" and the medical records had a large influence on his conclusion. As he explained matters (t101/22): … nurses comment in that way saying that the patient is behaving rationally, they are following instructions, … they are interacting with the nurse appropriately. So a lot of what I said was based on that. 26 It was his interpretation (plainly correct) that the patient suffered a precipitous decline, particularly on 27 June. He agreed (t102) that the references to "alert and oriented" would not indicate Mr Nicholls' ability to make important decisions at any given point. His interpretation was (t102) "that he had a delirium with his severe illness and he had periods of disorientation, there is no doubt about that, and he had periods, from the notes, where he did seem lucid. 27 As explained by Dr Gorman, lucidity would be consistent with significant breathlessness. Dr Gorman accepted that during periods of lucidity difficulty of breathing would be a preoccupation - "… He would have been thinking about breathing all the time. There is no doubt about that." He agreed that this would contribute to the patient's state of distress, more so as the intervals between shortnesses of breath became shorter and shorter. Dr Gorman accepted that the patient was incapable of making important decisions during periods of delirium, and could not do so while profoundly depressed. When asked whether he could make important decisions when profoundly anxious about inability to breathe at times he replied (t108/41): "… that's the fine line I'm not sure I can agree with but I'm not going to strongly disagree with it either." He acknowledged that it was difficult to determine whether Mr Nicholls was thinking clearly during the period 24 to 26 June; but he did dispute the view that Mr Nicholls was unwell from the day he entered hospital till the day died and that because he was unwell he could not make important decisions. 28 Dr Russell Butler, a consultant physician, was qualified to give evidence by Mrs Peters and Mrs Cameron; his report is Exhibit 5. Dr Butler took his first medical degree in 1962, and has very long experience in practice as a physician and in clinical cardiology, in which he has had several significant appointments. His principal source was the clinical notes from Wyong Hospital, to which he referred extensively. He expressed these opinions: There is nothing definite in the records to suggest that Mr Nicholls' mental state was severely diminished on 26th June. On the other hand he was anxious and certainly could have been vulnerable to external suggestions. In my opinion there is significant doubt about Mr Nicholls' ability to make the changes to the disposal of his estate recorded in the handwritten document supplied. In particular I would be concerned about possible memory impairment making it difficult or impossible for him to remember his previous decisions about his will. 29 Dr Butler appears to me to reason and to speak in terms of possibilities. There is no particular indication in the material to which he refers of vulnerability to external suggestions, or of memory difficulty relating to previous decisions. He acknowledged that wider sources of information would have been useful and could produce reconsideration. 30 Dr Russell's evidence has contributed little to my findings. 31 Dr Erdstein made two observations which I found striking. These were (Transcript 51/1): But usually in the last 24 to 48 hours of someone's life, in a general way their cognitive state is likely to be impaired and if you observe somebody who is dying, often they are in a comatose state or semi-conscious state and they appear sometimes to be alert and awake, but they're actually not there. Line 53: (in the context of extreme shortness of breath) I was really wanting to be asked this. I mean, the questions that I have been asked about morphine are part of the puzzle and it is not quite clear when you see somebody who is dying, that there are other reasons why people get confused. And in fact, the irony is that sometimes morphine can alleviate rather than diminish someone's cognition. So if somebody is struggling to breathe, can't breathe, that can be the pure cause of someone's confusional state, to the point where their decision-making is very suspect. So whether he's had morphine or not I think is almost immaterial, although there is that period of time between one to four hours which I was asked about, where there would be sedation and, obvious to the eye, cognitive impairment. But the other factors are so important, which may really cast grave doubts as to his ability to think clearly, and shortness of breath is just very much one of those reasons why you would suspect someone to be, in my experience, to have impaired cognition. I mean, that's true, yes. 32 In the medical records and nursing notes there are a number of instances where the patient is reported as being alert and oriented. There is (at least) one reference to disorientation. One of the nursing notes "alert and oriented" was made 14.10 pm on 26 June 2005, which was probably within an hour or two after the document was made. I do not attach much significance to the reference to disorientation; Mr Nicholls was then early in his hospitalisation and it seems that he did not know his way about. Nor do I attach much significance to the nursing assessments that he was alert and oriented. There is a large distance between being awake and being aware of one's surroundings as a hospital patient, and testamentary capacity. 33 Dr Erdstein's evidence was important because he had the advantage of being the only professional person who gave evidence of seeing Mr Nicholls in the relevant period. His evidence was to some degree based on reports from hospital staff relating to periods of confusion and impaired memory. However his opinion was also based upon his own observation, with the advantage of his experience and training which were sufficient for him to be a consultant physician. I regard Dr Erdstein as in a good expert position to make observations well founded on knowledge and experience about the cognitive state of Mr Nicholls and of a person in Mr Nicholls' position. His opinion is of much greater value than the observations of other persons without his expertise. His opinions are expressed in terms of doubt relating to Mr Nicholls capacity, and not in terms of certainties. None of his contacts with Mr Nicholls were in any way an ideal test of Mr Nicholls' testamentary capacity, which would involve a review of his property, the persons with claims on his bounty, and his testamentary wishes. 34 Although he spoke in terms of Mr Nicholls' ability to make important decisions, Dr Gorman, like other medical witnesses, did not address in any fuller way or in any real way the ability which it is necessary that a person should have to have testamentary capacity. To address ability to make important decisions is not to address the relevant capacity. I have to proceed from medical evidence to my own conclusions about the facts relating to testamentary capacity, as referred to in authorities but succinctly in Timbury v Coffee. I respect Dr Gorman's extensive qualifications, very full experience and well-considered and meticulous explanations, but in my view of the facts Dr Erdstein is in a better position to form and express opinion on the capacity of Mr Nicholls. 35 Mrs Godbee's credibility is a central issue and much of the cross examination was directed to it. Her evidence sometimes showed confusion, but not usually in important respects. At one stage she showed signs of distress. On the whole she made concessions where appropriate. She did not give me the impression that she was maintaining a course of advocacy of her case. I did not observe any aspect of her demeanour which suggested to me that she was not sincere. Cross examination revealed some minor inconsistencies or anomalies which I do not think are important and I disregard them. I will however refer to aspects of her evidence which did give me concern. 36 Mrs Godbee's first affidavit of 22 March 2006 dealt with events relating to the document of 26 June 2005 with an inappropriate lack of detail. Later affidavits dealt with the events in a more appropriate way. Her first affidavit shows that after seeing much of the testator on family visits early in life (and she was born in 1973) there was a period of less contact: after she moved to live on the Central Coast in 1998 she became more involved in his life, visiting him about once a month and making telephone contact every week, up to three times per week. He became increasingly dependent on her help and from about the first part of 2004 he became increasingly dependent upon her to take him shopping, to see doctors, to visit banks, to do washing, to buy food for him; and also to go on outings. She says "I felt very close to him and we related together as if he was my grandfather." 37 Mrs Godbee observed that Mr Nicholls had a heavy chest in early May 2005; he made light of it. He was hospitalised in mid-June 2005. She visited him in hospital at least every second day, took home personal effects to be cleaned, tidied his house and brought him clean under-garments from his home. Her first affidavit said "at all times that I visited uncle Bill at the hospital, he appeared of clear mind and he had lucid discussions about the sorts of things we have always talked about. His ill-health related to his chest and there was nothing wrong with his mind from what I observed." She reported to him that her brother Aaron Medina (who is mentioned in the will of 23 January 2002) had gone into Mr Nicholls' house and had gone through his belongings and Mr Nicholls spoke about Aaron Medina in hostile terms - "The thieving bastard is not to get anything". In her understanding and in Mr Nicholls' understanding there were a number of situations in the past where Aaron Medina had stolen money from Mr Nicholls. In the last week of his life Mr Nicholls several times said to her that he was dying or "it's my time". Her evidence was that she did not accept this, because he had spoken in that way any number of times over many years, and because conversations she had with doctors at the hospital indicated to her that Mr Nicholls would return home: He was going home but could not go home by himself. 38 Her first brief account in evidence is to the effect that the document contains his expressed wishes "as dictated to me," that she wrote it in accordance with instructions and read it through to him carefully and said "Is that what you want?" He replied "Yes". He then signed it; the signature on the document is described by her as shaky and to my observation is extremely infirm. She said that there was a nurse at the hospital in the room at the time, she did not know whether the nurse was paying attention or not and she did not know the nurse's name. In oral evidence she said there were also four patients in the same room. No nurse who was present has been reliably identified and on Mrs Godbee's evidence is unlikely that any nurse, or other patient, was aware of what took place. 39 Her third affidavit of 22 October 2007 states the circumstances in much greater detail. She gives conversations which began in the first couple of days of his admission in which he told her that he wished her to have the house and discussed arrangements for him to live in a hostel, and raising money to pay for that, from $80,000 in cash of his and $40,000 which she was to borrow on mortgage and give to him. At a later visit she told him that she had spoken to Mortgage Choice and would have no problem in getting $40,000 on mortgage. He asked her to contact Mr Dawson about changing his will and said "I want to make sure the house is left to you". She said to the effect that he was not dying, the doctors had told her that, and that could be sorted out later and there is no point in getting Mr Dawson there now. On a later visit he again asked her if she had spoken to Mr Dawson and she said that he would be out next week and it could be attended to then. 40 Mrs Godbee then gave evidence of a third occasion when the testator said that he wanted her to call Mr Dawson to get his will changed and when she declined saying that there were other things to be sorted out first he said "Then I want you to write down what I want in case I die". She agreed and got some paper from the Nurse Station; he told her his wishes: she wrote down what she believed he wanted, but left out his reference to Aaron Medina. She gave him the document but he handed it back saying he could not read, could not see without his glasses. She read it back and he objected to the absence of reference to Aaron Medina. The paper was put in his top drawer and she said "Next time I come back I will fix it up how you want it." With slight uncertainty these events are attributed to Thursday 23 June 2005. 41 She was unable to see Mr Nicholls on Friday or Saturday and next saw him on Sunday 26 June 2005; on this occasion her mother Mrs Jeraldine Medina and her sister Mrs Tania Medina also visited. He was having trouble breathing and this was obvious to her, on 26 June; he said that he could not breathe. After general conversation she says that he told her "I want to talk to you" and indicated to Mrs Medina and Ms Medina that he wished them to leave the room. They did. She says "Uncle Bill was always a very private person". Conversation followed in which he asked "Have you redone the letter?" And she said "No, it is in the top drawer". He said "I want to do it now." She got some paper; she was unable to find any nurse at the Nurse Station, and used a piece of paper she had with her which in fact was a shopper-docket print-out, part of a piece of A4 paper with computer printout on one side. He told her "Just write the same as the other one, but I want you to put in there that bit about your thieving brother. Your brother has stolen from me so many times in the past and I want to make sure he gets nothing, no money or the house, no nothing." She copied the earlier document and added a few lines in relation to her brother. She handed it to him, he asked her to read it, and she did. She said "Is that what you want?" He said "Yep, that's perfect, that's exactly what I want". He then signed it. He told her to keep it. She put it in her bag (and later said in her wallet). The earlier document cannot be produced; she says she put it in the bin on the second occasion. Her mother and sister returned to the room. There were further discussions but not on the subject of the document. 42 Mrs Godbee saw the testator again on the following day and was shocked by his appearance, considering the way he looked before. She remained with him until he died. She informed Mr Dawson by telephone that he had died. She did not tell Mr Dawson of the document until a few days later when her husband suggested that she should. 43 Counsel explored extensively in cross-examination the circumstances of a transaction, which to my mind was very remarkable, in which on Thursday 23 June the testator directed her to take parts of the money out of his bank account using the authorisation to sign on his behalf which he had already given, and she did so on Monday 27 June, on the basis it would seem that this was a gift to her, and not, on any account she has clearly given, any part of a project of arranging for him to have hostel accommodation when he left the hospital. The testator's property, which was known to her, was no more than the house and money in banks, and the money withdrawn was almost all of it. It is a very strange matter that, after participating the previous day in (as she says) Mr Nicholls' making a will which gave the house to her and disposed of his other assets, which were largely money in banks, she on Monday 27 June removed almost all that money under arrangements for it to be a gift to her. What, I ask myself, was the purpose of the gifts of money in the will? and answer, on her evidence there was next to no purpose. (Oral evidence about this withdrawal spoke of it as $80,000 but I do not make a finding to establish that it was that amount in particular because other material in evidence suggests that the sum may have been less. However much it was, it was a lot of money.) 44 Mrs Jeraldine Medina's affidavit evidence confirmed the personal assistance which Mrs Godbee gave to Mr Nicholls. Her evidence also showed that she visited Mr Nicholls at Wyong Hospital on the day before he died, accompanied by Ms Tania Medina. Mrs Godbee was also present. Mrs Medina said "While at the hospital I observed Bill to be as mentally alert as a normal healthy person. I formed this impression through speaking to him about various matters. I cannot recall precisely what we talked about, but I am clear in my mind that in speaking about matters that were important to us, everything he said made sense. There was nothing to indicate to me that there was any deficiency in his thinking." She heard the doctors say to Mr Nicholls to the effect that he could no longer live on his own and that somewhere would be organised where he could be looked after. The doctor said "Once we have cleared your chest, there is nothing wrong with you." 45 Mrs Medina also said " Bill seemed completely alert. From a physical point of view the only obvious thing to observe was that he had lost a lot of weight, even in the week that he had been in hospital." She had seen another person who had been heavily sedated with morphine and the effects she had then observed were not seen in Mr Nicholls. 46 Although Mrs Medina could not assess the length of time, her evidence confirmed that she and Ms Tania Medina left the room at some point and sat in the corridor, leaving Mrs Godbee with Mr Nicholls. She estimates her absence as 10 minutes or so, but plainly she did not regard this as exact. She did not know what happened while Mrs Godbee was with Mr Nicholls alone and knew nothing of the document until Mr Dawson read it on the day of Mr Nicholls' funeral; then she was dumbfounded about it. She caused her solicitor to lodge a probate caveat. 47 In oral evidence Mrs Medina confirmed that she knew Mr Nicholls had pneumonia and had trouble breathing but (t93/1) "There was nothing wrong with Uncle Bill that day. We had quite a good conversation, the three of us, and he was sitting up there on his pillows, and he was, the doctor was there and he was asking when he could go home and all." The subjects she spoke about with Mr Nicholls were: (t95/17) Oh, he talked about wanting to come home and he didn't want to go to a nursing home. Oh, he just wanted to know what we had all been doing and, you know, just different family things we had spoken about. Q. Chit Chat? A. Yes. Q. Nothing serious. A. No. Q. Nothing such as what he should include in his will or anything like that? A. No, no. Q. Or the fact that he wanted to prepare a will? A. No, not a thing. 48 There was some remarkable evidence about Mrs Godbee's communications with her mother Mrs Jeraldine Medina on the subject of Mrs Medina's giving evidence. It was suggested by cross-examining counsel that Mrs Godbee had said to her sister Tania or to her mother to the effect that she would not let her mother see her grandchildren "… if she says anything against me". Mrs Godbee's response to the suggestion that she had made this remarkable statement to a potential witness was equally remarkable; when she was asked whether she had spoken to that effect to her mother she first answered (t77/32) "I don't think I did but I can't say for sure". Mrs Jeraldine Medina's evidence affirmed, clearly and emphatically, that a threat to that effect had been made to her by Mrs Godbee, in the context of the probate caveat which Mrs Medina had lodged; (t93-94). She said to the effect that the threat did not give her concern. This is a remarkable thing to say to one's own mother, or to a potential witness. While it is not very directly related to the events, and I have the impression that it did not have any effect on Mrs Jeraldine Medina's evidence, extreme behaviour of this kind is adverse to credibility. 49 Evidence of Ms Tania Louise Medina confirmed that she was with her mother on the hospital visit on 26 June. She said that Mr Nicholls talked to her normally "About the things we would normally talk about. For example, I said to him "How are you feeling?" He replied with words to the effect "I am okay. I am just having some trouble breathing." She said "he appeared to me to be a bit short of breath, but otherwise his conversation with me was quite normal, and everything he said made perfect sense." 50 Ms Tania Medina also said that there was a period of time when Mrs Medina and she were out of the room while Mrs Godbee was alone with Mr Nicholls; Mrs Godbee did not discuss the nature of what she talked about then. She said that a doctor had spoken to Mrs Medina and herself in terms which did not suggest that Mr Nicholls was likely to die in the near future, and it was a great shock to her to find out the following day that he had died. Mr Nicholls had trouble breathing and complained to her that he was short of breath. She spoke about the oxygen mask; he kept removing it, but this was associated with his talking, then he would put it back. The conversation was about "everyday stuff. I honestly can't remember". He did not then or ever speak to her about preparing his will or how he was going to leave things when he died. Things discussed were "… just the weather, or we took him chocolates, and just that he was feeling okay, was just short of breath" (t128). She first knew that a letter had been written on that day when she went to Mr Dawson's office for the reading of the will. 51 Mrs Medina and Ms Tania Medina's evidence about their impressions of the testator and their conversations with him, which were not about anything serious, have no real weight on testamentary capacity and are completely outweighed by Dr Erdstein's evidence. 52 Mrs Denise Leonard is a neighbour who lived near Mr Nicholls in Toukley for 14 years and knew him well as a neighbour. She knew of Mrs Godbee and met other family members and other relatives whom he spoke of as family. Her evidence was to the effect that Mr Nicholls spoke about his wish that his home be left to Mrs Godbee after his death on numerous occasions over the last four to five years of his life. Although she was unable to quote his words exactly, her evidence showed, firmly, her recollection that he had made this statement a number of times and over a number of years, and that he had given reasons for benefiting Mrs Godbee. Unlike Mrs Godbee, who says that Mr Nicholls was a very private person, Mrs Leonard said (affidavit paragraph 15) "Billy was always someone to speak his mind". He said to this effect to her just before he went to hospital - "The house is to go to Narelle" (affidavit paragraph 16). In cross-examination she said to the effect that Mr Nicholls would have spoken to her to this effect 20 or 30 times over five years or more. He did not tell Mrs Leonard that he already prepared a will but said that he was going to make a will to Mrs Godbee only. He had a will but did not tell Mrs Leonard the contents of it. When he got sick he told Mrs Leonard that he had will in which he had left everything to Mrs Godbee. She spoke to him on the telephone several times while he was in hospital and on one of these occasions he said "I am sorry I did not get the new will drawn up, but don't forget the house is to go to Narelle." 53 I accept that Mr Nicholls did tell Mrs Leonard, many times, that he intended to benefit Mrs Godbee. However I also find that what he told Mrs Leonard was not detailed or accurate. During the last five years of his life, in the course of which he told Mrs Godbee of this intention in many times, he made two wills which were to a different effect to what he was telling her. In my finding what Mr Nicholls told Mrs Leonard was not a good indication of his testamentary intentions. 54 The events do not clearly fit within the twelfth category given by Isaacs J. in Bailey v Bailey (1924) 34 CLR 558 at 572: "(12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date …". The document prepared on 23 June was not adopted; it is not a simple case of the testator's capacity being tested on the day on which he gave instructions for a will which was later prepared in conformity with the instruction and executed. In any event, I do not think that there is any significant difference in the conclusion to be reached according to which of these two days is adopted. 55 I find it very hard to reconcile Mrs Godbee's evidence of her observations of the testator, his apparent state of health and her narration of detailed conversations and consideration of affairs with him, particularly in the last four or five days of his life, with Dr Erdstein's account of the state of Mr Nicholls' health at that time, most particularly the pre-occupying effect of shortness of breath related to his pneumonia and the approaching end of his life. Mr Nicholls had reached the stage where palliative administration of morphine began on 25 June; it makes it very difficult for me to accept her account of what he did and his attention to his will and affairs on 26 June. His precipitous decline on 27 June should not obscure the severity of his illness before that day. 56 The circumstances have traditionally been treated by probate courts as suspicious, and quite apart from the traditional approach, on the facts of this case to my mind the circumstances are inherently suspicious. There is every reason to examine closely the question whether the testator in fact intended the document to operate as his will, and whether he had the capacity to make a will. 57 When a man of 88 with a smoking habit, after repeated hospitalisations for chronic pulmonary disease, suffering from pneumonia, is saying that he could not breathe, saying that it was his time and that he was dying and asking for his solicitor to be called to make his will, the most loving friend would see the prospect that he may soon be dead: especially when his doctors start to give him morphine. Her evidence that she did not believe he was dying and expected him to come home, although given with apparent sincerity, is so improbable that I do not believe it. 58 Mrs Godbee's opinions and observations about Mr Nicholls' capacity and understanding, although strongly expressed and, I am satisfied, sincerely believed by her, are quite unreliable; she was in no expert position to make such assessments, and she gave a favourable assessment of the testator on the day before he died when he was already receiving palliative care and must have been wholly preoccupied with breathing difficulties which were bringing his life to its end. She refers repeatedly to conversations with medical staff which indicated that he was not dying, and that he was to come home; there is no evidence of such conversations or of their terms from hospital staff, and in my finding her account of them is not reliable. To my reading the notes have references to possible management of discharge, but do not show any decision about that subject. In what she perceived as a filial relationship with Mr Nicholls, it could be that she did not understand some nuanced observation and interpreted it altogether too optimistically. There is a world of difference between considering whether there are arrangements for a patient to return home if he recovers, and predicting that he will. She may not have been told in blunt terms that Mr Nicholls was dying, but it is very unlikely that anyone told her that a patient aged 88 who had not recovered from pneumonia in a fortnight and was receiving morphine as a palliative would be returning home in a week. 59 To my mind it is markedly anomalous that, if she truly had believed that Mr Nicholls was not dying and would be home soon, and there was ample time for him to see Mr Dawson and change his will, she would have gone to as much trouble as she says she did to write out the two documents. In the course of almost two weeks in hospital she had ample time to make arrangements for Mr Dawson to see Mr Nicholls. This is the kind of practical arrangement which she says she had been making for him and assisting him in, for about two years. It would also have accorded with her own interest, in a marked way. This aspect of the probabilities does not favour believing what she says. 60 In sum total, Mrs Godbee's evidence is not altogether clear as to whether she saw what was taking place of the making of an effective will. Among other things, she said to the effect that the letter was not going to be sent to anyone - (t21/54) A. No, it was to give him peace of mind in case something happened. (t22/5A) This, these were his wishes and if that's what stopped him being agitated. 61 The informality of the document is extreme. Cross-examination was directed to why the contents of the document was rewritten on 26 June and why the material about Aaron Medina was not simply written on to the previous document. Mrs Godbee gave an explanation in evidence about why it had to be rewritten, to the effect that it had all ready been finished off with "yours sincerely." This is not, in my finding, an adequate or convincing explanation. 62 I do not think that there has been any satisfactory explanation, nor do any comprehensible grounds appear, for the document's not having been witnessed. The testator must have known because he had made several wills, and Mrs Godbee knew from general knowledge that it is usual for wills to be witnessed. To my mind it is a marked anomaly that neither of them, on the evidence she gave, considered getting witnesses or a witness, or said or did anything about involving anyone other than herself. Her evidence that he was a private person does not satisfactorily deal with this. No attempt was made to obtain a witness, or an attesting witness, and no one was told that the process of making a will was taking place. The most obvious person to involve was Mr Dawson. In my mind it is very highly probable that if either Mr Nicholls or Mrs Godbee thought that there was some intention to make an effective will, Mr Dawson would have been involved. Not only did that not happen; no-one else was told of the event at all, until after Mr Nicholls had died. (Mr Godbee, who has since died, may have been told of it: the evidence is not clear.) This is a difficulty for concluding that Mr Nicholls in fact understood that making a will was what he was doing. 63 I am conscious that the court is a placed wholly in the hands of Mrs Godbee for proof of the circumstances in which Mr Nicholls signed the document the purpose of finding whether he knew and approved the contents and intended it to operate as his will. There is nothing regular about the circumstances at all. Nothing that people usually do when they want to make a will happened - no solicitor, no formal language, no witnesses, and no attempt to get them, total involvement of the named beneficiary; almost the only beneficiary as the events turned out, and no involvement of anyone else at all. These circumstances are suspicious; after my consideration they remain suspicious; the suspicion inherent in the circumstances has not been dispelled. In more modern language, related to expressions in Briginshaw v Briginshaw (1938) 60 CLR 336 I do not have an actual persuasion of the truth of Mrs Godbee's evidence that the document was written out in accordance with Mr Nicholls' statement of his wishes, it was read over to him, he indicated that it was what he wanted and signed it to that intent. Finding on the probabilities, I do not have an actual persuasion that all these things happened. I accept that he wrote his name on the piece of paper. 64 The probabilities do not support a finding that the testator had testamentary capacity on 23 or 26 June 2005, and I find that he did not because the onus of proof has not been discharged. In my opinion it has not been shown that the document of 26 June 2005 should be admitted to probate. The Court should dismiss the claim for a declaration under s 18A of WPA Act. The application for probate of the will of 23 January 2003 should be granted: it is in common form and is no longer contentious and I will refer that application to the Registrar to complete. I will hear the parties' submissions on costs. 65 Order: (1) Dismiss Claim 1 in the Summons. (2) Refer the claim for probate of the Will dated 23 January 2002 to the Registrar to complete. (3) Reserve costs. **********

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