Drivas v Jakopovic

Court of Appeal (NSW)|2019-06-26|Before: Bell ACJ, Macfarlan JA, McCallum JA, Young J, Parker J

Solicitors: Sydney Law Practice (Appellant) Sharee Webb, Solicitor (Respondent) File Number(s): 2018/391920 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2018] NSWSC 1803 Date of Decision: 23 November 2018 Before: Parker J File Number(s): 2016/108097

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BELL ACJ: I agree with Macfarlan JA.
MACFARLAN JA: On 10 September 2007 Ms Marija Jakopovic ("the deceased") signed a will leaving her property equally to her two children, Ms Branka Uribe and the respondent, Mr Boris Jakopovic ("the September 2007 Will"). For convenience, and without intending any disrespect, I shall refer to family members by their first names. The September 2007 Will provided that in the event that Boris predeceased his mother leaving children surviving him, those children should take his share. Unlike a purported will that the deceased signed on 3 May 2007 ("the May 2007 Will"), her September 2007 Will did not contain a similar provision in respect of Branka's share.
As it transpired, Branka predeceased her mother leaving a child, Ms Anita Drivas who is the appellant, surviving her.
A grant in common form of probate of the September 2007 Will was made to Boris after the deceased's death. Subsequently Anita sought probate of the May 2007 Will on the basis that the September 2007 Will was invalid due to the deceased's then lack of testamentary capacity. Later, she confined her claim to one for letters of administration with an earlier will, dated 22 June 1998, annexed ("the 1998 Will"). This will, similarly to the May 2007 Will, provided that in the event that Boris or Branka predeceased their mother leaving children surviving them, those children should take their parent's share. It was common ground in the proceedings that, an issue having been raised as to the deceased's testamentary capacity as at 10 September 2007, Boris bore the onus of establishing the validity of the will of that date.
The September 2007 Will was drafted by Mr Michael Taylor, solicitor, who arranged for the deceased to sign it in his office in the presence of attesting witnesses who were employees of his. When Mr Taylor gave evidence in March 2018, he did not have any actual recollection of the circumstances in which the September 2007 Will was prepared and signed. He was however able to give evidence of the contents of his file and firm's custody packet for the deceased, and of his usual practices in 2007.
The primary judge, Parker J, ultimately found, largely on the basis of Mr Taylor's evidence, that the deceased had testamentary capacity at the time she signed the September 2007 Will. His Honour found that medical evidence, both from treating practitioners and experts, did not require a different conclusion to be reached. As a result, his Honour rejected Anita's challenge to the September 2007 Will.
As Anita's Notice of Appeal does not provide a convenient structure for dealing with her appeal, I address it by reference to the following summary of her contentions (Contentions 1 to 5): 1. His Honour erred in giving weight to Mr Taylor's evidence. 2. His Honour erred in failing to give proper weight to the medical evidence. 3. His Honour should have found that Boris' conduct gave rise to suspicions as to whether the deceased knew and approved of her September 2007 Will. 4. By reason of the existence of those circumstances, his Honour ought to have expressly considered in his judgment whether the deceased knew and approved of the contents of that will. 5. His Honour failed to properly evaluate evidence relevant to Boris' credit and to make adverse findings concerning that credit further to those which he did make.
By Notice of Contention, Boris asserted that if the deceased was unable in September 2007 to consider any claim that Anita had on her bounty, that was irrelevant to the existence or otherwise of testamentary capacity on the part of the deceased as Anita was a granddaughter, and not a child, of the deceased.
For the reasons given below, I consider that the appeal should be dismissed with costs.

The factual circumstances

The following summary of the relevant factual circumstances, based on the primary judgment, is sufficient for the purposes of this appeal. A much fuller statement of them may be found in that judgment ([2018] NSWSC 1803).
Anita gave evidence that from late 2006 the deceased started to become forgetful. This was consistent with Boris' evidence and references to the deceased's forgetfulness in 2006 that appear in the notes of Dr Tan Mao, her general practitioner. In October 2006 the deceased had a CT scan of her brain that showed significant vascular disease consistent with dementia. On 2 April 2007 Dr Mao referred the deceased to Dr Roy Beran, a neurologist, who administered a mini-mental state examination ("MMSE") on 19 April. She scored 18 out of a possible 30.
On 3 May 2007 the deceased signed a will giving her estate as to 60% to Branka and 40% to Boris, with their children to succeed to the share of their parent if Branka or Boris died before the deceased. At that time she also appointed Branka as her attorney and enduring guardian. There was no evidence as to how this will came to be executed. The solicitor who prepared it, Ms Marta Vukmirica, did not give evidence. In her last previous will, signed in June 1998, the deceased had left her estate to Branka and Boris in equal shares.
On 18 April and 4 May 2007 the deceased called the police, complaining that she had been locked inside her home by her "next-of-kin" on the former date and by her daughter (that is Branka) on the latter date. This was incorrect and Branka explained to the police that the deceased was suffering from dementia and "kept losing her keys and saying that her family was locking" her inside her house.
In May 2007 Branka, probably with the assistance of Anita, arranged for the deceased's admission to a nursing home, principally, it seems, because Branka was about to travel overseas and would not be available to care for the deceased. Anita was unable to care for the deceased at this time because she had recently had her third child.
The nursing home notes record the deceased's distress and anger at being admitted to the nursing home. A friend of the deceased, Ms Bernada (alternatively referred to as "Renata") Blazina, gave evidence that the deceased made frequent calls to her and her husband prior to the deceased's admission to the nursing home complaining that Branka and Anita were planning to have her admitted there. After the admission, the deceased complained to Ms Blazina that Branka and Anita had put her there.
Boris gave evidence that when he found out that his mother was in a nursing home he told her that he would come down from Queensland (where he lived) to speak to a solicitor and to see her. He said that the deceased had complained to him that Branka and Anita "locked me up".
Boris then arranged for Mr Taylor to visit the deceased in the nursing home. According to Boris' evidence, on 9 June 2007 he and Mr Taylor were accompanied by Boris' then wife, Ms Karen Jakopovic, and by both Mr and Mrs Blazina. According to Boris, Mr Taylor saw the deceased alone. Mr Taylor said that it accorded with his practice that he would have done so. At that time the deceased executed a revocation of Branka's Power of Attorney, a Power of Attorney in favour of Boris and a statement confirming that Mr Taylor had explained to the deceased that by signing the documents she was placing great trust in Boris. The deceased was then discharged from the nursing home and returned to Queensland with Boris.
Anita gave evidence that after Branka's return from overseas, the deceased said to her that Boris had told her "to stay away from you and Anita as you will put me back in a home".
In September 2007 Boris arranged for the deceased to see Mr Taylor for the purpose of Boris being appointed the deceased's enduring guardian. He said that Mr Taylor had suggested in June 2007 that this appointment be made.
On Boris' evidence he attended Mr Taylor's offices with the deceased, accompanied by Karen and also the deceased's partner, Mr Vittorio Di Natale. Again, he said that Mr Taylor saw the deceased alone. Boris and Karen gave evidence that they did not become aware of what document or documents the deceased had signed until they were driving home with her, when the will signed on that day was read out in the car at the deceased's request.
The deceased's mental faculties declined in the following years. She died in September 2015 aged 82.

Mr Taylor's evidence

Mr Taylor was in practice for more than 30 years prior to 2007 before retiring in 2013. He was a suburban solicitor having a general practice, including in probate. As noted above, he had no independent recollection of acting on behalf of the deceased.
Mr Taylor gave evidence that he had on numerous occasions received instructions from elderly clients to draw powers of attorney, appointments of enduring guardians and wills and it was his practice to attend on the client alone to obtain instructions. He was aware of the test of testamentary capacity stated in Banks v Goodfellow [1870] LR 5 QB 549 and would as a matter of practice satisfy himself that his client was properly able to give him instructions. He said that it was his practice that if he had any reservations about whether a client satisfied the test in Banks v Goodfellow to make detailed notes of his discussion with the client. These notes would be kept by his firm in safe custody. No such notes were included in his firm's safe custody packet relating to the deceased.
Mr Taylor said that inclusion of the provision in the September 2007 Will that Boris', but not Branka's, children would succeed to their parent's share in the event that the parent predeceased the deceased was not in accordance with his usual practice. He said that he would only have included that provision if he had been specifically instructed by the deceased to that effect.
A copy of the May 2007 Will was included in Mr Taylor's firm's safe custody packet. Notations on the file indicated that it was supplied to Mr Taylor on 12 September 2007. The primary judge found that the deceased must have given it to Mr Taylor at that time.
The primary judge's conclusion concerning Mr Taylor's evidence was as follows (at [140]): "Mr Taylor's evidence was challenged in cross-examination. But in my view it was unshaken, so far as it goes. I accept that Mr Taylor would have followed his usual practice in dealing with the deceased. There is nothing to suggest that Mr Taylor acted otherwise than in good faith and with proper vigilance for the deceased's interests. In particular, I accept that Mr Taylor would have seen the deceased on her own to obtain instructions. The time stamps on the different pages of the will showed that it was prepared over a period of at least an hour and a half. That supports the view that proper instructions were received, and advice given, on its terms."

The 2006/7 medical evidence

As noted at [11] above, a CT scan undertaken in October 2006 showed that the deceased had significant vascular disease in the brain, consistent with dementia.
Dr Beran conducted a MMSE test on 19 April 2007 in which the deceased scored 18 out of a possible 30. Dr Beran's note indicates that the test he administered was as follows: "[O]rientation What is the (year) (season) (date) (day) (month)? Where are we (state) (country) (town or city) (hospital) (floor)? [R]egistration Name three common objects (e.g. 'apple', 'table', 'penny'). Take one second to say each. They ask the patient to repeat all three. Give one point for each correct answer. Then repeat them until he/she learns all three. Count trials and record. Trials [A]ttention and calculation Serial 7's backwards. Stop after five answers. Alternatively, spell 'WORLD' backwards. The score is the number of letters in correct order (D.L.R.O.W) [R]ecall Ask for the three common objects named during registration above. Give one point for each correct answer. (Note: recall cannot be test if all three objects were not remembered during registration). [L]anguage Name a 'pencil' and 'watch'. Repeat the following: 'No ifs, and, or buts.' Follow a three-stage command: 'Take a paper in your right hand, fold it in half, and, and put it on the floor'. Read and obey the following: CLOSE YOUR EYES. Write a sentence. Copy the following design."
Dr Beran described some of the deceased's answers to the MMSE test that he conducted as follows: "7. I said to the deceased, 'What is the year, season, date, day, month?' The deceased was only able to tell me that it was 'April' and was unable to tell me what the year, season, date or day it was. Accordingly, she scored 1 out of 5. This is an indication that she was disoriented in time. Me: Where are we? Name the state, country, town or city, suburb and number? Deceased: New South Wales, Australia, Sydney, Fairfield. She was unable to tell me the number she was at and accordingly scored 4 out of 5. 8. I then asked the deceased to name three basic objects on my desk. I cannot recall exactly what they were at the time as it could've been anything from a pen to a desk. The deceased scored 2 out of 3. We then carried out of the serial 7 test and the deceased's response was, '100, 93, 86' but could not go any further and as a result she scored 3 out of 5. I said to the deceased, 'Marija can you recall the objects that I pointed to a few minutes ago'. Marija said, 'No' and accordingly she scored 0 out of 3. 9. I asked the deceased to pick up a book in her right hand, pass it to her left hand and only using her left hand replace it on the desk. She was able to carry out this 3-stage command; however, when I asked her to read 'Close your eyes' set out in bold type - and to follow the instructions she was unable to do so."
On 2 May 2007, an assessment of the deceased was undertaken by the Aged Care Assessment Team ("ACAT"), which was responsible for certifying placements into nursing homes. Its report referred to the deceased as regularly having short term memory problems and occasionally having long term memory problems. The record referred to the deceased as occasionally having disorientation with regard to time, but never being disoriented with regard to place or other people.
A note made whilst the deceased was in the nursing home in May 2007 records the deceased being unable to recall the date, the year or the name of the facility that she was in.
A report of Dr Kathy Watson, a "Community Registrar", of 7 June 2007 records that the deceased was then unable to recall her address correctly, had problems with "executive function and performed poorly on frontal lobe tests". The report indicates that the deceased had "no perceptual problems" but had "problems with orientation in time". She was said to have performed better on an MMSE test undertaken at that time than on Dr Beran's April test.
Boris and Karen took the deceased to a local medical centre in Brisbane on 13 June 2007 where she was assessed by Dr Janine Steinohrt, apparently a general practitioner. Dr Steinohrt's notes of the consultation with the deceased recorded that the deceased scored 21 out of 30 on an MMSE test that she administered. Her note did not describe the questions that she asked the deceased but did indicate however that the score suggested that "mild cognitive impairment is present". In evidence, Dr Beran said that a score under 25 out of 30 in fact indicated "significant cognitive impairment". Dr Tuly Rosenfeld, a consultant geriatrician and physician called by Boris to give expert evidence, provided expert opinion that the score was "consistent with the presence of dementia".
Dr Mao (who was the deceased's general practitioner - see [11] above) swore an affidavit concerning, principally, her recollection of the state of the deceased's memory. Whilst it did indicate that the deceased had some deficiencies in her memory, it did not provide any clear support for Anita's case on testamentary capacity. Indeed it concluded with the following statement unfavourable to that case: "I do not consider that [the deceased] would not have been in a position where she would have been able to appreciate what her daughter and/or her son may have done for her and also to weigh up what she should do in respect of her Will."

The significance of the CT scan

Dr Beran gave evidence that the deceased's October 2006 CT scan provided "unequivocal supportive evidence of the deceased's dementia" and demonstrated "extensive dementia". In a report dated 23 September 2009, apparently prepared for the purposes of Guardianship Tribunal proceedings, Dr Beran said that the CT scan indicated that the deceased lacked "competence to sign any legal documents". In his oral evidence before the primary judge he accepted however that damage of the type identified in the deceased's CT scan "may or may not have an effect on particular exercises of executive function in the particular patient".
Dr Rosenfeld agreed that the changes evident from the CT scan were "consistent with the presence of dementia". He said however, consistently with Dr Beran's evidence, that the CT scan did "not indicate the degree or nature of cognitive impairment that arises from those changes". He explained that "[t]he degree to which changes are apparent on CT imaging does not correlate closely with the degree of cognitive impairment …".

The significance of the MMSE tests

In his report of 24 September 2009 Dr Beran said that the deceased's score of 18 out of 30 on the MMSE test administered in April 2007 was "clearly indicative of significant and moderate cognitive impairment" and "represent[ed] significant dementia". Dr Rosenfeld said that a score of 18 out of 30 on an MMSE test indicated the "likely presence of dementia" and that such a score indicates "significant problems with higher level cognitive function" and often indicates problems with executive function, reasoning and judgment.
In his report of 25 June 2017 Dr Rosenfeld said in relation to MMSE tests: "The MMSE … is a screening test that has continued to be used by virtue of its validity in providing an indication that dementia may be present in those whose score is less than 25. The MMSE is an instrument that functions as a screening test and does not provide reliable information in regard to the degree or nature of dementia. … The MMSE provides little and sometimes misleading information regarding higher level cognitive function (executive functions such as for example planning, initiative, insight and understanding). Further and in particular, in the case of the deceased, the MMSE is significantly affected and the score adversely impacted, when the test is applied to individuals from different educational, ethnic, language and cultural backgrounds. … The diagnosis of dementia does not per se extinguish capacity or testamentary capacity" (emphasis as in report).
Dr Beran responded to this report in an affidavit of 19 July 2017. In response to the passages just quoted in the previous paragraph Dr Beran said only that the MMSE test "is a requirement for us to use this test to prescribe appropriate treatment". He accepted in cross-examination that a MMSE test is a "small simple test" and it could only measure short term memory loss over the period of time taken to administer the test.
In his earlier report of 5 June 2017, Dr Rosenfeld had said on this topic that "[t]he MMSE test does not … provide reliable detail of the extent or nature of cognitive (thinking) impairment and, in particular, does not provide a reliable or useful indication of executive function (planning, insight, reasoning)." He suggested that MMSE tests screen "for the likelihood that dementia is present rather than a measure of cognitive function." He also indicated that "[t]he presence of dementia, per se, does not indicate the loss of competency or testamentary capacity". He also accepted in cross-examination that the MMSE test is a "poor indicator of higher level cognitive function" and "often very significantly underestimates those impairments".

The expert conclusory evidence

Dr Beran's presently relevant conclusory expert evidence was provided in his report of 13 September 2016 by way of answers to questions posed to him, and was as follows: "1. Whether, in your opinion, Marija would have understood the nature of the September 2007 Will and its effect as at 10th September 2009? The patient was seen in April and May 2007, at which time she had evidence of serious and advanced dementia with an MMSE score of 18 out of 30. From that time forward I would doubt her competence to appropriately understand the ramifications or content of a new Will. 2. Whether, in your opinion, Marija would have been aware of the extent of the property of which she was disposing? I doubt the patient was sufficiently competent to appreciate the extent of her assets. 3. Whether, in your opinion, Marija would have been aware of the persons for whom the testator would usually have been expected to provide and was free of any delusion of the mind that would cause her reason to not benefit those people? Her revocation of the previous Will brings into serious doubt her appreciation of the ramifications of her actions and the consequences thereof. I observed a good relationship between the patient and her daughter, Branka, and am of the opinion she was not aware of the consequences of her actions with regards to those for whom she cared."
He added later: "I have no doubt the dementia alone would have impacted upon the patient's capacity to have validly executed the September 2007 Will. Parkinsonian features and diffuse vasculopathy, including lacunar infarct, would also impact upon her competence and capacity."
In his report of 5 June 2017 Dr Rosenfeld answered three questions similar to those that Dr Beran answered. In respect of the September 2007 Will, Dr Rosenfeld gave an affirmative answer to question 1, his answer to question 2 was not admitted into evidence and he gave the following answer to question 3: "The pattern of will making that the deceased undertook on this occasion was consistent with her intention, in her first will (of 1998), to divide her estate equally between her children. There was no contemporaneous documentation of the deceased's consideration of the reasoning about the intention, in this will, to deal with the possible event of one (or both) of her children predeceasing her. In my view the indication, in the solicitor's affidavit, that these issues would have been discussed and resolved in his usual practice and awareness is, [a] suggestive but not definitive indication that the deceased was able to comprehend and appreciate the impact of her decisions on the claims upon her estate. In my view, taking into consideration the likelihood, outlined in the medical documents, that the deceased was suffering from cognitive impairment, suffered from memory dysfunction and likely executive thinking impairment, and did not specifically refer to her grandchildren by name in this or her previous wills, that the deceased was more likely than not unable to properly consider and compare the relative merits of her grandchildren in determining her wishes regarding this will."
In his supplementary report dated 25 June 2017, Dr Rosenfeld answered as follows a question as to whether the deceased was "capable of considering the relative merits of her children Branka Uribe and Boris Jakopovic" when she made the September 2007 Will: "3.1.1 As indicated in my earlier report of 5 June 2017 the deceased was likely suffering from a dementing illness and had been diagnosed by Dr Beran, Neurologist. He found her to be suffering from cognitive impairment. He prescribed treatment for Alzheimer's Disease. 3.1.2 The deceased had previously undergone a CT brain scan (Computed Tomographic X Ray) which indicated the presence of vascular disease. Vascular changes are a common finding in CT images of older people. This frequent finding attests to the increased likelihood of brain disease and consequent imaging changes in CT scans undertaken in older people. The degree to which changes are apparent on CT imaging does not correlate closely with the degree of cognitive impairment however. 3.1.3 Testamentary capacity, one's ability to undertake a will, is correlated with both cognitive capacity and the nature and complexity of the task and decisions to be undertaken. 3.1.4 In my previous report I came to the view that, when the deceased made her will of 10 September 2007, having instructed the solicitor Mr Michael Taylor, who indicated his usual practice of performing his professional duties in regard to preparing a will, she would not have been properly able to consider the relative merits of her grandchildren. 3.1.5 I came to that conclusion on the basis that her change in the potential distribution of her estate between her grandchildren, in the event that one of her children predeceased her, would have been a higher level cognitive task that was less likely to have been considered. If, rather, she had considered that distinction and made that change, it is more likely that this would have been specifically noted or referred to in the will. 3.1.6 Further the will she undertook on that occasion, on 10 September 2007, was similar otherwise to an earlier will (22 June 1988), and consistent with that pattern wherein both children were treated equally in terms of the disposal of her estate. 3.1.7 The will was undertaken by a solicitor who indicated his compliance with the questioning and procedures in taking instructions and preparing a will; the will was consistent with a pattern of will making and distribution that had earlier been established; but the significant change in distribution to her grandchildren in the event of her children predeceasing was more likely than not a higher level reach that she would not have attained. 3.1.8 In my view however, it is more likely than not that the deceased would have been able to consider and determine her decision about the relative merits of her children on the basis of longer term memories and views and her deliberations in that regard was consistent with the previously established pattern of her will making."

The primary judgment

The primary judge recognised that the test of testamentary capacity was as stated by Cockburn CJ in Banks v Goodfellow as follows (at 565): "It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
His Honour considered that the fact that the September 2007 Will was prepared by "an experienced solicitor who apparently detected no difficulties with the deceased's testamentary capacity when he prepared her will" was "valuable evidence which favour[ed] [his] finding upholding the will". His Honour referred in this regard to Re Crooks Estate (Supreme Court (NSW), Young J, 14 December 1994, unrep) at 29 and Hamilton v Nelson [2012] SASC 219 at [13].
As his Honour was satisfied that the deceased knew that she was making a will and knew what the effect of doing so would be, his Honour concluded that the first element of the Banks v Goodfellow test was satisfied. He also concluded that, as the deceased's estate was simple, the second element was satisfied. As to the third and final element, he considered that that depended upon the "supposed irrationality of leaving Anita out", continuing as follows: "189 Unlike Carr v Homersham, there is no direct evidence from the solicitor who prepared the will of the reasons given by the deceased for not including Anita. But the fact that the new will also reduced Branka's share from sixty per cent to fifty per cent, as well as the events of the four months leading up to the making of the will, strongly suggests that the deceased reacted against the conduct of Branka and Anita in putting her into SWIAA Gardens against her wishes. 190 The only evidence directly concerning the deceased's attitude towards Anita comes from Karen and Boris (above at [113] and [114] respectively). That evidence is limited in weight. Boris' is self-serving and Karen could not be cross-examined on hers. The evidence is plausible but not decisive. 191 There was nothing unreasonable about Branka wanting to go away on a holiday. And, on the face of it, there was nothing unreasonable about Anita wanting to give priority to looking after her children, especially her newborn. But the reasonableness of Anita's conduct is not completely clear on the evidence. Boris may have been correct in his perception that Anita refused to do anything at all, even refusing to act as a contact point, to allow the deceased to stay in her home while Branka was away. But even if that was not actually the case, and Anita's position was misunderstood, this may be what the deceased thought. This is the way Boris presented it in his affidavit. Given the antipathy between Boris and Branka and Anita, he may well have given the deceased the same story. 192 The deceased's wish to stay in her home may have been unreasonable and she may have overreacted to being placed at SWIAA Gardens. But the deceased was not wrong in perceiving that she had been placed there for the convenience of Branka and Anita, and that this had been done contrary to her wishes. The deceased would also have known that Anita had done nothing to help her, or, apparently, even to contact her, while she was there. On the evidence before the Court it would have been open to the deceased to think that if Anita had been prepared to help, she would have been able to stay at home. On that view, Anita could have been seen as more to blame than Branka. Whether this would have been fair, or even correct, does not matter. The decision to exclude Anita was not so irrational as to bespeak some form of animus against Anita which amounted to a 'delusion' in the relevant sense."
His Honour then turned to the expert medical evidence and said: "199 For his part, Dr Rosenfeld saw Mr Taylor's general practice, as described in his affidavit, as being 'suggestive but not definitive' of the deceased having had testamentary capacity. The decisive matter for Dr Rosenfeld appears to be that the deceased did not refer to her grandchildren by names in their wills as well as the generalised evidence of cognitive impairment, memory dysfunction and 'likely executive thinking impairment'. In his supplementary report Dr Rosenfeld also relied on the previous wills of the deceased which provided in conventional form for her children's children to take their parents' share in the event that they predeceased her. He said that 'the significant change in distribution to her grandchildren in the event of her children predeceasing her was more likely than not a higher level reach that she would not have obtained'. 200 I acknowledge that there is room for debate about the issue. But I have already explained why I do not agree with these views. To my mind, the very fact that the deceased made a distinction between Boris' children and Branka's child, Anita, in writing her will suggests that she did bring reasoning to bear on the question. The fact that previous wills did not make the distinction is meaningless if, as I have suggested, the decision to exclude Anita could have been a reaction to the way she had behaved, or was supposed by the deceased to have behaved, in connection with the deceased's involuntary admission to SWIAA Gardens. The events surrounding the admission were not the subject of instructions to Dr Rosenfeld. This was quite understandable but it underlines the point that Dr Rosenfeld's conclusion was not a matter of scientific reasoning. 201 The difficulty with an expert expressing a conclusion on a mixed question of fact and law is that the expert's opinion may ultimately depend upon an understanding of the legal principle, perhaps unstated, which is incorrect; or upon a view of the facts which is not congruent with the findings ultimately made by the Court; or both. In my view, the opinions in this case are prime examples of this. I have seen and analysed the whole of the evidence in this case, which Dr Beran and Dr Rosenfeld have not. I have also had the advantage of the decision in Carr v Homersham which had not even been delivered at the time they wrote their reports and gave evidence. I have also had the assistance of submissions from both counsel on the legal and factual issues in the case. In my view, the opinions of Dr Beran and Dr Rosenfeld do not assist in resolving the question of the deceased's testamentary capacity. 202 To say this is not to reintroduce the 'ultimate issue' rule which was abolished by the Evidence Act, s 80. Section 80 only provides that evidence otherwise admissible is not rejected because it goes to the ultimate issue. It does not make opinion evidence on the ultimate issue admissible if it does not otherwise satisfy the requirements of s 79. In any event, the evidence in the present case was admitted; it is just that I think that it has no weight in the circumstances of the case." For essentially these reasons, the primary judge concluded that the deceased had testamentary capacity when she signed the September 2007 Will and that Anita therefore had no standing to complain, as she did, about Boris' dealings concerning the assets of the estate.
As a result, his Honour dismissed Anita's claim.

DETERMINATION OF THE APPEAL

I deal as follows with the contentions of Anita, the appellant, in the order that I have summarised them in [7] above.

The weight given to Mr Taylor's evidence (Contention 1)

In challenging the primary judge's conclusion that Mr Taylor's evidence should be regarded as "valuable evidence" in favour of upholding the September 2007 Will, Anita emphasised the following points: 1. Mr Taylor had no independent recollection of his dealings with the deceased and did not keep any notes of what passed between them. 2. His Honour's findings that Mr Taylor saw the deceased on her own for at least an hour and a half was not based on direct evidence but only on inference from time stamps on different pages of the September 2007 Will and Mr Taylor's evidence of his usual practices. 3. His Honour's finding that the deceased must have requested Mr Taylor to change her will so that it had the effect that Anita would not take Branka's share if Branka predeceased her mother was also "the product of inference" from Mr Taylor's evidence of his usual practices. 4. It is not possible to know what circumstances would or would not have been sufficient to trigger a doubt in Mr Taylor's mind as to the deceased's testamentary capacity. 5. Mr Taylor might not have appreciated that the deceased lacked testamentary capacity as there was evidence that the deceased "presented in a fashion which might not have alerted suspicion as to her cognitive limitations". Anita referred in this regard to Dr Watson's report of June 2007 (at [32] above) which stated that the deceased presented as a "well, pleasant elderly woman" with normal speech. 6. Because there was no evidence that a copy of the 1998 Will was provided to Mr Taylor, the significance of the change of the contingent gift in the May 2007 Will would not likely have been apparent to Mr Taylor. 7. Mr Taylor did not give evidence that he read the form of will over to the deceased.
Notwithstanding these matters, I consider that the primary judge was correct to place significant weight on Mr Taylor's evidence. Mr Taylor was a solicitor of considerable experience, including in dealing with elderly clients and their testamentary wishes. As Young J indicated in Re Crooks Estate (14 December 1994, unreported, at 29), such evidence is valuable evidence of testamentary capacity because: "[a]n experienced solicitor or solicitor's secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths [sic]."
It was well open to the primary judge to conclude that Mr Taylor met with the deceased on her own for at least an hour and a half on 10 September 2007 and had met with her alone when she had signed documents in June 2007. Moreover, there was no reason not to accept Mr Taylor's firm evidence that it would not have been in accordance with his practice to make the change to the relevant contingent gift from that in the May 2007 Will to that in the September 2007 Will without express instructions from his client.
It is well-established that evidence of practice is admissible and, depending upon the circumstances, of considerable weight (Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721; BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [106]-[111]; J D Heydon, Cross on Evidence (11th ed, 2017) at [3240]). That the evidence does not identify the individual acts which gave rise to the practice and is general in form does not render it inadmissible (BHP at [107]). Whilst, in applying evidence of general practice, a court must consider whether the particular instance before it "may stand apart from the ordinary" (Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [62] in relation to epidemiological evidence), there is no reason to think that is so in the present case.
In light of Mr Taylor's extensive experience in dealing with elderly clients, the evidence referred to in [51(5)] above did not deprive Mr Taylor's evidence of force. His experience and the considerable time he spent alone with the deceased equipped Mr Taylor to form a view about matters which he regarded as his duty to address, namely his client's ability to appreciate the matters referred to in the Banks v Goodfellow test, and therefore her testamentary capacity and instructions to him.
As to [51(6)] above, knowledge by Mr Taylor of the terms of the 1998 Will and that the relevant provisions in the May 2007 Will therefore probably reflected a long-standing view of the deceased, may well have fortified him in concluding that he would have sought specific instructions for the change. There was however nothing in his evidence to suggest that ignorance of the 1998 Will required a different conclusion. Nor was the contrary suggested to him in cross-examination.
As to [51(7)] above, Mr Taylor's evidence was that his practice was to satisfy himself of his clients' instructions to prepare the documents, including wills, that he prepared for their signature, and to do so whilst he was alone with the clients. How precisely he would do this was not explored with him in his oral evidence but clearly reading of a draft will to his client was not the only way that he could become satisfied about her instructions. Discussion with the client over an extended period could have been equally, if not more, effective. The evidence here indicated that Mr Taylor spent over an hour and a half alone with the deceased on the occasion that the September 2007 Will was signed.

The weight to be given to the medical evidence (Contention 2)

The 2006/7 evidence

The CT scan taken of the deceased's brain in October 2006 demonstrated that the deceased had significant vascular disease, consistent with dementia, but there was no evidence before the primary judge that this was conclusive, or even weighty, evidence of a lack of testamentary capacity, at that time or, more particularly, in September 2007. Both Drs Beran and Rosenfeld made it clear that no conclusion could be drawn from the CT scan as to the degree of any cognitive impairment of the deceased (see [35] and [36] above).
Further, although the deceased performed poorly on the MMSE tests conducted on 19 April, 7 June and 13 June 2007 (see [11], [32] and [33] above), the evidence of both expert witnesses, Drs Beran and Rosenfeld, indicated that such tests were of limited value (see [37] to [40] above). As Dr Rosenfeld said in his supplementary report, to which Dr Beran replied but from which he did not relevantly dissent, the MMSE test "does not provide reliable information in regard to the degree or nature of dementia" and "provides little and sometimes misleading information regarding higher level cognitive function". The limitations on the significance of the results of such testing can readily be appreciated by observing the very brief and simplistic nature of the testing described in [28] above.
Furthermore, Dr Watson's comments described at [32] above appear to have been based on the deceased's performance on the MMSE test that Dr Watson administered. They must therefore be understood in light of the limitations of such testing identified by the experts. As well, the ACAT assessment of 2 May 2007 (see [30] above) is equivocal on the issue of testamentary capacity, saying, for example, that the deceased was occasionally disoriented as to time but never as to place or person.
In these circumstances, the 2006/7 medical evidence did not constitute significant evidence of testamentary incapacity.

The expert medical evidence

Dr Beran's answer to the first question posed to him in his report of 5 June 2017 (relating to the first element of the Banks v Goodfellow test) went no further than expressing "doubt" as to the deceased's competence to understand the ramifications or content of a new will (see [41] above). His answer to the second question (concerning the second element) was expressed in similar terms.
In his answer to the third question, he concluded that the deceased was "not aware of the consequences of her actions with regards to those for whom she cared" but this was based on Dr Beran's less than complete knowledge of the relevant facts. He said that the deceased's "revocation of the previous Will brings into serious doubt her appreciation of the ramifications of her actions and the consequences thereof" (at [41] above). The foundation for this appears to have been his next statement that he "observed a good relationship between the patient and her daughter, Branka". However such an observation of the relationship, brief as it must have been, did not provide an adequate foundation for Dr Beran's apparent view that the deceased had no reason to reduce her daughter Branka's share of the estate. As indicated at [76] below, the evidence indicated that the deceased may well have thought she had reason to do that, the change so far as Branka was concerned being a reduction of her share from 60% to 50%.
Moreover, for all Dr Beran knew, the reason that the deceased wished to make that particular change may simply have been a desire to treat her two children equally. This would not have been inconsistent with the "good relationship" between the deceased and Branka which Dr Beran says that he observed. As well, Dr Beran does not advert to the other significant change between the two wills which was the removal of the contingent gift in favour of Branka's child, namely Anita.
In these circumstances, Dr Beran's conclusory evidence cannot be regarded as of any significant weight. It was based on facts of which he was insufficiently apprised and, in interpreting the facts as he thought they were, he was not drawing on his expertise in a field of specialised knowledge. His evidence did not conform with the strictures for expert evidence that Heydon JA identified in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [86] (see also Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]). Although there is no challenge to the admission of Dr Beran's conclusory opinions into evidence, the primary judge was correct not to give the opinions any significant weight. As his Honour said, in relation to both experts, their opinions were based on facts which were not congruent with his findings (at [201]).
The position is similar in respect of Dr Rosenfeld's conclusory evidence in his report of 5 June 2007. His evidence, quoted at [43] above, appears to have turned on the absence of any specific reference in the September 2007 Will or the deceased's previous wills to the deceased's grandchildren by name. Whilst he acknowledged in general terms the significance of Mr Taylor's evidence, Dr Rosenfeld appears to have assumed, without good reason, that there was no discussion between Mr Taylor and the deceased concerning the grandchildren and, in particular, about the deletion of the contingent gift in favour of Anita. This was however an unwarranted intrusion into the fact-finding function of the court, similar to that which I have described in relation to Dr Beran's evidence. The primary judge's acceptance of Mr Taylor's evidence that he would not have provided in the September 2007 Will for the removal of the contingent gift in favour of Anita without specific instructions from the deceased indicates that there was in fact some such discussion as Dr Rosenfeld appears to have assumed did not occur. If it occurred, it is difficult to see how Dr Rosenfeld's reasoning could logically lead to a conclusion that the deceased was unable to consider the claims of her grandchildren to her bounty. As the primary judge said, "the very fact that the deceased made a distinction between Boris' children and Branka's child, Anita, in writing her will suggests that she did bring reasoning to bear on the question" (at [200]).
Dr Rosenfeld's impermissible reasoning appears also in [3.1.5] of his supplementary report (see [44] above). In that paragraph he said that if the deceased had considered the issue of removal of the contingent gift in favour of Anita "it is more likely that this would have been specifically noted or referred to in the will". That is an inference about a matter of fact falling outside Dr Rosenfeld's field of expertise and contrary to the factual finding that the primary judge made.
For these reasons, I conclude that the primary judge was correct to find that the expert opinions of Drs Beran and Rosenfeld did not assist in determining whether the deceased had testamentary capacity when she made the September 2007 Will (see [203]).

Whether the deceased knew and approved of the terms of her September 2007 Will (Contentions 3 and 4)

My conclusion that the primary judge was correct to give Mr Taylor's evidence considerable weight on the issue of the deceased's testamentary capacity, taken with my conclusions that the expert medical evidence ought not to be given any significant weight on that issue and that the 2006/7 medical evidence was of only limited significance, leads to the result that the primary judge was correct to find that the deceased had testamentary capacity when she made the September 2007 Will. Acceptance of Mr Taylor's evidence also necessarily requires the conclusion that the deceased knew and approved of the contents of that will. In this regard, his Honour was correct to infer from Mr Taylor's evidence of practice and his firm's documents that Mr Taylor spent at least an hour and a half alone with the deceased on 10 September 2007 taking her instructions for her new will, satisfying himself that she had the capacity to give him those instructions and, it follows, satisfying himself that she knew and approved of the contents of the will.
Understandably, the primary judge did not say on this topic that the deceased "knew that she was making a will and knew what the effect of doing so would be" (the first limb of the Banks v Goodfellow test), and that the second limb of that test was also satisfied (see [187]). As I have indicated, his Honour's findings concerning Mr Taylor's and the medical evidence necessitated these conclusions.
For these reasons, Contentions (3) and (4) referred to in [7] above also do not assist Anita's appeal. As to Contention (3), whether or not Boris' conduct gave rise to suspicions as to whether the deceased knew and approved of her will, the evidence established as a fact that she did so know and approve. There was therefore no reason for the primary judge to examine Boris' conduct further. As to Contention (4), for the reasons I have given, his Honour sufficiently referred to the question of knowledge and approval.
On the question of onus in this context Leeming JA in Mekhail v Hana [2019] NSWCA 197 at [131] pointed out that: "Where as here those taking a benefit under a will have played a part in its preparation, it is for the propounder to show 'the righteousness of the transaction', namely, that the testator or testatrix knew the contents of the will and appreciated its effect, so that it can be said that the will contains the real intention and reflects the true will of the testator or testatrix. The same is true where there are 'suspicious circumstances' … "
His Honour also pointed out, at [170]-[172], that the ambit of the term "suspicious circumstances" is not settled.
Taking Anita's case at its highest (by reference to the findings identified in her Notice of Appeal which she contends that the primary judge should have made), her case was that before the deceased made her September 2007 Will, Boris knew of the May 2007 Will and urged the deceased to change it to the form of the September 2007 Will. Whether or not these amounted to "suspicious circumstances", they were sufficient to require the court to satisfy itself on the whole of the evidence that the deceased knew and approved of her September 2007 Will, without the court relying simply on any presumption that she did, arising out of her execution of that will. For the reasons I have given above, the evidence, when considered as whole, provided an ample basis for the court to be so satisfied. In these circumstances, it was unnecessary for his Honour to consider whether to make the findings for which Anita contended in her Notice of Appeal.
As Leeming JA also indicated in Mekhail v Hana (at [128]), testamentary capacity and knowledge and approval are distinct concepts but they are linked and evidence will often be relevant to both issues. This was a case where resolution of the issue of testamentary capacity, by the preference for Mr Taylor's evidence over the medical evidence, also resolved the knowledge and approval issue. As Meagher JA observed in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (at [48]), requirements that a court exercise "vigilance", undertake "careful scrutiny" or be "affirmatively satisfied" as to testamentary capacity and knowledge and approval are "not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof", taking into account the seriousness of the issues for determination (s 140(2) of the Evidence Act 1995 (NSW)).
I add that Anita did not contend, at least on appeal, that in making her September 2007 Will the deceased acted on a mistaken belief concerning Anita's conduct which rose to the level of a "delusion" that affected the validity of the will (compare the contentions put in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65). In any event, there were circumstances which may have led the deceased, whether fairly or not, to be unhappy with Anita by September 2007. First, Anita gave evidence that it was she who told the deceased that the deceased would have to go into a nursing home. The deceased expressed strong resistance to this and, later, was distressed and angry at being admitted to the nursing home (see [15] above). Secondly, it seems that, due to the impending birth of her third child, Anita did not frequently visit the deceased in the nursing home. As a result, the deceased may have been annoyed with Anita, however unfair that may have been. In other words, there was evidence of possible reasons for the deceased having the contingent gift in favour of Anita removed from her will.

Whether the primary judge should have dealt further with Boris' credit (Contention 5)

It was not necessary for the primary judge to make findings concerning Boris' credit because his Honour did not need to rely on Boris' evidence (or that of Karen) to reach the conclusions that the deceased had testamentary capacity and knew and approved of the contents of her September 2007 Will. Those matters were in my view well established without recourse to that evidence and, in stating that the evidence of Boris and Karen was "plausible but not decisive", his Honour appears to have taken a similar view.

ORDERS

As none of Anita's contentions to which I have referred in [7] above have been successful, her appeal should be dismissed with costs.
McCALLUM JA: I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2019

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