Estate of Beryl Lee Hordern (Deceased); Homersham v Carr

Basic legal issues

1. Accordingly, the only question for determination is whether the deceased had testamentary capacity in accordance with the principles laid down in Banks v Goodfellow (1870) LR 5 QB 549, as explained in the many authorities that have considered that decision.
2. It will be convenient to set out the following extract from the decision of the Court of Appeal in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Meagher JA; Basten and Campbell JJA agreeing), which establishes the basic approach that the court is required to take in answering the question before it: [44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21 ; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22 ; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668 and 670; Nock v Austin [1918] HCA 73 ; 25 CLR 519 at 522, 528. [45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98 ; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13 ; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.
3. In the present case, the onus of proof lies upon Ms Carr, as the proponent of the 2004 will, to satisfy the court that it is the will of a "free and capable" testator. However, the 2004 will is rational on its face and was duly executed, so there is a presumption that the deceased had testamentary capacity. The question becomes whether there are circumstances which raise a doubt as to the existence of testamentary capacity, in which case that presumption will be displaced. In that event an evidential burden will shift to Ms Carr to show that the deceased was of "sound disposing mind".
4. For the reasons that will be given below, I have formed the view that the presumption of testamentary capacity is clearly displaced by the circumstances of this case, so that the ultimate burden of proving on the evidence that the deceased had testamentary capacity when she made the 2004 will falls on Ms Carr.
5. It will also be convenient for me to record at the outset that I am well satisfied that all of the witnesses who were cross-examined gave their evidence truthfully to the best of their ability. That is so in particular for Ms Richardson and Ms Carr, who I mention separately only because they are the parties. There is nothing in the manner in which the witnesses gave their evidence that would cause me to doubt their truthfulness. There are some issues as to the reliability of parts of the witnesses' affidavits, and submissions have been put that aspects of Ms Richardson's and Mr Bracks' affidavits are unreliable because of the passage of time since the events the subject of the evidence, and in Ms Richardson's case the fact that part of her evidence was self-interested and uncorroborated in respect of a significant issue. I will deal with the challenges to aspects of the witnesses' evidence below.

Background facts

1. I will now set out my findings concerning the facts relevant to the determination of this case. I will do so broadly in a chronological fashion, and will deal with the evidence given by the witnesses where it is convenient to do so.
2. As I have said, Ms Richardson was a niece of the deceased. Apparently, by the time of her death, the deceased did not have any closer family than Ms Richardson, although she had a nephew to whom she left her property by the 2001 will in default of Ms Richardson and her husband surviving the deceased.
3. The deceased was born in the United Kingdom, and Ms Richardson was the daughter of the deceased's sister. The deceased migrated to Australia in the late 1950s.
4. Ms Richardson gave evidence that her mother died in 1972 aged 46, when Ms Richardson was aged 23. Ms Richardson's mother had been incapacitated in the two months leading up to her death, but prior to that had led a normal lifestyle. Ms Richardson and her mother attended the wedding of Ms Richardson's brother in September 1972, at which time her mother showed no appearance of her ill-health.
5. Ms Richardson said that she believed she had a normal and loving relationship with her mother, and resided with her, her father and her brothers until her mother's death.
6. This evidence is significant to a crucial issue in these proceedings, whereby Ms Carr seeks to explain why the deceased changed her mind and decided to give all of her estate to Ms Carr, rather than Ms Richardson. The reason, as stated by the deceased to Ms Carr and Mr Bracks was, in effect, that the deceased was extremely disappointed with Ms Richardson because the latter had complained to the deceased that her life had been ruined by the sickness and death of her mother, and the need for Ms Richardson to look after her mother. Ms Richardson denied that she had ever made such a complaint to the deceased. I will return to this issue later, but note at this stage that if Ms Richardson's evidence is accepted, then it would appear that the deceased made the 2004 will under a substantial and material misunderstanding as to the relationship between Ms Richardson and the deceased's sister, and acted upon a memory of events that was false. There is a question to be explored as to whether, if the deceased did act upon a false belief, it ought technically be described as a delusion.
7. The evidence given by Ms Richardson concerning the circumstances of her mother's death, and in particular the fact that her mother was in apparently good health until a couple of months before her death, and that her mother had died in 1972, is relevant to the determination of whether or not the deceased did make the 2004 will on the basis of a false belief that Ms Richardson had complained about the effect that her mother's health had had on Ms Richardson's life.
8. If Ms Richardson's mother died in 1972 after a short period of ill-health, then it is objectively unlikely that Ms Richardson had anything to complain about and hence that she did complain to the deceased. If the deceased was of sound mind and memory, she ought to have recalled the circumstances of her sister's death, and would have been unlikely to think that Ms Richardson would complain about that matter.
9. Ms Richardson said in her 16 June 2016 affidavit: "[The deceased] migrated from England to Australia in the late 1950s and we maintained contact through mail, fax and cassette recordings…I visited her in Australia about once or twice each two years". This evidence suggested that the contact between Ms Richardson and the deceased had been constant since the late 1950s.
10. However, in cross-examination, Ms Richardson gave the following evidence concerning her contact with the deceased (T 15.9-16.7): Q. You say that from the late 1950s you maintained contact through mail, fax and cassette recordings with the deceased? A. Yes. Q. You say from the late 1950s you visited the deceased in Australia about once or twice every two years? A. No, that's, that's not how it should read actually. I - not from the 1950s, in the middle of 80s, in paragraph - no, 60s, 4, in the late 80s I came to Sydney on business and it's after that I saw her once every - once or twice every two years. Q. So the affidavit is incorrect in paragraph 2? A. Yeah, it's not explicit enough, no. Q. It wasn't until the late 1980s that you saw the deceased again in person? A. No, she came back to the UK a few times. Q. Without intending to be rude, you were born in about 1950? A. '49, yeah. Q. So in the middle 1960s you were still a child? A. A teenager, mid - a teenager. Q. And living with your mother? A. Yes. Q. Who is the sister of the deceased? A. Yes. Q. It's fair to say, isn't it, that the reason for the visits were for the deceased to see her sister primarily, not the deceased to see you? A. It was, yes, to see her sister and her mother. Her mother was still alive. Q. You had little involvement with the deceased between her leaving England in the late 1950s and you coming to Australia in the late 1980s? A. Well, I say we kept in touch. I also spoke to her on the telephone. I spoke on the cassettes. It was the way we used to communicate, my mother and Beryl, and there were lots of people in those times 'cause you couldn't always just get a phone call or email, and they used to send tape, cassette recordings to each other. Q. But, effectively, you didn't re meet until you saw her in Australia in the late 1980s? A. Apart from the holiday we had as well in Italy in the 60s, in about 67. Q. But, effectively, you didn't re meet until you came to Australia in the late 1980s? A. I had a lot more contact with after that but obviously I'd seen her when she came back to the UK several times and when we went to Italy, as I saw.
11. In submissions, Ms Carr relied upon this evidence to suggest that Ms Richardson's affidavit evidence was not entirely reliable.
12. Ms Richardson also gave evidence in her affidavit that the deceased opened a bank account in England for her United Kingdom pension and made Ms Richardson a signatory to that account.
13. In the middle 1960s, the deceased joined Ms Richardson's family on a holiday in Italy for about one week. The deceased joined her on various holidays over the years including to Papua New Guinea, New Zealand, India, Malaysia, the United Kingdom and Germany. The deceased stayed with Ms Richardson in England on some occasions.
14. In late 1980 Ms Richardson visited Sydney on business and arranged accommodation at a hotel. On the second day of her visit, the deceased met Ms Richardson at the hotel and said: "You're not staying in a hotel any more, you will come to my place", by which she meant the deceased's house at Rose Street Chippendale.
15. Ms Carr said that she met the deceased first in the late 1980s. At that time the deceased lived with her de facto husband, Mr Hugh Hordern, in Chippendale. The deceased engaged Ms Carr to clean her house once a week. Ms Carr also assisted the deceased to conduct dinner parties about once a month, for which Ms Carr was paid.
16. The deceased apparently made a will on 25 May 1987 which is not in evidence. A codicil dated 11 June 1991 refers to that will. The codicil provides for the deceased's estate other than her real estate to be left to her de facto husband, but if he did not survive the deceased by 90 days, the estate other than the real estate was left to Ms Richardson.
17. According to Ms Carr, the deceased separated from Mr Hordern and moved to Ultimo in late 1994. Ms Carr also lived in Ultimo at that time, and continued to clean for the deceased each week. Ms Carr said that she was "more or less on call for" the deceased "whether it was to perform some task for her or whether it was to socialise and have a drink or a cup of tea. We used to play card games from time to time. I came to regard her as a friend and I know that she regarded me as a friend".
18. During the time the deceased lived at Ultimo she met an American gentleman called Mr Low. The deceased and Mr Low went to America together, where Ms Carr believes they got married. After a few months they returned to Australia to live at Ultimo.
19. After a couple of years, the deceased and Mr Low moved to Castle Hill. Ms Carr did not work for or visit the deceased while she lived at Castle Hill, but they communicated by telephone, and met every now and then at Broadway when the deceased came into the city for the day on business or to shop.
20. According to Ms Carr, after a couple of years the deceased and Mr Low separated and Mr Low returned to America.
21. The deceased also made a will on 26 July 1998, by which she left any home that she owned to her husband for life and after his death to Ms Richardson.
22. As I have noted above, the deceased made the 2001 will in favour of Ms Richardson on 2 December 2001.
23. Consequently, the deceased must not have been actuated by any belief that Ms Richardson had complained about the effect of her mother's illness and death on Ms Richardson's life up to that time.
24. Also in about December 2001, according to Ms Carr, the deceased returned to live in the City, and bought the home unit in Pitt Street at which she lived until she was admitted to Lulworth House in about July 2004. Ms Carr began to clean for the deceased again on a weekly basis, visited her often socially and when she wanted something done or fetched. On quite a few occasions, Ms Carr slept the night at the Pitt Street unit at the deceased's request.
25. Ms Carr said that the deceased appeared to like her whiskey. She was not a drunk, but she enjoyed a drink and often asked Ms Carr to join her, which she did. The deceased wanted company. The couple would sit and watch TV, laugh, have a drink and chat, play cards and just enjoy the sociability of each other's company. Ms Carr said that a strong friendship developed between her and the deceased. She regularly shopped for the deceased for groceries. She went to the bank for the deceased and did all her outside chores.
26. Ms Carr said that on three occasions during the time the deceased lived in Pitt Street she gave Ms Carr a 1 ounce gold bar. Ms Carr subsequently sold each of the gold bars. Ms Carr said that when the deceased offered a gift to her, she was always very insistent that it be taken.
27. Ms Richardson said in her 24 October 2016 reply affidavit that she travelled to Sydney in November 2002 for the purpose of visiting the deceased. During that time the deceased said to her: "I cannot find the St George Bank it must have moved overnight". Ms Richardson then showed the deceased the location of the Bank near her residence.
28. The deceased and Ms Richardson then travelled to Cairns for a week where they visited the Great Barrier Reef, and on 5 November 2002 they took a flight in a hot air balloon. When they were boarding a plane for Cairns the deceased was prevented by the authorities from taking in her hand luggage a full set of chiropody scalpels and implements. The deceased had been a chiropodist most of her working life. When Ms Richardson asked the deceased why she wanted her implements as she had not practised for 20 years, the deceased replied: "I thought I might need them".
29. In early 2003, Ms Richardson had a conversation with the deceased in which the latter said: "Have you changed your Will yet to ensure what I give you in my Will stays in the family". Ms Richardson replied: "I will do that next week".
30. Ms Richardson annexed to her reply affidavit an undated document, which she said was signed by herself and her husband in May 2003. The document was addressed to the deceased, and is apparently signed by Ms Richardson and her husband, Harold. The document states: WE ANN RICHARDSON and HAROLD RICHARDSON confirm that should you bequeath to us your property and assets in Australia that we will, on receipt of such legacy, make a Will in Australia to ensure that this passes on our death to DAVID ROBERT SHARWIN and PETER STUART SHARWIN and that any Jewellery passes to VICTORIA HOLLINGWORTH SHARWIN. IN the event of any of the assets being transferred to England we will, at that time, arrange for our present Wills to be altered to ensure that any property and assets brought back to England pass to the said DAVID ROBERT SHARWIN and PETER STUART SHARWIN AND THAT ANY Jewellery passes to VICTORIA HOLLINGWORTH SHARWIN.
31. Ms Carr did not challenge the authenticity of this document, or Ms Richardson's evidence that the deceased asked her in early 2003 whether she had changed her will, and that Ms Richardson and her husband signed the document in May 2003.
32. If those events occurred in May 2003, or thereabouts, it means that any belief that the deceased formed that she had been told by Ms Richardson that her mother had ruined her life must have been formed after that time, and thus in the year before the deceased made the 2004 will.
33. Further, the statement that Ms Richardson has attributed to the deceased that the deceased wished to ensure that any property that she left to Ms Richardson "stays in the family" provides an additional reason for the deceased's decision to leave her estate under the 2001 will to her niece, so that it was not simply a matter of the deceased leaving her estate to one of her family members for reasons of affection.
34. Ms Richardson gave evidence in her primary affidavit that she had several telephone calls with the deceased in November 2003, in which the deceased's conduct had not been like it was on previous calls. Ms Richardson said that she was concerned about the deceased's health because the deceased called at times that Ms Richardson considered odd because of the time difference between Australia and England, and had not done so previously. The deceased said: "My telephone and fax are not working", at a time when the deceased was using both. The deceased said: "I don't feel good, I don't know what is wrong with me". Ms Richardson said that she spoke to the deceased nearly every day for a week or two, and invited the deceased to come and live in England.
35. Ms Richardson also gave evidence that in November 2003 she had a conversation with the deceased in which the deceased said: "I am going to have euthanasia. It is organised". The two discussed the proposal and the deceased said: "You make enquiries, the number of the Euthanasia Society is…" Ms Richardson was aware that the deceased had been a member of the Euthanasia Society for many years and regularly advocated it. A few days later, Ms Richardson had a telephone conversation with the deceased, in which the former said: "I spoke to the Euthanasia Society and it is not legal to do it. The society does not come out to help you". The deceased replied: "You knew I wanted it so why did you stop it. What you did was wrong. I can't believe it".
36. Ms Richardson said in cross-examination that following this conversation the relationship that she had with the deceased cooled for a short time, but had recovered by about the end of January 2004.
37. Ms Carr gave evidence that in about December 2003 she accompanied the deceased to her bank on two occasions when the deceased withdrew substantial amounts of cash from her accounts. The deceased was physically frail and used a shopping trolley which she pushed along in front of her in order to keep herself stable. The deceased withdrew $80,000 on the first occasion and $50,000 on the second occasion. The deceased gave Ms Carr $10,000 as a gift out of the first cash withdrawal.
38. At some time after the deceased withdrew the cash from her bank, Shelley Sayes, who was apparently a friend of the deceased who lived in New Zealand, visited the deceased at her Pitt Street apartment and arranged for the deceased to re-deposit the amount of the cash that remained. Ms Carr accompanied the deceased and Ms Sayes on that occasion.
39. Ms Carr gave evidence that in December 2003, the deceased said to her that she wanted to get her affairs sorted, and asked Ms Carr to arrange for a solicitor who she knew to come and see her. That solicitor was Mr Bracks. Ms Carr knew Mr Bracks because she had been cleaning for Mr Bracks' wife for about 20 years.
40. Mr Bracks was admitted to practice as a solicitor on 8 March 1963. He conducted a general practice in various locations, including drawing and engrossing wills and testamentary trusts, estate administration and probate, testator family applications, family provision matters and construction of wills suits.
41. Mr Bracks was assisted by his office costing details to give evidence of the work done by him in preparing and causing to be executed the deceased's 2004 will, as well as a power of attorney that she subsequently executed.
42. On 4 December 2003, Mr Bracks attended the deceased at her Pitt Street home unit where the deceased gave him instructions to investigate her affairs. Mr Bracks recorded the work that he did in accordance with these instructions in a letter dated 27 July 2004 that he wrote to a senior investigation officer at the Guardianship Tribunal.
43. In this letter Mr Bracks described the work that he did for the deceased in the following terms: (a) Confirm her various shareholdings and the values thereof (b) Confirm the balance of her bank accounts (c) Advise her as to two retirement villages (d) Prepare a will for her (e) Repair an Enduring Power of Attorney for her
44. Mr Bracks also said in the letter in relation to the first three of these subjects that that they were "more or less completed for her". Mr Bracks said that his task was to check the deceased's records to ensure that he was fully acquainted with her affairs. The deceased wanted confirmation that she had enough money to buy a retirement village villa and still have sufficient income on which to live. He said at T 67.29: I'd spent an hour down there with her going - being handed share certificates and scripts and letters et cetera relating to her affairs, and then I came back to the office having got her authorities and inquired of those companies as to the position of shares that she had with them et cetera.
45. Mr Bracks gave evidence that between 4 December 2003 and 7 April 2004 Mr Kelly and he corresponded with various public companies and the deceased. Mr Bracks drafted and obtained various authorities addressed to various public companies in which the deceased owned shares and he corresponded with those companies.

Evidence of Mr Muddle

1. Mr Norman Noel Muddle was the deceased's tax agent for about 25 years up to the date of her death. Mr Muddle visited the deceased at her home in February 2004 to do her 2003 tax return. He said that she had difficulty recalling her financial dealings. On several occasions she said: "I'm a bit funny in the head but I'm going to beat it". Mr Muddle telephoned St George Bank and said to the deceased: "St George requires you to authorise them to give me information". She replied: "Ok, who are you again?" This evidence suggests that Mr Muddle perceived conduct on the part of the deceased consistent with the dementia by which the deceased was overcome by no later than 30 June 2004. It is plainly significant that the deceased forgot the name of her tax agent of 25 years.
2. Mr Muddle accepted in cross-examination that in February 2004 the deceased was not incoherent, and that she could communicate sufficiently for him to take instructions and prepare her tax return. He said that the deceased was significantly worse when she gave evidence in the Guardianship Tribunal in July 2004 than she was in February earlier that year.

Evidence of Ms Lewin

1. Ms Julie Lewin is a social worker with about 30 years' experience, the last 16 years of which involved aged care. In 2004 Ms Lewin was a member of the Waverley Aged Care Assessment Team. In February 2004 she was contacted by Shelley Sayes who advised her that she was a friend of the deceased and was concerned about the deceased's behaviour. Over the next four months Ms Lewin saw the deceased on more than one occasion. The evidence included parts of a report made by Ms Lewin to the Guardianship Tribunal, dated 18 June 2004.
2. Ms Lewin said that at the date of her report the deceased was in Sydney Hospital with no orientation to time, confused during the day and disoriented at night.
3. Ms Lewin assessed the deceased on 27 February 2004 as she was looking at moving to a self-care unit in Hornsby, although she needed hostel respite until her unit was ready. The report stated: … She presented as a well-groomed lady who was happy to answer my questions at the time. On the HACC domestic scale she scored 15/30, indicating poor management of her Activities of Daily Living. She scored 20/20 on the personal care rating scale [not read]. Her score on the Mini Mental State Examination (MMSE) was 19/30 indicating a moderate [not read] dementia. Indoors her mobility was independent. Her friend from New Zealand, Shelley Sayes, indicated she walked outdoors using a shopping trolley. [Not read]. [Not read] I have approved [the deceased] for low level respite care with the recommendation that she need Geriatric Review and Guardianship to be followed up in the Hornsby area. [Not read] When it was learnt [the deceased] was still in her unit I requested Dr Sandy Beveridge assess [the deceased] (see Dr Beveridge's report)…

Evidence of Dr Beveridge

1. Dr Alexander (Sandy) Beveridge is a specialist in geriatric medicine at St Vincent's Hospital, and has held that position for 14 years. He interviewed the deceased on 8 March 2004 and from that he prepared a report for Ms Lewin dated 9 March 2004. The report materially provided as follows: … On Friday 5th March, 2004 we attempted a joint visit to her apartment block in the city but she refused access to you (she was not aware of my presence) via the building concierge. Interestingly I rang her moments later and she was quite willing to have a visit which we scheduled for Monday 8th March, 2004. I arrived at her apartment block at 4pm on Monday 8th March and was allowed access and [the deceased] allowed me in to her unit. She greeted me warmly and was not particularly interested in my identification and was immediately charming and conversational. Interestingly, I called before my arrival to confirm the appointment but during that conversation she could not remember her own address or that I had rung her three days before to make the appointment. It was interesting to see that she had written my name in her telephone diary but could not recall who I was. Furthermore in conversation she had never heard of St. Vincent's Hospital or where it was located. During the interview I had a general conversation about her health and well being and the things that were concerning her. There was a pervasive theme throughout her rambling discussion about "people trying to get at her". She was highly suspicious of the motives of this friend Shelley and felt that in spite of Shelley's own wealth, that she was trying to steal from her. She could not remember Shelley's name nor in which country she resides. We went on to discuss her ex husband and she became quite distressed. She could not remember his full name and went on to tell me a story about how distressed she was about him, how he was living in a country beginning with 'P' (in fact he resides in the USA) and involved with many women and she became disinhibited, describing how he is also a pedophile having sex (""f---ing") with both little boys and girls. She then went on to describe how her husband stole all her money but then somehow all the money came back into her accounts and keeps coming. She had no concept of her financial worth. I understand that [the deceased] has not had a regular general practitioner for some time and does not believe particularly in attending doctors. In contrast, however, she was quite delighted to have me come and review her and examine her. As far as I can tell she has had no substantial past medical history and is on no medications regularly. She has had one significant fall sometime in the last year for which she attended Sydney Hospital after she fell off a ladder. She could not recall that there was any fracture after this fall. She is mobile independently and did not have insight into her impaired memory. She denied having any regular community services but stated "I've got so many f…… people coming to see her". On examination formal cognition testing was not performed as you had done so the previous week with a score of 19/30 I believe. However it was clear from the outset that her cognition was markedly impaired as she could not remember her address, her age, her date of birth, or even her birthday and could not think of any way that she could find that out within her own apartment. She had had a scotch before I arrived and poured one during the interview but was not appearing inebriated. She was, though, quite disinhibited, somewhat garrulous, and very tangential. Physical examination revealed an elderly lady who was probably in her late 70s who appeared quite lean. She was reasonably well presented and her apartment was in good order. She was normotensive at 140/60 but had a sinus tachycardia. Cardiovascular and respiratory examinations were normal. Neurological examination revealed no pronator drift, normal tone and power and symmetrical reflexes. Abdominal examination was not performed due to her sitting upright. There was no evidence of depression and certainly her mood appeared elevated at times. During the consultation her friend or possibly cleaner/carer by name of Cynthia arrived. Cynthia was surprised to see me and was wondering how I came to be there and I explained that [the deceased] had been referred by the Aged Care Assessment Team. Cynthia expressed concerns about [the deceased's] depression and previous discussion of euthanasia and I reassured her that I thought that depression was not in fact the main issue but that memory is the predominant problem. In summary I believe that [the deceased] has a moderate severity dementia of Alzheimer type. She is unable to make clear and informed decisions about her future care and has no concept of her financial portfolio. As there have been reports of financial transactions removing large amounts of money from her accounts, this raises significant concerns about her financial vulnerability. As a result I think it important to proceed with a Guardianship Tribunal hearing to assist with the appointment of a Guardian and Financial Manager. It is clear to me that [the deceased] has a significant impairment and incapacity as well is there being a demonstrated need to ensure sound decisions are made both about her future accommodation as well as her financial management…
2. Dr Beveridge noted in his report that the deceased had had one scotch before he arrived and poured another one during the consultation. The doctor concluded, however, that she did not appear to be inebriated. Dr Beveridge accepted in cross-examination that he was not in a position to know when the deceased had started drinking on the day of the consultation. However, substantial weight should be given to Dr Beveridge's judgment concerning the deceased's state of inebriation. It is highly unlikely that the doctor would have conducted the examination and provided the report that he did to the Guardianship Tribunal if he had any objective grounds for believing that the deceased was so inebriated as to prevent him forming a sound judgment as to her mental state.
3. Dr Beveridge's report speaks for itself, but it clearly sets out a number of conclusions that Dr Beveridge reached as a result of his consultation with the deceased that are highly probative of the deceased suffering from significantly impaired cognition at the date of the consultation.
4. That date was less than one month before the date the 2004 will was made.
5. The more serious indicators of the deceased's cognitive impairment recorded by Dr Beveridge were: (1) the deceased could not remember her own address or that Dr Beveridge had rung her three days before to make the appointment; (2) the deceased could not recall who Dr Beveridge was; (3) the deceased had never heard of St Vincent's Hospital or where it was located; (4) the deceased was suspicious of "people trying to get at her"; (5) the deceased thought her friend Shelley Sayes was trying to steal from her; (6) the deceased could not remember her friend's name or where she lived; (7) the deceased could not remember her ex-husband's full name or where he lived; (8) the deceased had an extreme view that her ex-husband was a paedophile; (9) the deceased thought her ex-husband had stolen all her money but in some mysterious way it had been returned; (10) the deceased had no concept of her financial worth; (11) the deceased did not have insight into her impaired memory; and (12) the deceased could not remember her address, her age, her date of birth or even her birthday. Dr Beveridge concluded that the deceased had a significant impairment and incapacity due to moderate dementia of the Alzheimer's type.
6. Dr Beveridge's conclusion from the consultation that the deceased had no concept of her financial worth is of particular significance when it comes to determining whether the deceased had testamentary capacity when she made her 2004 will.
7. It is also significant that the deceased expressed to Dr Beveridge the view that her ex-husband had stolen from her and that the money had in some way been returned. This belief is related to the belief that Shelley Sayes wanted to steal the deceased's money. I have referred above to the evidence that Ms Carr accompanied the deceased on two occasions to the deceased's bank when she withdrew $80,000 and then $50,000 in cash, and took it back to her home unit. Ms Carr gave evidence that it was Ms Sayes who accompanied the deceased and Ms Carr back to the bank with the remainder of the cash to re-deposit it. This evidence warrants a conclusion that by early March 2004 the deceased only had a dim recollection of the events surrounding her withdrawal of $130,000 in cash from her bank, and that she had formed an entirely erroneous recollection of what happened, including by accusing Ms Sayes of wanting to steal from her when it was Ms Sayes who took common sense steps to protect the deceased from the risk of losing the cash.

Evidence of deceased's solicitors

1. Mr Bracks gave evidence of a telephone conversation with the deceased in the middle of March 2004, in which she gave him instructions concerning the making of a new will. Mr Bracks could not remember the precise date as he did not have the advantage of being able to review his file notes, which had been destroyed in the ordinary course after seven years. According to Mr Bracks' memory, the telephone conversation was in words to the following effect (it is convenient to record here that Mr Bracks usually did not use question marks where it would be conventional to do so): Deceased: Noel, I want to make a Will leaving everything to Cynthia. Bracks: Beryl, that is a little unusual - are you sure. Deceased: Of course I'm sure, Cynthia has been a good friend to me over a great number of years. In fact she is my only real friend. Bracks: But you have a niece overseas don't you. Deceased: Yes, and a nephew, but I don't want to leave anything to them. I have a Will leaving it to Ann but she has disgraced herself with comments about my sister (her mother) and the nephew doesn't deserve anything. Bracks: That's a bit drastic isn't it - to cut them both out. Deceased: They don't deserve anything. It's my money and I can do what I like with it. Bracks: Perhaps you should let us have a note of what it is that they have done that upsets you so much. Deceased: She knows what it is all about and neither of them deserve anything. Bracks: Does Cynthia know what you are intending to do. Deceased: Of course, but she has nothing to do with it. Bracks: Can I discuss it with Cynthia. Deceased: Of course, but I don't see why. I am just asking you to make my Will leaving everything to Cynthia with her being executrix of it. Bracks: Do you know what you are worth. Deceased: You were supposed to find this out - but over a million.
2. Mr Bracks gave evidence of having a telephone conversation with Ms Carr on 17 March 2004 in which he asked Ms Carr whether she knew that the deceased wanted to make a new will leaving everything to Ms Carr and appointing her the sole executrix. Ms Carr confirmed that she had been told. Mr Bracks said that there was apparently a will leaving everything to the deceased's niece. According to Mr Bracks, Ms Carr replied: Carr: I understand so but Ann has really hurt Beryl.
3. Mr Bracks responded by saying that there could be a challenge to the will, and asked whether the deceased appeared okay to Ms Carr. Ms Carr informed Mr Bracks that a week or so before the deceased had been assessed by Dr Beveridge who "seemed to think she was alright".
4. After appropriate arrangements were made, according to Mr Bracks on 30 March 2004 he had a telephone conversation with Dr Beveridge to the following effect: Bracks: I am Noel Bracks, Mrs Beryl Hordern has asked me to make a Will for her. I've only known her a few months. She wants to change her Will dramatically. I believe you assessed her mental capacity. Beveridge: I've only seen her once, I was concerned that she admitted me to her unit without requiring some identification other than my say so. My assessment is based on that and of a one-hour assessment. I am a little concerned as to her well being. She may be suffering dementia to some extent or she may drink too much or it may be a combination of both. Bracks: Could she be placed in an alcohol free environment and subsequently assessed. Beveridge: Removing a person from a venue they are happy in could have a detrimental effect on them if in fact they are disposed towards dementia and he (sic) would be concerned doing that, but that's a matter for you. Bracks: She is desperate to make a new Will but I was worried about her testamentary capacity. Beveridge: I am not prepared to say that she does not have testamentary capacity. Why don't you ask her a few basic questions such as does she know what a Will is, does she know the effect of a Will, does she realize to whom she is giving her estate, does she know the value of her estate and is there anyone else who might be entitled. If she answers those questions to your satisfaction, it would be safe to have the Will executed. Bracks: I've already asked to those things and her answers seemed okay to me, but I'll ask again. Beveridge: Do that, keep notes of her answers. When I saw her she didn't appear to know her address or remember her birthday. Bracks: Is that in any way conclusive. Beveridge: No, it is not a matter I would refer to the Guardianship Tribunal, but you could do so if you wished. Bracks: No, I'll visit her again and a take note of her answers to some basic questions.
5. Mr Bracks referred to this discussion in the 27 July 2004 letter that he wrote to the officer of the Guardianship Tribunal. Mr Bracks said in the letter that he thought it wise to consult with Dr Beveridge "as I considered Mrs Hordern a little vague". Mr Bracks continued: I told Dr Beveridge that whilst I sometimes found Mrs Hordern a little vague, I thought she was capable of giving instructions for a valid will. He more or less agreed with me but said it as (sic) matter upon which I would have to make (sic) decision.
6. Mr Bracks kept a written file note of his discussion with Dr Beveridge. He said that he kept this file note, as well as a file note of the questions and answers in the subsequent meeting he had with the deceased on 5 April 2004, because of their importance to the question of the deceased's testamentary capacity. Mr Bracks said that he used the file note to enable him to recall the substance of the telephone conversation that I have set out above. The file note relatively closely supports Dr Bracks' recollection of the conversation.
7. It is to be noted that Dr Beveridge did not provide to Mr Bracks a positive opinion that the deceased had testamentary capacity. Rather, in a somewhat negative way Dr Beveridge said that he was "not prepared to say that she does not have testamentary capacity".
8. It appears that Mr Bracks did not tell Dr Beveridge that the deceased had made a prior will leaving all of her estate to Ms Richardson, or that the deceased had made a decision to change the terms of her will fundamentally to cut out Ms Richardson and give the whole of her estate to Ms Carr. Dr Beveridge was not told that the reason for the change of mind was that the deceased was acting on the basis that Ms Richardson had disgraced herself by complaining that the sickness and death of her mother, the deceased's sister, had ruined Ms Richardson's life. Consequently, Dr Beveridge was not in a position to make any comment or give any advice concerning the testing of the reason given by the deceased for her change of mind.
9. Mr Bracks then went about preparing a draft will for the deceased to implement the instructions he had received.
10. Mr Bracks attended upon the deceased on 5 April 2004 at her Pitt Street home unit, together with Mr Lincoln Kelly, a solicitor in Mr Bracks' office. Ms Carr was present when the solicitors arrived, and according to Mr Bracks, Ms Carr left and went into the kitchen. The evidence in cross-examination established that there was an opening without a door between the kitchen and the lounge room where the solicitors spoke to the deceased, and the distance between Ms Carr and the others was about 3 to 4 metres.
11. Mr Bracks gave evidence that he asked a number of simple questions of the deceased and recorded her answers. Mr Bracks' hand written note of the questions and answers was in evidence. It provided: 5.4.04. Q. What is a Will. A. Something by which you leave things to people Q. What do I mean when I refer to your estate A. All I own when I die Q. How much is your estate worth A. O that's what I've asked you to find out - over $1M Q. What blood relatives do you have Ann Sharwin - Manchester - Niece Now Richardson Q. What is your birthdate 17 April, 75 now Aries is my star sign Q. What is your address Pitt St - I can't recall number Q. What is your telephone number I never phone myself - I don't know Q. Does Cynthia know who you are leaving your estate to? Of course - her
12. The deceased does not appear to have stated the year of her birth; she could not remember the street number of her home unit; and she did not recall her telephone number. The deceased did not appear to know in any precise way what her assets were, although she generally appreciated the value of her assets. Mr Bracks had written a letter to the deceased on 14 April 2004, to say that he had ascertained that the deceased had shareholdings valued at $783,132.15. He was still waiting for advice as to the value of an additional four parcels of shares. In addition, the deceased owned the home unit in Pitt Street in which she lived.
13. As is apparent from the note, Mr Bracks did not ask any questions of the deceased concerning her reason for fundamentally changing the terms of her will, and did nothing to explore the truth of the reason given by the deceased.
14. Mr Bracks then decided that the deceased had testamentary capacity, and had the deceased read and sign her will.
15. Mr Kelly provided an affidavit in which he confirmed that he witnessed the deceased sign her will in his presence and in the presence of Mr Bracks. It appears from the cross-examination of Mr Kelly that he was only present in order to act as a witness, and he did not have a substantial memory of the events on that occasion.
16. On 25 May 2004, Mr Bracks attended upon the deceased at her Pitt Street home unit for the purpose of executing an enduring power of attorney in favour of Ms Carr. Mr Bracks recorded in handwriting the answers that the deceased gave to a number of questions that had been typed on a page. Relevantly, the deceased gave her birth date, and the street number and floor of her Pitt Street home unit, but she still could not remember her phone number, as she did not telephone herself.

Deceased's hospitalisation

1. Ms Carr gave evidence of her view that the deceased was in good health until about the middle of 2004 when her mental condition seemed to rapidly deteriorate after she had a fall in her home unit. The deceased's physical condition was fairly good until she contracted a urinary tract infection, and Ms Carr visited her even more regularly after that. In June 2004, Ms Carr let herself into the deceased's home unit and found her on the floor in the lounge room. The deceased said that she had had a fall and she would not go to hospital. Ms Carr covered the deceased with a blanket, and telephoned a friend for advice. The friend suggested that Ms Carr call the ambulance, which she did. The ambulance took the deceased to Sydney Hospital. From Sydney Hospital the deceased went to Lulworth House in late June 2004.
2. Ms Carr said that before the fall, while the deceased was sometimes vague, she always recognised Ms Carr and was coherent and made sense when she spoke.
3. Mr Muddle said that on 30 July 2004 he attended a hearing at the Guardianship Tribunal and supported the making of a financial management order in respect of the deceased's affairs. He said that the deceased was unable to answer questions from the Tribunal and could not communicate.
4. Ms Carr agreed in her evidence that when the deceased was at the Guardianship Tribunal "she was incoherent and spoke nonsense".

Evidence of Dr Phillips

1. Ms Carr obtained medico-legal evidence in support of her case from a consultant psychiatrist, Dr Jonathan Phillips AM. It need only be said that Dr Phillips' curriculum vitae demonstrates that he is an extremely eminent expert psychiatrist. Dr Phillips prepared a report dated 23 November 2015 on the subject of the cognitive capacity of the deceased as it related to the making of her will on 5 April 2004. He provided a brief supplementary report on 30 August 2016, after he was provided with additional information.
2. In Mr Bracks' 12 August 2015 letter of instructions to Dr Phillips, Mr Bracks noted that Dr Beveridge had said in his report of 9 March 2004 that "the patient suffered from moderate severity dementia of Alzheimer's type". Dr Bracks asked: I know there are several stages of dementia, but I do not know the effects or results of any of those stages. Does a person who is diagnosed with moderate severity dementia of Alzheimer's type have testamentary capacity or does she have lucid days during which she has testamentary capacity. … Could you please let us have your opinion as to testamentary capacity or lucid days as referred to above…
3. Mr Bracks wrote a further letter to Dr Phillips on 14 August 2015, apparently in response to a request from the doctor for further information. It appears from the letter that Mr Bracks supplied Dr Phillips with a copy of Mr Bracks' 30 March 2004 file note of his discussion with Dr Beveridge, a copy of Mr Bracks' 27 July 2004 letter to the officer of the Guardianship Tribunal, a copy of Mr Bracks' 5 April 2004 question and answer session with the deceased, a copy of the general power of attorney granted by the deceased in favour of Ms Carr, a copy of the questions and answers relevant to the signing of the power of attorney, Mr Bracks' 14 April 2004 letter to the deceased dealing with the assets in her estate, Mr Bracks' 21 April 2004 tax invoice to the deceased, and the Guardianship Tribunal's reasons for decision in respect of the order made by the Tribunal on 30 July 2004.
4. On 30 July 2004, the Guardianship Tribunal appointed the deceased's friend, Mr John Bailey, as her Guardian for a period of 12 months to make decisions about her accommodation, health care, medical and dental consents and services. It also appointed Mr Muddle as the deceased's financial manager under the supervision of the Protective Commissioner.
5. Mr Bracks pointed out in his covering letter that the Guardianship Tribunal had recorded in its reasons for decision: All persons attending the hearing agreed that Mrs Hordern's condition has significantly deteriorated in the past couple of months and she is now quite incapable of making any decisions for herself, and that there is a need for substitute decision-makers to be appointed.
6. Dr Phillips does not appear to have been told anything about the reason why the deceased made a decision to fundamentally change the beneficiary to whom she would leave her estate, although he was told that if the 2004 will was invalid, the whole of the estate would go to Ms Richardson.
7. Dr Phillips in his 23 November 2015 report noted that testamentary capacity continues to be determined in keeping with Banks v Goodfellow (1870) LR 5 QB 549 at 565. Dr Phillips then set out at length a summary of the relevant aspects of the documents that he had been given. He then provided his opinion.
8. Dr Phillips noted that testamentary capacity is an inexact science. When a person has advancing cognitive disorder (usually dementia) there will be some variation with regard to testamentary capacity which applies on a day-to-day basis. Therefore it becomes imperative to make a careful check of testamentary capacity on the actual day that the will is made and executed.
9. Dr Phillips said: "When there is some ambiguity about testamentary capacity, it is best to have cognition tested by a mental health expert (psychiatrist, geriatrician, clinical psychologist)". That is not, of course, a step that was taken in this case.
10. The doctor then set out a discussion of the process of dementia and its effects on cognition. He considered Alzheimer's dementia, vascular dementia and alcoholic dementia.
11. Dr Phillips said that he did not doubt on the materials available that the deceased was in a state of advancing dementia 5 April 2004 when she made her last will. He said further that it could be assumed with reasonable certainty that the deceased was undergoing a reasonably rapid period of cognitive decline in the months April-July 2004.
12. Of particular significance, Dr Phillips expressed the following view: … Whilst the matter cannot be proved, it is quite likely that Mrs Hordern suffered some type of vascular event in the two month period before 30 July 2004, and there was a real possibility that she may have retained testamentary capacity in April of that year but lost testamentary capacity by July of that year.
13. It must be noted that Dr Phillips expressed this opinion in the terms "there was a real possibility".
14. Dr Phillips stated, having regard to Dr Beveridge's earlier examination of the deceased, that he was "surprised" that Dr Beveridge "had not offered his services, or been asked, to provide an expert assessment of cognition on the day when Mrs Hordern made and signed her Will". Dr Phillips noted that Dr Beveridge "had given you instructions on how to move forward with the cognitive assessment in the absence of a mental health expert, but I doubt that the process covered fully the criteria as set by Banks-v-Goodfellow". Dr Phillips therefore expressed doubt concerning the adequacy of the question and answer process adopted by Mr Bracks on 5 April 2004.
15. Dr Phillips then considered the four matters relevant to the determination of testamentary capacity established by Banks v Goodfellow.
16. First, Dr Phillips opined on the basis of Mr Bracks' notes that the deceased understood the nature and purpose of making a will, and also the effect of that exercise on the distribution of her estate.
17. Secondly, Dr Phillips said in relation to the requirement that the deceased was able to comprehend and appreciate the claims to which the will ought to give effect: "I am less convinced that this was fully tested". He said that the deceased's response to the question put to her by Mr Bracks "appears not to indicate that she understood that blood relatives might in ordinary circumstances have a call on the Will". This, of course, understates the matter, as it leaves out of account the fact that the deceased had undergone a substantial change in her testamentary intentions, and that the basis of the change had not been examined. Dr Phillips added that he had not read the deceased's will, so he did not know to whom the deceased intended to bequeath her estate.
18. Thirdly, Dr Phillips dealt with the requirement that the deceased had no disorder of the mind that shall poison her affections, pervert her sense of right, or pervert the exercise of her natural facilities, and that no insane delusion shall influence her will in disposing of the property and bring about a disposal of which if the mind had been sound, would not have been made. Dr Phillips said: 33. This becomes the area of concern. I accept that Mrs Hordern, as at 5 April 2004 understood the nature of a Will and the actions which flow from a Will. She asked you to estimate the extent of her Estate, and she knew it was considerable. Further, she almost certainly would have made a directive about the beneficiaries of the Will. 34. The problem is obvious. Did Mrs Hordern have sufficient cognitive capacity, as at 5 April 2001, to make a Will in a non-troubled and orderly manner? While Mrs Hordern, on 5 April 2004, that being the date of making the Will, may have had an incomplete understanding of her address and of her birth date, these matters do not necessarily prevent her knowing how she wanted her Estate distributed. 35. Even in the absence of a more comprehensive assessment on the day of making the Will, it seems to me that Mrs Hordern had sufficient understanding of the nature and purpose of the Will, a sufficient understanding of her Estate, and a desire to direct the Estate to certain beneficiaries. I am unconvinced, on the material available to me, that her dementia, on 5 April 2004, was of such magnitude to prevent her having testamentary capacity. Further, there is no evidence that Mrs Hordern had any other disease of the mind, on 5 April 2004, which might have interfered with testamentary capacity. 36. On balance, and from my position as a consultant psychiatrist, and on the information available to me, it becomes more likely than not that Mrs Hordern maintained testamentary capacity on 5 April 2004.
19. Dr Phillips ended his report by giving an opinion on balance, and on the information available to him, that it was more likely than not that the deceased had testamentary capacity on 5 April 2004. However, he did so after having expressed the view that the circumstances justified the deceased being examined by an appropriately qualified medical professional on the day to confirm her testamentary capacity. Furthermore, Dr Phillips was "less than convinced" that the deceased was able to comprehend and appreciate the claims to which her will ought to give effect, and in particular Dr Phillips said that the questions put to her "appears not to indicate that she understood that blood relatives might in ordinary circumstances have a call on the Will". In fact, all Mr Bracks did was to ask the deceased to tell him what blood relatives she had. He did not ask any further questions concerning the deceased's appreciation of the claims that any of her relatives may have had on her estate. That was so even though the deceased had given him a specific reason as to why she had cut out Ms Richardson from her will. Although that reason, if taken at face value by Mr Bracks, may have explained the deceased's testamentary decision in a way that was consistent with her having testamentary capacity, Mr Bracks did nothing to test the veracity of the deceased's belief. Furthermore, he did not seek Dr Phillips' opinion as to what should have been done in respect of this issue in testing the deceased's testamentary capacity.
20. On 22 August 2016, Mr Bracks wrote a further letter to Dr Phillips in which he provided to the doctor a copy of Dr Beveridge's 9 March 2004 report, Ms Lewin's aged care client record, and copies of his and Mr Kelly's affidavits. Dr Phillips was asked whether or not in the light of this additional matter he adhered to the opinion expressed in his earlier report.
21. Dr Phillips provided a supplementary report dated 30 August 2016. Dr Phillips stated: 5. May I repeat that cognitive skills required by a person at the time of making a Will are quite specific. It is entirely likely that a person, even in early cognitive decline, will have the necessary skills for this task. 6. I appreciated the opportunity to consider a report of Dr Beveridge. It does not lead me to change the opinion which I expressed in the substantive report in any manner.
22. In cross-examination, counsel for Ms Richardson put to Dr Phillips that the deceased's testamentary capacity may have been affected by the fact that she had drunk a bottle of bourbon every day for the last 12 years. That assumption was derived from a statement attributed to Ms Carr in the medical notes of the deceased's admission to Sydney Hospital in June 2004. Ms Carr did not accept that the deceased drank that heavily, and nor evidently did Dr Phillips as he responded at T 87.14: "But a bottle of bourbon a day is pretty heavy going". I am not inclined on the evidence to accept that the deceased did drink that heavily, or that she could have done so without the consequences having been much more obvious than they were. I do accept the evidence, which was not challenged, that the deceased did like a drink and drank whiskey with some regularity.
23. Dr Phillips was taken to the results of a CT scan that was taken of the deceased after she was admitted to Sydney Hospital on 9 June 2004. As I understand Dr Phillips' evidence, he did not regard the results of the scan as being very informative. He said that positron emission scanning would have been more informative.
24. Significantly, Dr Phillips said at T 87.50: … The second sentence, "There is possibly a very tiny lacuna in the left frontal region." That might suggest, but not particularly strongly, there has been a vascular event in that area, but in that area only, but CT, the problem with CT is it is only a sort of first cut…
25. As I understand the doctor's evidence, he did not find in the material provided to him any strong evidence that any vascular event had occurred shortly before the date of admission of the deceased into Sydney Hospital that may have been responsible for a dramatic decline in her cognitive function after the date the 2004 will was executed.
26. It is convenient to note here that in re-examination, Dr Phillips was asked questions designed to determine whether the results of the CT scan could have shown the reason for the deceased's fall before she was admitted to hospital. Dr Phillips doubted the connection. He said at T 94.26 that there was no evidence of further lacunae which might reflect previous vascular events. His conclusion expressed at T 94.28 was: So my sense on the limited information available to me is that this lady had an Alzheimer's dementia, she may have had some exacerbation or worsening of the, of the changes in her brain, secondary to alcohol use and it's possible that she has one small brain lesion which could represent a trauma induced sign.
27. Dr Phillips said at T 88.43 that the deceased's MMSE score of 19/30 "is indicative of pretty severe dementia".
28. Counsel for Ms Richardson put to Dr Phillips a series of assumptions, culminating in an assumption that the deceased believed that Ms Richardson had said to her that the deceased's dead sister had ruined her life by being so sick, and that the belief that that statement had been made was incorrect. Dr Phillips was asked whether those assumptions would affect the opinion he gave in his principal report that "There was no evidence that Mrs Hordern had any other disease of the mind".
29. The doctor responded by saying that the assumptions could simply be a "misunderstanding of the family dynamics": T 89.38. He rejected the suggestion that the assumptions, if correct, would show that the deceased had an insane delusion. Dr Phillips insisted that an insane delusion would require the presence of psychosis which would involve the deceased having a belief which was "a breach from reality" such as "would be maintained unshakably in the face of reason": T 90.10-15. Dr Phillips did not accept that the evidence shows that the deceased had an insane delusion.
30. Dr Phillips did, however, accept at T 90.45 that a person in the deceased's position, who was not psychotic, but who had dementia, could well believe that a conversation had taken place when that was not so. Dr Phillips described this situation as involving "an encapsulated delusion".
31. At the end of Dr Phillips' cross-examination, the following exchange occurred between the doctor and the bench, at T 92.10: Q. Yes and I ask that because one hears a series of cases that raise these issues and from time to time there is evidence that a person who is not psychotic or you would not be consider to be insane, nonetheless has clinical symptoms of dementia which manifest itself in forming views that do not accord with reality? A. Yes, and there is a phrase for this your Honour, I'm not sure it's a particularly good phrase, but overvalued ideas that where a person gets in the context of dementia becomes obsessed with a particular train of thought which may not be to the severity where there is a breach from reality, but nevertheless it becomes an obsession, an area of interest, an area of mistake, an area of misunderstanding. Q. Perhaps turning molehills into mountains? A. Indeed.

The issue

1. As I have recorded above, the only issue in this case is whether or not the deceased's 2004 will is invalid because the deceased lacked testamentary capacity.
2. Mr Bracks received telephone instructions from the deceased in the middle of March 2004 in relation to the terms of her will, and he attended upon her on 5 April 2004 for the purpose of the 2004 will being executed. Neither party put a case that if the deceased lacked testamentary capacity on 5 April 2004, the will should nonetheless be held to be valid because she had testamentary capacity at the time she gave instructions to Mr Bracks for the making of the will. The parties fought this case on the basis that the deceased either had testamentary capacity on both dates or she did not. It is therefore not necessary to consider the authorities that identify the relevant date for determining the deceased's testamentary capacity: see for example Bailey v Bailey (1924) 34 CLR 558 at 572.

Legal principles

1. The parties were agreed that the test of testamentary capacity was enunciated in Banks v Goodfellow (1870) LR 5 QB 549 at 565. Cockburn CJ said (breaking up his Lordship's statement into its individual components): It is essential to the exercise of such a power that a testator shall:- a. understand the nature of the act and its effects; b. understand the extent of the property of which he is disposing; c. be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, d. that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, e. 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.
2. I do not understand Ms Richardson to have argued that the deceased did not understand the nature of the act of making a will and its effects. I accept the evidence of Ms Carr that the deceased initiated the process that led to her making the 2004 will. It appears from Mr Bracks' evidence that the deceased sufficiently understood what the effect of making a will was. That is evidenced by her answer to the first question put to her on 5 April 2004, as when asked "what is a will?" the deceased answered "something by which you leave things to people".
3. In relation to the second requirement, that the deceased understand the extent of the property of which she was disposing, it has been held that it is sufficient for the deceased to have a general knowledge of the nature, value and extent of her assets: d'Apice v Gutkovich - Estate of Abraham (No 2) [2010] NSWSC 1333 at [105], where White J (as his Honour than was) said: [105] The only substantial omission from her description of her assets was the omission of the Coogee unit. Nonetheless, Mrs Abraham was aware that she owned real estate as an investment and was able to identify the principal asset of that category. Kerr v Badran establishes that the Banks v Goodfellow test may not require that older people know of each particular asset, let alone the value of each asset comprising the estate. Mrs Abraham knew that she had real estate investments and it is a reasonable inference that she knew that she received income from that source. It does not matter that she did not know how much income from real estate investments she received. Nor does it matter that she did not identify the Coogee unit as being one of those investments. In my view the second element of the Banks v Goodfellow test (namely that the testatrix understand the extent of property of which she was disposing) is satisfied.
4. When the deceased was asked in mid-March 2004 whether she knew what she was worth, she replied: "You were supposed to find this out - but over a million". The deceased gave substantially the same answer when asked how much her estate was worth on 5 April 2004. That answer was given before the deceased received Mr Bracks' 14 April 2004 letter, in which he reported that the deceased held shares valued at $783,132.15, plus shares in four additional companies which had not yet responded to Mr Bracks' request for information to enable him to determine the value of those shares. It must be remembered that the deceased had in December 2003 handed over to Mr Banks the share scrip and other documents necessary to enable him to make the enquiries to fulfil his instructions. I am satisfied that the deceased would have been well aware that her other asset was the apartment that she owned. In my view the deceased displayed an understanding of the nature and extent of her assets that was sufficient to satisfy the second requirement in Banks v Goodfellow.
5. The third requirement is that the deceased was able to comprehend and appreciate the claims to which she ought to give effect. As Powell J (as his Honour then was) said in Re the Estate of Hodges (1988) 14 NSWLR 698 at 706, the circumstances that may provide evidence to the contrary of the proposition that a duly executed will, rational on its face, is presumed to be that of a person of competent understanding include "the exclusion of persons naturally having a claim on the testator's bounty (Banks v Goodfellow)".
6. In my view, Ms Richardson was a person who naturally had a claim on the deceased's bounty. That would probably be true even if all that were proved was that Ms Richardson, as a niece of the deceased, was one of the few blood relatives that the deceased had. There is scope for argument about the strength of the claim of a person who is a niece or nephew of the deceased. But in the present case the evidence that the deceased had made a number of wills in favour of Ms Richardson over a considerable period, the last one being in 2001, and that the deceased had in early 2003 raised with Ms Richardson the need for her to honour her agreement to make a will that effectively passed on the deceased's estate to the Sharwin family, strongly reinforces the conclusion that Ms Richardson had a claim on the deceased's bounty.
7. The fact that the 2004 will excluded Ms Richardson entirely from the deceased's bounty in those circumstances provides strong grounds for suspecting that the deceased lacked testamentary capacity in March and April 2004.
8. Powell J in Re the Estate of Hodges, at 706-707, elaborated upon the significance of the deceased having excluded persons naturally having a claim on her bounty, by setting out with evident approval the following extract from the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 (at 290-291; 120): … the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the Will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.
9. In my view the most significant part of the extract from Harwood v Baker that was approved by Powell J for present purposes is the part that directs attention to whether the deceased was capable of understanding the respective claims of the deceased's relations, and also whether the deceased was capable of deliberately forming an intelligent purpose of excluding them.
10. Powell J also, at 706, identified extreme age or sickness on the part of the deceased as a matter that may well provide evidence to the contrary of the proposition that the deceased had testamentary capacity, but his Honour elaborated that proposition at 706 by saying (citations omitted): 17. however, while extreme age…or grave illness…will call for vigilant scrutiny by the court, neither (even though the testator may [be] in extremis)…is, of itself, conclusive evidence of incapacity; it will only be so if it appears that age, or illness, has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property…
11. The question is whether the deceased's mental faculties were so affected as to make them unequal to the task of disposing of her property.
12. On the issue of whether a deceased person was of sound disposing mind, Gleeson CJ said in Easter v Griffiths (1995) 217 ALR 284 at 289-290: Where the evidence in a suit for probate raises doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439. This formulation of the onus of proof, well-established by authority and is not in dispute in the present case, invites caution. The power freely to dispose of one's assets by Will is an important right, and the determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter…
13. Although the tests set out in Banks v Goodfellow are time-honoured, their application is to be understood in the light of these authorities, which show that the ultimate question is whether the deceased was of sound mind, memory and understanding at the relevant time, and this question depends upon the conscience of the court, to be determined following a vigilant examination of the whole of the evidence, in which the court gives proper weight to the seriousness of denying a deceased person the power freely to dispose of that person's assets.
14. In carrying out the required vigilant examination, it is important to bear in mind, as Hallen AsJ (as his Honour then was) said in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [246]: It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, "the mental power may be reduced below the ordinary standard" provided the deceased retains "sufficient intelligence to understand and appreciate the testamentary act in its different bearings".
15. As I understand it, Ms Carr submits that the evidence that might support a conclusion that the deceased's belief and reason for cutting Ms Richardson out of her will (the evidence that Ms Richardson had stated to the deceased that the sickness and death of the deceased's sister had ruined her life) is baseless as a matter of fact, and is not relevant to the issue of the deceased's testamentary capacity because the belief, even if false, did not amount to a delusion. Ms Carr submitted that a delusion, as referred to in Banks v Goodfellow, is a reference to "a fixed and incorrigible false belief which the victim could not be reasoned out of": Bull v Fulton (1942) 66 CLR 295 at 339.
16. The significance of this argument to Ms Carr's case is that Dr Phillips insisted in his evidence that, for an insane delusion to exist that conformed to scientific psychiatric principle, the deceased would have to have suffered from a psychosis, and the belief would have been one that "would be maintained unshakeably in the face of reason". The evidence in this case does not sustain a finding that the deceased was psychotic, or that she could not have been persuaded that her belief concerning the statement made to her by Ms Richardson was wrong.
17. In essence, Ms Carr's submission was that, even if the basis upon which the deceased excluded Ms Richardson from her will was untenable in fact, it was not based upon an insane delusion, so was not inconsistent with the deceased having testamentary capacity.
18. Before I deal with this submission, I should note that the structure of the statement of principle made by Cockburn CJ in Banks v Goodfellow is that the two propositions separated out above as (d) and (e) are both expressed to be "with a view to the latter object", where that object is the proposition stated in (c). As I understand it, the primary issue is whether the deceased was "able to comprehend and appreciate the claims to which he ought to give effect", and the propositions set out as (d) and (e) are two separate ways in which the deceased may be unable to comprehend and appreciate the claims to which he ought to give effect. Those ways are not necessarily exhaustive of the circumstances in which proposition (c) may not be satisfied.
19. If that is right, then it follows that proposition (c) may not be satisfied, either because there is the "disorder of the mind" referred to in proposition (d), or the "insane delusion" referred to in proposition (e). A testator may lack testamentary capacity because of the existence of a disorder of the mind that has the effect in proposition (d), even if there is no insane delusion that satisfies proposition (e).
20. In my view, this analysis is consistent with the decision of the High Court in Bull v Fulton. In that case, Williams J wrote the leading majority judgment. Latham CJ wrote a short judgment agreeing with Williams J. McTiernan J dissented. It is true, as Ms Carr submits, that at 339 Williams J held that an insane delusion involved a "fixed and incorrigible false belief which the victim could not be reasoned out of". An alternative definition given by Williams J at 339 was: "A belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual's education and surroundings".
21. The explanation for the finding by the majority of the High Court that the deceased in that case did not have testamentary capacity because the deceased suffered from an insane delusion is that the caveators who asserted that the deceased did not have testamentary capacity based their case on that allegation: see the judgment of Latham CJ at 298 and of Williams J at 323.
22. A careful reading of Williams J's judgment shows that his Honour recognised that propositions (d) and (e) in Banks v Goodfellow did not represent the only two instances that might justify a finding that the primary proposition (c) was satisfied. Williams J said at 339: If her memory was so defective that she had become incapable of retaining a recollection of the events relating to the acquisition of the shares or the execution of the transfer, so that it had become impossible to displace the illusory beliefs on these matters which had taken possession of her mind, and they were affecting her ability to assess her nephews' claims upon her bounty in a just manner she would not, on this ground, have had "that sound memory which in testamentary matters is essential to a disposing mind and understanding" … But having regard to her pertinacious adherence to her delusive ideas with respect to her nephews in opposition to such plain evidence of their falsity, the better conclusion is that by December 1933 her mind had become the victim of insane delusions with respect to the matters alleged in the particulars. (emphasis added)
23. Williams J decided that the case that the deceased suffered from an insane delusion had been made out. That in his Honour's view was "the better conclusion". Williams J admitted that an alternative approach may have been available, even though he did not describe that approach exactly in accordance with proposition (d).
24. In my view, I am not constrained by the decision in Bull v Fulton to hold that the deceased in this case could only have lacked testamentary capacity if it has been shown that she suffered from an insane delusion as described by Williams J.
25. The relevant principle was established by the decision of Gleeson CJ, with whom Handley JA agreed, in Easter v Griffith (above) at 290-292, and is as follows: Mental infirmity of a kind which denies testamentary capacity does not necessarily involve "insane delusions". In Harwood v Baker (1840) 3 Moo PC 282, the testator was said to have a bodily disease affecting the brain and was greatly debilitated physically. He was said (at 285) not to have been suffering from any delusion, but was found not to have been in a state of mind to judge the propriety of his dispositions: see also Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152 . Nevertheless, the courts have regularly discussed this subject in a manner which tends to focus upon the presence of delusions as the indicator of mental disorder. In Smith v Tebbitt (1867) LR 1 P and D 354 at 398, 402-3 Sir J P Wilde asserted that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, that is, delusions. This approach is reflected in Cockburn CJ's formula quoted above. By a delusion is meant "a fixed and incorrigible false belief which the victim could not be reasoned out of": Bull v Fulton (1942) 66 CLR 295 at 339 . As Santow J observed, psychiatric knowledge has developed a great deal since those early formulations of the relevant legal principles. There is a degree of artificiality in seeking to force all manifestations of "insanity" under the rubric of delusion. Where the existence of a material delusion can be shown, then the relevance of that to an issue as to a person's ability to comprehend and appreciate the claims upon his or her bounty may be clear and direct. For example, in Timbury v Coffee (1941) 66 CLR 277 an alcoholic testator suffered hallucinations and believed that his wife was unfaithful. This influenced his testamentary dispositions, which were held invalid. The attention paid to delusions is understandable, but the law must be sufficiently flexible to take account of developments in psychiatric understanding. The critical question, in a case such as the present, concerns mental capacity to comprehend and appreciate the claims upon one's bounty. … Involved in Santow J's reasoning was the premise that it was unnecessary for him to make a positive finding that the testatrix was suffering from insane delusions in order for the onus of proof of testamentary capacity to fall upon the party propounding the will. This was a correct view of the law. In a number of the reported cases, of which Worth v Clasohm, above, is an example, the deceased was clearly suffering from a delusion and the critical question was whether that delusion was relevant to the validity of the will. In such cases it is the finding of the delusion which raises the doubt as to testamentary capacity and requires "vigilant examination" in which the plaintiff must satisfy the court that there was testamentary capacity. It does not follow, however, that a positive finding of delusion is necessary in order to raise a doubt as to capacity. Indeed, it is not necessary to bring the evidence which raises doubt under the rubric of delusion.
26. The primary question is whether, at the time the deceased made her 2004 will, she suffered from a disorder of the mind that materially prevented her from exercising her natural faculties in order to comprehend and appreciate the claims to which she ought to give effect. If the deceased did suffer from a disorder caused by her dementia that had that effect, it is logically immaterial whether or not it was an attribute of the disorder that she could not be talked out of her delusion. The issue is whether the disorder was present and effective, not whether it was permanent.

Consideration

1. I will proceed, therefore, on the basis that the relevant principle is whether, after a vigilant examination of the facts, I am satisfied that there was testamentary capacity on the part of the deceased to comprehend and appreciate the claims upon her bounty.
2. The evidence establishes that by 30 July 2004, the date of the hearing before the Guardianship Tribunal, the deceased's mental state had deteriorated to the point where she was unable to communicate coherently.
3. When the MMSE test was administered to the deceased by Ms Lewin on 27 February 2004, her score was 19/30. Ms Lewin interpreted that as indicating a moderate dementia, at least as far as the evidence discloses. Dr Phillips, who was an impressive expert psychiatrist, said that the MMSE score "is indicative of pretty severe dementia".
4. The evidence establishes that the primary cause of the deceased's dementia was Alzheimer's disease. Although Dr Phillips said that it was quite likely that the deceased suffered some type of vascular event in the two-month period before 30 July 2004, he acknowledged that the matter could not be proved. When asked about the significance of the results of the CT scan administered to the deceased in June 2004, after her fall in her apartment, he said that the result "might suggest, but not particularly strongly, there has been a vascular event", in the area that "possibly" showed a "very tiny lacunae in the left frontal region". As I understand Dr Phillips' evidence, he did not find support for his suggestion that the deceased may have suffered some type of vascular event in the two-month period before 30 July 2004.
5. It appears from the evidence given by the witnesses of the deceased's conduct at various times over the period of six or so months before the Guardianship Tribunal hearing, that the deceased suffered a progressive decline in her cognitive function. The objective evidence does not permit any type of scientific measurement of the rate of that decline, or the objective state of the deceased's cognitive function at any particular time.
6. On the one hand, throughout the whole of the period, there is evidence of the deceased saying or doing things that are consistent with significant cognitive dysfunction, but on the other hand the deceased was able to communicate with those around her at various times in a way that did not cause people to form the view that she lacked general or testamentary capacity.
7. As to this last matter, the primary evidence is that given by Mr Bracks, supported to some extent by Mr Kelly. As a result of his various discussions with the deceased, in person or on the telephone, Mr Bracks was satisfied that, as at the time in mid-March 2004, when he received the deceased's instructions concerning the terms of her new will, and as at 5 April 2004 when the deceased executed the 2004 will, the deceased had testamentary capacity. Significant weight should be given to Mr Bracks' judgment on this issue, given his long experience as a solicitor practising, among other things, in the probate field.
8. Mr Muddle agreed that, in February 2004, the deceased was able to give him instructions that were adequate for him to be able to prepare the deceased's tax returns.
9. Apparently, Ms Carr was able to converse and associate with the deceased in a reasonably normal manner up until the time in June 2004 when Ms Carr discovered the deceased in her apartment after she had suffered a fall.
10. The record that Mr Bracks made of his conversation with Dr Beveridge on 30 March 2004, records that Dr Beveridge "said he is not prepared to say that [the deceased] does not have [testamentary] capacity", and Dr Beveridge suggested that Mr Bracks ask the deceased a few basic questions to assist in assessing the deceased's testamentary capacity.
11. Against this background, which is consistent to a considerable extent with the deceased retaining testamentary capacity up until at least 5 April 2004, it is necessary to assess the evidence that suggests that the deceased suffered from very serious cognitive dysfunction.
12. The primary issue for consideration is the deceased's belief that Ms Richardson had told her that the circumstances of the illness and death of Ms Richardson's mother had ruined Ms Richardson's life, as that belief on the deceased's part was directly material to the deceased's decision to cut Ms Richardson out of her will.
13. Mr Bracks gave evidence of the telephone discussion he had with the deceased in mid-March 2004 in which she gave him instructions for the making of her will. He said that the specific reason given by the deceased for not leaving anything to Ms Richardson was that the deceased felt that Ms Richardson had 'disgraced herself with comments about [the deceased's] sister'.
14. Ms Carr confirmed this evidence by saying that, after Mr Bracks and Mr Kelly left the deceased's apartment following the signing of the will on 5 April 2004, the deceased gave the following explanation for excluding Ms Richardson and giving her estate to Ms Carr: No, Anne has paid no attention to me since I spoke to her about the way she had spoken about her mother ruining her life…When did she last visit me or even inquire as to my well-being? No, you deserve everything, you have been a very good friend to me and anyway Anne has got plenty, she doesn't need this.
15. This in my view is highly significant evidence. An important aspect of Ms Carr's case was the submission that the effect of the deceased having moderate to severe dementia on her testamentary capacity might differ from day to day, and the crucial question was whether she had that capacity on the day she made the 2004 will, not whether she lacked capacity at any other time. That submission may in principle be correct, although allowance must always be made for the possibility that a person suffering from dementia may superficially appear to be lucid at a particular time when the disorder in fact prevents her having the mental facility necessary to pass the test for testamentary capacity. The evidence in the previous paragraph establishes that the false belief harboured by the deceased that was instrumental in her decision to exclude Ms Richardson from sharing in her estate was present and operative on the very day she made her 2004 will. Whether or not the deceased appeared to be lucid, her thought processes were in fact subject to a highly material delusion, even if not an insane one.
16. Ms Carr also said that the deceased had previously said to her: Anne has said her mother has ruined her life by being so sick that she has to look after her. That's not right and I told Anne that. Now we don't speak much anymore.
17. The primary question is whether Ms Richardson ever made statements to that effect to the deceased, or whether the deceased otherwise had any rational reason for believing that Ms Richardson had made such a statement.
18. As I have said above, the objective evidence shows that, if such a statement was made by Ms Richardson to the deceased, it must have been made after about early 2003, when the deceased sought confirmation from Ms Richardson that she had changed her will to ensure that the deceased's estate would stay in the family.
19. In the whole of the period up to that time the deceased had acted consistently as if she wanted her estate to go to Ms Richardson, and for testamentary arrangements to be made so that her estate would stay in her family after Ms Richardson's death. It is most improbable that the deceased would have acted as she did if Ms Richardson had made the statement concerning her life being ruined by her mother's sickness and death before early 2003.
20. I accept Ms Richardson's evidence that she did not make to the deceased the statements that the deceased apparently believed had been made concerning Ms Richardson's life being ruined.
21. My first reason for that finding is that I have assessed Ms Richardson to be a credible witness.
22. Secondly, there is no objective evidence at all that would support a conclusion that Ms Richardson's mother's short illness and death in 1972, aged 46, had ruined Ms Richardson's life in any way.
23. Further, if it is right to conclude that Ms Richardson must not have made any complaint to the deceased at any time before early 2003, there is no objective reason to believe that any circumstances changed after that time that would have caused Ms Richardson to make the complaint to the deceased.
24. The only evidence of any ill-feeling between the deceased and Ms Richardson concerns the issue that arose in late 2003, about the deceased's request that Ms Richardson assist her with enquiries in relation to the deceased's proposed euthanasia.
25. I am prepared to accept Ms Richardson's evidence on this subject, and note that in Dr Beveridge's 9 March 2004 report he stated that Ms Carr "expressed concerns about [the deceased's] depression and previous discussion of euthanasia…" This evidence corroborates to a degree Ms Richardson's evidence, as it shows that the deceased discussed euthanasia with Ms Carr.
26. The terms of the conversation between the deceased and Ms Richardson about the deceased's proposed euthanasia suggest quite serious cognitive dysfunction on the deceased's part. I do not say that simply on the basis that the deceased contemplated euthanasia, as that may be a course that many people in the community contemplate, although it must be said that the deceased's mental and physical state at that time would make it unusual for a person to contemplate euthanasia. It appears that the deceased understood that the Euthanasia Society could provide assistance to her in carrying out euthanasia, and she became angry with Ms Richardson when Ms Richardson informed her that an enquiry to the Euthanasia Society had revealed that the "Society does not come out to help you". It was not rational for the deceased to respond by accusing Ms Richardson of having stopped the euthanasia taking place.
27. It is in all the circumstances a matter of speculation whether it was the disagreement between the deceased and Ms Richardson on the subject of euthanasia that caused the deceased to change her will to exclude Ms Richardson. That is the only issue supported by the objective evidence that gave rise to a falling out but between the deceased and Ms Richardson. Ms Richardson gave evidence that she understood that the relationship had recovered by the end of January 2004, but that does not prove what the deceased thought about the matter. It is possible that the deceased invented the story about Ms Richardson complaining that her life had been ruined, to provide a justification for excluding Ms Richardson, when the real reason was that she remained upset about the events concerning the deceased's wish to be assisted by the Euthanasia Society to be euthanased.
28. Even if this speculation is correct, such a reason for excluding Ms Richardson would not be consistent with the deceased having the mental capacity to comprehend and appreciate the claims on her bounty, as it would be no more a rational reason to exclude Ms Richardson than the baseless belief that Ms Richardson had said that her life had been ruined by her mother's sickness and death.
29. There are other matters that seriously cast doubt on the cognitive ability of the deceased in the period leading up to the making of the 2004 will.
30. The conduct of the deceased in late 2003, in taking sums of $80,000 and $50,000 in cash out of her bank in order to store the cash in her apartment is concerning. That is plainly risky conduct on the part of a frail woman in her mid-70s, and there is no apparent objective justification for that conduct.
31. More seriously, Dr Beveridge recorded that on 8 March 2004, the deceased said she was highly suspicious of the motives of her friend Shelley and felt that in spite of Shelley's own wealth, she was trying to steal from the deceased.
32. The evidence is that some months before this statement, it was Shelley who travelled to Sydney from New Zealand out of concern for the deceased's capacity to manage her financial affairs, and who had physically accompanied the deceased to take the remaining cash that the deceased had in her apartment back to the bank to be deposited in a secure way.
33. In my view, the understanding that the deceased had formed concerning suspicions as to the conduct of her friend Shelley were highly irrational, and demonstrate that the deceased could not by early March 2004 remember what had happened concerning the return of the cash to the bank.
34. Other aspects of the deceased's conduct have been recorded in the evidence that cumulatively tend to support a conclusion that the deceased was suffering from serious cognitive dysfunction by March and April 2004.
35. Ms Richardson gave evidence that, in November 2003, the deceased thought her telephone and fax were not working, when they were. The deceased said that she did not feel good, and did not know what was wrong with her.
36. By December 2003, the deceased needed the assistance of Mr Bracks in order to work out in detail what her assets were.
37. Mr Muddle said that, when he visited the deceased in February 2004 to do the deceased's 2003 tax return, she had difficulty recalling her financial dealings. The deceased said on several occasions: "I'm a bit funny in the head but I'm going to beat it". The deceased appeared to forget who Mr Muddle was, even though she had known him for about 25 years as her tax agent.
38. When Dr Beveridge examined the deceased on 8 March 2004, the deceased could not remember her own address or that Dr Beveridge had called her three days before to make the appointment. She could not recall who Dr Beveridge was. She had never heard of St Vincent's Hospital, or where it was located. The deceased was highly suspicious of others. She thought of her ex-husband as a paedophile. It is significant that Dr Beveridge recorded that the deceased thought her husband had stolen all her money, but somehow the money had been returned. This evidence suggests, again, that the deceased could not remember that she had withdrawn the cash from her accounts, and that it was her friend who had assisted her to re-deposit it.
39. Dr Beveridge recorded that it was clear from the outset that the deceased's cognition was markedly impaired, as she could not remember her address, her age, her date of birth, or even her birthday.
40. Dr Beveridge's conclusion was that the deceased had a moderate severity dementia of the Alzheimer's type, and that she was unable to make clear and informed decisions about her future care and had no concept of her financial portfolio.
41. As I have recorded above, I am not prepared to find that the deceased's conduct at the time she was examined by Dr Beveridge could be explained on the basis that she was inebriated.
42. Some doubt is cast on the adequacy of the investigation that Mr Bracks made on 5 April 2004, when he administered questions to the deceased to determine her testamentary capacity. As I have noted above, Dr Phillips said that it would have been best to have the deceased's cognition tested by a mental health expert. Dr Phillips expressed surprise that Dr Beveridge had not been asked to provide an expert assessment of cognition on the day when the deceased made and signed her will. In relation to the suggestion made by Dr Beveridge to Mr Bracks as to how the deceased's testamentary capacity could be tested, Dr Phillips said that he doubted "that the process covered fully the criteria as set out by Banks v Goodfellow". On the crucial question of whether the deceased was able to comprehend and appreciate the claims to which the will ought to give effect, Dr Phillips said: "I am less convinced that this was fully tested". Dr Phillips said that the issue of whether the deceased had a disorder of the mind "becomes the area of concern".
43. The ultimate opinions expressed by Dr Phillips were put in a somewhat equivocal way. First, he said in par 35 of his report: "I am unconvinced, on the material available to me, that her dementia, on 5 April 2004, was of such magnitude to prevent her having testamentary capacity".
44. This opinion, with respect, provides little support for a conclusion that the deceased had testamentary capacity, as it is Ms Carr who has the evidentiary burden of satisfying the court that the deceased did have that capacity. For the doctor to say that he was unconvinced on the material available that the deceased did not have testamentary capacity is unconvincing evidence that she did have that capacity.
45. I accept that there is scope for misinterpretation of the true import of Dr Phillips' evidence, which may flow from too close an analysis of the precise way in which he expressed his opinion. That flows from his final observation in par 36 that, on balance, it "becomes more likely than not that [the deceased] maintained testamentary capacity on 5 April 2004".
46. Dr Phillips, however, plainly qualified this opinion by stating that it was given "on the information available to me". As I have observed above, before Dr Phillips gave that opinion, he was not asked to assume that the deceased had decided to cut out Ms Richardson on the basis of a false belief or recollection that Ms Richardson had said to her that Ms Richardson's mother's illness and death had ruined Ms Richardson's life. That in my view was a significant omission from the instructions given to Dr Phillips. Dr Phillips was given a copy of Mr Bracks' affidavit, which would have informed the doctor of the reasons expressed by the deceased for excluding Ms Richardson. However, as I read the evidence, he was not told to express an opinion on the assumption that the deceased's reason was baseless and the result of some irrational belief on the deceased's part.
47. When Dr Phillips was cross-examined on this issue, he initially responded by suggesting that the assumptions could simply suggest a "misunderstanding of the family dynamics". Counsel for Ms Richardson attempted to elicit from Dr Phillips an agreement that the assumptions were consistent with the deceased having an insane delusion. Dr Phillips rejected that conclusion. Counsel did not pursue with Dr Phillips the possibility that the assumptions were consistent with the deceased not having testamentary capacity because of a mental disability that fell short of an insane delusion. However, as I have recorded above, in response to questions asked from the bench, Dr Phillips appeared to accept that dementia falling short of psychosis could lead to the sufferer becoming obsessed with a particular train of thought which may not be to the severity where there was a breach from reality, but nevertheless becomes an obsession, an area of interest, an area of mistake, or an area of misunderstanding.
48. Dr Phillips expressed the view that the inability of the deceased, in her answers to Mr Bracks' questions on 5 April 2004, to remember her year of birth, the number of her address in Pitt Street, and her telephone number, was not inconsistent with the deceased having testamentary capacity. In my view that opinion would be justifiable if the deceased's memory lapses concerning these factors in her life were the only reasons for doubting her testamentary capacity. However, Dr Beveridge's 9 March 2004 report recorded that the deceased could not remember her former husband's full name, and her memory was wrong about the place where he was living. She could not remember her own address and had never heard of St Vincent's Hospital or where it was located. As I have recorded above, in February 2004, the deceased could not remember who Mr Muddle was.
49. While these memory lapses may not of themselves have been sufficient to cause me to find that the deceased lacked testamentary capacity in March and April 2004, taken together with all of the other matters that I have discussed above, they satisfy me in aggregate that the deceased did lack testamentary capacity.

Conclusion

1. In terms of the principles set out by Meagher JA in Tobin v Ezekiel that I have extracted above at par 13, I am not satisfied that Ms Carr has satisfied the onus of proof that the 2004 will is the will of a free and capable testator. The presumption from the fact that the 2004 will was rational on its face and duly executed that the deceased was mentally competent has been displaced by all of the circumstances that I have considered above in which the deceased has been shown to have acted irrationally and forgetfully in the period of about six months before she executed the 2004 will. Ms Carr has not satisfied the evidential burden, as the party propounding the 2004 will, of showing that the deceased was of sound disposing mind. On a consideration of the evidence as a whole, I am not affirmatively satisfied that the deceased had testamentary capacity. On the contrary, I am satisfied that she did not have testamentary capacity.

Conduct of Mr Bracks

1. In her submissions, Ms Richardson levelled criticism at Mr Bracks for failing to take adequate steps to satisfy himself that the deceased had testamentary capacity. I think that this criticism is unwarranted. In my view Mr Bracks was a conscientious solicitor who took his obligations most seriously. I accept Mr Bracks' evidence that the deceased did not act in his presence, or say anything to him, that caused him to believe that the deceased suffered from some cognitive disability that was so serious that it prevented her from satisfying the relatively low threshold required to have testamentary capacity in relation to a simple will. Mr Bracks made an appropriate enquiry of Dr Beveridge, who did not express a positive view that the deceased lacked testamentary capacity, even though when one reads Dr Beveridge's report, he observed many things during his examination of the deceased that would cast considerable doubt on the deceased's testamentary capacity. Mr Bracks followed Dr Beveridge's suggestion as to the appropriateness of asking the deceased questions in order to assist in the determination of her testamentary capacity. The terms of the deceased's will were simple, so Mr Bracks did not have the opportunity to ask searching questions to determine whether the deceased understood the effect of her will, which may have been possible if the will was a complex one.
2. While it is true that the real question was the reason for the deceased having excluded Ms Richardson from her will, and making Ms Carr her sole beneficiary, it is not easy to see how Mr Bracks could have investigated that question in a manner that would have made it clear that either the reason given by the deceased was a false one, or if it was the true reason, it was baseless in a way that demonstrated that the deceased's mind had been poisoned against Ms Richardson, such as to prevent the exercise of her natural faculties in disposing of her estate. The deceased had already stated her reason to Mr Bracks, and was likely to have repeated the reason if asked again. Mr Bracks could hardly have been expected to communicate with Ms Richardson to try to find out the truth of the matter, and it is not clear why he would have had to act upon information given to him by Ms Richardson that the deceased's reason was baseless, if that is what Ms Richardson had told him.
3. It is not part of the professional duty of a solicitor to ensure that his or her client has testamentary capacity, so that any will made by the client is valid. The solicitor is not an insurer for the validity of the will, but can only act with reasonable diligence. Where, as in the present case, a court later finds on all of the evidence that a client who suffered at the time from moderate to serious dementia was in fact actuated by some false belief concerning the entitlement of an existing beneficiary under a former will, and that the existence of that delusion, albeit not an insane one, has vitiated the client's testamentary capacity, the responsibility for that outcome should not be laid at the feet of a careful solicitor.

Orders

1. I make the following orders: 1. Declaration that the original of the document dated 2 December 2001 (a copy of which is annexed to the statement of claim and marked "A") (the "will") constitutes the last will of the late Beryl Lee Hordern (the "Deceased"). 2. Order that administration with the will annexed of the estate of the Deceased be granted to the plaintiff in solemn form on behalf of and for the use and benefit of Ann Richardson until Ann Richardson herself can apply for a grant upon such terms and conditions as the Court thinks fit. 3. Order that the Plaintiff's costs be paid out of the Deceased's estate on an indemnity basis. 4. Order that the matter be referred to the Registrar to complete the grant. 5. Order that the cross claim be dismissed.
2. As, in my view, it was not unreasonable for Ms Carr to propound the 2004 will and to seek to sustain it during the proceedings, I will give the parties an opportunity to consider what order should be made by the court in relation to Ms Carr's costs, and if agreement cannot be reached, I will hear the parties further on that issue.

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: 14 June 2017